19791015 TZHC Tabora

62 IN THE HIGH COUft7 cr TA?ZIA 4T TAaORA ORIGINAL JURISDICTION ' • . ." " CRIMINAL SESSIONS CASE NO0 31 OF 1979 Republic versus • ALFAYO GILAYO CHARGE MURDER C/s 196 OF THE PENAL CODE JUDGM ENT MUSHI, 3 - The accused in this case, ALFAYO GILAYOs.tand charged 'with the offence of, murder c/s 196 of the PenaL Code. The Particulars are that the accused person on or about 4th day ..o..f December 1970, in • Kig6ma Regipn,'. did' murder one BAHASHA S/U NTIBANGOMBA. It is admitted by the defence that the deceased, Bahasha sb Nttbangomba., died as a re4t o.f the wounds inflicted by the•'àccüsed. • The, question as to ,whether.the.deceasd i: dead a'nd':'that:he' did ibt die of natural.causes,i thus solved4 the prosecution adduçd evidence, and produced :Hos.pit8L' ease history theet and,a letter frQm th,e, ,doctorall which provefl that the deceaed 'died of stab wound, . .. :'. •' . ':,; :.. The only issue is whether the accused caused theldeath of the accused with premedittd intention0 To decide this point, one 'ha.s to examine .carefu]4y the evidepce..and,.,thicircthstances under 'which , this offence was cpntdtted. Four.pbints •ar.edispited while themabr ones are not. Tie,inC'dett . .thi.c,aae occurred at. the hote of one Mbwete Rutinthanya..- PW.2 This wete had'inited some' peopTè to help him .buil,d cattle boma. an.,among the peple wo were at thwete' s place were, the accused and, the deceased... . :.After. the he .host served some fopd and after that he gave them one pot. of .... pombe called Kayoga.. According. to .the.,ev.idence.'it'was not more than a tin and . thp people . drinking were.eiht. As the driking party was going on,, the accused is alleged to have :'lapped an oidmn without apparent ,.,cause, Later on' the accused .tilted the pombe pot towatds his side s if he wanted to empty it but there was no more pornbe. and the 'host took the' pot away.. As 'the accused tilted the, pot,' thedeceased slapped the :cus,ed twice. The accused 'bent hs'hea J forward and reted 'it on his arms which were 'supported ,by his knees.....Soon after that the accused went out and the deceased also rent out. Then there is the evidence of PW.. Nkeye who said that she saw . the.. accused with a spear running. 'a 'speared' the deceased 'near the.1e'nipp1e. The 'deceased pulled' out the:spe and stabbed the accused several times. 2 The deceased fell down while the acctisèd went to his home The accused's home was just about 500 paces sway. On the other hand the accused said that he had been requested to help with thewprk at Mbwet&s place. After food the group was given pombe. Th accused said that sirce he was not drinking he wanted to go home and bring a containéSb that he could put his share of pombe. The deceased prevented the accused from going and instead drew a mug full of pombe and gave it to the accused. The accused drank the full mug. Later on the accused drew another full thug. and drank it. At this stage the deceased slapped the accused three times. The accused said that he went out but the deceased followed him. The accused said that he was annoyed, and drunk as a-result he went home where he piked a spear with which he spea±éd the-deceased. All the prosecution witnesses said that the accused was drunk as well as the other people. •-- The learned Counsel for the defence submitted that the accused the act when he was drunk and that the accused drunkeness was caused by .the negligence of other persons0 The defence Coursei- ftrther contended that since the accused was drunk:he could not fvvm the specific inbent-n; .as charged in this case. Secndly the defence counsel stated th -the-accused was prOvok-e and -.at.ed under the. provocation. Thë. learned State Attorney however stated that the accused was not drunk as there were eight people drinking only one pot of pombe. The Attorney, said that ...th.accuied was merely annoyed by the quarrel whi.ch took place at thatplace.- .... The question is, was the accused dk7..Idit-eCted the assessors on the law regarding intoxication and the circumstances under which it can be a defence0 The assessors were of the unanimouS iri-ews that the accused was drunke The assessor were of the unarimot1s view that the accused kiJed the deceased without any intention. In fact one assessor wenc rui. eixu dLd thaL ue dccused was infact not guilty of any offence at all, From the evidence in this case, it would have been unusual foranbody to have come to a different finding other than the fact that the accused was druiik %hn he committcrl the offence 0 s all the prosecution witnês'ses said This is so Decaue that the accused was drunk. EVen the w .adults. were drunk' and some of them were already asleep at the scene,. The accusd is 13t8 14 years od.:and ace ding to him, he was not- drinking. However the -deceased forced him to drink0 - And it sëems - -he drank as much as the adults... Like the Geng.lernen assessors., .1 find that the accused was drunk' when he committed the offenc2. Following from that, the next - point for condideration Lis whether, although the accused was drunk, he was nevetheless capableof forthing a specific i.htenti-on.- - That the o-cused was drunk rai-ss - a : robabi1ity that he was not capable of forming a specific inten-'- -uceased. - --.ii - prove conclusively that 'the accuse&, - -despite his drunkness, was -capable of forming and did form the - .-c:sed, In this -3- V specific intention to murder the deceased0 In this case the prosecution has not discharged this onus. In the final analysis therefore I find that the accused killed the deceased without intntion,. Ifind the accused ot.gu±lty of mUrder c/s 196 of the Penal Code but guilty of manslaughter c/s 195 of the Penal Code and I convict him accordingly. N. N. Mushi, Judge. 1S.10/ 79 15/10/79 Croma: As before, Judgment read in CoUrt. Mitigation: MissMuteithe1: The accused killed while drunk0 The accused did not drink on his own. He was given pombe by elders. The accused is 13t0 14Yeas. ' The accused is a first offender. The accused has been in remand for about 8 months. Mr. Chaila: The accused is a first offendek6 It was not expetëd for the, accused to do what he did. I request the coUrt to award an appropriate sentence, to warn others as well as to 'make atused' a good citizen. S E N T E N C E The accused is a first offender and a youth of about 13 to 14 years. He committed the offence under the influence of drink which was forced upon him by irresponsible elders. The accused Is a schoolboy.. I do not think that any punishment is appropriate for this person having.regard to his age and character. I discharge the accused without any conditions under section 38 of the Penal Code, N. M. MUSHI, JUDGE. 15/10/79 Assessors: Thanked and discharged. " N. M. MUI, JUDGE. 15/10/79