19991129 TZHC Mbeya

• .. ''i' ~0 • 0 3 : IN -THE HIGH COURT UF TANZ1'.NIA AT MBEY/1 CR~INAL ilPPEi",L NO. 126 O'F 1997 (From Orir~in:'l.l Criminal Cnse No. 127 of 1995 of Kyeln. District Court at Kyela) TrE~ DIR~TOR OF PUBLIC PROSECTJTIONS • .. • • • • APPELL;\NT 1 o TA TU ;\.SED ) ·versus 2~.~ " JUMA SAID ) RESPONDENTS- }-~. MGENI s;,ID ) JUD(IEMENT ~WIPOPO, J. : .. The campl.:dnn.nt MP;iLAJUNGWA .S/0 KY!1MBA who testified as PW.1 while unloicling b_ricks '":1. ,1sht by his tractor on et plot he believedto be his. was attacked by th/ fmnily of the respondents.. He was hit with n brick and got' injured., He and his f:::unily consistirn:,; of the driver of the tr:J.ctor Brnison s/o Kynrnba who testified as PW.2 .'.l!ld PW.3 one Raja.bu ·s/o Ahmed the sum of PW.1 were completely overpowered by the respcndents and had to leo,ve the scene of o.ttack after they had unloaded their bricks. The respondents who were :::i.t the scene were the 1st respondent Tatu d/o Ased who testified ns D"!.1 who is the m-,ther of the other 2 respondents who has now died, so the o.npeol o.go.inst her has now .:1b::>,ted. with her de'lth and _c:m I t be deliberated on o.ppe'.tl c3.gc::.inst her ')JJY more~ The other responc1en'ts who-. were there o.re Juma s/o Snicl who testified as DW. 2 arid Mgeni d/o Said who testified as Dwo3• Both the rem;-::tinqer respo~,1~nts ::ire the children c~f the . deceased . 1st.· respondent : .· 'J:'3.tu ,.. d/o. . !1sed. '. The DoP .P·o was di,ssatisfied with the :i.cquittnl of the tw9 1st :1nd 3rd respondents ::,ml with the sentence of 6 months passed on the 2nd respondent ....as'. well _,. as his acquittnl in the 2nd. count. The D.P.P. hns been represented by the learned Mr. N:J.ngelo. (S/A~) whereo.s the respondents hnve been represented by the le2.rned Mr. Mkumbe advocate. The first ground of o.ppeal is ·that the convicted 2nd respondent Juma s/o Said was sentenced rightly to hwe his sentence susb.ined by this c .1urt. 0 He wo.s_ convicted of assault causing .3.ctual bodily h'.U'm contrciry to secti-1n 241 of the Peno.l Code ond sentenced to 6 months in jail. His c'~nviction was quite sound fnr he is the ,,me who actunlly threw the brick which hit PWol in the heo.d o.nd caused him to suffer do.ngernus h::rrm of a swelling in the heai:.~. and in the c.rm. The mrucimum pernalty for this .;ffence is 5 ye::-.r,s. The penalty of only 6 m.-,nths imprisonment I et:?,ree is on the lenient side for the 2nd respondent - 2· - Juma s/o S:J.id was toe d.:m?er:-:,usly dn.rinG and reckless to have assault0d the ccm-'.1l.:1in.::mt with a brick ,)n the heid thr:::>wn from a far. A brick so thrown aimed at the hencl was a dnnr;errJUS missile which could he.ve killed PW.l or caused fractured of his hones • . But, the 2nd respondent h::i.s already served his sentence of 6 months imprisonment. It is not fair to him to be imprisoned ngctin •.. I ther0fore enhcmce his sentence to a fine of Shso5,000/= (five thousand) _or 6 mon_t~s imprisonment, thereby .. . ~ making a totetl of 6 months imprisonment ·plus D. fine of 5,000/= or 6 months imprisonment in det,iul t of which he shall serve a totc1.l 'O.f .... 1 yeor in prison. He has alre::i.dy serv,3d the 6 months imprisr'mment. _ So, if he p:J.ys the additional fine of 5,000/= he ,:;hall not serve any' additional . ., imprisoni11ent -ferro of 6 months nt all. The appeal ag::linst the acqui ttnl of the 3rd resprmdent Mgeni d./o Said on the first c,.rnnt of J,ssr.1ult C:1using Actuo.l Rel.I'm ho.s also been challenged by the learned Mr. Nangel:1. Tho learned Mr. Mkumbe h'.'.l.s nrgued that . th~ co!!)plD.im.nt was tho_ first to nttack the deceased mC'ther which f-.-,rcad the 3rd resvondent to defon, 1 her mother and their pl,)t which was being i_nvad0d. by the trespass d the complo.immt. He ·further arged. the.t the ~rd resron1erit thr,ouw no store to ,the complninant. '. . . " ' . The_ leprned Mr~ Nani.ieL:c - State Attorney contended that since the rosp,,:1ncJents acted in common with common intention they shoul<l have been jointly conv~cted. re;~irclleos of what different kind of assault e2:ch party committed in terms of So23 ')f the Penal Coc:~.e which provides that when there is a common intention to do an unlawful purpose in conjuncti0n with ,,u;. anot_her nny in the prcsecuti::m of the .such PUI'l)Ose an offence· is co.nmi tted of such a n.J.ture th&t its cominiss{on was a prob.'lble consequent of the prosecution uf such common intenti,:m or purpose then enc:p Qnc ?f them will b~ deemed. tci h.'.l.ve committed the offencec The common,purpuse or intention of the 3 respnndents was to protect the plot which they believe<.~ '.trJ.s theirs. I c1.r;ree with the le.::irne'l Mro Mkumbe that it 11.as o. .. lawful purpose to protect the plot they t 11ought' w-'.ls theirs. But, _the evidence of PW n went further' thD.h th'.lt since it wo:s testified th:-tt thE; .late mdher cf the resportckmt utterc,~1 the following word.s:- amekuja" ':1eo ko.shech~, njooni (Todny there is trouble, jcin me, he has cc,mo:· to which,the 2nd responrlent respondended by threatening that:- :,Nitau::i. mtu leG'; (Tod:1y, I will kill someone) • •• 0 • • /3 -r: - 3 - With this prior '··eligerent incitement and att:.1ck that followed. by physically trying trJ stop the unloadinG: of the bricks on .the. plot the respondents exce6ided their right to protect whn.t they thought was their property mid unlawfullyembarked upon commonly assau}-ting Pd.1, PU.2 and PW.3. A common assnul t need• not · be commi ttecl by physical battery but it CD..n suffice to attack with ahusive w-1rds as well as.threats of violence ' actually portrayed hy overt motion of the body movement. The trinl ma;;istrate the learned Mr. Lilibe (lli) fo1,1.nd it as a fact tha.t tho respondents did abuse the complainant. They also :physically confronted the com-plaincints :J.ngrily b.nd threo.teningly., Their commonly: unlawful purpose wc1s 'fo as·sauit · the cGnii'11.:tindnt which tunounted to only _a common ass.stult ~hich 'is c1.n ,Jffence :under S.240 of the Pennl Coc1eo. Tbe 2nd resronclent I s impromptu and sudden twist c,f throwing a stJne at the head ')f the c·ompi.:::tinant was not contemplated by the Gtber two respondents, I hold in sus'tairiace of the finding of the lower. court. ·The 3rd respbndent therefore w2..s properly acquitted from the offence of assmµ.t causin:-; actual bodily -harm c0ntr:iry ··to section 241 of the Penal Code. But, the trial court should h2"Ve Gone · to find the 3rd resp::md~nt committed the rninor r. ffence 'of common assault c/s~ 240 of th_e Penq.l .Code. 1 I hereby substitute the con,ricticn of common assault c/so 240 of the . Penal C<=icle a_c;ainst the 3rd respondent. Mgeni cl/o Said and .finrl her guilty of~it accordingly. There is· a furtht'!r ::i.ppt3;.1,l .an the 2nd count of Malicious .Damo.ge to · ! pror)erty of the block o.nd bu.rnt bricks ngainst thG ncquittal of both· 2nd and 3rd. respondents on this court o The lecrrned Mr o Mkum½e has opposed this 2~d count vs :0-1jpeol on re:J.s~ms thn.t this· .criminal clpr1;~. was quite miscbnceived for the basic questi•. m of who was the tru~ .o_wne~ of the 'plot was not sol v~d o.ml h::1.s nc1t been dealt with in any· trial action r'{rst. · I agree th:::i.t so lon:? as the b,n sides claim ownershiP, of". the plot' th8y sh::mld ho.ve first settled it in a civil suit. But, that. do'esri 1 t entitle any p3rty' to rlestroy m.:1.liciously the pr:;-perty c,f another brought into the plot under the honest belief th::i.t it is his pr-~>perty.• The tric.l courts visit to the scene A crime confirmed thnt he found 7 bricks of block type·(out of 2000 pieces claimed) at the·scene and 36. burnt bricks (out of 300 pieces claimed) at the scone of crime. The trial court in his juc10 ement found it as .:J. fact that, I quote.,_ from the relevnnt i)ortion of the ju'd,;;;0m0nt: - ·•It is not in dispute that on 26/8/95 at around 5.• oo hours, the complainant c,ne Ky2JI11x:i. tobk his trp.ctor which had s,;me bricks ,mcl. snnd and wenf to offl~c:,cl them in ·,:::t certain plot at Mbugnni area, the first accused :.md her fo.mily :::;t::ip1::ied the complc1.inmt from ·'cfflo!:1.d.ing the bricks on ,, ·.:··. 4 - . "grqmds tho.t Ky:::\ll1h8. h,:1.Cl no plot tl}erea It is also not in dispute that followinh. ; . tho o..cts c'>f the ls~ s-::;cused anj her family ·stoppin,; the'complninant from offloading the ' bricks, there occurred some confr~mt:i.tion · · between the compl.'3.inont and the ,.:2ccused persons '. The question ;Jf' the bricks h(J.Ving been offloaded th<i,r,e w:1s solved by the tri::J. court by findinti; th2t thoy were ':l.ctually offloaded tµere. Evan the ·threats elf the 2nd respondent th2t he wo·:.1 d kill someone anu"' th·e ul..tL,mate · · assault h e cornm1· tt ecl upon th . e. :.complainant '. . · ; ty; h 1· tt 1ng · him with a stone \-J.J.S c. result' of the picture to st.ip in ~ffloadirt,-;:: of ( .. the bricks. H!1d tho compla.inont cc,ole'cJ clown ::md bo..cked awcy from. offloading the bricks certainly no· asso.ul t 'W:Juld have continued most. likely for · the ·responrlents would have succeeded in their mission of .stop11ing the t,,fflo3.dinr; of :the bricks in the plot in· dispute. After the offloadirn5 the trii:il c:-:•urt held th:.tt-,there was no pr.,of: that' the rcspo~dents. destr•·Jycd from .bricks ~,r tc:,ok :'f.W,YJ these bricks. If the restJondent's hc:d been seen t,2..'<ing o.w:Jy the brcks they , . I certainly wnvld not h::tve 'been mnerge,1 with a minor .:iffence of malicious damage to pro'!:erty. They w::iuld h2ve been cho.r1;ed with the more serious offence of Theft C/so 265 of the Pen::,.l Code. It is heard they were, not seen tnkin,,; a w:-ry the bricks in the undom::.1.0:ed form or clem::-cged form tho.t they were chi:trr:;ed with malicicJ.Uis dama'!;e to property. This wns a nec:::Gsary ·nnc1.· irr-estisth.hle follow up. event of the respondents after they' failed to· st:Jp thi unlo.:::,r1.in;I c,f the bricks tbey pre the '.ones wpo went ahe!J.d destroying th;~m so D.s. to ohli tero.tG tlmir presence at thaJ p:lot •. · The destroyed bricks left there would h~_ve exhibited their m-·uic'e to· property c:.s exhibited by the assault to the complc.in0nts p·er:ic.n. ·so, they must hn.ve rerw)Ved them from there to destz:-oy evidence. Nobody in th,.t vicin{ty ond the entire world would h:we been interested to ·take aw'Tj the destrJycd l')rick,s r.ui;'.Cept the res~,ondonts.. Tho complainwit· w,:::uJ.d not have hirect -:.:.r driven ':-1. tractor .there to offl,:iad the remainder 7 pieces 0f block·brfoks o.nd 36 tur;nt tricks! . All the sruno the 2360 bri'cks' in tot.::l s0em to h2.ve. hc::en over estimated for no trncto;r. bas. the co.po.city to carry 2000 block. bricks o.nc1 360 burnt bricks in one trip• Unfortunately the size. of tho b:ciclrn h:1.s not been given. If it is the ,· small size bricks of 4,: x 6 • x sr, bricks ,'.1 tractor c,:m corry up tG ·2000 bricks max:imum. If it is tl;J.e big block bricks of 5· x 10' x 18; it can' 1 corry 500 hricks. at maxirnu,"Tlo ilnd since it is alleged he ::i..lso cnrriecl sand then the totnl bricks if big would h:we horcily been r;ver 200 !.1Ild 5 small size they would not have exceeded 600 pieces of most likely. I therefore find that the two respondents the 2nd respondent Juma s/o Saidi and the 3rd respondent Mgeni d/o Saidi did indeed destrcy tho missinri; bricks from the plot in dispute which were cJffloaded there by the complainant. I therefore find tbem r~uilty of the offonce of malicious d'l!Il'lge of property n.nd convict them accorr3.in~ly under So326 acqui ttc:il on this C<)unt is therefore of the Penal Cede as ch'.U'r;ecl, then · _: :· · quashed and substituted by conviction. ( Sgdo) EoLoKo MWIP0P0 JUDGE 5/11/98 SENTENCE The 2nd. Ros1)ondent Junm s/o Said was already sentenced to tho imprisonment term of 6 m::,nths in the 1st count which was sustained by this court to m rvkl.itional fine of 5,000/= (five th:-;us-3.Ild) or 6 months imprison in default. He has Jlreo.dy served the imprisonment term but ho hrrn to serve the nddi tional sentence of pnyin5 the fine of Shs.5,000/= or to serve j8.il for 6 m,,nths. The 3rd accused Mgeni d/o Saicl was acquitted in the first count. But this curt h:1s convicteu fer assault cnusing actual bodily harm not for common assault c/s,. 241 :if the Penal Co:le. I sentence her to " fine of Shs.5,000/= or 6 r.-i,:mths mo impris:mment in default. a;n the 2nd. count both ··f them were :convicted hut this court found them with m?.J:icious d:J.Il1:1.~e to proi1erty c/s. 326 of the Pennl Coc1ee I sentence eD.ch one of them to pay e1. fine of 5 1 000/= or 6 months imprisonment. A warr;mt of arr-:;st is here1,y perm,mently issued. -:i.rso.inst them both until they sre arrested for serving this sentence~ Bef,:,re servin:3 they ccu1 ri:pply t•J set n.sicle this sentence so that they n-e heo.rd a chnhce to mitigate the sentence in 1 yea:r with mitigation given hy their advocate. JUOOE 29/11/99 is a.. true copy of the origin:11. judgment.