Salun s/o Kamakete vs Republic (High Court Criminal Appeal No 67 of 1990) [1991] TZHC 2407 (14 August 1991)

E •• N .MUNUO,J. IN TH3 HIGH COURT.OF TANZANIA AT ARUSH,1• APPELL\TE JURISDIC'l'I ON HIGH COURT CRIMINAL APPEAL NO 67 OF.1990 ORIGIN.\L CRI:t:UN,\L C"\SE NO71 OF 1989 OF THE DISTRICT COURT OF MBULU .\T MBULU. BEFORE G.MOSHI Esq, DISTRICT MAGISTRATE SALUN s/o K.AMAKET}~ ..... ·• ..... APPELLANT V2RSUS THE REPUBLIC••••••••••••••••• 888PONDENT. JUDGJ1''Vi:8NT • . This is an appeal from Mbulu District Court Criminal Case no 71 of 1989 wherein the accused Saruni Kamakate was charged with assault causing grievous harm c/s 225 of the Penal Code. It is allegd that on the 11/11/88 atLositete.Villag_e in Karatu Division within M_bulu D·istrict in J.rusha Region, the accused wilfully and unlawfully assaulted one· Sembeo Longiru the;eby causing him to suffer a 10cm x ¾ cm cut wound on his left upper arm; 2cm x ¼ cm cut wound on.his right forearm; a 2cm x ½ cm x lcu --,··; . .. wound across the left knee a 2cm x ½ cm cut wound ·on his left leg, a fracture 5cm x ½ cm x ¾ cm on the left side of his head; a 2½cm x ½ cat wound on his. left leg, amounting to dangerous harm. The .accused admitted in his defence.that he inflicted the cut wounds on the complainant on the material day. He stated that he had 3 border dispute with the complainant and that previously the complainant had hit him with stones and with the blade of his panga so he revenged by wounding the complainant allegedly under provocation. fl The trial magistrate found the defence of provocation inapplicable in the circumstances of the present case·. The accused was convicted and sentence to 4 years imprisonic1ent subjec to confirmation by the High Court. He was also orj_ered to pay shs. 150,.000/= compensation to. the complainant& The accused is appealing against the conviction, sentence and co1:1penscition order • .........

/ 2 In his memorandum of appeal the accused criticized the trial magistrate t.:or nt admitting the aced's PF 3 form as an exhibit. He complained.that the complainant did not tender medic- bills apparently to justify_the :1wrded compensation of shs. 150,00/• He also bla;ned the comI?lainant for being the source of the problen. The appellant appGared for the appeal and stated that he did not ' have anything to add to his 1i.1emorcndum ?f appeal. "' · · · • ' · sentence and con?ensation Mr. Lundu, 1-earned State .\ttorney supported the convictionLresort order against th~·ippellant on the strong evidence on record, noting that he trial.magistrat h3d properly rejected the defence of . . ~ . " . ' . .. ....... . provocation~ . . . ; . . ,. The issue is whether the decision of the trial court is supp·o·r'ted by the evidence or. reqorq.~ · .. ,,·-'.·The · overwhelming evidence on record cannot but rend6:!r. the appeal absolutely devoid of merito The appellant was lucky the victi □ . . survived_fo~ he would no~ be facing n murder chreo Owing to th1 multiple cut wounds inflicted on· the corrrpJ!ainant.the court finds no cause· to. interfere with the ·deci~·ion of the trial court. . . . . . The appellant must no-te·· thnt a border· dispute does .not justify his barb_nric ass:iult on the··cor.1plaing.nt, his adversary. The appellant should have embarked on civil litigaion to remady ' · the· borde'r·. dispute, the ·course all pence loving n.nd law abi'ding .. ·•1' people res_ort to when 3. need :1rises e . ,,.. ., ·' In view· of the nb_ove rasons the. appeal is d,ismissed -in its entirety. The sentence of 4 yea.rs iDprisonment and the shs 150,000/= cooensation ·orer are tonfirced. It is so Ordered. E.N.MUNU()ll JUDGE 1418/199~~-- : At ,\rusha. this 14/8/91 Appellant: Abserit Re.spondent: Mrs .Surnari, Sta.tf! .\ttorney. · . '· ENM/em.· ..