19940603 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ~S SALAAM

APPELLATE JURISDICTION CRIMINAL APPE~L NO. 47 OF 1994 ORIGINAL CRIMINAL CASE NOtrl022 OF 1993 OF THE DISTRICT COURT OF ILA.LA DISTRICT AT KISUTU Before Nyange, Esq., Rr➔ sident Magistrate• ERNEST ERNEST :BULULU I O ••••.• t ••••• e •••• APPELLANT versus THE REPUBLIC • • • • • • 4 e f t t t • e D • • • e • e ~ • ♦ I • RESPONDENT

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JUDGMENT MAINA:J J. ~rnest Ernest Bululu was charged with, and convicted t!, pmmtl'l assault in the· district c•urt of Ilala district at Ki~~l~ il\ Dar. es Salaam, He was sentenced t:, two years imprisftnment. He new ~ppeals,. · The charge fo~ common assault contrary to secti~n 241 ef the Penal Code was elearly defective in that offence .st oemm•n a.apult should have been laid under secti,n 24t o!the :Penal ,Ide, ~he appellant was charged under the wrong pr•vist1n the law, However, citing the wrong section of the law d~es ,r not •ause a11,y miscarriage •f justice, I do nit, theref't1re, ag»ce with Mr, llagesa that there was n• e!fence oonuni tted. The evidenee e·sta.bliBhed that the appellant aQQa,ulted the eemplaina.nt. It_j.• tru.e,there wa$ a .scuf!le, and it was in the course .of that s111f!J,e whieh was perpetrayed by the appellan~• that the ~,mplai• na.nt i.w.e Karim Hae;an WA.I was separating a fight between th~ a.pptllant and·J?,W,l .Amiri Kaehen~e. The evidence clearly sh•,wed tha; the app;J,lant was actually a;aaulting Amiri when the t,mple.inant intervened to stop the. fight, an_d the appellant 1u1:n~ tn the ,complainant Karim Ytu;.aan ,SJl.d. ~ lljJD., ~he de.. • ••• /2 2' evidence that the ·appellant committed the assault on the complai- nant was overwhelmingo Th~ appellant's mere denial was pr~perly rejected by the trial couri 1 in view of the evidence given by P.

W.1 Amiri, P. W. 3 Nicholaus Mvungi and the complainant, P. W.,2 Karim Hassan. The learned resident ~agistrate convicted the appellant 6! eommon assault as chargedo Mr~ Magesa submitted _that the sentence of two years imprisonment for common assault was excessive. Miss Mkwizu, learned State Attorney, submitted, ~n the other hand, that the complainant was seriously injured by being bftten on the finger, and she urged the court to find that the appel1ant was guilty of assault causing actual harm •entrary to section 241 of the Penal Codei and uphold the sentence. With greatest respect to the State Attorney, her arg~ent is·faulty in law. The appellant was .UQ.1 charged with assault ~~ausing actual bodily harm. He was charged with common assault and he could not be convicted of a more ser.ious offence than · there the ene with which he was charged. IfLwas evidence that the •omplainant sustained injuries, thf prosecution would have amended the charge but this was not done. I entirely agree with Mr. Magesal learned couns'el for the appellant, that the trial magistrate oould not convict the appellant of assault causing actual bodily harm because that tf!ence is more seri~us than the one with which the appellant was •harget_. The conviction for coznmcn assault was based 111n the eharge and the evidence against the _appellant. There wa~ ne evidence that the cQmplainant lest a lim~ or

dis- figurement ~n the !inger. The conviction tor commtn aesault is upheld. As for sentence, it was manifestly excessive for comm•n assault. The appellant is a first offender, and a young man aget about twenty three years 6ustodial sentence was uncalled f•r• He has already served about three months imprisonment. '!hat is jufficient punishment. • ••• /3 3 The appeal against conviction is 'di_smissed, and the sentenoe is reduced to s·uch a term as will result in the appellant's inµnediate releese from prison. W. J. MAINA

JUDGE 1&r·es Salaam ,J Ji.me 1994 Mr. M~gesa for the Appellant M\5~ Mkwizu, State Att6rney, for the Respondent. ,·. I