Francis Mushoka vs Republic (HC Criminal Appeal No. 401 of 1972) [1973] TZHC 5 (10 April 1973)

—i IN ' j T.(7

• COtT F TA iy TI! ¶ T Mi1iZJ I : • . . . .. .. . iFEIdiTJURISDICTION . . . P:LiI.. 401 OF .1972 ,.. .. - . . . ' S •r . . . . ( original Crimn'1 C'sc io 77 of 172 o1 thc Dis -trict Court : of Kragwiiistrict. iykhaga.•be±'or.c :- t • . ..... . S , :. • :.- :. FRNCiS.MUHOKc.. . • . .i .: . !PF., iLLANT .. .. , . . : • . ' 'RSUS . : • . : • :: TH REPUBLIC . . . . . . . . . . . iESPO±DENT. j i CH RGBI 1st. Count IJn1wfu1 wounding c/s 228 (1) of thc Pcnal Code.
• 24d. Count Unlawful withding c/s 228(1) Of tjie Pcn1 Code. 3rd. Count 1âau1tIcauThg acuL oodily harmc/s 241 of tfle

Pcnal Code Cap. 16 Vol. 1 bf tlic 1iw. .-'-

• .- JUDGEi1 T :I+KXNDY, J FncLs fluahokc w ccmvictca of two counts of ulciful - woun1d.ng and one oourt of a5sult oausin actual bàil hrrn c/se 228 0-) and 241. He wa cntbnccdto conCirrrcit tcrms of mprisonmcnt for 3 ycare, 2 rcais -nd 6 mOntis, subject,tç bonirmio by th ign CouIt. lie arncaled a'inst cnvictions and scntencc. _ Thc apl wvs hçard in th cbsence pf tlic a pel]ant as he indicaed -that he did not WiSLI to at end, but ris grounds for apool werc ak-en into account. Thc iepublic cspdndent was eprcmited by the cn€d State Scflior i1 ttorncy Ir. c&ta. a - The. vidence, winch the lene iril magistratc accepted, showcd that there -was liqu-o in the h-ouee of in-tony 8. o i<yaragongo (fl13). The lquer was avail- blc tb the publlc. During the day time, the appellant wcnt to thc housc of tntony and p'rto k some drink bcfo'e he went to ins work of fisiing. 'ihe pllant was living with and in thc ar house of fia (PJ2) uno wse wiOw. domestic quarrel startcd etw on -the appellant and Iiariq. Niaria 1leed that the çuarrel arouse because she cfuscd to give nim some money which he rcqqtcd, and thon th a5pculent threatened to kill her, Sha ran to the house of Lnitony. Thc latter said tkat dh arrived a about 8.30 p.m sho found Tntony, aidJohn Kishonde (pi) They Qredr1nkxng. ntony adthrt -ted her in. hc told them txat she was rurung away t'ne a pe'llant who had thrdaehed ic-i' life, and that shG was sec-kng safety i -1 teh'ousc-. bou ho1ur 4lat•er, tILG appellant arrived, and Jntonyamt-ted him as wcl. ntony and John said that tic appellant as unarmed, bUtt Marie said that he was ioldiiig a pan'ga Thc learned trial maistte prcfered the 'vadcncc f Ltony and John. he said that M,ia was exagagarating tho indioent Th apcllant amittcd that he nad gone- -to the said nouse as eIlccd. ccordng to thc cvidcnce - olf-I iViaria, John arid 'n -tony, aftr the aipellart had entered, ie held the and of flaria and idcmandcd that she should go with him, bu-t bccausc of her previous. d1legation slie refused. Lana saio that she iiad b-ratcncd to tnrobi tha ppcllant out Qf her st3a bccausc of his thicts. s tic appallarit tnied -to d!ra It ania ot of tne LIOaS, wilc shc resisted, hntony ihi.ter.encd and told th ap.pcllant tht he did i1ot want and fight in his house. Not only that, ho sucpcsfLlly dregcd th a 1 ic1lant outside. /'niony said ±aat wcn thcy wcrc outide, - h apclant ut him wi.th a panga. and the medical report (Lxhibit D) showed that hc susaincd a cut opd on his wnast on the .lnci side end two o± his fingers were ±e -ter amputated* flhen hc was cLt, n-ton shouted for help and J-hn -Kfhonde we 9 - ,to,hc-lp him. John was also cut over

a...... .....2/ the 1ft s1aou1dr • causii iim to euf±.r a cut wond of 3 inchc long by 1 inch d6Cp, and another cut wound in his right hand. JQhflSid that .ppG11nt ws riolding a, pnga and that pr- tc-r he had b:an cut on the shou.ldar, he attemptad to hold the )Enga and this ice to his in1jury in I is had. ith rcrd to thc cviioncc of John ond ntOn, hc appcllant 11egco taat when he wntcc to tke sway his wife, thase tvo peop1c prcvcntcd nitn. ii:tony s1p.c-d. him nd fli tiia course of puBh±n hira out of the house, he hurt his leg at the door frame. He that when hews outside John heLd him and ntoay' assaulted him. H said tht he ai6 not know who cut Joh, nor did hc say how it caine to be that Lntony was hu.rt TIIC learned trial maistrata, accepted th version of the po ,secutipn, aad fpufld,T as,à fact, that t1in, 1 2imVll an cutihtonr and John with the panga, and, therefore, he was guilty of unlawful wounding on the 1st and the second counts. The evidence also showed that whenthc, appellan was drgipg his ife 1 iç assaulted hc and that he-n lie pus+d ther a'airst the wall she 1- i a5 uirt. The a ocllant didnot m-'ke anyafcrcncc to thisp'rt of tocutions cdcnco Thq -medical z'cport (Exhibit c) shdw&d"that she sustakned bruises in various part of her body. The leaned trial magistrate found the appellant guilty of 'assault causing actual badily harm. In his petition of a'pesl, the appellant arguad that th trial court erred when it accepted the unsupported evide'nc of 'tl?a complainants. He said that he was the husband and there-fore he was sntit led to ord:er his wife to 'gb with nim" and 'thO't' An-tony and John had unjustifiably prevented um nd assaulted him when 'tie wanted: to collect his wife. He said that he l wa's" naOt the- v itim. Hving given case-ftel tLrdught tb the 'ovience,' I fnd that the trial magistrate was entitled' 'to be-ie-ve the evidence of the complainants alone, in the circumstances 'jf this case. There is no general legal requimment, exce-pt is named offces,, that the-evidence of the complainants should not be accepted without independent corrobQration of such evidence iere such cvidence is sought, usually, itis eccousc thc trial court does not icl safe to act on such evidence olonc, but when such insecusity does not ci'st,' as it was in this case, the tris court can procced to act on un000rat-d evidcnce of the- com1lainants if it is satisfied tiat -the complainant was telling the truth 2 ntony and John had reasonable cause to far that t11 ppel1ant night injura his wife iaving re ard to the alleged threat, a good citizens, thei,7 were entitled to +ke- s 4 eps in prcvcntior of crime. Maria did not feel sale to go zit 2cr husband. Jnton -nd John did not persuade ilar not to go. ntony simply allowed her to seek safeshelter in his house. In -these circumstances, there was not ing to suggest that Antony , and ohn ware motivated by any other motive othe-r thai the dsre to grant sccurit to Mar ia i a tile learned trial'magistre.-te commented,' the-jr idence wOs' more. halançd than tht of the wife- I find t'ia,t' there is no cause-' tO' distub tds'.e convictions. The- learned triaZ m- isi ate imposed hepv3i sentences on the first nd the second count on th ground tht thh a',ellant hd used -a pangs. I agree with:.him -t'1-et it was serious thing to use a pangs. However, he was a first ofe-nder. There was no allegation that such use of pangas was 'revslont in" the District where the, appellant lived. .t is also a matter to be tkn into acpount that was no premeditated plan to use tne pangs. ' a had left it outside- , if he cane wij., it from'his house, and that 'he'u,c-d ,it when he felt that ntony s,nc, his calleqgue- were driving him out without all owing him to take his wife. Jxc'ept pro'bbl'th'e shoulder cut wound, none of the out wounds "era of very se-rious nature. This would tend to suggest th.t even when"tha oppl1nt' iiGd,thc said pnga he did not use it with any -rct force. Indc-d one of the wouids came to the effected because John mis2cla thc anga. For these asons, I -m of th view Th t the scn -tçnces, on tc first and sod- the scQond counts, were scvrc enc tt itwould c wrong . ...........3/

not to interfere with them. I reduce the sentenCe to one of 18 months on the first count and 12 monts on the second count. The sentence of 6 mont s on thc third count is fair. The terms of imprisonment should be served concurrent1y. Order: Except aS indicated, this npaeal is dismissed. Delivered in Court at T.,iwanza on the 10th day of.ftpril 1973. Z.N. EL—kIiDY, JUDGE. LOT] 1.PRIL 1973. Lppellant absent Mr. Mbilinyi State Lttornc-y for Public.