19811215 TZHC Tanga

IN THE HIGH COURT OP TANZANIA LJ ?EAL AT TANGA : - JA APPELLATE JJRISDICTION -, CRIMINAL APPEAL NO. 55 OP 1979 -" (Original Crimiiial Case No. 308 of 1978 of the (District Court of Muheza District at Muheza.. Before: W.S.. MKULUNGtJ, 'Esq., D/JYhgistrate T8T$/OYOIANA........'.,.APPEtLJ 1NT • (Orig. Accused) Versus THE (orig Prosecutor) • CHARGE: Un1aully Wouñing c/P. 228 (i) of the Penal Code Cap. 16 Vol1 of the 1aws JUDGEMENT Sisya, 3: Apart from the compliinant himself there wa s also one Ivlartin Ngereza (pW2) who stated in his evidence that he saw the appeUant raise his panga and strike the complainant with it on the left arm: Both the complainant and pW2 Imew the appellant before A a result of the assault the complainant suffered a deep cut wound and fracture of the' left ulna The'medic1 officer who examined him at Bombo ho.pitdl- where he wa consequently admitted for two months classified the injury as grievous harm on the I3 (Exhibit * Somehow the appellant was charged with a comparatively lesser offence of unlawful wounding. One would, in the circumstances of this case, have expected a charge of doing grievous harm to have been more appropriate. Perhaps the learned Public Prosecutor at Miheza who framed out the charge would well be advised to put in more effort in • - * his job - - 2 - The appellant raised a. defence of mere denial. According to himhe was implicatod for no apparent reason at all 1 Not sir±iing.y the learned triçl Magistrate rejected the appellants defence and •proceeded to pônvict him as charged and sentenced him to two years imprisonment' The sentence subject to confirmation by this Court. In his petition of appeal the appellant is only making prote stations of his innocence. He raises no point of law nor does he adopt any new line of defence The issue involved in the matter IS purely factual restiiig on the question of credibility, The learned ta1 Magistrate believed the complainant and PW2 Q On my. part I have no reason to say that in so doing he erred in law... or /was in f a c t' 64 Indeed t1othingeSt3hlished nor did any fact establish itself 'to shQw why. the complainant and PW should conspire à.nd seek deliberatel-y- to impLicate the appellant, . In short, like the learned trial Magistrate, lam satisfid that the charge-as laid was sufficiently proved - . .. Taking into account the nature of injuries which. the complainant received all I can say is that the sentence imposd by the trial Court erra'onthe lenient side 1 I have thought of enhancing the same but I have eventually a1ndened the idea as the apeliant st hav 'completed serving his sentence by now This appeal therefore, failand I dismisn' it in its entirety elivered in open Court at Tanga this 15th day of December 1981 (H.E.D, Lya a) Judge 4..