Swalehe Muhebo vs Republic (High Court Criminal Appeal No. 155 of 1983) [1983] TZHC 491 (30 May 1983)

IN THC HIGH COUHT OF TANZANIA ,. I AT T/\BORJ\ APPELLATE JURISDICTION. (Tabora Registry) . " ·: .. · _,,·· , ... HIGH COURT CRir1IN,\L APPEAL NO. 155 OF 1982 . "":· ORIGINAL OIHMlN;.'\L Cl\SC NO. 155 OF 1981 ·· . OF THE DISTRICT .C6UT OF .·K/\SULU DISTRICT AT KASULtJ BEFORE: NT;IRUG_ELEGWA F.sq., DISTRICT MAGIS'}:'RATE SWALEHE MUHEBO' ~ O i, O c O O O 0 ,; ~ 0 0 0 O 0 0 0 O O O O APPELLANT (Original_Accused) VSo THC REPUBLIC •• o. o •• a •• ~ ,; •• • •••••••• o. RESPONDENT .. CHARGE·: Caus::..ng c:rrievous 156dily harm· c/s 225 of. thi'i Penal Code • . i-· CHIPETA, .J. , 0 .h· -·.·1 .. The appellant,. Swc.leh2 nuhmo, was, chi3.rged with and convicted of the offence of causing grievous bodily harm c/s 225 of the Penal Code, and was sentenced to three years imp.riA?nrnent. He now app,.;als. • - ·.• l ). The prosecution's evidence. as hat on 12/12/81, at about 5.00 p.m., the complainant was on his, ·way home from Kasulu market. on the way, the appellant attacked him suddenly, ahd in the .ensuing sc:tffle, the appellant hit the complainant on the left eye as a 1resul t ot' w~~~h the complainant ·., sustained :ipjury tp ;the left eye with fracture of the zygomatic part of the maxilla. As the appellant and the complainant were neighbours, the · (:omplainant easily identif),ed the' ari'pe_fllant as his assaillant. While being so attacked, the complainant raised a·n alarm for help, but nobody came to his aido Meanwhile a bus appeared from Kibondo direction and on seeing it the appellant ran away from the scene. The complainant then went and repbrted the matter to the village I ,' ;: • chairman who then took him to polic' station and thence to hospital where he was admitted for one montho Meanwhile, the appellant went to police station and reported that he had been attacked by a group of five people, one of whom was the complai- nant, and that he had hit the complainant with a bottle in self-defence. ,. The appellant, however, had no signs, of having b(en assaulted. Police investigations, however:,rev0aled that it was the appellant who had attacked the complainant. ... In his defenc-::, the ap'.-Jellant changed his stancea This time he said --, that he was saddenly attack2d on the wliy by someone whomtredid not know, and that he did not fight back. Afte evaluating the evidence, the learned magistrate believed the prosecution witnesses and reject<:Xi tat ·of the appellant as unreasonable. This is a case in which the credibility of the witnesses was crucial. ' In such cases, the trial court, which had the advantage of seeing and hearing the witnesses, is usually the bcst judge, and ari appellate court ;.

2 will usually not intc::rfere wi t"l findinqs of fact. .. in those circumstances unless such appellate court is satisfied that the trial court misdirected or non-direbted itselfu In the present case., ·and on my own view of the evidence., I can see no reason to impugh '!:he findings of fact by the trial courto Quite clearly, in reporting to. th('= polio::, the appellant was trying tp draw a red herring. The fact that he showed no signs of having been assault~.9-, and his sudden I',! •, change of stance are facts which spoke'lb~dly that the appellant's stories Were pure fabricationo For these rc3sons 1 I am satisfied that the conviction.was justified. As for the sentence., in view of tht, fact that the injury .. c.aused to the victim was a very serious.one, the sentence of three years imprisonment was, if any thing, leniento It will;-· thereforei remain undisturbed,. and as the same requires confirmation by· this cCiurt, it is hereby confir..::·•,: medo In fine, this ar:-pc::al is dismissed in it!5· entfrety'c ,.r ~fl/(tt,f {(p ..•. Bo De CJUPETl1., ,JUDGEo Oeliverc,d .:..n ope.n ccu.::-t at "vZ:ioofn,3 this· 35th da'{ df .May, 19830