Hamisi s/o Shaha v. R., Crim. App. 868-D-69; 28/1/70; Georges C. J.

Hamisi s/o Shaha v. R., Crim. App. 868-D-69; 28/1/70; Georges C. J.

The appellant in this case was charged on three counts for offences under the Penal Code – escape from lawful custody c/s 116, resisting arrest c/s 243 (b) and malicious damage c/s 326(1). He was acquitted on the first count, convicted on the other two and sentenced to concurrent term of 6 months imprisonment. The appellant had been under arrest for treasonable felony. On 16^th May, 1969, Corporal Albano Mraushi, took the appellant from the lock-up and handed him over to Det. Sgt. Fabiano. Half an hour later the appellant could not be found. On 23^rd May, 1969 Corporal Albano saw the appellant in the market square at Mtwara. He followed appellant, told him that he was wanted at the police station and asked him to accompany him there. Appellant refused and kept on walking away. Cpl. Albino then formally arrested the appellant and held on to him. The appellant went along for a while then refused to go further. He got hold of Albano and began struggling with him, pulling at his shirt in the process. In the struggle they both fell. In respect of this incident the appellant has been charged with resisting arrest and malicious damages to the shirt.

            Held: (1) “In Leo s/o Pigangoma (1967) H.C.D. case 131 Platt J. held that where in the course of an assault there was damage to property worn or in the possession or the complainant such damage was to be considered as incidental to the assault rather than a separate offence unless there was evidence of willful damage to the property as such. In Juma Ramadhani v. Rep. (1968) H.C.D. case 147 I followed this view and held that to support a charge of malicious damage there must be evidence that the act was done deliberately and willfully. In that case the appellant while resisting arrest and behaving in a disorderly manner at a police station had torn a policeman’s uniform. I see no reason to depart from this line of reasoning. There is no evidence here that he tearing of the shirt was anything other than a consequence of the resisting arrest. Accordingly on the 3^rd count or malicious damage the appeal is allowed and the sentence quashed.” (2) “I shall, however, make an order on count 2 that in addition to serving 6 months in prison the appellant will pay Corporal Albano Shs. 45/= compensation.”