19721222 TZHC Mwanza2

V..- 1.- co IP THH HIGH COURT 01 TJZAHIA AiAJZA TI APPILLATI: JTJIDICTIOH HIGh COGET CHII'IIIL4L APPZAL HO. 31/72 (Original Criminal Case Ho. 261 of 1971 of the District Court of Kasulu District at ICasulu: Before: M.J. Lungomba, Esq., D/M). LUHPI:cB s/o ICAVUBA . . . . . . . . . . . . . . , . . . . . . . . . , . . * ...... .APPILLAIIT (Original Accused). Vs THB IEPOBLIC RESP0UDtNT (Original Prosecutor) JUDMEITT: E1—Kindy, J. LAUBEHCE s/o KAVURA was chargcd with and convicted of unlawful wounding c/Ss 228(1) of the Penal Code Cap. 16. He was sentenced to imprisonment for 18 months subject to confirmation by the High Court, He appealed against conviction and sentence. The ovidcnco which the trial court accepted, disclosed that the complainant (pw,i5 and his fathcr (P1.3) wec at a pombe shop on the 22nd day of August, 1971 in'thc afternoon. A fight broke out between thc complainants' father and one Bwa'tcmba, and the Warundi tribomon, who were there and who were guests of Bwatemba, joined on the side of Bwatcmba, and naturally, the complainant and his brother—in—law (PW.2) went to the side of the father of the complainant, although they (Fw.i & 2) said that they just "intervened" in the fight. In the cdrse of this fight, the complainon was hurt, on the forehead, as per E:da.B. 'He sustained a lacerated wound which was classified as harm. And the issue was one of identity of the person,, or parsons, who assaulted the complainant. The complainant said that when he was removing his father, he was hit on the back of the head, and thrown on the ground. It was alleged that it was the appellant who did that. He denied that it was somebody cisc. If the complainant was busy removing his father, it was unlikely, in the confusion of the fight, 'that he would have been in a position to see who assaulted him. His brother—in—law said that the complaiiiaiit was first hit by a hand and thch with a stick, but latcr changed and said that it was PW.3 who was so hit i. his father—in—law (Pw.3). Did he really see who was beiig hit? This appears to be in conflict with what the complainEeit himself said. And the father of the complainant (PW.3) said it he saw the appellant hit the comp- ainan't first with a learchand, and then threw him to the ground before he aseaulted him with a stiole on the forehead. His version, as it can be seen, was indisagrcemant with what the complainant and his son—in—law said. The relationship between them is by no means un—important in this case. On the other hand, the appollenb said that he did not assault the appcllnt although he went to try to prevent thc fighting. His witness (DTI.i) said that the appcllant did not..assaul -t anybody on that day. There was no evidence bf any motive, for th., fight or the assault of the complainant by the appellant. ileverthaless, the learned trial inag - istracc held that the appellant was the one who assaulted the complainant. The learned State Attorney declined to support 'the conviction on the ground that it was impossible to rule out h:' possibility that the complainant could have mis-taken the identity of the p re on uho assaulted him during that conflagration. I agree ei -bh him. The versions oiv'en by the three prosecution witnesses is in extreme conflict. One cannot say which version was the correct one. One is inclined to conclude that the conflict, in evidence, would not have been there, had the three principle witnesses been abe to sc.c clearly who assaultbd the complainant. .., 4/2 -2- 1t was, txicrcfoc, probablo that it was not tnc aijoollant. Having rcard to thsc ma:s, it cannot be safoly arucd that thc conviction wa pi'ovd - bcyond rcasonablc doubt thc conviction is cjuashcd and the scntncc ct asido. Appc.11ant should bc. rolcasod forthwith unlcss ho is rcçuii;d for sonic othcr lawful purposos. Dclivcrcd in Court on 22nd Dacombor, 1972. , z ----- (z.i. E1—K) JUDGh. .22/12/1972. ppa1lant...—bscnt, Mr. Mbilinyi..— S,...for Hapublic.