19741211 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 59 OF 1972 THE REP IJI3LIC VERSUS Y.USUFU ® PANDI S/0 NINGA MOHAMED s/o NAA I- j7 S CHARGE: MANSLAUGHTER c/s 195 of the Penal Code. 7 - - I, - J U D G M E N T % Moharned Na.a, the accused, has pleaded not guilty" to a charge which avers that on or about the 10th day of March, 1971 he murdered one Iddi s/o Athmani, contrary to section 196 of the Penal Code. In his opening address Mr. Kinabo who advocated for the Republic remarked that they were setting out to prove that the accused and the deceased were drinking together during the evening of March 10, 1971 when they abused and fought each other. And that the accused dealt the deceased with several stick blows which overwhelmed and killed the deceased. The accused disputed this allegation and it is clear and conceded by the Republic that there is no évience whatever to show that the two men ever fought at the pombe place0' The two prosecution witnesses who were there, namely PW1 Orroondi Dosa and PW4 Hoteli Dafi denied that there was any quarrel between the two. PW4 Hoteli could hardly have been lying as he was the ten cell leader of the area and a cousin of the deceased. 'But it is ndisputable and true that Iddi Athumani died on or about March 10, 1971.fohlowitig a violent assault. PW3 Dr. Temba who examined thedèE1 boy. on 13/3/71 observed a gaping cut wound about 2" long and 1" wide dx dsing the skull, and a linear;fracture on the left side' of the fiontal'bone of the skull, aid,formed and expressed the opinion that the dath was, due to cerebralhaemorrhage and profound shock as a result of the wound. I respect and accept this opinion. There isonly'one piece of evidence which implicates the accused. This is P1, an extra-judicial statement which the, accused made before PW2 Albert Ru;fl,a Justice of the Peace, on March 18, 1972. This was admitted in evidence withoüt any objection from the defence. But the accused purported to retract it at the time he was giving evidence, alleging that it was procured from him by actual violence and threats and that the statement itself was false. The accused told the J.P. that he was on his way home when he met with the deceased at niqht. The deceased called out or saluted him "usiku" and he replied "mchana". The deceased asked "who are you" and he replied I" am Mohamed". The deceased then sid "if it is you Moahamed then you are in for it". The accused inquired whythe deceased replied, that it was because he, the accused, had burnt ubani at his house. The accused did not understand what that meant and he just laughed. That angered the deceased and he told the accused that he was going to béat him. He, the deceasedtruc'him with a stick and he 1 accused, w,rded off the blow by means of a stick he was carrying. The deceased struck him thrice but he kept on warding off the blows. The deceased's stick broke down into pieces and he, the deceased, took to his heels. Accordingly, I would agree with the second assessor and find the accused not guilty of murder. The. accused is found guilty of manslaughter contrary to section 195 of the Penal Code for which offence I convict him. Judgment delivered in court at Dodoma Mr. Kinabo for the Republic Mr. Mwakingwe for the Accused Accused present. D. P. Mapigano Tud Mr. Kinabo: Nothing known against the accused0 Offence serious, It appears that accused had been drinking. Most killings in this Region result from excessive drinking. Submit that circumstances call for, severe sentence. Mr. Mwakingwe: Accused is young - about 18 years0 Had hithereto an unblemished record. Has stayed in remand for about four years. This is punishment in itself. Each killing has to be considered individually0 Source of the quarrel was the deceased himself. Accused used only a stick and he struck four times. Deterrent or stiff sentence uncalled for. Accused did not know that assault would bring about loss of life. We therefore plead for light sentence. Allocutus - Nil. Sentence: I have taken into consideration what has been pleaded for and against a stiff sentence. The most important factors are in my view the fact that it is the deceased who provoked the attack and the fact that the accused has stayed in remand for a long period of four years. I sentence him to four years imprisonment. Right of appeal explained. 11th December, 1974. D. P. MAPIGANO AG I JUDGE