Director of Public Prosecutions vs Rajabu Mwasala (Criminal Appeal No. 63 of 1997) [1999] TZHC 124 (31 March 1999)

J / IN THE HIGH COUR'l' OF· T/l..NZA.TUA ., AT DAR BS SALAJIJ~ CRIMINAL APJ>EAL N0.63 OF .1221. • (From the decision of the District Court of Ilala at Kivukoni in Cr'iminai case Noo564 of 199.5) THE DIRECTOR OF PUBLIC PROs.scunom, Versus Rfa.JABU MW.A.SALA o•ooo,ooooooo••cooooooooooooooooootloo4 ... • • cw• JUDGMENT .. .., @ Q L CHIP.6TA 1 J.: 4 • • APPELLANT • RESP .. ONDENT The respondent, Rajabu Mwasala,. was charged with the offence of triminaJ, trespass in the first count, assault caueing actual bodily harm in the second, third, and fourth •ounte, Uij~g abusive language in the fifth count, causing grievQus harm n the sixth count. threats of injury in the seventh ,ount, and threatening violen,e as an alternative to the seventh count, contrary to se,tions 299(a) and 300, 241, 89 (1) (a), .. ,; 2?5, 104• and 89 (2) (a) of the Penal Cde, esp;etively, The respondent __ j/fl ___ ovicted in respect of' the sec9nd count but was acqitted in respect . f, the rest of th ·chares, The· ·Di:t'eQtor .~f Publie· Prosecutions was

• . ( ggrieve9,/by the acquittals n reepe<;t of coUllts .ft· 3, - and 6 and so ·: --- . .. ~~ferred thie appeal, i Although the app@J.lant filed two grounds, Mrs K'1.b'.:_sa, ·learned state atarney, abandoned the second ground of appeal and ru-gued the appeal on the first ground alene, which was that the acquittals on those c_punts 1:·3.s against the weight e,f th evidence• In he.r S:.J.br::i1=,sion, there was suf!ic.ient oral and dgeumenta;y evidence whic11 proved the proseeution 1 s case beyo~J »ea'111able dou'gt. ·• •

2 Hr. Semgalawe, learned counsel for the respondentt supported the acquittals. In his submission, the third count was not established because the evidence of Prasija Felix (P.W.4) was not corroborated; that the evidence of P.W.1 was hearsay evidencei and that since there was a fight, it amounted to an affray and so the charges of assault were not proved beyond reasonable doubt. The prosecution's evidence was that on 21st July, 1995, one Rehema Sa.lehe (P.vJ.3) who was a head prefect of Mabatini Primary School, was supervising other pupils who were sweeping the schobl premises and throwing rubbish into a pit which the respondent claimed to be within his piece of land. 'l'lle respondent approached P.w.3 and angrily asked her why the pupils were throwing rubbish in his pit. tfoen P .w .3 told him that the pit belonged to the school; the respondent hit her twice on the head with a fist, and P.W.3 started crying. The respondent then angrily told one Aisha Mbarak (P.W.2), who was a teacher on duty, as to what the pupils were doing. PoW.2 went to report to one Hassan Ally (P.W.1) who was the Headteacher. Just then the respondent entered P .\rJ .1 1 s office and asked P .Vi .1 as to who had allowed the pupils to use his pit. When P.W.1 told the respondent that the area belonged to tre school, the respondent pulled out a knife and stabbed P .,j. 1 with it on the right elbow. In the ensuing scuffle 1 the respondent fell dmm. He then picked up a stone used for keeping the door ajar and hit P .'v-J .2 on the leg and one of the pupils (P .,-J .i~) on the head. Pupils then started throwing stones at him. He then left for his house. P.\rJ.1 and those injured reported the matter to Police and were sent to hospital for mfidical exami- nationo P.W.1 was found to have sustained a cut wound and bruises, P.W.4 ) sustained haematoma and concussion, P "It/ .2 sustained bruises, and P .w .3 sustained haematoma. 'I'he appellant was then charged with these offences. In his defence, the respondent Sci.id that during the morning in question, he saw a pupil throwing rubbish in his vegetable gardeno When he asked her wy she was doing that, the pupil did not answer. co:mplained to her.· Later he heard P .W. 1 uttering ' So h called P,W.2 and abuses. So he (the respondent) went to P.W.1's office to find out why ?.-Jo'! had abused him. I I \

• \ / 3 On entering P.W.-i 1 s office, P.W.1 picked up a chair and hit him with it on his finger. The respondent then left for his house and thence to police~ In acquitting the respondent in respect of the third count, the learned trial magistrate said that the evidence of P"W.2 required corroboration. With re.spect to the rest of the counts, he said that the respondent was defending himself, and that in any case, it was an affrayo I am inclined to agree with the learned trial magistrate that the evidence regarding the assault of P.W.2 and P.W.4 with a stone is somewat suspect in view of the fact that other witnesses who were in th office did not talk of the respond,:,nt using a stone. However, there was overwhelming evidence that tha respondent stabbed P.W.1 with a knife. The respondent tried to persuade the court by saying, in effect, that he assaulted nobody. This was obviously a lie, The evidence that he stabbed P.W.1 with a knife, as I have said, was overwhelming, and it is inferentially supported by evidence to the effect that the respondent went to the rolice station carryitlg a bloody knifeo As to the question of affray, I note that the respondent was throughout the aggressor: having assaulted Rehema, he went to P .vJ ., 1 and stabbed him with a knife simply because P ollJ. 1 had told him that the area belonged to the school. In my view, where a person assaults others and in the course of d.oing so he is injured 1 such a person ca.'1not take cover under the offence of affray. For these ret.1.sons, I am of the view that the respondent 1 s acquittal in respect of the third and fou1~th counts was justified. However, on my own view of the evidence, the charge in the sixth count was proved beyond reasonable doubt, and so the acquittal was against the weight of the prose- cution1s evidenceo With regard to the charge of criminal tre.spass in the first count, it is apparent that there was a dispute over tbJ ownership' of the piece of land. That being so, the question should have been dealt with by way of a civil suit and not by way of criminal proce2dings. The respondent's aequi ttal on the first co 1 mt, therefore, was justified.

• ' ) 4 For these r.easons, the appeal in so far as it relates to the first, third and fourth counts fails and is accordingly dismissedo However, the appeal as it relates to the sixth count succeds. The acquittal of -the respondent in respect of that count is accordingly quhed fmd a con·,iction is substituted thereforo It is directed that the record be remitted to the trial court which is hereby ordered to pass sentence in rspeot of the sixth count according to law, 31/3/99: Coram: t,bhote, DR B • .0 o CHIPETA JUDGE ... .-.-... For Appellant: Mrs Aboud State Attorney For Respondent: Absent CC; Shomary Court: Judgment delivered this 31st Mill'ch, 1999 in the presence of Mrs Aboud (State Attorucy) for the Appellant in the absence of Mr. Semgalawe, Advocate for the Respordent. (Sgd): F. S. MSHOT'i: DEPUTY REGSTRAR