19741218 TZHC Mwanza

IN THE HIGH COURT OF TANANIA (Mwanza Registry) APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 206 OF 1974 ORIGINAL CRIMINAL CASE NO., 825 OF 1973 OF THE DISTRICT COURT OF MUSOMA DISTRICT AT MUSOMA Before L. J. R. Chua Esq0, Resident Magistrate MWESA NYAJVIWIWAGYA..................... 0 APPELLANT versus THEREPUBLIC ............................. RESPONDENT Charge; Unlawfully causing grievious harm contrary to Section 225 of the Penal Code. JUDGEMENT KIMICHA, J. - This is an appeal against conviction and sentence0 The facts of the case as found by the trial Court are as in the lower Court judgement which is reproduced below for easy reference:- "The two accused persons who are husband and. wife are jointly charged with unlawfully causing grievious harm to Musoga Kimoji c/s 225 of the Penal. Code0 The following evidence was adduced for the prosecution0 The complainant Musoga Kimoji testified that on 28/10/73 at about 8.,00 p.m0 he had been walking towards his home. He had been at Kamgega store0 On the way he found the accused with his wife and sister drawing water. The accused was f well known to the complainant. The accused then asked the complainant how it came about that he was around at that hour of day whereupon the complainant inter- - "why not?" The accused the started assault- rg the complainant with a fimbo and ordered his wife hd sister to join in the beating. The complainant ecalls having been beaten on the left arm by the 2ndaccused and on the right arm by the first accused. The b1ow inflicted by the first accused lead to a fractiI?é-'of the lower 1/3 of the ulnar as per PF 3 tendered in, court as Exhibit "A." The crnplainant raised an alarm and one Oman Selemani whd' had also been going home came to the scene and imlored the first accused to stop fiX!ther assaults on theomIäinant, Then first accused stopped the beatirgañd the complainant maned to escape and complainant s8tfiTat 4is rm had been fractured., Oman Se1mani has assured this court that there was moonlight.tha€ night and that he was able to see all the parties well and that he knew them before the incident0 - - ..- - - --: •,-•'• t- . :- - (2) The complainant has also stated that the accused. had a grudge with him because sometime in the past he had apprehended tl1è later for non-payment of tax in his capacity as:a member0 That evidence was not contested arid thyexplain the sudden assault0 In defence both accused persons set up an alibi 0 . They stated that on 26th October, 1973 they had gone.. to attend funeral rites in ±espect of the gran*dino theri. of the second accused and did not return home until 29th October0 They called one witness by the name of Joseph Nyamhanga who testified that he remembers that on 26th October, 1973 both accused informed him that they were going for a funeral and he remembers that they stayed there for three days and returned on the fourth day0 When this witness was cross- examined as to whether he is literate he admitted that he is not and could not remember on what date both accused returned0 It is of course clear that according to him both accused returned on 30th October and not on 29th October as stated by the two accused0 Now, it is important for this court to address its mind on the law appilcable to the defence of alibi0 As per the ration decidendi in the case of Leonard Aniseth Vs0 Republic 1963 E.A. 206, there is no onus on the accused to prove an alibi0 All he need to do is raise reasonable doubt. The question in this case is whether the alibi set up by the • accused has raised reasonable doubt0 In view of the clear identification of the accused by the complainant and his witness I find that the defencc' of both accused raises no reasonable doubt in this case. I therefore find that the prosecution case stands and that the standard of proof has been satisfied i.e. proof beyond any reasonable doubt. Both accused are convicted as charged0 Delivered in Open Court this 21st day of March, 1974. (L. J. R. Chua) RESIDENT MAGISTRATE Previous convictions: Nil0 Mitigations - 1st Accused: I have five children and two of them are at school. Three are at home and I am the one tking care of them with my wife. / 2?d Accused: I am the only one with my husband taking care of the children0 SENTENCE: Although I have found that the two accused collaborfd in the offence it is clear that the first accused played the leading role and also in- flicted the\blow that resulted in the gievous harm0 The role of She second accused was subsidiary and taking into ccount what the accused have said in mitigation, I Tirnpose the following punishment. ( The first accused is sentenced to two years imprisonment. The second accused 'is conditionally disch-arged on condition that she doe' notf 0comjt an offence for twelve months. (3) ORDER: Both accused to compensate complainant Sh0 500/= for the pain and suffering caused0 Right of appeal explained0 (L0 J. R. Chua) RESIDENT MAGISTRATE0" I am satisfied that the trial court has properly considered the facts and the law involved in this case and came to the right conslusion in convicting the two accused in this case0 I am also satisfied that the sentence was reasonable0 The appeal is, therefore, dismissed in its entirety0 Delivered in open Court at Dar es Salaam this 18th day of December, 1974 / ( v.. (M0 p0 Kimicha) JUDGE / • ,-__. • t ,--