19721108 TZHC Dodoma

k, IN THJ HIGH COURT OF TITZ4'1I AT IRINA ORINAL JURISDICTION (D0DOMA REGLTRY) C;UMINAL SESSIONS CATh NO. 172 OI 1972 The Reb,Uc Tersus JORN 1TANDIKA Pharge: Ianslaughter c/s 195 of tho Penal Qod wi1d.na A.J. The accused is charged with the murder of his brother Aoyce at their village of Maduma on the 10th June 1971. We admitting to have killed his brother the accused has all along been saying that the kiling was accidental. The doctor who perf rrned the post mortem found the deceased to have been shot with a gun in the chest. The pellets sever e4 and laqeratd the main blood vessels lead.ng from the heart. Ths injury caused haemorrhage within the thorax. The deceased is said by thv doctor to have been shot from his front and the position o the wounds on the chest is evidence of such opinion, The accused as well as other people who attended the scene soon after the report of the gun was heard confirm the doctor in his finding that the deceased was shot with a gun. The court therefore finds it to have been proved that the deceased. Aloyce is indeed dead, and that he died at the home of his brother who oms and was at the time carrying the gun that shot him. There is no dispute and the court holds it to have been proved, that such were indeed, the circumstances surrounding the death of the deceased. In view of the defence put up by the accused, the only questions is whether the killing of the deceased was culpable or xcusab1e. One assessor has advised the court that the accused kifled tth malice, another that the killing was culpable but unintentional and the the third assessor that the killing was purely accidental As such the task of the court is by no means easy. The prosecution adduced evidence that the accused was sued by the deceased for committing adultery with his wife. According to the witness Matia Shingo the accused left the village and went to live at Ismani after the suit was filed against him, According to the wife of the accused, relations between the accused and the deceased were so bad that the two farnilies ceased talking to each other and no visiats were paid between the families even after the accused returned from Ismani where he had gone and lived for one year. The widow Sandina however, says that relations beween the two families were normal even after the deceased sued the accused after catching him committing adultery with her. With due respact to the widow, her evidence on this point is very unlikely, The deceased must have been displeased with the accused for what he did with her., That was why he took him to court. The accused in turn could ... . . . ./ -2- not have auplauded; th deceased for suing him0 For this reason the court finds the evi..dencs of finding the accused's wife to be a representation of the truth and finds it to have been proved that just before the deceased was killed, relations between him and the accueed were at low Obbe With such poor relations therefore, the iriies could not be on speaking terms. It is therefore difficult to cxlain the presence of the deceased at the house of the acusod oven if the way to his home passed through the home of the accuso. In her evidence the accused's wife said that the accused owned a muzzle loading gun even before he went to Ismani. According to her s her husband's hobby was hunting which he undertook ofterntimes,, Those witnesess who said that the accused owned a gun only after his r eturn from Ismani did not have any means to ascertain whether the accused had a gun before migrating to Ismanir Again on this point the court has but to prefer the evidence of the wife who was in a better position to tell her husband's possession and pursuits The court therefore finds it to have been established that the accused had a gun before going to Iemnui. end that 1ie did not acquire it at Ismani in order to return with it to his home The court is further satisfied that the accused was interested in hunting. That was why he acquired a gun in the first nt question to consider however, is uot on the fateful left hie e ee. - 'vin' a gun0 Again the evidence conflicts on this poi1YG One witness claims to have seen the accused at the pombe shop with only a bicycle and not a gun: his brother Bernard. The accused's wife eaid that the accused set out with his gun vLon he left home0 Since she herself claims to have gone to the river to fetch water then the accused could have returned the gun before going to the pombe shop; which ilace the wife did not visit that day. The sequence of events must have been like this. The deceased left to walk home from the pombe-shop taking the route passing through the accused's home. About half an hour later the accused took his bicycle and followed the same direction, apparently going to his oirn home. When Bernard next saw him, the accused was standing besides the body of the deceased with the gun in his hands. On being asked the accused is said by his brother Bernard to have replied that he killed the deceased in the course of a fight. The cell-leader who suestioned him told the Police that the accused did not say why ho killed the doceased but when he came to court, the witness said the accused believed the deceased to have been practising witchcraft against him. Yet Bernrard who was only three steps behind him heard a dirrerent explanation from the deceased. With respect to the cell-leader, if the accused had said the deceased was a wizard, the witness should have told the Police when the incident was still fresh in his mind., bven Bernard would have heard and related the same explanation. It is therefore more likely that Bernard heard the accueed properly. The court therefore finds the accused to have told the cell-leader that he killed the deceased in the course of a fight0 His extra judicial statement is to the same effect alihouh in his defence he exaggerated by saying that the deceased succeed in slashing his left shoulder with a bill hook. The doctor who exuined him soon after the incident found no fresh injury on him except for a small bruise on the knee which he must have sustained in the course of what must have been a brief, one-sided struggle which turned out to be fatal to the deceased. Whether or not the accused had his gun with him when the fight broke out is not clea±, but because the deceased's bill hook was found lying- near him, the accused cannot be blamed too much for reaching for a wopon since the deceased himself had one. The presence of the deceased at the home of the accused to whom he was estranged as well as his e. .13 a possession of a billhook suggest that the accused's explanation that the deceased fouat him could as well be tnie. And considering that both of them had been to drink, it cannot be surprising that they should quarrel and fight in view of the history of bad blood between them. The court therefore gratefully accepts the view of the assessor who opined that the accused killed the deceased in the cou:::se of a fight. For the same reasons the opinion of the other assessors cannot be accepted. According to the accused, he surpirsDd the deceased in the act of adultery with his 1,Tife. The vife herself denied this. It is a strange concidence that she should be at the scone at the time when people gathered to arrest the accused. If she was returning from the river, at all the report of a gun should have frightened her some what. But those who saw her at the scene did not not±ce any sign of anxiety at all. Had they noticed any distress on her they would have said so. It is strange for a woman to remain calm after unexpectedly hearing the report of a gn at her home. At least she would have taken time to recollect her senses. Judging from reports of her by the widow, the accused's wife is a very callous and imdifforent womanindeed. For, when her htsband and the widow shut themselve in a house to commit adultery in. her very prosonce she did not so much as turn a hair, The protestations of love for her husband cannot therefore be genuine because any wife who loves her husband would be very angry if ho took a woman. and shut himself wi..th her to commit adultery in her presence. The accused's wife herself admits hoarin the deceased tell her that her husband was in a room close to where she was drinking committing adultery with his wife. he told the court that she did not fool anything when she hoard this news. In fact she must have herself seen her husband taking away his sister in law. According to her, when the deceased said her husband was sleeping with his wife in a room, he was no addressing her. H e was addressing the people at large. Her attitude during this incident cannot be described as normal. Her inexplicable indifference may have been due to the fact that she was herself going to pay her husband back by sleeping with the deceased0 This possiblity cannot 'certainly be ruled out. The court therefore accepts as reaso4able if not true, the accused's explanation that he fOund his TTife sleeping with the deceased. The accused's allegation may explain the deceased's presence at his home inspite of the very bad rlations betwoe them. The denial by the wife that the deceased was her lover could as well be false in view of her strange attithde described above and in new of the unwanted presence of the, deceased at the accused's house. If the deceased was simp1y , passing, the accused would have shot him on the wayside. But, as the sketch plan clearly shows, the body was found lying in the courtyard of the accused'S house well off the road. The court is thus loft in some doubt whetier the deceased did not go to the accused's house to sleep with his w ife and must therefore accept th e accusods allegationtob e reasonable in the circumstances. In his defence the accused told the court that the gun wont off accidontailt as he ifrestlod with tho'docQas,3d& The Accused said he was carrying the gun on his back, probably on a sli. Those who rushed to the scene found him holding the gun in his hands. The gun itself was produced in court and it did not have a sling. The accused Could not therefore have carried it on his back without a sling. The court is satsfied from the foregoing and So holds, that the accused aimed his gith at and shot the deceased. The rnuzie loader could 'not have gàno off accidentally from his back where he could not carry it, because thc gun had no sling, That the aCcusod aimed at and shot the . S S • S . . . /4 4.*. the décóased explains why those who rushed to the scone found him holdirig the gun in his hands. The shooting of the deceased could not have therefore been accidental0 The court finds it to have been proved that the shooting of the gun was deliberate, and that the deceased was killed by the sarie shooting. From the foregoing, it is bard to infer malice aforethought on the part of the accused who, like the deceased, had been to drink. It is settled law, often resorted to by this court that malice is less readily inferred whore as in this case the killing followed a drinking bout. What with the possibility that the accuCed could as well have Purprised the d.oceased sleeping with his wife, it could as well be that the accused shot the deceased in the heat of passion. There is no clear ewidonce that the accused planned and premeditated the fratricide, although he may be said to have had a motivo in that the deceased had taken him'to. court. The court is not in a posit±on to find the accusodguilty as charged, for these reasons. In vjeiJ of the abundant evidence that the killing was not accidental, the court findsthe accused guilty of manslaugher c/s 195 of the Penal Code * The court convicts the accused of the offence of manslaughter. I. lvi • H • A. Kwjljma Ag.. Judge. Nr, Chambakaro: The accused is a first offender. Nitifauioi Much as the parties were estranged; the deceased was accused's brothetdL his death was a loss. Accused must be very sorrya Accused i a first offender married to two wives and three children. He has no regular income. Accused supports hi brothers at school. His parents are old. They depend on him. If the court could throat him leniently. Allocutus: Accused has nothing to say. I eboo: The killing in this case ws most roprohosihlo in that the accused shot his om brother with a gun. It is had enough to to kill one's own brother. It is voiy had indeed if the killing is effected with a, .guni It is difficult for the court to be lenient inspite of the moving address by defence counsel. The accused was irresponsible in resorting to his gun and aining it at his brother. Court therefore ta1co a serious view of his offonco. The The accused is sentenced to qigJ-Lt years imprisonment. L1A- lvi. H A. Atik i Ag, üdgo 8/11/72. Appeal rights explained. 4 DODOIL. M. H. A. IC1IKINA 8th 1oireraber .1972'. Ag Judge.