19720417 TZHC Kondoa

lId TEf III:II OflI:T OF iIIA 01*.ICI:Jj JTLJIIJDICION. I (007J01: • ;G:JST;Y) C j:O. 14 O 1 971 The 1epublic versus LL C/S 196 OI THJ KdAL CO)D. Date;1/4/72 Coram; ITh3VAS, J1J.'DG•j :H- State tornoy for the Rcubl±c. Cotmol for the Accused. Accusod(nae) RasI.id Dma is present under custody and represented by Interpreter Mr. - n1ish into kiswahili and -3 . ( vccversa. q Ti I T. • The accused Roshidi Sb iiaa is charod with nur der c/s 196 of the Penal Code. It isl allod by the Reub1ic that the accused, on or about the 1 9th day of Fieptember 1970 at Bambare villa:e, within the District 01 Iondoa, Doiorja reion,, aurdoro. one, hassai'ii s/o hwonda. he accused's deience is that he killed the deceased accidentally. *In his olipening addresi to the court the learned state Attorhoy told the court that on the iaterial night the accused with malice af ore- thought took a hamraer and wont into a roo a whore the deceased was sleeping and assaultedthe deceased on hi s head with the haiirner killing rhim instantly. I The state attorney wont on and told the court that the accused cidcc. to kill the do eased who was his uncle because the deceased was too old and usJ to defecate in his bed-room- Because of this it was said by the loa:ned. state attorney the accused took the decea sed to be a burden to i4im and decidd to eliminate him. The Reublic started its case with C,, octorls ovictence. The Doctor (P\Ji ), an assistant hedical 0±ficer related to the court that on 21 /9/70,two days after the deccas coi 's death, he perfomed poet-: -tor - bcn exanina -b ion on the deceased s body and found that the deceased was an elderly man aed about 30 year. ..:tccordini to his observation he found tiat the d e c o a s .d •riad a aeprossed co.ipound fraciure of his accipital rer;ion on the right siIo, On openin- the skull he detected laceration of the brain, i1hen shoTed tile hai:eer( cxihbit •') the doctor said that the hammer could have causerl such injuries as the ones he found on the deceased, and accordingl to his oinion considerable force st have been used in mnflicting the wound. I.cham (PY.2) gave evidence to the effect that on 20/9/70 he w..s bold what had happened to the deceased and that he wevb to the accused's house where he found the deceasnI already dead. [. -ccording to his testimony he asked the accused whether he knowl the cause of the deceased's death and that the accused replied thai he did not know. Isa P113) gave similar evidence as that of hoh1J in eo far as the accused's denial that he knew what was the cause of the deceased's death was concerned. S S • • •.• S •oS S • •.. S • • ./ 2 - 3 - the lesser offence of manslaughter. I have great respect for the doctor's opi'iion.as to the manner the deceased's fatal injuries night have been c He repeatedly said that in his opi:Laion the hammer (exihibit A) could have caused the wound he found on the deceased and that to cause such a wound the hammer must have been directed at accuse skull with considerable force and at a close ranuo. He said that it was most unlikely that the wound was caused the way suggested by the defence, fheia croosexauned as to whether fracture of the skull could have been caused if the accused casually threw tile hammor at the deceased and accidentally struck him on his head he replied that it was possible to fracture deceased skull but that the extent of the frature wound not havo been as pronounced as the type of fracture he found on the deceased.. In anotherThepiy the doctor told the court that hones of elderly people, (the deces(_-, d was about eighty years of age) are due to advanced age, morb fragi le than. those of younger people. de are not told by the defence at what distance the accused was stand.ng wmcn, as alleged by the accusod, he threw the hammer to the deceased. If as it was suggested to the doctor, by the prosecution the accused was standing 10 paces from the deceased when he threw the hammer, the doctor said that the hammer if it landed on deceased's head could have caused. fracture of his skull-thouah according to his evidence not a similar fracture as the one he observed on the deceased • The doctor however on further cross-oxaminacion, told the court that a fracture so caused would most likely be more ronounced in an elderly person than in a younger person. Taking W 'to account the doctois replied I must say that ± find some difficulty in satisfying myself as to the allegation by the PLopublic that the accused deliberately assaulted the deceased with the hammer. It would have been much easier for the curt to accept the alle{ation that the accused deliberately inflicted the fatal blow if, the medical evidence as in one way or another corrortated evon by mere circumstantial mdenco • As IL have mentioned the reodical evidence stands alone - And as - have tried to show abovo it is not in anyuay watertight. In his opening speoch the learned state attorney told the court that the accused wished the death of the deceased. The court was told that the accused loo.ued upon the deceased as a burden G0 him because he was too old to world and used to defe.catc in his bedroom. There is no evidence whatsoevor iI'l the prosecution case to show that the accused rished to eliminate the deceased. On the contrary the accuoed's defence, which defence remains unchalleged, shows that relations between 19w him and the deceased where, to put it at its lowest, cordial. According to his defence he started taking care of his aged uncle since 1940 and, apart fmitia few years period he was rith the deceased up to the time he met his death. As rightly argued r the defence, although the prosecution is not in law rcquired to prove motive on the part of an accused, lack of motive may be taken as a defence. This is all the more so where the prosecution in an opening spoach alleges motive but fails to prove such motive as it is in this case. On the evidenco I have grave doubt to the quostion of malice aforo bhou tht and s it uc o hold LI iVs L L -. dPi (1940)13 ..c ooe 187 wheac tiacre i c1oub es to h o çuoi n. o f elice roreuhouLh acuod must be found not guilty of urdor but guilty of the lesser offence of manslaughter, The vital question however is whether the accused ' s throwing of the hammer so casually to his elderly unclea;od about 80 yoars, who was at the time sleeping intho room amounted to such gross carelossness on his part as to amount to the serious offence of renolu bor s ± r s 3leld ma ThTs'IJlBUiijODODO(1936) 42 1JOiO C cO1v2cucfl for 1LIunlaehe un 11Lc l stand, tour things must be proved. It must be proved that the accused had a duty to take care. That the accused failed to diechar ,e that duty, That as a result of his default death resultol, And that tile negligence went beyond a nero matter of compensation and that it showed such disregard for life and safety of others as to amount to a crime against the state and conduct deserving pullishreclat . . . . ........•.. 0 0•0 I - 4 From the accused's own de:feuce his uncle was a vei;1 elderly man who could only walk with difficulty. to could not even remove his eatinç utensils fros his bed-roora. The accus:d 1:new very well that the deceased was sloepjnr in the room and it vms dark. Ho, notwithstandinr; those f'acte was so {rossly npli:eni as to throw such a heavy hammer to the deceased askina hiin -bo keep it in his (accused s) carpentary tools bOx. This in 11W view ross neflironce on the part of the accused The nef'lidencs clearly wont beyond a mere matter of compensation. Accused's conduct which led to the death of the deceased amounts to ZINITZ manslauhter of the deceased. The accusod is accordingly found not peil'cy 01 murder but (u1ly of manslauahter c/s 1 95 of the Penal Uode. Pros;- The accused has one rblovant conviction. in 1 953 he was convicted of assault and sentenced 1 month impriso -usent. I produce his record to court as exihibit. ncdusodt- I adra'G the previous onviccion. Itecorci marked as exhibit XII -- The accused person is married and has thirteen children. He has been in remand for about 19 months Among' the people depend in on him is the mother of the accusejtfr.s in court, Her coaiiip in court clearly shows how anxious they re about the accused s early release. And you will no doubt your lardehip take into account that the accused has all throud:ht the trial been very help:ful to the court The accused is to thank his stars that there was no evidence supDorGin( 'Ghe doctor's opinlon that the iasal injuries were delioe- rnte.ly inilicted. Had there been such evidence he would have been cuilty othe serious offence of murder uhich carries death Denality. liuch as I would have liked to be lenimnt to the accused the facts 5h01:T not only that the accused was drossly neli'oit but he also has a previous offence. This is a case which calls for severe sentence. The accused is sentenced 9 hears imprisonrient. Ridht of neal to H .A C .A. explained. Desouza for the Republic, kesai for the accused. a KOiTDOA 17th april, 1972 4