19910225 TZHC Dar es Salaam

•, AT ]]}tR ES S11.L!:JJvT 'It ..., ..- #'-• t t,;l APPELL1.TE JURISDICTION HIGH COURT CRIMIN.,:;.L .APPEAL NO. i 61 O:F 1990. ORIGINLL CRIMIIfAL CASE NO. 21 OF 1990 OF' THE DISThICT COURT OF 1GB1i.H1~ DISTRICT 1~T KIBAHA Bef~,re J. s. 1\.Lte:1y,. , .,Lq. 1 , :Principal/District Ivl8gistrate J"'IMU llARASHih. W~~ ••• , ••••••••••••••••••••• APPELL.i-i.NT ' (Original Accused) VERSUS THE UNITED REPUBLIC ' ...................... . RESPONDENT (Original Prese-cutor) MKWAWi., J,.G. J, JUDGNE.NT This is an appeal from a decision of the district court . ' of Ki baha dirtrict whereby the appellant, JIMU B.i..R). SHIKWA, was charged with causing grievous harm contrary tc section 225. of the Penal Code. The trial court convicted him of the Oharge and. sentenced him to a ter:m. ·Jf three years' inprisonment·. He was further C rdered t O pay Shs. 10' 000/= as comp~-~satL.m t CJ the complainant. Being dissatisfied with the judgement and sentence he now appeals to this 08Urto The evidence at the trial conclusively established, I think, that on 3 October, 1989 at about 7 ?.m. the com~lainant • NICOME] MULrA, ( here in aft er ref erred as _the c0mplainant) who at the· :r,ele-rant periou was a student gt Kibaho Secondary School, was assaulted, Jt is common gr6utd that at the relevant period the complainant was nomin~ from the dining h~ll on his way ·t,:,ck. to his domit::.,ry. In the process, the pre~ecut ion alleges, the appellant· who was cc>rning ,from behind .,. kick~'d,J~irn and sent him crashing to· the ground. The c:.:;mplainant_ 4 _ _ _ •• • ~$ a result sustained a cut wound ·1n the head which was almost 3 o.r.i ; - deep.· It is common ground thot the complainant los~ conscic:usness and l✓ as subsequently hOSl)i tal.ised fur u ~r:u_p;Le of days at the Tumbi hospital at Kibaha,. J.ccording to the evidence I . of PW7 Dr. KIKli.Sfu., a UewrGl Surgei)n at the .Muhirntili Medical ..... /2 ~l"••"-·"•·•f'·''•i.l't,•. ;;, 1~0,,j•" . ' f,ft',i . ~-i-' . ,I ' ~)· iCentre w~ere the CJmplainant wos subsequently referred, V . , l it is evident that ~he complainant had suistained head injuries and had develoj,;ed neural c:;-_;lic~;tiuns which in turn affected 1 his ri;h~ ~anG eye" The only evidence given at the trial touching upon the appellant was that of the complainant himself whose evidence was to the effect that at the material period, shortly before the incident he met with the appellant who was walking on the opposite direction. blmost immediately thereafter, he was knocked off his .feet and he went sprawling to the grounC: where he lost his senses: There was also the evidence of PW 2, STEPH.A.NO NJ.RO, PW3 BERN'"~D MICH.i.EL and PW· 5 JOGEPH . BONIF1~CE which, were to the effect th,. t on the relevant \L:.rte as they were coming from the dining-hall on their way to th~ir do:ni torys they saw the complain::mt crasf1in 6 to the . . ground. They also recollect seeing the appellant flee~ng from the See~~ of the incident. It is however not clear from thetr evidence as to what was the :interval between these twJ incidents. The learned tri1-Jl magistrate accep_t ed this evidence in its entirety. In arriving at this decision .he aypears to i~fer. the apfelant's guilt from his act of fleeing from the scene of incident·• He reje0ted the appellant's testmony which 6mounted to r,o more than a gE.neral ·,1~nial of the charge against him. Dr. Lamwei, the learned counsel for Dypellant, t}.G submitted thut the evidence against the a.1>ellant was entirely circumstantial. The only evidence :JgD. L1st the a:ppellant was'that he was seen taking to his heels soon after tbe incident. The learned counsel su1mitted t~at this act on the part of the appellant is not necessarily i~consistent which his innocence as it is capable of severDl explainations. H~ contende~ that one possible explsinatica 0as that he became_ apprehensivL: 811d feured tlrnt those who h: . c ;atihered at the scene could hav~ set u1Jn him ~n nere suL~ic~on~ He also contenaed that the trial magistruta erred to failing to consider the possibl0 defence of acciGent. In rebuttal Mr. Kamba, the learned StGte ~ttorney, argued that the defence of accident wos not opot tJ the ,,ppellant as his defence was a general oenial. . .... /3 t,_;. ' With unfeigned respect to the learned trial magistrate I am unable to forbear from r~,-.itrkin~ that the quality and quantity of the evidence in the scale. against the apyellant, particularly s~ when the evidence against him was entirely circumstarttial, to·my_mind did not w~rant the conclusion the learned magistrate arrived at. It is not without respect that for the reasons I have endeavJured to give, I am unable to persuade myself to share the learned mGgistrat es' opinion tha_t the alleged guilt was established beyond r,_ :.rJo::.-:~~ doubt. The appeal is acco~dingly allowed, the oJnviction is quashed and the sentence im~osed theon is set aside. Unless his personal liberty is otherwise assailed, the appallent ~~ re<lease.a from custody forthwith, '<1-rti(.. l,v.,·,; -·•..' /" -:-,... •'·I. ,.,~,,_,..., ·, -· J. J ,,.,-ffi{WAW1:1. i~G. JUDGE 25 - 2- '91 Court: The judgment is delivered i~ the presence of Dr+ Lamwa:. for the appellant and Mrs. Ph:ilip ,' the Ststf:l Attorr;.ey, for the Republi·c. \. $/;£.,,,.,;17vv ,.-, J" J. ~ A 11.G. JUDGE 25 - 2- 91