William Ndukai vs Republic (Criminal Appeal No. 50 of 1998) [1999] TZHC 227 (31 May 1999)

IN THE HIGH COUTT OF Ti.NZANIA AT AUSHA CR4INAL APPEAL NO, 50 OF 1998 (Original Arusha District Court Cr 0 C0 No0 202/98): WILI.AN NDUKAI • . e ........... o • o .. TELLANT Verus THE REPUBLIC RE3PONDEMT JUDGMENT: E.M.K. RUTAKANGWA, J . The two appellants William Ndukai and LosFcilari Ndukai aie 2iblins They were both convicted by the Arusha District Court of the offence of Assault causing actual bodily harm c/s 241 of th Penal Code Th wa s in Criminal Case No. 202 of 1998 of that court wherein the two appe- llants were fpurid guilty of having assaulted, w.th stones, their half- brother Sifaeli Niukai. On so being found guilty they were each Sentenced to 12 months jail. They have appealed, separately, to challenge the cowiction and sentence s The two appeals, Criminal Appeal Nos. 50 and 51 Qf 1998 have been consolidated 0 This judgment covers both appeals 0 - The evidence of the prose cut ion 'vihich led to the conviction of the appellmts was provided by PW1 Sinc. •d::, PW 2 1JairJ. ckai, PW 3 Laizer Ndukai and P 4 Jiiia Magasa 0 The last withQ3s (Pw 4) is unrelated to the appellants and PW 1, PW2 and PW 3 He is a doctor at Tengeru Government hospital who attended. PW 1 after the assault and him foundLto have suffered bruies on his shoulders caused by "findings' Accdrding to PW 1, who was found to be a credible witness, there is a misunderstandin; in their family 0 The same emanates from a past incident whereby the two appellants had their coninon fathe arred and incacerated and he stood bail for him., Tii:Ls infurL ted his two half - brothers. On the day of the assault, PL 1 told the inn irt that he was at work at his shamba Towards eaiiy evening (at. 60" p0m.) the two appellants found him at the shamba. They thefi began huni:ng

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(DW 3 and DW 4) is of no weight at all on this issue s Even • ,... 5 ,. assmdng that they witnessed the incident, it was only at the final Stage when they were either called by Loshilari for help or they went to the sceneon their own. I am saying • so deliberately because according to their., evidence they zLi to separate I the fighting "people" while Lo.shilari testified that he .was the one who called them allegedly !'to settle the situation.", W. o' than was truthful in his. evidence? • .•• - '

• The tfil cbiirt found -PW 1' and his twb i1tneàses (Pw 3 and t 4) ere te]iirig the truth. The only good rrason 'the -txial Resident :Mgi5trate gave in disbelieving the apellnt'w.is the contradictidñ in their evidence. This Lj5 ho he •üt it ttWihiam Ndukai do agree fhtthey counter attacked Sifael • by throithg him stones and .h- actually 'do not know when • they hilled (sic) him. This fact is- denied. by Ls1hilari - Nciukai that his brothei never threw any stone. Therefore here the fact t'hat the threw 'stone 11s withot" dispute' although DW 2 is becoming dishonest by denieing (sic) the. fact." •. . * • • It1s': quite -tru€i thht 14illiam admitted while under c'oss-iñ1- 5 nation that he did hit PW 1 with a,stone 4 However he hastened to add ,-at he did so in se1fefence. Unfortunately his po-ccused Loshilaii who. was with. him during the entire fracas to stifled, .thathe never saw William -throw a1ngle, stone at the .comp1inuft4 indeed Loshilari never
• saw or knew. what sent. William on the..ground DW A'sevidence is •.'also contrary to the evidence ofthe appell . ants, According to' bini he witnessed PW 1 and Laisi chasing .the two appellants with stones.. None of the appellants testified to that effept, It..iS .too,:obvious. then-that the appellants were deliberately lying.in their evidence in order.to 'their sav/own pecks.' One also wonders, if the appellant William was unjusti- • fiably assaulted by PW1 and managed to. escape,-why 1idr,he go backto confront PW 1 as he alleged? We would have expected him to run for safety and not seek farther trcubie. I am convinced he was lying on all this. The trial court therefore rightly rjected the evidence of the defence.

0 == 5 Having held the evidence of the appellants to have been cooked up, we are left with the unblemished evidence of the prosecution which proves the guilt of the appellants beyond any reasonable doubts 0 The appeals against conviction are therefore dismissed, As already noted, and this point was emphasized by Mr. Masara, this conflict is a conflict between blood brothers It is the duty of this court to assist them to forget the past quarrels in the family and be on talking terms. This goal cannot be achieved by the draconian punishment imposed by the trial court 0 Such measures, serve to exacerbate the family tensions. We have to look for a he ing therapy 0 l'nprisonment in situations of this nature are Because of this fact I shall allow the appeal against sentence The sentence of one year jail which the accused persons had already served for two months is hereby quashed and set aside and I substitute theefor a sentence of conditional discharge under section 3(1) of the Penal Code 0 The appellants are to commit no offence within 12 months 'rom today 0 The appeal against sentence succeeds accordingly. Delivered in court in the presence of two appellants and Mr 0 Masara this 31st day of May, 1999, at Arusha. • Ut'( r" •.' N JUDCF 3 1 /5/1 999 EMKR/vm. • •. ,0 t