19761009 TZHC Tabora

j IN THE HIGH COURT OF TANZANIA 9NOv 1976 J AT TABORA I APPELLATE JURISDICTION (Tabora Registry) CRININL APPEAL NC. 130 OF 1976 ORIGINAL CRTh.INAL CASE NC. k OF 197 6 OF THE DISTRICT COURT OF UR!YBO DISTRICT AT URANBO Before: F. N. Buberwa, Senior Nagistrate: SELEMANI tZj:.TAGA & ANOTHER •.................. APPELLANT (Orig. Accused) % versus THE REPUei_,IC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT CHARGE: Unlawful doing grievous harm c/s 225 of the Penal Code Penal Code Cap0 16 Volu I of the Laws. J U D G M E N T SISYA, J.: The two a12 11.uits, SALEHE and ONARI sons of SELEMANI KATAGA,were convicted of Doing grievous harm contrary to Section 225 of the Penal Code by the District Court, Tjrambo. Salehe was seiitoncod to three years imprisonment. In addition to this he was also ordered to pay Shs..2,000/= comopnsation to the complainant0 Omari was sentended to eighteen months imprisonment0 No order or compensation was made against him.. Aggrived by thedecisic;n of the trial Court they are now appealing to this Court and their 'ppea1s are consolidated. Evidence was given by the complainant to theceffect that on 16/12/75 at about 1.00 p.n. he left his house for his shamba. Ko wason foot0 On the way he saw Cmari standing a little distance awayfrom the footpath sand staring at him, i.e. the • complainent, with a fixed eye. He continued on his way and next he met Det .Sgt. Bartazary (PW.3) with whom he exchanged alutations nd parted. Thereafter when he was close to the • house of one Bandila, who did not testify at the trial, he, i.e. ccmploiant heard the squeaking of bicycle brakes berind :him. •..iust as he turhed his head to see who it was he was suddenly assaultd with what he, complainant, celled a stick on hisright hand wich was then fractured as a result thereof. The. Oomplainant fell down but he had already by then seen and identified ris essailant to be Saleho. Whilc he, i.e. the omplainant. was so. lying down •S1ehe struck him again on the right lcZ.' This time when he looked around he noticed that Salehe's brother Oman, was also present. He, Oman, had a panga which he then handed over toSa1ehe. Salehe then cut the complainant with the said panga four times before he subseque- ntly returned the same to Oman. Meanwhile as a result of the • alarm which the complainant was continously raising one Hussein Self (PW.4) arrived at the scene. Thereafter Bartazary (PW.3) . . . . . '. ./2 -2- too arrived at th6 scene. By then Salehe was still assaulting the complainant with his head while the latter was lying on the ground. According to the complainant after assaulting him with the panga Selehe returned it to Cmari who ran away with it when he saw Det. Sgt. Bartazary approach. The story as narrated by Hussein Self (PW.4) is to the effect that on the material day soon after mid-day he heard a person crying for help. He rushed to the scene which was along a pa th where people had gathered. On his arrival he saw the complainant lying on his back and Salehe was on top bf Shim and assaulting him, i.e. the complainant, with a hoe handle. According to Hussein the complainant was bleeding profusely from the head and his face was covered with blood. On seeing this ho. moved forward in an attempt to separate the two persons. Omari who was also pxsont then shouted at him and threatened him that his life would be in danger if he, Hussein, tried to flsageU the coriplainant. Fearing that Gmari meant what he said he, Hussein, then recoiled from his original intention to % separate the complainant and Salehe. Fortnately' a Policeman then arrived at the scene. According, to Hussein there were more then one hundred persons at the place where the assault took place. Det. Sgt. Bartazary (P!1.3) testified that on 16/12/75 at about 12.3 0 p.m. he was doiflg patrol duties at the trading centre. Suddenly a shopkeeper, one Bruno who d±d not give evidence at the trial, called him and told him that people were "killing each ot2-ier." The said Bruno pointed at the scene whereupon 33artazary rushed to the scene. On his arrival he found a gxoup of persons standing, one of them was Cm.rj. About five paces away from the said group he,' Bartazary, saw, Salehe lying on top of the complainant. The complainant was facing upwards and his face was full of blood. Bartazary then saw Salehe hit the complainant with : is head in a flurry of blows. On seeing this Bartazary went and got hold of Salohe who did not resist and pulled him off from the complainant. According to Bartazary the complainant appeared tired and he heard him cry that :is arm was broken.., From thescene Bartazarypicked up a hoe handle which had • fresh stains of blood Exh, "B". Eventually Bartazary took the complainant, S1ehe and the exhibit to the Colice Station. While the.ywereonthe..wayBartazary asked Salehe if he had sustained an in3uries hims1f. Saiche replied th -"t he had only a minor:b.ruise on his mouth and he showed it to him, .i.. :Bart.azry,: Phd complainant had 'head wounds and a swollen right arm. Bartazaryasked.the Salohe what the cause of the fight and Sc1ho replied, "this man (meaning the complainant) is boasting too much. He had recently assaulted r- y £ then. To-day I. have taught him: a .:lessbn." According to Bartazary when ho ?rrlved at the scone Oman was standing aheac of the mob and he was empty h - ndcd. Later wLiio be, Bartazary, was separating the complainant and Sal.dhe. Oman ran away from the scene. Lato - hO, i.e. artazary, SEtZ hii , Cnari, chasing the complainant's daughter. Later still when asked Orsari told Bartazary tnct the complainant's caughter had insulted him because of th fight between the conp1aiant and Salche. Another person vho clarod to have witnessed the assault is Mohamed Kabezi (P4.2)0 Ivohamed testified th t he rushed to • the scene when he saw other persons rush there. Ahead of him • • and also rushing to the same place was Sgt. Bartazary (Pw.3) who then went and stopped the assault. lohamed, howevor,'did not see Cmeri there, There was a hoe handle which was lying at the scene. There was, however, nopanga. • , ' ........../3 . • 7 -3- It is common knowledge that prior to this incident the complainant hci, on 2/12/75, assaulted the appellant's father ad acharge of asault Tas.by 16/12/75 tll pending against him, i.e4 the comp1.inant, in tne loca]. k'rimary Court. The Prosecution were therefore contending that the appellants had a motive- for assaulting the complainant. Sale-he in his defence told the trial court that when he met the complainant on the material day the latter asked him if it were true that ho, Sale-he, was hunting him, i.e. complai- nant, because- of the .ssault on the father of Salehe. Sale-he answered in the negative- whore-upon the complainant tl6 him he Viould teach him a lesso. He, i.e. the complainant, then picked up a hoe-handle Exh."B", and tried to assault him,. i.e. Salohe with it twice but on each occasion he, i.e. the compl a inant, missed. Sale-he then got hold of the said hoe handle. Thereafter the complainant butted him, i.e. Sale-he, on the month. Sale-he clung to the hoe handle. The complainant butted him again, this time on the left cheek. At that juncture Sale-he- punched the complainant who then let go the % handle. He, Sale-he, then started to assault the complainant with it. The complainant fell down. At that stage Sale-he threw the hoe- handle down and sat on the complainant while w-itng for people to come and separate them. The complainant then tried to squeeze his testicle-s whereupon Sale-he punched him twice- on the cheek. Omari is his defence said that he as in his father's house when he heard an alarm. He responded and rushed to the scene. he was the first to arrive but much to his embarrassment it was his own brother and the complainant fighting. Fearing that he may be tak for an accomplice if he intervened and stop the fight he therefore- desisted., Other people one of whom was P.4 however arrived and he, Oman, told them why he could not !itervene, Eventually Bartazary arrived and stopped the fight. Omari denied threatening Hussein when the latter tried to stop the fight. H also denje oin to the scen with a p -.na which he gave to bale-ne be-lore ni, Oman, we-n to hide it. - The learned trial Magistrate accepted the complainant's evidence, to use his own expression, in toto and he acted on it without reservations 0 • . In their joint petition of appeal which was drawn on their behalf by.learnedCôunsel the appellants rely on the following grounds, that is to say:- .Theré.was not. sufficient evidence to establish the participation of the second appellant in the beating of the complain-nt, 2.. The trial agistrate erred on evidence in holding that the .Medica]. report .orroborated. the complainant's evidence that a pan.a was use.in cutting the complainant. .• . The Magistrate erred in holding that since the complainant ws assaulted in broad day light there was no need for his evidence to be corroDorated. The conviction is bad•in.•lawas the trial Magistrate did not give roascns for rejecting theevicence of the first appellant •(Silehe) that the hoe handle, Exh."B" • . belonged to . the complainant, ••e•. . 14 V -If- 5, The sentence of three years imprisonment and cornepusation of Shs.2,000/= on first appellant and 18 months' imprisonment on second appellant are exce- In arguing out this appeal before me learned Couns'1 for the appellants, Mr. Tukunjoba, contended that it was wrong for the Magistrate to accept the complainant's story in toto while there are inconsistencies in it. The evidence implicating G-mari with the offence is th-t of the complainant himself and, to somewhat a tenuous extent, that of Hussein (P.4). The complainant testified thrt Oman rushed to the scene of assault with a penga which he handed over to his brother Salehe. Selohe then used it on the compla- inant. No panga was, however, seen at the scene. According to the complainant Salohe used the pana on him about three or four times and then returned it to Omnri who then went to hide it when he, Oman, saw Bartazary (PW.3) approach. No any other witnesses talked about the p - na. The learned trial % Magistrate hold in his judgment that since the incident took place in broad day light there was no need for corroboration of the complainant's story. With respect what the learned trial Magistrate appears to have overlooked is that it is common knowledge that bad blood existed between these parties: The complainant had assaulted the appellant's father and he had a criminal charge pending againt hin in a Court of Law. In the circumstances I think it was necessary as a matter of practice for the learned trial Magistrate to have looked for corrobo- rationon this aspect of the case. I am, therefore, of the considered opinion that it was unsafe for the trial Court to convict Oman. without corroboration. Hussein's evidence to me sounds unreliable. He told the trial Court that there was already a group of persons at the scene of the assault when he arrived. Hussein goes on to say that he, however, become afraid to intervene in the fight because Omari threatened him. This to me sounds absolute nonsense& Mussein as the evidence shows is older th n both Seleman and Cmari and besides this he is a loader of ten houses. How then could he become so readily scared by mere word of mouth•fröm Oriari, that is to say if at all the threat was really made? It. was Hussein himself who said that there were more than -one hundred persons at the scene. Again, one may ask, why then dit he fear to stop the fight: To me, it seems Hussein delibaratelyliod. due to the embarrassment which he must, have had because of his failure, as a local leader 1 to intervene when theie -was a breach o.f.the peace. For these reasons thelearned trial Magistrate shoutd not have placed any weight on Hussein's evidence. Apart from that there is no ott-icr evidence which tones to corroborate that of the complainant with regard tc complicity in tne commission of the offence. In theovent I allow th. appeal in respect of Cm ni and direct that, unless no is being hold on some otnor lawful charges, lo should be released forthwith Iron prison. Turning to Salehe, there is abundant And overwhelming evidence to shov th't he is the perscn iho assaulted the ccmplainnt to the extent th-t the latter suffered a fracture on his right n.nd and three cut wounds on the right, frontal and left sides of the heaa. Seleinani himself told the trial Court that.he asslted the complaIñantin self-defence. The learned trial ?agistrate repeated Salehe's story anc proceeded - '- to ccnvict him. a * • • • • . • 15 . I -5- p. The only eidenco available of what actually happened at the time thu ssau1t started is the complain-nt's word as against that of Salohe. The issue here is that of fact and rests squarely on the question of credibility. Unfortunately ownership of the hoc handle, Exh. "B", was not established at the trial. This would have been of much assistance in trying to deterr&ine as to who *as the author of the incident. Nevertheless Bartazary (PW.3) testified th t when he asked Salehe as to what had caused the fight the latter replied that he was teaching the complainant a lesson as he, complainant, was given to bragging and he had also assaulted his, i.e. Salehe's, father. Salehe in his defence said th:'.t Bartazary lied on this point but nothing was established to show why Bartazary should do so. Bartazary is a Police man whose duty is to assist the Court in ascertaining the facts. Besides there was no evidence to show that he had some interest in the case6 in the circumstances, one may then ask, if Salehe wasindeed acting in self defence when he assaulted the complainant why did he not mention this fact at the first % opportunity available, and that was when Bartazary asked him the cause of the fight? Salehe's failure to bring forward this important point earlier than. he did shows, in my view, that the sme is an afterthought. The cause of the assault must have been, as Salehe himself put it to Bartazary to teach the complainant a lesson. This was no dcu'bt, unlawful as in effect., what Salehe did was to take the law into his own hands& On my evaluation of the evidence I think the learned. trial Nastrate was perfectly entitled to find that the defence of self-defence was not available to Salehe.' In the event I do not hesitate to uphold Salehe's conviction which I do. Turning to sentence, Salehe ws a first offender. In passing sentence the learned trial Magistrate said that he took into account the fact that the assault was unprovoked and that offensive weapons wereused. Usually sentence is within the discretion of the trial Court. A Court of appeal can only interfere if the sentence is manifestly excessive or inadequate or if the trial M&istrate proceeded on the wrong principles of sentencing. .1 am not persuaded that in sentencing Salehe to three years imprisonment the learned trial Magistrate erred, The attack was brutal and without 1awftl justification. In the event I leave the sentenc'e imposed on Salehe undisturbed. However,as it requires confirmation, the said sentence is accordIngly confirmed. .. . .. :. . • c. • Onc n it is not. known how the learned trial Magistrate arrived, at the figure of Shs.2,000/. In my view thisaruountis qulte. considerable. 'In all the circumstances I reduce the amount of compensation to Shs.200/=. In the final result the appeal by Salehe is dismissed for the reduction in the. amount of compensation. Delivered in Court at Taora this 9/10/76. Tabora, .. ... . . .. . . .. ... . D. 9th October, 1976. JUDGE. Mr.' Tukunjbba for.t.h c appellant.::. : Mr. Teemba for the fiepublic.'" .' I certify that this is a Jtrue copy of the Original. ç -- - ' DISTRICT REGISTRB, . TAaORA.