19720612 TZHC Singida

I AT DOD OMA ORIGINAL JURISDICTION (DODOMA RESGISTRY) . cRIMINAL SESSIONS CASE NO. 35 OF 1972 THE REPUBLIC versus MARTIN s/o LYANGA NARSELI S/o SUMUNI J U B G E N E N T KWIKfl'IA AG. J. The accused stands charged with the Unlawful killing of one Mwendo Kiule without intonding to do so. He has pleaded not guilty and offered no defence. This court is left with only the prosecution evidence to consider. The doctor told the court that he conducted the post mortem on the deceased whose body was identified to him by Ganda aaid Peter in the presence of a Police Officer, He concluded that the death was due to the head injuries which resulted in the brain matter being damaged. Indeed the brains were protruding. There was bleeding from the mouth, nose and oars. These multiple head injuries caused the death of the deceased. From this evidence I hold it to have boon established that the decoased is dead and that his death was caused by another person whom inflicted the injuries which the doctor desbribed as cut wounds. The prosecution's star witness was P.W,l John Issa who together with the accused and t] deceased attended the Poube party at Nasanga's place. He knew the accused and the deceased well prior to this occ$ion. The witness went on to tell the court that after it was dark a fight broke out betTeen the accused and the deceased who loft the drinking jDlace and went to fight at an open space avout 70 paces away. Joirn went to seprato then and was himself stuck and injured on the head by the accusedi. The accused was at the time armed with a stick. John then left them still fighting. In my sunraing.up -to the assessors I warned them to take John's evidence wit: ciion because he did not riso the alarm when he saw them fig].Tbing. He quietly went off to sleep with his head wound without reporting to the cell—leader after he was injured. His orn explanation is that the people had already retired to sleep in their homes. He did not think it proper to distirb them. In any case he reported first thing in the moorning when he was oi' his way to hospital. The gentlemen assessors have advised that they accept John' evidence and I cannot disagree with them. The cellleadr P.W.2 F Ramadhani Mohaned told the court how the accused would not divuig1 the name of the person who gave him the head wouid with which he was seen when he was summoned where the body was lying. Seven times he was asked but he would not toll. Some othr people including Nasanja Ng 1 wedu and Joseph Miugwana had failed to licit the same information from him despite repeated questioning. From this conduct of the accused, I hold that he was aware that the deceased had died in the course of the fight. His unwillingness to name his assilaait was an attempt to conceal this fact from his neighbours. The accused was worried that his misdeed would be discovered. That was why he woke up early in the morning and stood on high ground to survey the direction where the body was lying. So worried was he that he did not have the courage to gather with the othor vii] aers at tLc. jple cc where the body lay /2 .3(* - - •-A-- -. . . - —2- He ran off to cultivate his shamba instead. All these factors I take to corroborate John Issa in his evidence. I further hold that Silyanga whom P ,W .7 Elias Manya heard someone mention On on the fateful night was the accused because the other Silyanga his brother was not at the poube place nor was he seen to fight the deceased. It was the accused whom John Issa left fighting the deceased with a, pi.eco of fire wood0 I have no hesitation in agreeing with the getleuen assessors that it was the accused who inflicted the three head wounds which proved fatal to the deceased and that the injuries were inflicted at the time when Elias heard soreone crying. That person who cried "Silyanga you are killing mc" was the deceased whose body was found very close to Eli asts house. The deceased and t1m accused must have been fighting there. That was why the cries of tlD deceased disturbed Elias in his sleep. All these conclusions flow from the evidence adduced by the prosecution. In his submission the learned defence counsel said that the accused may have killed in self defence. This implies that the accused must have fought and killed the deceased. Aiad this I have already held to be a proven fact. What I am unable to subscribe to is that in striking the deceased three times on the head the accused was defending himself. The accused must have sustained his head injury in the course of the sane fi ~ h t. because he appeared to be freshly nured..whôn Masc.ja oaad'1.Joseph Mlungwana questioned him about it. But ho must have overpowered the deceased when the latter cried that he was killing him. The force which the accused used to crack the deceased's skull must have been considerable if it is recalled that the only weapon he had was a piece of firewood. Like the two gentlemen assessors I am not persuaded that the multiple injuries inflicted on the deceased could have been inflicted in self defence, especially when the person inflicting them had refused to quit fighting and had inflicted severe injury on the person trying to separate him from the fight. I would rule out the defence of self protcQt on and hold that the blows were inflicted in anger and with great force so that even when the deceased had been overpowered, the accused would not pose to spare him. He beat him till the deceased ly lifeless. The evidence against the accused loaves no room for doubt that he was the person who inflicted the multiple injuries on the deceased's head which injuries resulted in the deceaseds daath. His denial is an attempt to stave off the coli.sequences of his senseless act. I am satisfied and I so hold that it was the accused who killed the deceased and that he killed him unlawfully . The two assessors sitting with this court have aired the sane iew. In the result therefore, I find the accused guilty as charged and I convict him accordingly. SING-IDA M. H' A. KWIKIM 12th June 1972 AG. JUDGE RECORD: Accused 1st offondor. The fo'ce and brutality used to kill decased should be taken into a court. Accused should not expect leniency. He should receive a deterrent sentence. 0 0 0 0 /3 a. MIT I G ATION: Accused is a first offender. He has been in remand for a long time. Force was excessive but ttack on accused resulted in considerable injury... Accused did not calculate the retaliatory force. I crave for leniency. ALLOOUTUS Nil. SNTENCE The accused has boon convicted of a serious offence. This was one of those drunken brawls which are the chief causos of killings that necessitate long sessions in the regions. Ian mindful of the accusec1!s youth, however. I also take into account his clear record and the tine he has spent in remand. The accused on his part was injured in the fight. I will therfore sentence him to four years imprisonment. J .7 / SING-IDA N. H. A. KWIKINA, 12th June, 1972 AG-. JUDG-E. Appeal rights explained. SING-IDA N. H. A. KWIKINA, 12th june., AG-. JUDG-E.