19710219 TZHC Mwanza4

I.- - IN THE HIGH COURT OFANZANIA \\\c tv\

AT MWANZA

APPELLATE JURISDICTION CRIMINAL APPEAL NO. 365 OF 197 0 Original Criminal Case No0 897 of 1969 of the District court of Mwanza District at Mwànza Before J.A. Mrosso, Ee.q., Resident Magistrate, JOHNNGUNA ) . . $ • . • . APPELLANTS JUMA SAIDI ) ......... .... * Versus REPUBLIC • • • • •••••• 0 0 0 S *5 4 0 • • 00 0* • 0 •••••••••• S'S Se • • • . Ei$PONDENT#. CHARGE: Aaau1t causing actual bodily: harm c/s 241 of the Penal Code : Cap. 16 Vol.. I of the Laws.. " JUDGMENT. 197 FS EL-KINDY, AG.J. The appellant (John Nguna and juffia Saidi) The first and second appIawt 'epeótivly and. Andreas Bahabe (3rd add.sed in the trial Côtirt) 4ere jointly dlaxged for asaii.lt causing atual bodily harm 61s 241 of the Penal Code. The appellants werd convicted tut Andreas Bahabe was acquitted. Each appellant was sentenced to 18 nidXths imprisontherlt s,ubiect:to confirmation by the High Court. They are now appealing against their conviction and sentence. Selemani (p.w. .2),.. the complainant, knew both appellants very well. Onthe 26th of September, 1969, at about 10 p.m., Selemani was walking. back to his house. On the way, be said he met the first appellant. He claimed that he greated him as usual. When he passed the first appellant, the later produced a stick from his back and assaulted. him. (Seleman) with it. When he was about to run away, he said the.second..appellant and the 3rd accused

appeared from infront of him. He alleged that the second appellant then struck him with a knife on the right side. ..of his head.. The firstappellant he,1d.a stone andhe was hitting him withit on the upper part of his left eye. He alleged that the 3rd accused thenthr.ew him on the ground., and he cried out for help. Rashidi (p.w. .3) and Hassani (P.W.4) went to his aid. Selemani said that the first :appei.lan.t 'and 'the S 3rd accused took heels and. disappeared in the direction of 'the hi1i. The second. appellant remained and threw stones at people who weregothgto his aid, ..but later he ran into his house which was. abou:t 70 paces from the scene of the iicident. Selemani said that h could see clearly because it was moonlit night. . Rashidi..said that: as.'be approacbe.d the scene, in answer to the call for, help, he saw. the. two appellants and the 3rd.. accused and that when he went nearer the second appellant threw stone's at him, but the stones missed him. He alleged that ha: ,coujid.see clearly through the aid of.B.tre . el lamp. light. . He claimed, that the night was not moonlit... He also alleged, that he saw the second appellant run into his house. . Hassani (p..w. 4) said. that he saw the seoond appellant run into his house.. He said he was able to' see him because there was moonlight and light. from:.a:near'by. street lamp. S . .... ..L.&. LU £1.L0 eience,bile

firstCL.LUb said bL1. L JULi 4. Li. UU 1LL arm and hurt himself on a stone0 He alleged that Selemani was the one who went to attack him but he avoided the blows and then Selemani fell on the ground. The second appellant said that he knew nothing about the alleged fight On his evidence, the learned magistrate found as a fact that Selemani and the other two witnesses could see daring that night as there was moonlight as well as light from the street lamp. There is adecai.ate evidence to support this finding of fact. He accepted the evidence of the complainant in so far as the the two appellanft were convicted, but he felt doubtful whether Selemani was abre to identify the third accused. He held that as Selemani knew the two appellants for a considerable length of time he could not have mistaken them, but he felt that Selemani could have mistaken the 'third accused, and he gave the acquitte benefit of doubt to the third accused and him. I 'think these findings of the learned magistrate as sound and as fully supported by the evidence, Both appellants are now alleging that Selemani, Rashidi and Hassani gave false testimony in Court. I can find nothing on record to imply as suggested this. I am satisfied that the learned trial magistrate was entitled to accept the evidence of the 3rd witness. I see no good reason to differ with his conclussion, As a result of the joint attack,

Selemani suffered actual bodily harm, to wit; a cut wound of -fr by * as paretal harm and caused. by a sharp weapon. He also suffered a'orasias on the face and head. There was caused by a blunt weapon The sentence imp'csed is one of 18 months on eaci appellant. This ,, sentence is justified bearing in mind that this was unprovoked attack by the appellants, at night time, and sharp weapons was used. I see no reason to interfere with it. Order: Appeal is dismissed in its entirety and the sentences are confirmed. Delivered in Court on 19th February, 1 97 1 - ( Z.N. El-Kin&y) AG., JUDGE. N -tabaye State Attorney for Republic'.. Appellants - absent - unrepresented.