19730221 TZHC Kondoa

IU TIdE IiIdi-i COTJR.T OF TAEVAUIA 1jQ 0UIC-IAL (DODOi'V.EEG-F;TRY) Crininal Sossoiis Case ho. 60 of 1972 The Republic Versus RJiiDHAhI Sb IdI.TiJ iTID FOUR OHEJ1S Charge— Nurder c/s 16 of the FCC. J U D 5- E N F U T. iTIKINAIJe The four qcciised stand charged for tualawfuily kiLiing one J1.11i Itasu at Chiruku vii] 1 trict of Dodona Rogion They have all poaded not guilty to the charge0 The body of the deceased was discovered hidden in the bush some days after the fight which took place at the hone of the 3rd accused Selenani Pira, The lower part of ithad been dovourod by wild animals, .Thon the doctor conducted the rost mortem on the upper part that remained, he could not detect any clue regarding the cause of death. He had but to declaro his inability to venture any scientific evidence on th:Ls issue, Instead it has to rely on the evidence of those who wore present during the fight0 The wife of the third accused Seleriani Bira who was also the hostess at the pombo she brewed in order to enlist help to clear their shamba said that the deceased died at her house in the course of a fight. She said that she saw her husband and the accused Hussein Ttiko tie the body on a yoke and carry it to the bush whore they wrc going to dump i;. She told che court that ShO saw the dead body on her return after fleeing from the fight, The hostess as well as the women guests fled from the party when the deceased started fightihg the accused Ranadhani Malatu and then a general fight broke between the relatives of the deceased and the supporters of Usmadhani Nalatu, That the deceased diod in the course of this fight is certain because, apart from the evidence of the hostess, the second accused said in hi extra-judicial statement that the deceased died fighting Rairadhani, The relatives of the deceased who fought and ran away said that they never saw the deceased alive after this figl-it 0 In fact the deceased was reported missing because he never soon at his home again after the fight between him and Thiiaadhani. I find it to have been urovod from this evidence that the deceased died in the course of a fight at the home of the accused Selemani Dire,. , •/2. The witnesses have consistently told the court how the deceased, having been repulsed by Ramadhani's wife whom he was seducing, abused her and her husband. The deceased did not stop there. He challenged i;araadhani to fight. They had all been drink- ing and when they started this altercation, tempers wore very short. LaIadai took the challenge, pulled the deceased outside and showed him his readiness to gight. The deceased used a knife to slash Remadhani and another person before the fight developed into a two team affair. The witness Shabani, a brother of the deceased saw Ranadhani first stab entered the house. No witness has spoken of seeing anyone else besides anadhani Nalatu strike the deceased. In this Shaban cannot be doubted because the only person who had reason to fight the deceased wrs Ranadhani whose wife the deceased had seduced and abused .amadhani had himself been slashed with a knife by the deceased. It was only natural that he should react in retaliation if not in self defence. Unfortunately for hirs he aimed the elow at the wrong part of his assailant's body. The force must have been excessive. Otherwise the knife would not have penetrated so deep. All this is evidence that the deceased died of the s -tab wound which was dealt him in the abdomen. Evidmice on this point has been consistent and undisputed. Accordingly the court holds it to have been shown as a fact that the deceased died of the stab he received in his abdomont end that his was the sole cause of his death. According to the evidence of the prosecution wItnesses, the only people to use knieves in the fight wore the deceased and the ausod Ranadliani. The other combatants wore either armed with sticks or altogether unarmed. The body was found to have no signs of having been beaten with sticks or fists. This adds weiht to the fact of no one else besides Ramadheni being seen stiking the deceased. The court therefore concludes that it was Ramadhani and no one else who struck the deceased and that the stab he dealt the deceased in the stomach was the fatal blow. The other accused cannot therefore be said to have taken part in killing the deceased. Those who took part in the fight tackled other members of the deceased's team. Each can only be blamed for the assault he dealt on the particular opponent he fonglit and not for the stab Ramadhani dealt the deceased. In their opinion the assessors felt that all the four accused were guilty as charged. The gentlemen based their opinion on the evidence that the accused Seleraani Bira, Husson Tuko and Salinu Seleman carried the body and hid it in the bush. It was pointed out to the assessors in the sunning up that it was not the law that those who help the culprit to cover up a homicide are equally guilty of that homicide. In the case of murder: -' the offence of helping to conceal the offence is defined imder section 213 of the Penal Cose, Section 22 of the Penal Code defines as an accomplice anyone who aids and abets in an offence. The three accused in this case cannot be said to have in any wa y assisted in the commission of the offence. None of then struck the deceased, or made it easy for Renadhani to strike the deceased. The fatal blow was struck independently by Ramadhani Malatu. I would therefore respectfully disagree with the gentlemen assessors and find the accused Salum Selomeni, Selenan Bira and 1-lussoin Tuko not guilty. They are accordingly acquitted. As for the accused Ramadhani, the evidence agaist him leaves the court with no option but to find him guilty. He himself admitted fighting the deceased in his extra-judicial statement. All the prosecution witnesses including his wife said they saw him fighting the deceased. . . . . . . . /3 . . . . . ' 4 'S - 3 - Ho had every justification to defend his wife's honour in view of the deceased's dishonourable behaviour toward's her. But in stab- bing the deceased he reacted excessively. Considering that he had himself been slashed by the deceased the witness who saw hire stab the deceased must have been telling the truth because that would be the natural thing to do for anyone in his position. The evidennce a;ainst Ramadhani loaves no room for boubt, therefore, The circum- stances are so compelling that the eye wi;noss who saw him stabbing the deceased can neithor by lying nor be mistaken. For those reasons the court finds him guilty as charged and convicts him of the offence of nanslaughter. / M. H. A. Kwikima Ar T ' 0 j5'.'• Record: Accused 1st offender. Mitigation: The accused was subjected to vobal and physical provo- ffion that lie did was natural in the circumstances. It cannot be denied tha -'d he reacted excessively. H e has been in custody for over two years now. He has a family to support. He should be treated leniently. Allocutus I have six children some are schooling. My old iarents aredind, My sister died. I crave for leniency. I have been in custody for over two years. Sentence: The deceased was partly to blame for his demise. I-Ic cene f rosh with the accused's wife and lost his temper when he was jilted. His immorality cost him his life. The accused who - has been in custody for two years cannot be blan..od too much for * stabbing him. After all it was the deceased who first slashed the accused with a knife. Accordingly, bearing in mind the circumsta- nces of the case and taking into account his plea in mitigation, he is sentenced to one year imprisonment. 4 Appeal rights explained. 1 /I 21st February, 1 973. N. H • A. Kwikima. /KF1S.