19740805 TZHC Moshi

INTHE HIGH COURT OF T!ZINIA ' 1OSHI . . ,.. ORIINfL JURISDICTION ... . . : : I ' • • (usHf' REGISTRY) CRIMINJ\L SESSIONS CiSE N00101 OF 1973 THE REPUBLIC versus . (I) LDJBU SI-IOKI (2) ELIREHEMA GLBRThL 4 Charge - Manslaughter, contrary to sectionj95 of the Penal Code. ' Jonathn, J. - : . .. . : • : . • : . . The accused are jointly charged with manslaughter, con t rary to section. 195 of the Penal Code, theparlcuIrs a]leging that, join11y and. together, on or about Mar 20th, 19.72at NäsELi.'iiiage., Sanya juu, in the distctofMoshi r tY. unlawfully killed one Bene ,s/o. L.dabu. It Is common gt'ound that Ber s/o Lddbii, a male child • aged two or-three Hewas the son of woman • called Nkanoti and Adau, the .firstaccused,was the •.Dr..-Minja (Pw.i), wko conducted the autopsy in his evidetice said the death was due to a gross traumc' of the head. We are satisfied that was the cause. There is no dispute thdt the fatal injury as immediately precedea by p fight between the to accused persons. Now, as already indictod, NKanoti (pw.3) was foi' many rs the wife of. .hdabu, the first accused, and had had mar children by him. However, kbout 7 months preaöusly to thc incident Nkanoti hd left .dabu taking with hex 3 of the 1hildren and had ultimately rnovca to &inya Juuand lved un conuhinae with Elirehemt, the second accud 0 Th inciaent occurred in the room rented by N1ar1oti where Jdabu paid thorn a visit on the teal. night. r.. Thro re three veroion.o of thc incident. Firstly, according to .ktdabu, Eliroherna took offence to his visit and ntteked him, apparently uth e stick, in the cEuIe of which Elirehorna grabbed the child from him and thrcy it on the rouxd. dabu picked to take it to hoapit4 buit died soon thereafter and he took it straight to -thePolice Stion. Heal1oges the çhil \1rask1led by Elireherna, pre8umably vihen he threw it on tItground. The account of Elirehema as in his Statement is,on the othr hand, to the effect that Adabu forced his way into the room attacked ham and strang1e. the child betwCCn hi thighe0 Finally, there ae the accounts of one Lydia (pw.2) and Nkanot-i. The foDmer had gone thtre to stay ovaight in the room adjoining to that of Nknnbti which was Anted. by a woman called Giseni 0 There was a door between but it ws open during the relevant period4 ccorain to these tv witnesses, Lydia when going to the room of Giseni had to p asst through that of 11kanoti where she found her with fdabu and the culden. • .-. - -• -•.- ,_4 - -------- -.• --- •)- V: — 2 — Later,Elirehema came into the room and 1pr otested the preSe5Ce of A bu1-.c..Ja4min that. he was entirig the room for Nkanotir Adabu went out only to i"otun about one hour later and to break open the door with i big stick while theathing violence. sens1ig danger Nkonoti sneaked out through the window taking with her two of the children, but not. 'the deceased who was asleep. There was then a fight of .whch Adabu was the under dog. b1timale.13ti, Adabu uon ut 6nd lxlg , up took the sleeping ~ dedeased in his arms in the norma way, a renty to take it away with him. This 4 0 te was resisted by •lirehema who. charged that Adabu intended to sell away the child in the same %ay as he had sold away the othe l, children, There followed a struggle over the child. Lydia docribes Adabu. ae hang been in a sitting pOs'ition and having pressed the child's neck in between the thighs to prevent Elirehema from taking the child. Elirehema for his part pulled the child ai the legs. At one stage during thetug—of—war, Lydia says, Elirehema released the ciiild,apparentlYtavoid the child being ashiciated, and that appears to have flung away..Adabii. and the child. At that stage the light suddenly went out, and Lydia could only hear as if the child had been knocked On the flOr. Instantly there was ahrick. from the childe Adabu then took the ciild and went away with it 0 The accused, perhaps undestandably, jare throring the blame on to one another. However, like iho h& and gentlemen assessors I am satisfied 4iat they are not telling the truth when they totally deny resonsibil'ity, and when each of them 'il.gedthe death was the deliber'iteact of the Other. Lydia, on the other hand,.is an independent and a disinteretd witness. She impressed one as beiflg baancei and fair to both ac, cus e d'.arid we readily accept her veralon, itself substantially supported by the account of Nkanoti, as. en accurate acount of what transpired that night. The Lady and gentlemen assessors, goi.g on the accoun' of Lydia and Nkanoti are unanimously, of the view that both pecused are guilty of the manslaughter of the child. The case against each accused, siould, I think, be considered separately fron that against the other. So far a s I see it that against the 2nd accusea,' Elirohoma,is that he prevented th other accusea from taking the child. Is pointed out by one of the assessors, the deceased was the child of Adabu, so the latter wouldvc been entitled to take the. child. jhe gentleman assessor went on ,, rule that Elirehema was not entitled to obstruct idbu. With respect, however, the 71 &tuation was not that simple0 There waspiou evidence that .hdabu had not cçired for Nkanoti end the chilthen,and of rumours that the accused had sold away some of the children. Like iNkanoti and Lydia, Elirehema appcais to have believed that 14abu. had sold those children into slavery.. One would hesitate to 'believe that could have happene.d. The point is, Ikbwever, that Elirehema had euccubeá tt the rvmours. That being his belief, and there being the further belief that Jdabu was intent upon selling that child also was Llireherpa not entitled to protect the child from beingtoken away 9 I Would say yes. It is the prosecution submission, however, that the manner he adopted of giving such protection was culpably negligent. It is not altogether clear how much.. force this accused used to pull the child, frorTi which a conclusion miç,ht be drawn if it was culpably negliger i t on the 'art ;Of Llirehema to release the child, . ..... .... S • • . . ./30 - 3 - To go on the VerflBiOflof Lydia, this accused released the legs of the child because he apprehended there would have been danger to the child to continue to pull, for that would probably have asphixiated the child whose neck was prese between the thighs of Adabu. That was a reasonable precaution. Ought he then to have Foreeni that to do so would have had the effect of getting the child flung away to hit its head to death? That would be hard to say. However, it may be,in fairness to him that Adabu was in a sitting positi.dn' and that he would have with stood the centrifugal force resulting from the withdrawal of Elirehema. There may have been an error of judgWent. on the part of Elirehema, but I am satisfied. that the omission on, his part, if 7.,. was not so gross as to be culpable negligence. And now to the first accused0 His conduct in breaking his way 'int the room was unlawful, and clearly he was . responsible for the fight that followed between him and Elirehema. His attempt, on the other hand, to take the child away, though injudicious and a little was not unlawful.' It is however submitted by the learned state attorney that the manner of defending his 1ght to defend the child was inappropriate and dangerous. lagree it was potentially dangerous to press the neck of the child between his thights for that could have led to asphixia. This did not result because Elirehema released the child. It may hav'been the e.alculcition of Ldabu that Elirehema, seeing that i.t.w f,r ivnhl rhild too bard from that position he would have let it go. One cnriot be really clear that in circumstances as those, one could reasonably have fore seen that the child would have heenflung: away to hit the floor. evidence is lacking to show hQw' the child was flung away, but I would imagine that, if the pull at the child was in a straight line Adabu could have trusted himself to proie±a sufiicient 1tffer in the event of their being flung away. The circumstances are insufficient to be clear whether the accused should have fore seen that his manner of defending the child would have the result that occurre&. The invasion by Adabu was, as I have said, unlawful, and • I may add that but for such invasion the death of the child would not have ocourxe.d. That is not to say, however, that it was directly the result of the invasion. The direct result was the fight. The struggle over the child was a different episode, and I cannot say. that.. it could been reasonably. have been, foreseen by the accused when he broke into the room. The circumstances in which the child died are extremely. pathetic and Adabu and to a extent Elirehema are to blame, but as I have endeavered to show, I cannot agree that their conduct in relation to the struggle over the child was necessaiily culpable or 4gent., Accordingly,I find accused - both of them - hot guilty and they are djooharged. P.M. JONLTHLN, JUDGE 5/8/74, 5/8/74. Coram: P.M. Jonathan, Judge. Other appearances as before. Judgment delivered in Court at Arusha this 5th dayof Auguat..19740 AssessOrs thanked and discharged. P.M. JONLTHAN, JUDGE. 5/8/74,