19780515 TZHC Tabora

- ATTABORA / ORIGINAL JURXSDICION (Kigoma Regis trj) CRIMINAL SESSIONS CASE NO.35 OF 1577 THE REPUBLIC ver1 ANTHdRi SINDIBAGIYE GHARGEs trder c/s 194. of the penal code. uT U D G M E N T io This case eo*eerns the death of one Rashidi. Sf0 Tiasudi, a • .esident of Kabeba in Kigoma district. The accused Anthony it ave is on a charge of murder contrary to section 16 of the Penal Oode, it is alleged that he murdered that man on or about the 16th of * )eeember, 175, at a place called Ilagara. He has denied tht alle.gatio*. It is common ground and well established that the said Rash.tdi • .Masdi is dead and that he died a violent death. It is also common jound that he died at the hand of the accused in the dock. He.was hit quite hard on the crown of his head. It was a deadly and single blow by means of a heavy piece of wood— exhibit P.1 0 The main evidence, against the accused has been provided by • three witnesses Joyce d/1 Samweli CPw.3) 0 her husband Jonas Andrea (PW9 1) and her neighbour Siori Mayaya (PW.2). All are residents of Ilagara where the incident took place. According to Joyce,.se was preparing a meal at about 9 p.m. on 16/12/15 when she heard a commotion at the back of her house. She got out and observed, by rneas of moonshine, two nen scuffling. She ran to the house of Simon where her husband had gone for a chat. She alerted bobh Jcnes and Simon who rushed to the scene, a distance of about lO metm*. cones and Silon found the to men still scuffling. They stated that as they got nearer they saw one striking the other on the head with a piece of wood. The recipient slumped to the ground and the other man threw away the piece of wocd and ran off. They chased an:4 caught up with him. He was the accused in the dock. They took him back to the scene where they found the other man lying on his face and roaing. They examined him and ovserved that he ha& sustained a eracked head and ws bleeding from the wound. They re.ogLsed him to be Rashidi Masudi. They called the village authorities who • took the accused into custody. Rashjdi Masudi was sent to a dispensary and thence to Naweni Government hospital. He was in serious condition. (1 Mai 2 - He coutd not speak-sand his strength. was ebbing. -The witnesses had reason to suppose that both the accused and Rashidi Masudi were in drink as they were sidchargng beery breaths. Rashidi Masudi died on the nextday in the morning. The doctor who examined his dead body describedhim as a healthy looking young nan of about 25. He observed that he had a racture skull which had led to intracerebral bleeding to which he assigned the death. The accused has given unsworn evidence from the dock in his defence. He related to this court as to what preceded the fatal assault and why he committed it. This is his story. He left Kababa for Ilagara with the deceased in the morning. They were searching for liquor. They succeeded tà.get it and drank a great deal. When darkness fell he suggested to the deceased that they should set off for Kababa, The deceased replied that they could spend the night in the village at the house of his in—law. The accused was agreeable. They cQ+:c to drink. When they had had their fill the accused bought two bottles of moshi and put it in a kettle. They left the drinking place and proceeded to the deceased's in— :.; . On arrival they were provided with a meal and after the meal he asked, the deceased to bring the pombe. The deceased refused and brusquely retorted that he would drink the whole of it himself. The accused asked him why. The deceased did not reply. Instead he pounced on him. He slapped and se?erally jabbed the accuso th his fists. His in—law intervened and advised the accused to lea:e the place. The accused accepted that advice and hurriedly depa L, But the deceased followed him. He grabbed the accused's cesites and when the accused managed to free himself, the deceased picked up a piece of wood and struck him. This took place ovtside the house of Jonas Andrett. The accused ran around and the deceased gave chase. The accused then picked up the piece of wood s .echibit P.1 and threatened to hit him. The deceased would not be threatened. He caine forward and at that stage the accused struck, and the deceased collapsed. The accused tried to flee but was pursuo' 1 :1.nrl caught.. He was clapped in custody and brought to Kigoma police station. Zn dun curse he was medically examined and he prod'iccd the medical. report, exhibit D.l., in. that respect. It tends to confirm that he was assaulted. The main question in this case is whether or not the accusedts assault amounts to murder in law. As one can easily appreciate, there is only the version of the accused as the fatal bash. The defence has invited this court. to find that the deceased was the author of his ort deaths that it was hio who r 4 rted the ftocas and sought the attack Theyhhave thv cl. nstoy or' hro ht to ccellY x .m!.ne( 1V L re 3 beLiav. the acot .qi,m by the aoauze4 titat the dc'ssed r.fuse to let him drink his own pombe. Mtd that he suddenly and wantonly set upon him. That thVotghoit, -the accused tried to avoid the contest and that he only struck back in order to save his own life. They have, therefore 1 argued that the act of the accused was justified oh the ground of elf-.defence. The Republic has conceded that there could be truth in the. ace eds account. But they have submitted that the defende of self.. defenee does not avail him, in that the force he used was greater for rnterseif—defence in the cirdumstances. In the opinion of the earfled state attorney, the facts, at best, merely show that the accscd acted under stress of provocation and therefore that At the very teast We ØhU.dbe found guilty of manslaughter contrary to section 15 of the Pena! Code1 The two asseuors who. st with me are at one with the defence. They are of the vIew that the accused has succeeded to make out a, defence of selfdefencee They have, therefore 7 advised that he ShQuld be aciit€ed. - i respectfly agree with the assessorse I thInk there is Q reason for di.smissing.the story of the accused as false. I thInk that there is, possIbly, truth in It. What that story clearly demonstrates is that the accused did not want to fight. He endeavoured to avoId the struggle and he retreated. Sadly, the deceased followed and attacked hIm with a stick, The deceased was risking an aggressive reactions The accused replied in kInd. The stick he used Was handy and he struck only once# probably itt fear of his own life and solely to repel that danger, I think that he was justified in doing so and lam not sure that the force he used was excessive. I find hiJu not guilty of any offence and cit'hi ecrIo'W. Delivered in Court, Mr. Sengwaji for the Republic. iiiss Mutentbei for the acàused. ACcused in the dock. STATION: KIGONA" p. P. MANO, DATE: 15/5/78 I.. C 1' C -.