19720307 TZHC Dodoma

I Ii P HIGJ COTJaI? OF T Z NI.. a ORIG-flii-L JU. I;JIC.IOhf Criminal Sessions Case iio.57 of 1973 The Republic versus RAARO i[ABUTU.........dCCUSbJ. CELRG-J - MURD.R C/S 196. OF PllAL COD]. IE LLLJ IcnIKIMAAJ. The accused stands char with themurdur of one iiorohani Mwamajamba on the 7th I41-- trch 1972. He has denied. the charge. The doctor who conducted the autopsy said that -the deceased died of brain compression and soisis. The wcund 3 which ceused those coaplications was actually found on the deceased. ye witnesses told the court that the wound was inflicted by the accused. Despite the accused's denial, I am satisfied, like the three assossorè, that the wound which caused the deceased's death was inflicted on the deceased by the accused and that such wound was the direct cause of his da -th. I find no c..use to doubt the eye—witnesses rhoso evidence is mutual].y corroborative. The two witnesses Anyiuike and Angolwisyo -told the court that the deceased followed them where they wore helping the accused to plough his field. The deceased came determined to quarrel, for ho embarked on forcing the plough oien -to retreat, complaining t. the accused that he was encroaching on his land. There unsu& an altercation thereafter, Though Anyimike was not specifies on this point hut one wonders why ho should advise the deceased to take the matter to -the cell—leader if he did not want to avert a quarrel between the accused and the deceased. Angolwisye was on his part categorical that the accused and the deceased wrangled, and that as they did so, they stood close to each other and close to the plough. I am inclined to accept this version boc.us it is consistent with the dcceasedts act of forcing the oxen to retreat. I am not so sure however, tilmG the wo winessos could not sea who attacked the other first. This part of their evidence does not have a ring of truth. Be that as it may the two witnesses corroborate each other on the point that the deceased cried ard named the accused as his assailant They did not sac what haepened until they turned to look when the deceised e:icd, uYou have cut mb with a hoc Lazaro.' - 2 - or words to that effect. On 2ocuscin3 their attention to him they o..or thc; accused pulling; the hoc from his head. The deceased then jumped on the accused, threw him down and benn squ005ing his t!lroat, I have no doubt in my mind that such was tue sequence of events at that point. And when the comboltante were separated, each rushed to complain to the Police, the accused reachinç these first. The deooaeJ lived for quite SOLICtilO before lie condition dotonior..tcd. Later he 'lied in hospital. The wj3 Anolwiy 'turnd hostile in court s Ho went back on his statement that the accused attacked the deceased after tire later had taken three paces. It is therefore difficult to believe him on this point especially as he is not sup;orted by tha othc.r cyc—witnoos, Anyimike.. Like tho assessors therefore I am not satisliud that the accused was cithe the t I açressor or that ho appro..:.ched the decasod and hacked 11 1U to death. When Ghe lat -Ger was unawares. There is no clear oviclmnco as to whether the accused was the agrcssor in fact, or that he amroached the doeo.s.J ant struck him uforo they stated to fi1at. The evidence available su.;este that they stood close - to.gu her. The pOsiblity that the accused used the hoc on the deceased in the course of a fi;ht has not boon eliminated altoethr, mad as one assessor oici, had the accused intenied riovous harm or death to he deceased,, he would have used the blade of the hoe and not the pointed tip. It is settled law that whore then possibility of provocation is raised by the evidence, maliceaforothouht should not be all that readily It As w s said in O3. R (1955) 22 .A.O...:. 422, UIn cases of murder and manslaughter the onus of proof is always upon the prosecution, it never boin: on the .Lccused to ectablish provocation or any other d,Ofnce apart from insanity. . .,.. . . . there boing.........eviclenco of the possibility of provocation had not been considered and dealt with, tho orosecution had not discharged the onus 01 provin chac Ga .e -accused's action in saebing' cne deceaseL ir..e murder ancL mur.er alone," In this cns tire accused and tire deceased both hold a belief that the disputed sha:iba wac bhcir ow-n. So that when the deceased followed the accused to pick a quarrel with him, tempers must have risen and any assault comnited there could only have been done in tue heat of passlon. ..ccordingly, while ag'reeing with the prosecution that the .abcusJ delt -the - ,, . 1• .13 4 ' 3 docoosocl thu clqath hlov, I would siactro tho uaniuotw V1OW of thu assossors that ho did so in thu heat of passion probably whilo Ghoy woro ghtiii I would horoforu iin4 accasqd guilty 01 ma 'htur and convict him of trlaG o±Iuno.J. - IIk,Ln_:. i r TTrr.ft Mr. Dhobctr;— T h o a cCUCud is 1 s tu offundor. NitL<ation;— jccusucl is 45 marriod with 6 childrin. But'oro this incident accusod and ducoasoci wore on good turns, Tho Jisputo was on land which ducoasud lovod noto than his life. Accusod a 1st offondor, has boon in custody for 14 months, I killed clocoasod without knowing mysuif, I havo boon in for two yoars and coven months. My children are hungry with no ono to look aftur then. I thorotoro ask for luniuncy. My childron arc all in school, J Im'11T(ml. j - The accusud has boon convictod of curioUs offonce which although committod in thu heat of passion, should bo • viowud seriously. Land clisputos are so many and bo that in this part of our contry that unloss a solution is found y way say, industrilization, land disputes will continuc to cctus tragody and heartache. The problom should be attondod to imnojiatoly and attomT)ts to porsuado Poolplo to rocottlo elso whoru should be mado. Thoru is plonty of good land lying iddle in thu reicn, That thu accusod has boon in custody for 14 months is a pity, but circscanccs byond anyone's control are to blame. This court will boar in mind this unhappy fact in assossing thu accusud 1 s sontunco, Considoring that thu accusod is a first offender with a largu family, ho is suntoncocl to five years imprisonnont "N.H..,IiIKIMA Appeal rihts oxplained, '1 TTT F(1 J L ......-