19880805 TZCA Dar es Salaam2

... '· ,. IlJ THE COURT OF APJPE.:U, OF TAl:JZ.AlHA I• CRThiIN"AL APPE!l.L NO,, 141 1~ ·149 OF 1987 1 • LEO l<INYE,L'i. ) 2. ~TARGJ:..RETII AB.ON) • 0 0 O • • " o • • " " .APPELL.ANT VE?..SUS '.PBE PJTIPUJ3LIC ,, o • • • .• o • • • • • • RESPONDEi>TT (::,,ppeal :f'rom the comrict ion of ~he High Court of Tan~ani~ at T'dbora) (Korosso, J.) ~ ) Dc:,ted the 6'.J;h d2,y of November, 1987 ·J in i CJ.•iminal Sessions Case No. 45 of 1985 OM.1R 9 Jo,:i.e JUDGJ!l.filifT OF THE COURT 4 The two appellants, ma.n and 1-1i:fe, were charged with and convicted of the offence of Acts intended to cause Gr'ievous ha...'"m, contrary to section 222 (1) and 7 of the Penal Code. on 20. 7,,84 P.W.1 Christina d/o I;It;yama a school teacher and a neighl)our of the appellants, w·c:.s called to the house of the cppella,nts and she wondered what could be the 1Jli1tter, because she had. never been sent for before though she had occasion to visit them tlu·ce times earlier and was tho f'ricnd of thc sister of the second appellD,nt, :Marg2..1.·eth .t.,1.·on. The person who was sent to call her was P .. W.2 Lm•irence Nishinga an Office Attcmdant at the Primary Court, whore first J~p:pellant worked as a Hagj_strate., P., w. 1 was at tl1G.t time 8½ months J;>:i.'egimnt. She put on hel•' maternity dress wrapped her lower pc:,:d Hi th a kha.nga anct rcp2.i:..•od to tho house of tho e,1>pellantso She found First

;.~ppcllc.nt outside the housc sitting on a chair~ Th:iy exchanged gTectings m'ld he welcomed h01.~ in whore she foupd Second J~ppcllmit seated· in- the living room. P .. W.1 gi:-oetcd. ho:r and she responded., P. W• 2 rnishinga who was ov.t side al so got in ........ /2 .14 - 2 - the house and all four got seated i..11. the liv:L'Ylg room. After a feu p:cobing questions 91..:t to P.'H.1 by First Appellant ,10out her pregnancy and who was the father of the child, to which she re1Jlied that he was one George i\IwanalugBla, First .Appellant started . ... I· direct accusation to her that. the:ce uerE: rumom's cil'culated by her ~h 1 AJ;ipelant I s).. She d. onied. this and e:z:::,lnined that thc..t was not possible .r, r because she h2,d he.cl no intim2,te reJ.2,tionship with him., Second J. 'f Appellant at. t'.1is ju.nch°rr'e got up 1:1.ncl.. ,TGnt to the kitchen and came J 1· 1nwk behind p.,,-T 1 a..11d poured 1Joiling water on he:r. head and the whole 0 t l upper part of the body up to the stom2.eh was immediately burnt. P. W.1 cried out that :::;he i;,ras ",oeing killed. as s!.10 fell to the grotmd face ' 1 ~ 1 dm-mwards. Then Second A:ppell-:1nt st2_.:_::t0d raining blows and kicks on P .. W., 1 while she 1•;3,s lying on the gTorn1cl writhing in agony. Po~-T.2 His}1inga who WC:,G there in the J.j_vinc; l'OOffi managed to pull Po w.1 out of the house amid protest2,tions of

unfail'ness from the cou:ple who tried 1..msuccess:ft1lly to block }1im f:rom taking her out by tlle husband shutt:inc; tho doo1~ and :)lockinc; the rear door. The kJ1anga which p. :T. i wore and hc1d. dropped dovm from hor was eventually thrown out by one of the couple. P.,T:1 2 sr-.icl that not only that when the 0 hot wa tor was being poured ·by tlle wife on P. Wo 1 the husbc,nd d. id not do anything to :prevent it but he uas also seen closing the front door as well as going to the :cear door to block it when Po H.. 2 ma.do attempts to remove P.Ho1 from the hands of ho:,:- assailant., Tho huslJand oven :remonstrated 1-rith PoW.2 for not 2,lJ.owing his ,dfe free hand. to teach the savage a lesson, moaning P .. :T.1. Thereafter Po1T.1 wont to the dis- pensary and wo,s cb,~ossed and given :injection of PPF. She 1-ras all blisto:r.s and hci~ skin scaled. off. She remained in tho Dispensary fo1~ tho night. Tho following da;:T boco,use of tho seriousness of her • • 0 ... /3 \, - 3 - condition sho was rofcr1~od to Uzog-c1. Goverrtment Hospital where she remained as in-t,atient for tvm months., Sho aborted while she was in hospital. P.U.3 the He.rd Secretary who questioned P.w.1, and P .. W.4 tho , male nurse who 2,ttonded P. W.1 a,t the dispensary all testified. to have heard P .. 1-T. 1 mcmt ion Second .Appellant as her assailant.. P" W. 3 ◄ who mot First Appellant stated that tho

latter told him that it was his wife ub.o pom,ed hot water on P.H.1 while che was in theit hou.se. The defence of alibi by the 2,ppellants w2,s rightly rejected by tho J.oai·ncd trial j1..1.dge. They stated t!1c,t they were elsewhere and not in their homo at that material time and thcrefo:-cc did not know anything about tho attack on P.:·i.1, that two witnesses P.W.2 and P.1-T.3 had some grudges 2{,c',inst tho Fiist appellant because of some misund.e.,:,- st2,nding 7 in tho c:::sc of P. 1-T. 2 at ;1is place of work and. in the case of P.W.3 because the 112.ture of his uo:-i:k necessitated supo:;_·•vision lJy him as 8. M0,gistratc on P.1T.3, e,nd this brought clasheso Therefore t- i they fab:-ric2..tod the story out of spite and ill-will. This sto1°y of the First appolli:mt wa,s roj0ctoo as too naive and false and so was the,t of the Second 2.:,::rpellc1nt and their wi tnosscs., We aro of t::.10 same view that the offence was committed by tho tuo n.ppollmits in concert and in f1..,i_ll vic-w of P .. W.2 who was very i·emorscful thD,t ho should be insti·uncntal in bringing tho poor woman to such a fate. Acco:..•dinGl;? we find that tho t-wo Appellants wore p:i:oporly convicted and wo dismiss their appeal.. 'ii.... 4 DATED at· ~rnAHZA th-is day of A~t., '.1988. (L •~..,_1.•l.....• 1''-.w-:.....\,.,,;-u~Li:!.. '· TTi'~r.T:I) JUSTICE OF .A.PPEU. ._ :;, -:~--~~'l~ .. (:it. ~ .. I<:ISAWGA)

JUSTICE OF APPEAL I ccrtifj' that this is a t:r·. .1.O CODY of the original. A:; ( S. li //;kJI) DEPUTY IGiGISTP,.Ail.