lusungu chala jdg

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) IRINGA. CRIMINAL SESSION CASE NO. 7 OF 2023 THE REPUBLIC VERSUS LUSUNGU CHALA JUDGMENT 1&* & 1#* October, 2023 I.C MUGETA, J: The accused admits to have killed his father in a fight. Nobody saw him doing it thanks to his voluntary admission. He is charged of murder contrary to section 196 and 197 of the Penal Code. The deceased is Exavery Chala. The Postmortem examination report (exhibit P2) tendered by Insp. Juma Khatib (PW5) shows the cause of death is excessive bleeding (hemorrhagic shock) due to penetrating sharp object on the head. The reason for the fight leading to death is explained by the accused in the confession (exhibit PI) he made before the justice of the peace Hon. Juliana Edward Marunda (PW4). It seems to be that the accused believed his father was bewitching his little child and on explaining the child's condition to his father, the deceased answered rudely and ridiculed the accused who got angry and a fight between them ensued. Page 1 of 5 There is no dispute that on the incident date, the accused visited his father's residence. According to him, he wanted to exchange views with the father about his child's sickness. He missed the deceased as he had left for the farm. The deceased's wife Anastazia Kipege (PW2) was still there. She disclosed to the accused the whereabout of the deceased. The accused who had no weapon followed to deceased in the farm. They were just two of them thereat, therefore, what transpired there is solely gathered from the accused's account. What other people like Fracto James Hongoli (PW3) know is that they heard a yell for help and on arriving at the scene of crime, they found the lone body of the deceased with cut wounds on the head. Beside him was a hoe smeared with blood. According to PW3, as they searched for the murderer, the accused emerged from his hiding and told them he did it. The Idete Village Executive Officer one Alfred Kisina Mfuse (PW1), to whom the accused was taken after being arrested, said the accused told him that he had to kill the deceased because he was causing misery to his family. The accused person has stood by this version of the story up to the witness box when he testified as DW1. In the case of Mohamed Haruna Mtupeni and Another v. Republic, Criminal Appeal No. 259/2007, Court of Appeal - Tabora Page 2 of 5 (unreported) it was held that there is no better evidence against an accused person than his freely given confession. The accused confessed to PW1, PW3 and in exhibit PI. For the forgoing, I hold that the deceased died unnatural death and the murderer is the accused person. The issue which calls for my attention is whether the accused had malice aforethought which is a premeditated intention to kill. The decision on this issue can be garnered from the conduct of the deceased before the murder. Beside the evidence that the deceased and the accused had sour blood, there is no evidence that the accused harbored a murder plan. On the incident date the only person who saw the accused before the murder is Anastazia Kipege (PW2). She testified that the accused had no weapons. She further testified that the accused told her that he wanted to discuss with his father about ginger farming. In his confession the accused said: "NHimfuata baba na kumueleza juu ya zao la tangawizi na hali ya mtoto wangu. Akaanza kuniambia maneno ya kashfa akaniuliza kwanini namwambia hali ya mtoto wakat! yeye sio daktari. AHsema niende hospital! wakanisaidie. Aliponljibu vile niiipata hasira nikamrukia...". Page 3 of 5 In the case of R v. Cheko Antony [1985] TLR 75 it was held: "when death occurs as a result o f a fight, unless there are exceptional circumstances persons who cause death are guilty o f manslaughter and not murder". For the foregoing, I hold that the accused hand no pre-arranged mission to kill his father. Since they were two of them at the area, the prosecution has not proved that the accused attacked the deceased without an argument between them. On that account, the defence evidence that the accused was provoked by the rude answers of his father in a situation where he needed counsel is unchallenged. I, therefore, find that there was exchange of words between the accused and the deceased. The said argument led to a fight resulting into death. Further, since the weapon used was a hoe of the deceased, and the evidence of PW2 is that the accused had no weapon when he went to meet his father, I hold that the accused killed without malice aforethought. He is, therefore, not guilty of murder. Instead, I find him guilty of manslaughter contrary to section 195 and 198 of the Penal Code. Page 4 of 5 Consequently, I convict him of manslaughter contrary to section 195 and 198 of the Penal Code. I.C. Mugeta Judge 19/10/2023 Court: Judgment in open court in the presence of Baraka Uswege, learned advocate for the accused, Twide Mangula, Senior State Attorney for the Republic and accused person in person. Sgd. I.C. Mugeta Judge 19/10/2023 Page 5 of 5