19740422 TZHC Arusha

47 IT - I IN THE HIGH COURT OF TANZANIA AT ARUSHA ORIGINAL JURISDICTION (Arusha Registry) CRIMINAL SESSIONS CASE NO.66 OF 1973 THE REPUBLIC Versus- PETER SAIDI, AGED 21 YEARS, TANZANIAN QHARGE: Manslaughter c/S 195 of the Penal Code, JU-D C M E N T Makame, J. The accused PETER SAIDI, who is on a charge of Manslaughter, has pleaded Not Guilty. He has denied as untrue the allegation by the Republic that on 2nd october, 1972 in Hanang' District he unlawfully caused the death of a man called Mabaya Qambasad. P.,W.1 Dr. JOHN MLUGU told the court that in 0ctober 1972, the 4th according to his report, he conducted a post mortem examination on a body identifi.d to him as being Mabaya Quambasad's, and found a ruptured spleen which he opined was the cause of death0 He said the body was identified to him by Gidabarden Gibadason and Lamaja Giyang in the presence of a Special Constable called Bernard - Ninyo, The last two people were not called and the first one,wh6 was, was not asked any question regarding the identific.at-i6ñ of the body to the doctor. There is thus a missing lin,_aareless one on the part of the Prosecution, but, consider.i-ng the evidence of P.W06 JOHN FIITA, a policeman, who saihwas the one who took the body from the village to the dip.ensy where the post mortem was done, and that he was presçnt-t the examination, I am satisfied it is true Mabaya Qa sadis .dead and that his body it was that Dr. Miugu did the-pôst mortem examination on. I believe the doctor did find_hieen with a big rupture as he said, and I accept his opjax' on that that was the cause of death. Despite small apparent':fferences in detail the evidence on record establishes that on the material day three Wamng'ati, including P.W.9 GIDABADEBI GIDABASET, were locked up in the village cell for being of drunken behaviour, and that one of the other two was the deceased. It would appear that there is no controversy that the accused, a messenger, did not participate in the apprehen- sion of the deceased, There is clear evidence by two Prosecution witnesses, P.W.4 ABDALLAH RAJABU and P.w.5 HASSANI IDDI, that when he was being carried to the lockup the deceased was deliberately hit on the ground by one Saidi, not 5 aidi the accused, and that that Saidi has since disappeared without trace. Assuming that the accused did assault the deceased in the cell as alleged, and we shall come to that, it would he difficult to say that it was that assault, and not the one the deceased was subjected to by the other Saidi, that ruptured the spleen which in turn caused the deceased to die. And there is of course no evidence on which to hold, or from which to make a necssary inference, that whatever the accused did he did in concert with the other.aidj. I am theref ore not prepared to find, in any event, that the accused caused the death of the deceased. -. -. -- / I - .----.- A. '4 I, -2- The accused asserted in his evidence that he did not assault the deceased at all. Two Prosecution witnesses say he did. These are P.W.3 DAVID LAISER and P.W.5 HASSANI I)DI. They say they were present at the lockup. According to Laizer, he saw this through an open window. The accused was kicking the Wamanglati and telling them to lie down. When he happened to touch the deceased's faeces the accused stepped on the deceased, on the sides. Iddi says the accused kicked the deceased both on the neck and the sides but. he concedes that in his statement to the Police he mentioned only the neck. The accused told the court that these two witnesses were companions-in-crime and that they both had grudges against him as he had effected their arrest0 Like both honourable assessors, with whom I respectfully agree, I find that the accused did assault the deceased. If the two witnesses were actuated by grudges I am satisfied they would have sought to implicate Ward Executive Officer as well. He was originally charged,/ together with the accused and a nolle in respect of him was entered only after the two witisses had testified and_rpide it clear that the Ward Executive Officer was not involved'0 After all, according to the accused himself, the Ward Eeutive 0ffi.cer used to go out with bim toeffect arrests, and, in any case, he would be the one giving out the necessary orders. If any thing, therefore, the witnesses would have tried to implicate the ward Executive °fficer even more, if they were really motivated by pique and malice0 Also, if the accused's contention were true the witness Iddi would not have said something.-conspicuously in the accused's favour that the deceased 1a6 been manhandled by the other Sajdj, The accused contended that the witness Lajser was not in the neighbourhood that evening an-s could not have witnessed any assault because he had goe.if to Arusha after stealing meat; and was being looked ors-te the morning0 Both Abdallab Rajabu PW 4 and. PW5 Iddi spoke _ef a man being apprehended that evening f or stealing meat0-1f this man was Laiser the defence should have put the appropie questions to the witnesses. They did not. 2Yie gentleman assessor found that the accused did assault deceased but that as the deceased had before that been assaulted by the other Saidi it would not be possible to say that the accused is guilty of Manslaughter. With great respect, I am entirely in agreement with that view0 The lady assessor also found that the accused did assault the deceased and went. on further to hold that the accused is guilty of Manslaughter as charged,. a view which, f or reasons I have explained, I am respectfully unable to share. I find the accused Not Guilty of Manslaughter but Guilty of Common Assault, contrary to Section 240 of the Penal Code, nd convict him accordingly. Previsous convictions: Nil - MITIGATION: Kapoor - The accused has gone through great pains of punishment. The circumstances are peculiar and I ask for maximum leniency0 Accused--•i have nothing o add,.. • .. .•. SENTENCE The inaximumpuriishment for the offence with which the accused stands convcted i is 1 year. Ientence the accused to imprisonment for 9 (Nine months, - RIGHT. OF APPEAL to C.%OE.A0 explained. ARUSHA: 22/4/74 - (L. M. JUDGE.