19710115 TZHC Mwanza4

IN THE i-HGH COURT OP TANZANIA AT L37ANZA 4pe11r'.to Jurisdiction CRIMNALAPPEAL NO. 639 OP 1970 (Original Crinine.i Csc No. 428 of 1970 of the district court of Goita beforz S ° Vlengwe Esq., district nagistre -te). THADEO s/o PHILIPO ............. .APPELLANT (oRIcINAL ACCUSED) versus THE flEpT,JIC ................RESPONDENT (ORIcnrJL PROSECUTOR) Ci-IAfl-E— (i) Un1fu1 ossessjon of mosii c/30 and 34(1)f Act 62/66 end G I NO No. 451/68; end I 'GH (2) Unlawful wounding c/s 228(1) of Penal Code ° 1 o . / JTJ)LENT . EL—KINDY, Ag.J. 19 -: The appellant 9 Thadeo s/o Philipo, was charged with the oifc of unlawful possession of noshi c/ss30 and 34(1) of Act No.62 of 11 966 9 ed for unlawful wounding c/s 228(1) of the Penal Code. On.the first count, he pleaded guilty and he was convicted on his own plea, but his sentence was passed after the trial on the second, in which he pleaded not guilty, was concludcci He WS also convicted for the second count. In respect of the first count, he was sentenced to 12 months in prison and on the second count to 15 months imprisonment subject to c onfimetion by the High Court° Both terms were ordered to be served concurTently. The trial court also icade an order for the destruction of the knife alleged to be the instrument of violcnce. He is flGvV appealing against his convictions and sentences° In respect of the first count, thp appellant was found in possession of one bottle of noshi. liquor wi thoueiission pei He accepted the fact that he was in unlawful possession of the same. His plc-a in this respect was unequivocal, and theref'e his appeal agaInst conviction on tin first count is incompetent.. He Can only appeal againcrt the sentence, and I sir-il deal with it as such; According- to Bigila (P.w.i), the appellant knocked at the door of his house at about 3 a.u. on the 20th July 1970°; Bigila opened the door, and hc sew thc appellant end oske d him what he wanted, the appellant told him that he wanted to punish bin (Bigila) as he has been looidng for him for some tine. When he heard this, he went to call a police special constable (P.w, 2) who accompanied hire at the house. He said that the appellant, who was still knocking at. the door, took out his knife, vihcn the special constable wanted to hold him. According to the two witnesses, the cppel1c -n attacked the constable, but the constable evaded the blow, which consequently stabbed Bigila, the complainant. He was then overcome end cUsa necI In his deforco the appellant safd that he clicTi not do whet he is alleged to have clone, and that tin evidence-of prosecution witnesses, tho were four in number, was 4 not acceptable to bin. On this evidence, the learned magistrate accepted the prosocution s case ax convicted the appellant as chargecl In his memorandum of appeal, the appellant sc.id that the evidence \Ieo false as lie could not have attacked the complainant in the presence of a police officer, and in any case, there was no motive for th a'bteck Besides, that hu said, if he was guilty of any offence at all, he was guilty of af f ray, and therefore the special constable should also have boon charged jointly with him. I agree that the evidence does not clearly show Why the ape1lant went to the house of the complainant, and in the course of assault he injured the complainant, although the complainant's evidoce, ii acccptç., would show that there was something' the appellant held ag. ,inst the conplai- nsnt' However, it is not e necessary to prove the motive of ouch attack. The evidence showed clearly that the appellant was determined to do what he - went there to do, and the evidence established that he was the cggressor I am not persuaded by the argument that he could not have attacked in the pr000nce of the special constable. This is not only possible, and it is not unknown for such thing to happen, but the cvi denc showed that he did in fact attack the police officer who dodged the blow which fell on the complainant. complainant iiistead of on the The fact that the blow fell on the/special constable to whom it was diretcd, does not flake him any less guilty. As for the argunent relating to affray, the evidence does not support that offence as the constable did not go there to fight the appeiant He went there to remove the appellant from the hems: of the complainant, end instead the appellant became eggreesivc I agree 9 therefore there was adequate evidence to convict the appeUant' As for the sentences imposed, these do not bear any relationship to the gravity of each as envisaged by the legislation- The legislature views unlawful noshi more sen ously than unlawful wounding However, the sentcnc a are not so excessive as to warrant interference' The sentences are confin:ed The learned magistrate ordered that the haife should be dostroyedT The ltonied magistrate did not quote under what provision of law he made thai order I could find no provision in the Criminal Procedure Code which empowers the trial court to order the destruction of the weapon in this manner. The order is illegal and is accordingly set aside ORER— With the last exception, the appeal is dismissed in its entirety. Delivered in Court at Hwenza on the 15th January, 1971 -2-' (z. 'N. El_Ki.ncly) - AG. JUDGE" Sanatta, Senior State Attorney 'or Republic 15/JJl971 Appellant absent, unrepresented