19760114 TZHC Arusha

- - : F IN THE HIGH COURT OF TANZANIA AT ARUSHA • V ORIGINAL JURISDICTION (Arusha Registry) CRININAL SESSIONS CASE NO0 39 OF 1973 THE REPUDLIC VERSUS KIDANGASH SONGHORF, ---------- ----------------------- ACCUSED CHARGE: Murder c/s 196 of the Penal Code0 ' JUDGNENT . Mak.ame, The. accused KIDANGASH SONGHORE is charged with the Manslaughter of a man called KIDA30JGE 3ARENDA, a chorae he has denied0 There was evidence by P W 1. Dr. OFORO inFOLE that he is the one who concted a postmortem exdmlnation on a body 1.dentlfiLd to him as being GIDBONGE 13iRENDA'S. He said on€ of the identifying witnesses was BYDENINA and indeed BUDE NIN'A, hc gave ~ vide'ncd as 'PW 2,.. said . the acdused..was his ''elative and that he did identify the' beceased.'s body toa doctQr. :1' am satisfied that the slight differenhes in the ames. were because. f 'pronounciation problems and ..tht the hpdy the....... , Doctor said he conducted a postmortea examination was inded ht of the pprson.. the accused is alleged to have killed0 I accept as true the ..... doctor.s testimony that he foudd the body decomposing and with a depressed fracture of the occIpital bone0 I accept his opinion that the injuy was caus.edIith something hard and that the death was ,becaus of extensive öeehral haemorrhage" .a result of the fracture0 There is no one 'who gave evideiice that he saw the accused, or ."., anyone assaulting the deceased0 The two Police Officers JANI SHEKALAGHE PW 3 and P0W 4 NICODEMO ABEL did not,. of Course, come...: . in until much later, when the body was already rotting. ....Th- - ' ....... Republic relies heavily on"th' evidence of CHAIJDRY KAHENA, P0W 5, a District Magistrate, v'io told the court he recorded a statement,, ........... Exh0 2 1 by the accused during a P0+0 T10 accused has dnied',ever making such a statement to the witness,'asserting al s o that he could not have made the statement in. Kiswnhi'::i as he does not know Kiswaiili0 . .. . V.. After consideri.ng the evidence I',.halre.no hesitation in agreeing with the first qentlmen assessor, in findinq th:t the accused did make the ptatement in 'the. lowet court as a.11.eg:d by Mr0 Kahema0 Abr.•ut this I have no doubt in°m mind The contention that the accused does not know Kiswahili is effectiv.ly. charred by the testimony of Ihe two Police Officers as well as tho.tof Dude .Ninga according to all sf.. which the accused communicated with them in that language. Accoirding.: to Ninga he andthe accused,h i.s .workmat .e used to c6nvere in Kimargati as well as in Kiswahiii but more of ten in Kiswahili0 I respectfully unable to agree with the second gentlemen, assessors who confessed himself V. persuaded that the accused does not ;now Kiswahili. V Havin9 said - t a.t it now remains' to a::amine the content of the ' statement I am''satisfied the accused did make to MrS, Kehema and decide two things; One whether in it the accused told the truth and two whether if the statement :s true from it one can justly and safely conclude that the crime alleged has been proved0 Considering the drift content of the statement, and the simple details I ani.sotified that the aScused told the truth about the events that fateful evening. According to the statement they had been drinking liquor and during a quarrel between him and the deceased the latter grabbed the accused by the throat and knocked him to the ground0 A person who was with the accused, one Kituni hi', the ci'ceased with a stick and the deceased fell. down, where upon "I st.od Un al foun Jck on the ground0" /2 PP I * / -2- According to this sttémh theref öre the deceased was prostrate when the accused attackec. Apart .frc*n posible anger therefore thee was no question of the accused .defeiding himself. The deceased had been 4; dealt:a blow, by Kuturu and was lying on. the ground , no longer in a position to do harm to the accused. This was clearly a drunJcen brawl and the deceased was hit at least twice, There is no way of telling which of the two, cituru on the accused edt the fatal low but they were both atta 'ttdèceased, in concert in cirumstances which were trnjustified considering that it was two against pne and. there is no allegation that the deceased was at all armed. It is in my view unfortunate that te charge against the Kituru was withdrawn in the lower court, but I suppose this is understandable considering that the accused had not at that stage, made his incriminating statement. I am satjsfied that the charge of Manslaughter has been proved and accbrdingly I find the accusod Guilty and convict him. MAKAME, J 14/1/76 .. PREVIOUS CONVICTIONS.. No previous convictions. ALLOCUTUS: JOSHI: The accused is 29, a first offender. I pray for ler It is to be deplod as of tn before, that some pp rather violent afer tIey have abø.ed themselves with sometimes, as in this case, a human life islost. be no reason otheC thar fooltsh drunkqqaess as why ' quarrelled. Considering tht the accused, has been in custody for an un long time, over three years, .1 sentence 'him 'to imprisonment for ontzw year the whole of, which is suspended for six months under section 29A of the Criminal Procedure ç.ide provided that during the period oi - suspens,ion the accused is not found guilty of any offence in.ol'ving porsonalviolence ' L.M.MAKZ\NE, J . 14th January 1 ..197 RIGHT OF APPEAL epaOd Assessors thanked and released.