19840524 TZHC Mbeya

4/c 'a IN THE HIGH COURT J' TANZANfl''. AT MBEYn APPELLIITE JURIFDICTIN' FEa I9$f \ HIGH COURT CRIMINAL APPEAL d.68 OF L982 J/! (Original Crininal Case No39 '1982 of the District Court of Mbeya Ditct-;-' Mbeya Before J.M. Ciyeyeu, .. ident i;Ia'r :'ate) DIRECTOR OF PUBLIC PROSECWTIOWSo . .APPELLAN. - (Ortrina1 Proaocutor) Versa r.IARIAI/r'd/o NWASESE) .R2SPONDENT5 JOHN Li'.ASESE 3 (Orig_!lal Lccusocl) UT tJ Lri LiLL,i\ This is an appeal by the DOPP, agatn:J the deciion of the Resident 'iagistrato cnrt wherohy th resondonts Mariam Mwasese and John Liwasese were acquitted in a charge of unlawful woundin.; cls 228 o' the Penal Cok. After perusing the record of the lower court end the memorondum of appeal filed by the State Attorr3y in charge of the Mbeya zone I note that thd following :atters were not in disputed Firstly it was not disputed ;Liat the complainant Lea Katule was the first wife 'f the 2n't undent John Mwasoso. Secondly it was common ground that 'although they had begotten 6 children, by the material date i., on 15/1/82, they were seperated and. that Lea Katule was living at her hone while John Mwasese remained ;ith the children of the marria-"e. Thirdly it was not isput; I that John Mwasese was living with the 1st respondent and regarded her as a second wife. Furthly it was common ,round that on 13/1/82 John Mwasese walked to near by shops and bought orange squash for his child called Lili and that the child on taking it vx-iitod, a fact which made hi -n to instruet the 1st responknt to take the child home and give it. medicine. - Finally there is no dispute that as the let :'eondont :- walked with the child Lili they met the coo1ainaaat Lea Katule / F 2 and that a fight ensUd resulting in the coiiplainant sustaining inurjes on her mouth and left thiieb0 As regards matters in diste the first issue was who was tile aggressor or p.t in another way s who started the fight? According to Lea Iatule, the 2nd respondent visited her for the first time after a considerable length of time had passed • and took the child Lili with him. She told him not to take thc child but the 2nd respondent insisted, and threatened her that he was prepared to see either himself or herself spill blood that day. She let him go with the child to the shops vihile she went home to collect a khana apparently to protect herself from cold. On retuming she eaw the 1st respondent walking with her öhild towards 2nd reopondenis home which was nearby, When she inquired where the 1st :eJoiTdont was sonding her child the later is reper .d to have said that the clild belonged to her hubba1d:a3ei wont n to oay that she had been looking for an opportunity to eiect her. In the course of scrambling for the child t he complainant held the 1st respoiiden, The later bit her. They fught and both fell U wn f The :;nd respondent came a1ong took a stone and hit the cop1ahant in the moith The brbthc.r of the comolainont and a 10 cell 1dder came to the scene to seperate the pa'tics. The evidence of the complainant was corroborated by that of her sister—in—law Christina Katule (PPf2) and her brother Fred Katule (PW3), But the respondents had a different story to tell the court. The 1st respondent stated that when the 2nd respondent told her to take Lili home to give her medicine she was carrying her oim baby whicY sbe tied, to her back, oraerea her child to go nome 9 that As she walked withi1i she met the complainant who/is the home the complainant was living in at that time. She let the child go but the complainant ordered her to stop and threatened"Leo nd.iyo utaniona siku zote ninakutafuta," The complainant then caught the baby the 1t respondent was carrying and caused it to fall down. The complainant then bit her left arm and started boating her0 Meanwhile PW3 joined in the fight to •assist his sister the complainant. As P13 hit the 1st respondent with his fist at one time he miseed her and the fist landed an the comp1ainants mouth. The 1st respondent admits having bit the loft thumb of the * -: — 0 complainant in self defenco. She goes on to say that when she cried out for help one Mwambela Mwanoni. (DI2) a 10 cell loader came there to serate them. The 2nd respondent came there after the fight Jhad stopped0 According to Mwambela Mwanori.t it was the complainant who started the fight by catching the clothe which tied the baby Df the 1st repondent to her back. The witness was also positive that the cOmplainant was injured on her mouth before the 2nd respondent came there0 It was further asserted by this lo loader that the 1st resoonien made a formal complaint to him but he could not summon the artios that night end decided to hear the dispute the oliowing day0 Before he could hear the dispute the complanant Lad already rCpoted to the Police which resulted in the arrest of the two respondents 0 In order to resolve the question 9 who vas the aggressor it was eicunben± on the trial magistrate tc assess tec credibility of the witnesses 0 It will be seen from the outset thul the prosecution case consisted. of witnesses who were Closely rolatd 0 Since the complainant was not in good terms with her husband and had every cause to hate the 1st respondent who was probobly the cause of the breakdown of her marriago her evidence had to be weighed carefully0 The seine amount of care was necessary in respect of her brother and sister in law 0 On the part of the dfence 9 - however 9 the lo cell leader Mwambela Iviwanoni stood out as an impartial person with no axe to grind in the case0 I Sin therefore satisfied that the decision of the learned trial magistrate to rely on the evidence of the 10 ccli loader was prudent 0 That evidence portrayed the complainant as the aggressor and. the 2nd respondent as having not been present when she was injured 0 I accordingly find no merit in the appeal lodged by the DO?P. The decision of the leaied resident mageetrate appears in the circumsbances to have been prudent 0 The agpeal is. sessed entirely. T -r - J0t0..Le CHUA At :.mea TT ' T J_J x 24'5/84 .'-M,1 1 lima0 LiRC..