19710820 TZHC Arusha4

U -- -S -- 4 .. ..... . r4 , H U,J26 S [ S. IN THE HIGH COURT OF.TJNZANIA AT ARUSI-L: 0 • S APEJLTE JURIDICTIOI o• • HIGH COURT CRIMII\TMJAPPEAL NO; 204 OF 1971 . ....ORIGINAL CRIMINAL CASE N 01 1717 OF 1970,

OF THE DISTRICT COURT OFKILIMPNJARO DISTRICT AT MOSHI - BEFPPE: J0 E. C. MASJNCHD, ES: RDSIDE7 MAGISTRiTE DONkLD s/0 JOHN AND SDIKI S/o GIRIKI: •. OAPPELL.NTS - -, VERSUS THE -PEPUBLIC : 0 0 3 0 . ' 0 0 5. C 0 C 0 0 0 0 0 0 0 0 0 0 0 0 5 0 CRESPO)\DENT CHARGE: Causing Grievous harm contrary to section 225 of P•na]. Code Cap0 16 Vol 1 of (T) Revised La'zs0 C, UDGMEI\/ BRAMBLE, J. The two appellants were charged jointly with another person for causing grevious harm contrary to section 225 of the Penal Cede0 They rre convicted and sentenced to twelve months imprisonment and further ordered to pay lOO/= to the shs0, complainant 0 The complainant al1eed that at about 400 a0m, on the 30th October, 1970 he was wal3jing along Kenyatta Sreet when a car came up the appellant, Sadiki, came out and butted him thereby causing him to losse a tooth0 He fell on the ground but afterwards got up and started to run 8vay he was hased and caught by Sadiki, he collapsed and the two appei1a - ts pulled him up0 PW 2 who went on the scene when an alarm was raised found the appellants holding the complainant on the ground beating him and saying that he was a thief 0 PW 3 who was ii'ith the complainant spoke of meeting people on foot0 He said that they all attacked the complainant and said that the police are no good0 The appellant Sadiki's evidence was:that while he was on his way from a bar he saw

three people pulling a wom'n and two of them saying that she belonged to them, He took aside the woman and the complainant attacked him with his head and there was a fight0 They and the second appellant vith other people separated them0 They afterwards chased the complainant who threw stones and hit someone. The v.Tomcn involved v-a-s the wife of his friend, the third accused, who was charged but acquitted0 He second appellant supported this story and said that IC-) 0000,-C 0/C, .1' ,.. ' • :- * 0 q -2- he followed in the chase but did not assault the complainant. Two other witneases confirmed the circumstances of the start of the incident. The learned magistrate found that there was a fight as the defence alleged but continued:- The impi'esion I get is that 1st and 2nd accused deliberately involved themselves in this fight with I the aim of harming the complainant, And this thy did peristent1y to the police lIne, Their hatrd and anger for Shungu lengthened when they discovered that he was a police officer. Shungu might have thrown stones at the 1st and 2nd accused but this would have been, if the two accused were wiser, a subject matter of another case. The finding in. the first sennie was against the weight of the evidence. There were two incidents, In the first only Sadiki was involved and it was in this that the complainant had a loosening of an incisor tooth according to

the medical evidence, There is doubt whether this appellant caused the injuring in self defence and he p'iust be given the benefit, There was no legal right, however, for him to chae the complainant afterwards and assault him, There was evidence to support the finding that both appellants assaulted the complainant after chasing him and they should have been convicted of the lesser offence.,, I will vary the conviction to one of assault causing actual bodily harm contrary to section 241 of the Penal Code, The learned magistrate found that the assault w'as because the complainant was a police officei' but having accepted the explanation of the appellants as to the circumstances of the incident I do not think that this was justified,. He imposed a severe penalty because of this belief, When all the facts are considered a sentence of twelve months is manifestly excessive. I will vary the sentence to such term as will ensure the immediate r.lease• of .the,,pe11ants as they will have already served a' to' about 7 1' months imprisonment. As the complainant .'brought the matter or himself I will quash the order for compensation. Delivered in Court at Arusha the ,day of August, 1971. 0 4 11 - r' :' , - 5 -... . • ''-"" - - - - t-'---" - ( E. E, BPAMBLE) 1'