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IN THE HIGH COURTIOF TANZANIA AT SUMBAWANGA ; ORIGINAL JURISDIION 0 (Tabor Registry) CRIMINAL SESSIONS CASE NQ47 OF 174 2 I b JANUARY RAIS . ........... . ACCUSED VERSUS REPUBLIC . a a a ................ a 0 0 0 a a a a a a a a a a PROSECUTOR CHARGE Manslaughter c16 15 Penal Code. JUDGEMENT MAPIGANO, The adcUsed JANUARY 5/0 RAIS is in this instant charged with manslaughter;' under section 195 of the Penal Code, in that on 30th day f XIarch, 1974 at Chezya Village in Sumbawanga Distric1 he unlawfully killed one Abel s/. Rai, his elder full brother who was then close on fifty; years of age. That abel died on the aforementioned day is not in controvorsy and is incontestable. Equally, t-he fadt thht his was an unnatural death.:Dr. Magori (P.W05)wh6 examined thecorpse .n..Apri1:•2, 974 aft.rt hadbeen' duly ide•ntified to him, obaerved.marks of vio]nce.extdrnally, namly, (I) a small wound½"x ¼"••x ½" this upper left. e9e lid and.:(2) a big haematoma and 7a bruise 3'" x 2½" on the left side of the abdomen below thecoastai rgin. Internally, he found.the peritneal cavity f1ledwithclos of blood ardthe:speenruptured.n its' aiterior thd. of that rupture was . :1" x ½" x ½". The doctor assigned the cause of death to shock following excessive bled1ng frem the ruptured spleen. He gave it as his opinion t1'at the ifljuries on the abdomen and on the spleen were compatible wi.thirect violence caused by something blunt striking the deceased in that region of he body, with considerable fQrce. These findings arid opinions stand u-ncha3Lenged and are, in the circumstances, reasonable and acceptale. Like the assessors, therefore, I would a gap them. Except 4 r y. 2 - .1. Except that the cusedpreded not guilty to the charge, the prosecution case is not seriouslchallenged. Indeed, the accused chose to say iothing when he was put on his defence. Little wonder, then, that his counsel candidly admitted in his winding up speech, that it was hardly unrealistIc to cotthd that the charge has not been established to the. necessary degree. Six witnesses for the prosecution gave evidence as to the events which led to the death. That evidence discloses that the decased met his demise at the house of his neighbour and ten cell leader, Yoram Chikati (P.W.7), btween8 and.9. at night on .30/3/74. And like many such deaths in this part of the country, it took place in the course of drinking. There is conflict in the prosecution case as to what time the crinking started. Sorne.of the witnesses allegedtha± it started at 12 noon while others said that it started at about Ce±tain1y this conflict- could not have been due to vagaieJ ed011cti&ñ on a rt éi.f ón& sIde. Either one or thdttmüst háreémbarkd on a deliberate ije, for reasons .bst:kiowri±tot t!ide Hower,.alLthese wItnesses séerño have told.theidlide, day after thesad' event, that thetarted Th'se who changed their s€bries to say that the drinking. .started in the evening werëdbnfrbhted With eir ta t emen Ers and it dah be bifly: said that they .dd not succeed to explain aay thi2 ddhic. With I would find that te drihking ... at 12 dri Aspointed but at the outsét, èccused and thedeceased Cte .'ull br,b.thers. The prosecution iidence shows that they were living in one vi1lage. it ai o shows that'thr'e was an ec'oCsibn whenthe: accued 1ft the Village foThndther place. He as away for:àbout thOe months.. While he was away, he deceased cultivated his (accused's) piece of land. This apparently, aggibv.ed the acãsd andheaisd :,. drirkinq. . Otherwisd;the attitd °è Of one to théóthr had been cordL and brtherly u -60 that time.' No less a pefñ than the wife of the deceased, Isiati d/ Chvunike (P.W01), with whom he bed bégot€dnten chIidthi, has tst1ed.... to Htefèc€. We will now examine the immediate vents. The gathering was drinking freely from a c he ponibe was a local brew made from finger millet, and by all accoints it was strong 0 But before most of the people had drunk their fill, the accused called upon the crowd to listen to him and as far as ascertainable from the evid the fo'Ilowing exchange of words then took place between him and the deceased: .,../3 Accused: 4 Acüséd.: ho hays thxgthy. .sharnba.7 .eceasd It ise Accused: W1-icerrñ±tted you .tdo so?: Deceased: Wh.it±s.ybuwho.told me that l..coulddo so, whe1.ypu were leaingfor Rukwa.. Accused I am going th take it back. Deceased It is airight pruvided you pay me a little money. Accused I am going tu take it withuut paying any compensation. Deceased: This is not the time to discuss that suect. Let us.iscs the matter to—morrow. Accused: You are silly. You are illiterate. We must setithetternow. I must settle this matter here. At this stage the accused sprang up from his st43 and smashed .a fist into the face of the th.ceased. That bIovj knOdked him off his stool and the accused quickly folloed b' neck which he proceeded to twist. Banchoni Kikoti (P.W.5) seized the..accused by the waist-,- pulled- himtote: him from the clinch, whereupon the accused kicked the deceased in the wit Thdn rcri ithrage th acse pushed laton the ground.. The dadèased•had ol.1pséd.bythe.t1mé' the accued qui,ckly took to flight ftêt: , ..hàdrel.€asd himself'fromthe grip of Banchoni. of the deceased as t• so4 á16 wëé: n&f óffdié Ballaccounts and there is no suggestion, let alone, indication to the contrary, they were spoken in a polite tone. Obviously, therefore th deceased had (.ndY cÔnfrentat ,ionv.:Nbr does it appear that he expected any from the accusdd.o Butait happened, his soft answers could not turn away the accused's wrath. The accused proceeded to humilite and attack hini physically. Inded, if there is anything I find difficult to believe, it is how one would have aSs 'ft is e l der brother in those circumstances, ~ even assuming that oneêshort—tempered. Unless perhaps one had taken leaveof his senses either as a result of a disease of the mind or as an.effecrEojntoxjcatjon. While madness can be safely ruled out without much ado, intoxication is a real possibility. It might, in other words, be that the accused was muddied by drink and that by that reason he readily gave way to anger. But be that as it may, that can have no consequence in the present case. That might have force if the charge were one of murder, in which case intoxication would have possibly gone to negative the specific intent. .,..../4 Medical