19731020 TZHC Arusha

I T-t--€. 4-1C1 4 cuT XpLsrc'i AJ. AHUSHA ORIGINAL JURISDICTION (Arusha Registry) CRIMINAL SESSIONS CASE NO0 19 OF 1973 THE REPUBLIC versus PATRICK @ OMOLO S/a SAKA 000000000000000000 ACCUSED J U D G M E N T Nakame, J. The accused is charged with Manslaughter0 He has pleaded Not Guilty to the charge that on 15th November, 1971 he unlaw-. fully knifed to death a man called, JACOB OJUKIJ OKECH0 Dr0 ALLY KAJEME told the court that in November, 1971• he performed a post mortem examinatibn on a male body indentified to him as being that of Jacob by Otieno Angiyáa and Osolo Anale in the presence of D.C. Cresent0 PETEROSOLO POWO2, who I am satisfied is one and the same as Osolo Anale, told the court he was indeed one such witness0 I am satisfie'd that the person Jacob on whose body Dr0 Kajembe did the post mortem examination is indeed Jacob Ojuku Okech and that heis the deceased in this court0 The doctor said that he found on the bpdy 'aut wound 3" wide between the fifth and sixth ribs0 It had cut through the chest wall and the lung reaching dep into the heart as a 3"x4" wound0 In the doctor's opinion a sharp instrument such as a knife had been employed and death was caused by the stab on the lung and heart0 I accept that the doctor did see the injury and I rely on his opinion as to the cause of death0 ' P0W02 Osolo told the court that at the material time he, a man called Otieno, the .iccused, and the deceased, were staying' in one house on Themi Estate0 The deceased broke th*e accused's flask and tore his shirt0 After that the two, the accused and the deceased agreed with each other to go out to drink, and they did indeed go out together aft.?r the accused had told the deceased that they would only go out to drink if the deceased undertook to pay for the things he had damaged0., presumably, therefore, the deceased did give such an undertaking. When the accused and the deceased returned the deceased announced that he was not going to pay for the things after all, whereupon he accused replied that in that eventthe matter would have to be settled by elders0 Osolo thinks that the deceased, who started making a nuisance of himself, ws drunk0 The deceased started throwing things about in the house, including stones from the fire hearth0 His companions sensed danger so they rushed out of the house and Jacob ran after them0 Each one ran his way and the witness spent the night outside, hiding0 ' The following morning when he returned he found the deceased dead in the neighbourhood of theirhouse0 The ccused he did not see until after he had been arrested0 He told the court also that he did not see the accused and the deceased fighting0 Regarding knives, he said that all of them, except he who had by then already retired from sisal cutting, had sisal knires and that all sisal knives resemble0 RASHIDI SAID, PW03 said that after the Police had requested people to look for the accurd he'sptted him ata shop in the presence of a cell leader0 The Police had asked for assistance at about 830 a0m, (On the morrow following the death) and he arrested •the accused at about 10 a0m0 The accused said he had hidden. - a knife in the bush and he people to where it was found0 The witness added that near the body he found noknife0 .. W 4 There was next the evidence of PETER ULIZA, P.W,4, according to which when the accused was taken to the Police Station at 2.00 p.m. on the material day there was a bundle of clothes and a knife with him0 He did not examine the knife to see whether or not it was blood stained, POWO6 ORBELIN MUSHI, a police man like P.W,4, told the court that he found the body about eighty yards `ftfli tJe, house in which the accused and the deceased were living. He saw the knife when the accused was taken to the Police Station. It did not appear to him to have 'any blood stains. In his unsworn statement the accused denied the allegation that hi2 knifed the deceased and added that the Police threatened him, by showing him their dogs, and made him make a statement. He told the court that that evening he, the deceased, and Otieno, drank some moshi at home. Then the deceased went to the house of some neighbours from which he called out the accused who followed him thither where he drank a glassful of moshi. Then the accused went back to their own house and refused to go back to the neighours' house even though the deceased called out for him again. Eventually the deceased was thrown out of the neighbours' house and when he went back to the house he, the accused, and the others were living in he forced his way in and said "Of you three one will die to day0" He sharpened his knife and started hurling utensils about0 Fearing that the missiles would injure him the accused opened the door and went out, followed by Otieno. He wanted to go to the cell leader to report but he was unable to do so because he did not know the cell leader's house. Instead he went to the house of one John,' a fellow Jaluo, who advised him to make the report the following day. He went back to the house where he found the deceased assaulting the old man Petro Osolo, P,W,2, When he asked the deceased why he was assaulting the old man the deceased came out with what appeared to the accused to be a knife and started pursuing the accused round the house two times. On the third occasion the accused heard'the deceased fallingdown. He went into the house and packed up his things: His two shirts, a blanket, two pairs of trousers, and a sisal knife. He slept the night outside and the following morning, at 8.00 a.m., when he went to make a purchase of cigarettes he was arrested and told that he had killed the deceased, an allegation he denied. The photograph A was tendered in court showing the 'position in which the deceased was found. No knife was found at the scene, which confirms P,W,3 1 s evidence. There was evidence of a search f or the possible weapon which is further proof that none was found where the body was. Also,as the doctor told the court, the deceased could not have accidentally inflicted the wound upon himself unless he was holding the weapon with the blade towards Ms body. I am satisfied that the deceased was not armed with a knife as the accused wants this court to believe and that the deceased did not inju4:-.imse1f. 1.4 I am satisfied that iit is true the deceased was making a nuisance of himself generally, hurling things about. The old man Petro did not say that the deceased was beating him as such and I believe that the accused's assertion that the deceased was assaulting the old man is. untrue. I believe that in his drunken state the deceased ran after his campanions when the latter sensed danger and left the house. The accused had himself taken a great deal of a potent liquor according to his own account and there was a confrontation between him and the deceased outside the house, the precise details c which must remain uncertain. One thing I am certain of is th.t the deceased did not have.a knife outside there. I am satisfied 1 that the accused knifed the deceased and, having done so, he decided to decamp, That was why he took his belongings from inside the house. Otherwise if he was really-afraid of the deceased whom he belie:L to be armed with a knife and Was pursuing him he would not havc. iad the guts to go back into the house and be collected enough to take time to pack up things some of which he hd no immediate i for, and this in a house which wasdErk.. The mere fact that the deceased had fallen down would have been no guarantee that he would remain prostrate on the ground until the accused had finished doing what he was doing inside the house, unless of course he knew he had injured the deceased who would be in no hurry and condition to get up and resume the pursuit. It is clear that he meant to decamp. I am satisfied that he was not quite sure how much he had injured the deceased and that was why the following morning he went back on a scouting mission to find out how much harm he had done, obviously hoping for the best0 His conscience was not clean and that is why he continued to park his bundle in the bush, otherwise he would have carried it with him when he went back to the village in the morning. It was not of much significance, to my mind, that the knife was not found to be blood-stained. The accused had ample time to wash it and remove any teiltale evidence on it before 10.00 a.m. I am satisfied that in knifing the deceased the accused was not legitimately defeding himself. But what with the moshi he had abused himself with, and taking into account the deceased's own drunken behaviour, the accued was provoked. The circumstances taken as a whole leave me with no doubt that the facts are consistent with the accused's guilt only0 Both gentlemen assessors found the accused guilty of Manslaughter as charged and I respectifully agree with them0 I fThd the accused guilty of Manslaughter and accordingly I convict him0 Arusha: 20th 0ctober, 1973 (L M. Nakame) Judge 20th October, 1973 Coram: As Before, except for Mr. Japoor, absent with the leave of the court0 Judgment delivered. Previous convictions: Nil MITIGATION Accused: I have been in remand custody for two years. I have a wife and two children0 The children go to school. My father is dead. S B N T E N C B I take into account the fact that both the a:used and the deceased were drunk, that the decised started the t.aub1e, and that the accused has been in cus€cy for a frightfull long time, nearly two years. At the same tine a life is lost i.s a result of using a leathal weapon. t senten(:e the accused to irisonment for 3 (three) years. 4 RIGHT OF APPEAL TO EACA expained. -D L. M. Makame, Judge 20th October, 1973 Assessors thanked and relees Arusha: 20th October, 1973, /cwrp (L. M. MAKAME) JUDGE