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IN TUR HIGH COURT OF TANZANIA 4 /6 ~P-J P_A_ AT DODOTI! ORIGINAL JURISDICTION (DODOMA REGLiTRY) CRIMINAL SES3IONS CASE NO, 127 OF 1972 THE REPUBLIC VERSUS CHIDASI HAFIIKISI CharLe Murder c/s 196 of the Penal Code. JUDGEMENT iOkTIKIM[ A0. J. The accused is in this case charged with the murder Although he has of one Hangara Nuhuso on the 27th October 1971. offered no defence, the accused has pleaded not guilty to the charge. The task of the court is simplified by the fact that there is no defence evidence to consider. The only evidenDec available is that of the prosecution which, includes the accused's own extra-judicial statement. In that statement the accused admits killing the deceased. The widow and the deceased's brother P.N,2 Kalisege told the court that the deceased was killed by the accused. There can be no doubt from this evidence and this court finds it to be an undeniable fact that the deceased is dead and that he died at the hands of the accused. The deceased is said to have gone to the poribe shop to drink on that fateful day. His wife accompanied him, and, together, they drank from noon till night. In the course of their carousing they quarrelled over the deceased's ruling that they should go hone. The deceased is said to have quarrelled with the accused when the latter intervened on behalf of the widow. In intervening, the accused was prompted by the desire to protect the widow who is his forster sister. That was how he came to quarrel with the deceased. All this is not disputed and the coourt finds it to have been proved that prior to the fatal assault, the deceased and the accused quarrelled. From this point, howeir, the prosecution presented two different versions of what happened as the deceased and his wife left the pombe place to go home. .../2 -2- j In my summing up to the assessors, I directed that where, as in this case, the irosecutor presents two theories, this fact should be taken to rean that there is doubt. According to the accused's extra-judicial statement, he net the deceased on the way; upon which the deceased assailed him verbally and physically. The accused then retaliated with, as we already know, fatal consequences. The accused alleges that the deceased struck him with a stick first, before he himself retaliated by striking him thrice on the head. Thore can be no cuestion but that the accused used excessive force to hit back, if his version is accepted. Since the prosecution relied on his statement to prove their case, then his version has to be given the sane weight as the evidence of the widow which, though somewhat different, does not in essence contradict him. For, according to the widow, the deceased was assaulted as she walked with him on the way home at dark. She was ten (10) paces ahead of the deceased when she heard the blow of a stick landing. She then turned and found the deceased on the ground while the accused was pounding him on the head with a stick. Two of the three assessors have inferred from this that the accused must have waylid the deceased. I saw t h e widow give evidence in court and ii cannot say that her demeanour was so satisfactory as to render her version prof errable to that of the accused. ' hen she was cros sexami5.)cd, she admitted to have 1 forgotten telling the court that hor husband raised a chair to strike her at the pombe shop. There can be no garantee therefore that she could not have forgotten the sequence of events leading to the assault on the wayside. At any rate she could not say who inflicted the blow she heard landing or who received it. It might as well have been the deceased who inflicted it because he had displayed a violent disposition at the ombe shop. The accused was not medically examined so as to tell whether he was not himself struck with a stick. Jith full respect to the two gentlemen assessors who have by implication found the accused to be the aggressor, I an unable to rule out the possibility of his having been assaulted first. ky doubt is enhanced by the fact that both the deceased and the accused had been drinking for about six (6) hours. 1 cannot therefore rule out entirely the possibility of the accused killing his brother-in-law under the influence of drink. I am not therefore surprised when the prosecution present two theories; one clearly showing that the killing was done under provocation and another faintly suggesting that the killing was premeditated. I an thus constrained to difier with the two gentlemen assessors for these reasons. I would readily agree with that assessors who found the accused to have been :LDrovoked into killing his brother-in-law for the very same reason, 4•eSO -3 - The learned counsel for the prosecution cited an authority the facts of which he claimed to be similar. He did not produce • that authority for my cerusal and if he was right, then I en afraid I will have to differ with that decision. I accept the accused's extra-judicial statement in toto. In the event, I find him not guilty of murder but guilty of ;.utnslaughter; to which offence his statement is a complete and clear confession. In the result therefore, I find the accused guilty and convict him of manslaughter c/s 195 of the Penal Code. M. Ii. A. KWIKIP'IA AG, JUDGE Record The accused is a let offender. Nitigation: Accused is 30 years old, married, with two children. He has an old mother to protect. He has been in custody for 20 months. Accused is sorry to have lost his brother-in-law, Sentence Scuffles at pombe shops are so frequently traggic that courts caimot he too haugh in punishing offenders. One only wishes that the pass time of drinking was cursed by prescribing entirely the manufacture of poubo. In the.instant case, however, the accused and the deceased were estranged to each other only that day. They are reported to have been in harmony prior to this incident. By his act the accused has made a widow of his sister and the burden may fall on him to maintain her and the orphans. This, however, cannot help him because the offence he committed was very grave. It should be taken in his favour however, that he has all along been pleading to the offence of which he has been convicted. Ho did not deny the offence. What he denied was the offence of murder and the evidence has vindicated him. On this score the court is prepared to he lenient. Bearing in mind the long time he has been in custody and considering that he is a contrute first offender, he is sentenced to six years imprisonment. • 7 --' ' N. H. A. KWIIINA AG, JTh)CrE Appeal rights explained.