Criminal Sessions Case 23 of 2022 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA CRIMINAL SESSIONS CASE NO. 23 OF 2022 (Originated from P.I No. 12 of2021 in the District Court of Sumbawanga at Sumbawanga)

REPUBLIC VERSUS ”’K ESSAU CONSTANTINO @KOMACHI.................... ...........ACCUSED ,44 JUDGMENT 12® & I*?1 June, 2024 4. MRISHA, J. Following the unnatural death of Costantino Komachi on 26.04.2021 who is the biological father of the accused person Essau Constantino Komachi which occurred on 26.04.2021, the latter was arrested and indicted before this court for the information of Murder contrary to section 196 and 197 of the Penal Code (the Penal Code). The accused denied to have committed such homicide offence. However, he offered to plead for the lesser offence of Manslaughter contrary to section 195 and 196 of the Penal Code and the prosecution Republic had no objection on that. i Subsequently, a charge of Manslaughter contrary to section 195 and 198 of the Penal Code was read over and explained to the accused person who spontaneously pleaded guilty thereto. He was thereafter convicted on his own plea of guilty in respect of such lesser offence, thus paving a way for the counsel for the prosecution Republic to read and explain the facts of the case to him in Swahili language which he understands. 1■ The facts were to the effect that the accused person Essau Constatino Komachi stands charged with the offence of Manslaughter contrary to section 195 and 198 of the Penal Code after causing the death of Constatino Komachi, his biological father. The incident occurred on 26th

April, 2021 at Tunko village within Sumbawanga District in Rukwa Region. It is alleged that before the demise of the deceased person, the two were not in good terms based on the possession of land to the extent that the accused was forbidden by the deceased to cultivate in his farms. On 26th April, 2021 the deceased body was found by the villagers near the farm area having the some cut wounds on his neck and shoulder. Upon passing of the information on discovery of the deceased body, the matter was reported to Laela Police Station. 2 Thereafter the Police Officers and Dr. Mwita Daniel from Laela Health Center, rushed to the scene of crime and upon arrival, the said doctor started to examine the body of deceased. Upon the autopsy of the of the deceased body and examination been done, it was revealed that the cause of death of the deceased person was due to severe bleeding due to posterior cut wounds and part of neck. The postmortem report was: prepared and filled; and then the investigation on the incident was rnounO. LTf' The police officer with Number G.5130 D/C Jumanne, drew a sketch map of the scene of crime assisted by the Village Chairman of Tunko Village namely Mr. Joseph Charles. Thereafter, a further investigation was done and accused was suspected to be ■■■Pi'.. ■ the one who killed the deceased person because of the misunderstandings he previously had with the

deceased person, then he was arrested at Tunko Village and sent to Laela Police Station. Upon interrogation by way of cautioned statement, the accused person admitted to have conspired with another person called Hamis who is still at large, to kill the deceased person. He also admitted to have hired the killers in order to accomplish that plan. 3 When arraigned before the court for the offence of Manslaughter contrary to section 195 and 198 of the Penal Code, the accused person pleaded guilty to the offence charged and upon being asked whether he admit the above facts or not, he responded that he admits them, just as they had been read to him by Ms. Atupelye Makoga, learned State Attorney for the prosecution Republic. Not only that, but also the accused person raised no objections regarding the prayers of Ms. Atupelye Makoga to have a sketch map of the crime scene and the cautioned statement admitted as exhibits. Hence, the court admitted the said sketch map and the accused cautioned statement, as exhibits Pi and P? respectively. Based on the accused's plea and his admission to the facts of the case as well as the tendered exhibits, the court convicted him on his own plea of guilty to the offence charged. Thereafter,: both parties were given an opportunity to make their submissions regarding the aggravating and mitigating factors so as to enable the court to assess the proper

sentence to be awarded to the abovenamed accused person. The prosecution Republic submitted briefly that although the accused is a first offender, it is their humble submission that he be punished, as per the law. To Ms. Neema Charles, learned Advocate who represented the accused person, her humble prayer was that the accused deserves a lenient sentence due to the 4 fact that first, he has no previous criminal records as confirmed by the counsel for the prosecution Republic, secondly he has pleaded guilty to the charged offence hence served the time of the court and some money which would have been used to pay the witnesses and advocates had the matter proceeded to a full trial, thirdly the accused person has stayed in prison remand for three (3) years and two (2) months which time has been enough for him to be reformed and repent towards his guiltiness. < ■ The fourth reason from the said defence counsel was that the accused person has a wife and two children who depend on him and the fifth reason was that being a man aged 32 years bld, the accused person is a workforce for the nation. Having gathered all those factors, the court reserved the sentence and adjourned the matter until today in order to pass the sentence against the abovenamed convict. Before doing so, I have to say that I have considered all the aggravating as well as the mitigating factors including, but not

limited to the fact that the accused person is a first offender, he is a young person of 32 years old and he has pleaded guilty to the lesser offence as prescribed above; not only that, but also he has a family of one wife and two children who depend on him and he has 5 been in custody for almost three (3) years and two(2) months until today when he is waiting for his sentence. Those factors some of which have been outlined by the prosecution Republic whilst the rest are from the defence side are important for the trial court to assess the appropriate sentence to be passed against the convict as the one before this court. It is also very important to bear in mind that in sentencing process, the court has to consider the principles of sentencing as once: stated in several cases of the Court of Appeal; to mention a few, see Zuberi Ally v Republic, Criminal Appeal No. 147 of 2015 (unreported), Silvanus Leonard Nguruwe v Republic [1981] TLR 66, Benadetta Paul v Republic [1992] and Rashid Kaniki v Republic [1993] TLR 258. Among such principles to be considered, are the period/ time spent by the accused person in custody waiting for his sentence, reformation and retribution. However, considering the prevailing circumstances of this case, it is my settled opinion that the abovenamed accused person deserves some kind of punishment for his conduct of killing his biological father,

though without malice aforethought; this should serve as a lesson to him and other people of the like behavior in the society. 6 The foregoing reasons and factors having been considered; it is my belief that a sentence of one year (1) imprisonment for the said accused person will be a deserving punishment. I therefore, sentence the convict Essau Constantino @ Komachi to serve a prison term of one (1) year in jail. Order accordingly.

JUDGE 14.06.2024 DATED at SUMBAWANGA this 14th day of June, 2024. 7