NA TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: Mustafa, J~A:~\· Mwakasendo, J.A •• and Makame, J • .A. ) .. CRJ)if'NAL APPEAL NO~ 52 OF 1980 B. E T W E .E N CATHERINE CHRISANT o • ■.• • o ■ • ■ ■ ■ ■ ■ ■ ■ o ■ APPELLANT AND THE REPUBLIC ■ o ■ • " • ■ .• ■ ;.., .. 00000000 RESPONDENT (Appeal from the Conviction. and. Sentence::: ' 0 of the High Court of Tanzania· ·at Bukob~) (Rubama., J., ). dated the 30th da)' of )½ay, 1980, ... ,·. iR- Criminal .Sessions Case No.· 131 of 1979. ..... ..... '~ - JUDGMENT. OF THE COURT The appellant was having a fight with P.W.1. Teopi,st'k and was hitting P!W.1 'l'eopista with a stick. Teopista, at the material time, was ca,.t'.F,Ying a three-month-old · ch_ild on hef back, and in the fight the child was hit on the head and died as a result of the head ·wound which produced cerebral compression leading to cardiac In the fight PoW.1 suffered some not serious i-njuri,~s, . thc-eg·:;tniuries on the face, her hands, especially the left, were swollen and her left hand middle finger was badly injured. The appellant was chasing P.W.1 out of her ~ppellant's) house and was beating P.W.1 with a stick which got broken in. the beating. The stick could not have been a lethal weapon as otherwise the injuries on PoW ■ 1 would have been much more severe. The injuries on P.W.1 were not categorised by the medical assistant who examined her, but they do not appear to have constituted grievous harm. • ••• /2 2 We are satisfied that at the time of the attack the ' appellant was the aggresl[t«is. ,_l~e are, .however., not satis:l;;ieq,. that. the_,, ~ppellant, in attacking P .Wo 1, was intending to kill .or cause her _grievous hArm. _The :appellan.t .did not ... intentiona:l.ly ,hit the child, who was str~c;k-1-nc:ic::lem:talily when the appellant ... ; was . ' flitting,. p.Wo.1o However, in :the c::ourse of the unlawful attack ~n FoWo 1 __the child,_ was hit on the. head arid, died The trial judge found ,the appellant guilty o,f murder• of the childo The-:tri_a}-, Judg,e ':"as of the view tha•t the 1app~llant, in .attacki,l'lg.i_-f!>.Wo 1, was intending- to kill P.Wo.1 .or c~use · he-r gri~?p'-1s...i:i_ar:m, but inste.ad kill.ed the child. With respect, we think the trial. jµdge erred in holding· that the aPP'=Vant had· - mali.ce_; ._9 for~thought in the circt1mstances. The.re w.as .. this fight .. between the,appellant and,PoW.1, the stick used was.not shown to have been lethal, the injuries inflicted--on P.W.1·were comparatively rrinor and a blow, which need not have _b~en,:seve.re·, ~ou_ld ~asi~y-have caused skull compresion· to a three~mqnth-old . . •,;:'i !··. childl We think it was more a case of manslaughter, rather:. than murder of the chiid committed by the appellant. Accordingly, we quash the conviction of murder and .set \ aside., 1:he sentence of death. passed on the appeiiat:1t and substitute . the.t:'efor a conviction of manslaughter. We sentence the appellant .. , to two years' imprisonment from the date of convic-tiono Ao MUSTAFA JUSTICE OF APPEAL YoMoMe MWAKA?ENDO JUSTICE OF APPEAL L., M. Ml:\KAME JUSTICE oF· APP.EAL this is a true copy of the original. Co (/ G. / MTENGA ) REGISTRI\.R': ,·