19950623 TZCA Mbeya

~ , __ .,. • • j .1 ' •• \ IN THE COUHT OF 11::??I::,1 OF TJ!NZ1\NIA CRH:IIU~L .1P?B1iL NO. 31 OF 1994 BETYIEEI-.Y DEUS r!.i':/ESIGA. .. ... . . ' APPELLAr~ AHD THE REPUBLIC. • • • • • • • • • • RESPONDENT (1\ppe2,l from the conviction of the High Court of Tanzania E\t L"beya) (Iukude 2 J .J I I d1:1ted the 11th day of Fobruary, 1994 I in Cr.iJiti.nal .Appeal 1~ 88 of 1993 I .II .JUDGEl:✓:ElfT OF THE COURT i ) I\,, Asha Sadiki (PW.l) and Deus Uyvesiga,_ the appellant .ln l ,,I .... I this appeal, we-re hospital workers nnd at the time of the \ ! ; .1 ,. ' : \_,' incident they both were 1n a hospitkl theatre assisting th0 doctor who was operating on o pttient. A dispute arose I -., .I' I between the two leading to a fic,;ht in the course of which !• 1 1 I P','1.l sustained injuries includine:,; a fructured, jaw. The I' \' ' 8}):;?ellaht was ch8rt;ed in the District Court with. -the offence of doing griev9us harm contrary to Section -225 of the Penal I l I Cocle. He was acquitted but on ,.\]Jpc,al to the High Court that ' c~Gcision wc:.s revGrsed. He was convicted as cbart;ed 8.nd sentenced to six months' imprisonr11cnt. · It is from that decision that this appeal is prGferred, •. ,. ./2 J I I 2 Before us the appellant is represented by i\'fr. Ndibalcma, lec.,rned advocate, while Mr. hibise, l2c.rned Senior State Attorney appeared for the Respondent Republic. Mr. Ndi bale ma filed and 2.rgue d only two grounds of appeal 9 namely thet 'the appellai1:t' s defence of se lf-dcfence w2.s wrongly rejected and that the appellant was punished twice for the same offence. On the first ground, Counsel m9 intained that the appellant in his evidence had stated that dwzing the fight PW.l pull<.>d his private parts. · Leerned Counse 1, therefore, contend.Gd that the appe llc.nt w2.s, in such circumstances, entitled to assault PW.l the way he did in his endeavour to s0cure release from 11.Gr grip. The learned first appellate judge specifically considered that defence 9 and at lo,ne.;th, but rejected it c:. s being an afterthought. We could not fault him be cause 9 as he rightly 3r{sucd, that allce;ation is not supported by <J.' a!.1y of the witnesses, numberinJ 4 altogether, who were present at the thoatro and wi tne ssdd the fight~ What is more, the appellant never compl.:.ined to those pre sent 2.t the theatre or to anyorie whom hG rnet immedLJtely thereafter , I such.as PW.2 that PW.l pulled his priyate parts. Again the appellant never suggested to PYl.l in cross-ex.am:w.1.ation tl:12.t she pulled his private parts d.tu~ing the fight, ~nd that adds, to the view that the a:i_)pellant' s allegation has no truth in it. There was evidence that durint's the fight the appellant's ·l;rousers dropped down to the knees, and NJ.I'. Ndibalema strenuously contended that the trousers were pulled down 1---... 1, __ , . , '•• • 4,, 1,..., l I /; 3 !, by PW.l during the fight and ft~rtllor urged us to fincl that PVl.l mu·st have pulled the a:p_~1elLmt's private parts in the process. With duo respect, honcvor, we cannot aeroe. If there was any act of pulling the a:,_)po llant' s pri vato parts, such act would have been soon by the four wi tno sses who were present, and in particul2.r by PW.4 and PW.8 who noticed the appo 112.nt' s trousers dropping to the knees. Incleed the fact of tho appellant I s trousers dropping down w:::s explained by P'J .8 on the grotmcl that it was loose. Tht.'.t is to say the trousers w~:.s i1c,t secure enough on the E\i)lJ.ellant' s vmist and. therefore it could be expe ctEld to I slip or drop during the fight. f I I I ! I The learnec1 judge was therefore perfectly justifiGd to reject the 2.ppellant's defence of self-defence and we co,n find no grotmd to interfere. On the second groW1d Illr. I';;dibaloma submitted tl12.t. lus cli2nt was soveroly reprernandcd by his employer for wllz,t ho did, and so to convict him of <loing grievous harm nrnovnts to punishing him twico for tho same offence. For t~1is view ho referred us to 3oction 21 of the Penal Code v1hich provides:, n21. .~ person shall not be punish.Qd twice, oithGr tmdor the provisions of t~us Code or under the provisions of any other law for the sr~me offence:,. I I •..• / 4 j I , l ,; 'I 4 ':ii th due respect to tho karned Co1.1.nscl, th.is submission is cl2.Jrly misconcoi ved. The savcn"8 re:premand aller;oc1. to J1~wo been issued to tho 13pj}Ol1:,mt is no punishment ' j l)roscri bed oi thcr under the Pe:n~l Code or under any other lc.:iv, for the offence of doing eriovous harm. It TiiEIY very well be a disciplinc~ry sc1nctiOJ\ v;l1..~ch the ,Jp~;ie llant vs ern1Jloy8r was empowered by regulations or standing orders to impose on the 2,})pclll:lnt. T11;cit llowevcr, did not constitute punishment for the o.ffonce of doing grievous h~\rm created V...1.-ider the Penal Coc3.e. 'l'his grour~d, therefore, .i.s cque.lly without merit,. In the event; we find tho · ce.):;;io2.l to be without su,bstunce, a!1d 2.ccordingly we cUs,.uss it in its entirety. R.H. KIS.:U-iC1r.A JUSTJC:G OF ...:;.:;_,:z;SJ,L ... _____ L.~h. l2CLili\ JUSTIC:8 . ..,..... 0:i!'.,..........,.,_ .t.PJ?El-11 ......._,...___ D.Z. 1U:01Jl!A JUSTICE Of l,JZ.F~AL I certify tll2,t this is a ti~Ee crpy of the oricin,\l.