D.P.P. vs Ramadhani Penga (HC Criminal Appeal No. 1 of 1989) [1990] TZHC 469 (24 October 1990)

IN THE HIGH COURT OF TANZANIA p '; A 0 U.SHA APPELI,ATE JURISDICTION HIGH COURT CRIJll(fl\l'',r, APPEAL N'1~ ~~ C"" 1989 (Original Crirnin:-1 C~:-::: No. :5:_ -,,'l ::.988 c, the Resident Magistrate's Court of Arusha District at Arusha ~ }2,_E._9..~~ · Ao MAFWENG.!\ ~ E qo, Rc:::sident Magistrate DIRECTOR OF PUBLIC PROSEC"JTI'"'N ~ Q" "Q o" o. o. o o o. o •• APPELLANT :: 0:.:-iginal Prosecutor) RAMI\DHANI PEN GA ODO O O e Ou a D a Dao ft O O <' 0 ~ 0 o o ". O • e" O O O .RESPONDENT :o~~-g:: nal Accused) JUDGMENT This is an appeal by the Republic protesting the acquittal of one Ramadhani Penga by the Distri:::t Coi:t of Arusha on a charge of reatening .violence, contrary to section 89 (2) (a) of the Penal Codeo The respondent Ramadhani Peng had been char.ged w_ith two offences. C>n the first ount, h.e had been charged with entering .. a dwelling house with the intent to commit .a felony· therein, contrary to setion 295 of the Penal Code. The felony ' ' ' ~ ' . he was intcmt to commit was to threaten violence, that is to ,: .. say to lcill one Hemed Mohamed. Sarumbo wi_th an axe, which. formed the. subject of. the second count in the cha+ge sheet. ... ~ ' . In .a ,.:-cas~:>ned judgment, the trial learned resident; magistrate acquitted the respondent on both the counts. The Republlc appare'ntly accepted the acquittal on the first count but no·i: on the secon:d count, hence this appeal. The complainant and the respondent are both Tanzania Railways Corporation employees a The complainant was (at the time of tho incidents which led to the harges ') a Permanent Way Inspector and usually resided in Moshi..' lie used to come to Arusha on duty and, on such·occassions, stayed at a Railways resthouse, which also had a nearby gardeno ?he respondent was a Permanent Way Sub-Inspector, an inferior 'rank to that of the complainant.

2 He resided in Arusha. On 10/4/198":" the respondent returned from Usa where he had been sinee. 7/4/8'1.. He saw· ailways workmen working in the garden attached to. the rest h0u·se •. Apparently, he found. ft improper for the. workmen to be working in the private garden during office hours. He as.ked to see the master .roll• It is not clear in what.way the mastellf:oll was connected with the worker who were working ·in the garden. . . . Th..::, complainant was then in the rest house and had. the rnnster roll. H ·refused to release the master roll and the responc:1.:.mt went personally together with'>fi{~ /\ugustino (P.Wo3) . . ,,.. and ask(:!d £or the master roll. The complainant again refused to hand over th1.::: master roll. The respondent was visibly angry and headed for the kitchen where he picked up an axeo But the axe was imracc.U.ately wrested from him by some of the people who gave evidenc8·at the trial. Did the respondent, with the intent to intimidate or annoy the complainant, threaten to inJure, assault, shoot or kill him when he went for tn .. -.. -: -? .. The trial magistrate Who saw 'and heard ·the witnesses was of • : ' ' ~ I t . ·,· the view that the respondent was mei'rely preparing for a threat• One might think otherwise. It was indeed a borderline ease. The trinl court . gave the respondent the benefit of the doubt • . I cannot say that he was necesarily wrong and, therefore I am relucsi.nnt to reverse his decision.· It •as for the· above Feason that when i heard the appeal I disrniss0d it and reserved the reasons, which I have attempted to giv.,j. At Arusha: 24/10/90 .. (Jo' A~ 'Mroso) JUDGE Mre w.-mimu, State Attorney for ppe:tant. Respondon-i:: prescmt in person_.