19840613 TZHC Mbeya

POTATiTU'c. C, Tqr• O. euicq. otfl. qTxe OUO?j O?Othr pO2C:c))p ct ptz cu wd noqi';.• uoq.sotth 3t UO ( i) q.'Iptoo r • p3'W1-ç 90U.aXOM JOt C. t1O.RLtCLCJOO oT[q CWCS IT.mOO ?TLi J0 .S'3IIT!, iUt irt pOO[rOq S ea; SM a qizod T[ COLtT. ° 0011J0133 UT1OOJO osod xTid eTTii. pw uIcsv..:; oqzi:ccl. p ed.j(i) TUPMIII I'GC[J/ 6L/T/9 U0 Ir CL(q OUOpJ.e p9flCLSTpLrn SM OJ3TT 'couc;cp oqq pue uoTrLooscxd otjq - eso Jo sapçs ioq uo peonppCoLf OaUOpT T.jq STI PLt Cq[flq.tcIOOJ O JEC3OEU C I SLt0ps0flT) 0/4 074 OMOSCJ oq .xepo ul içpoq snooTi I0 Ip osnO 0q pOpUOtITet[ .xeT.flotiM CC prioLN:oTc CTTOT i ptr poss000potjq ;ã'tIep ouq 0 PCT RJrtUT pOqOTJZTCt/L\ euc euq. si posnoo •atT JoT.eqM iu 'O9O 5T sanswç CMq EJ.X'C C.XC{L ....... ° suoq I°T Jo 0flOJ UTMPTT.CJ OCTIC tjtoa uttxq et uotssazciioo cq. uE9{ 3UIEC oq uc oinqoii; othq. puoci 'euoq oq. uipueqxe ptmQ! .qto s .paui3qsns pos'aeoep Otfl. q.5Tj. SMOt[S 30U001L8 UT r)'4TUTE qJC'CCJ U0TUtWs W.J0J SC peep ST OUCt o. O(Ir qttj ooLapTAo oq flJOJJI si eie ouo1octhlT pa pxrtuI UoTsvTa en iic' undj 6L/T/9 OLfl uO PODOITe S .I 'spo uuea Nor ;o 96T s/a Sxui tTM sl oqi PJI o r 6 vnHo 'SM LJ Jo I?104 qT t dso apoo Tua sw- ;o 961 sb xepznjj TAIVN snsJeA nanaa ai 06T a 0 9 L 'Oi ao SHOISSSS iviiii'ao eqj) (LIqst3oH I0IIoIctIHf12 nIVl\IIOfl1O lv VT1~. VZ I&,JVI Jo IHI100 HDIH aHl 141 • ..! . 2 - V. They found other people drinking. There then followed a quorrel betweGn one Nganla Nbale (D'Til) and Sendama Darnaj When these two people wanted to fight with sticks the deceased tried to seperate theml The acueed apparently was not pleased to see the fighting stop. He hit the deceased on the head with a club and ran away. The deceased fell down and collapsed. His condition was so bad that on the following day he died on reaching the hospital. This evidence was fully corroborated by that 'of Magma Ngwelu (PW2). Another witness who narrated the events of that day was Mabala.Iilwaka,ni (PW3). According to him, he saw Nganila querrelling with Sendama and wanting to fight. He separated them with the assistance of one Nhale. Then Nganila and Sondama went to the back of the house. Soon after Mabala 'Iwakani was informed. by L'iaina Nwolu (PW2) that the accused had assaulted the deceased. He hoiever did not see the incidence. T"The .a'ccused'in a sworn 'tatoment denied havinyasaulted the.decèased.. "Fe E.thtes-that'af.ter.,.Schdima al-id Nganila were sëperated. by PW3 uidNhaie he oscorted gani:la home • He also. statcsr'thä,t on 'the day in'questi.n he had. drank .pombe at the home of. one' apamba before coming to the home. of 2W3' : and that .he was drunk. ':Ncani.la i'ihalo. (D\71) deposed that after being. seperatod by PV73 the accused eccorted him hone. and.: lept there.'.. o oatos that. 'o LId. not see. the deceased. trying. to intorvene in hic euerrel with Send.ma. It. is, clear 'rom 'the foregoing that the ca n depends on the oreibility of the yi,tnes,ses0', ,Lr,: Ttü'unjoba learned 'counsel for •thc,.ccused uestiono;1'the rationa1 •5 the prosecution relying on the evidence of two. 'uninv&tod [ti,'ests. nchtsly PVJ1 & PW2 who also happen to be fathar and son. But the important point is not whether they were invited or not since .ii 'African society it is not 'unusual to have uninvited csts,: but whether or not they were reliable •w.itn.osees. In casting a cloud of doubt still. f'rther on ,the, cnco of P'l a 13Y2 loarnd, doforce .counsel -o o i n tc out that.. t!ir e,vience, wis not supported by' that of P173 3 But. in my view P'.73 id.,,not contradict the evidence of P'l P T2, ccoriing to 2 7 2 the eoplo who were drinking sat in diffe'ont gr 'arc It a'ppecic that whn P 1,3. • :. . ,, . .'0.•/ -- S / c - 3 - seperated Nganila and Sendama they were in one part of the house hold grounds. Tiey then went to the baok of the. house where. P 113 djd not go immediately and there PW1 and PW2 saw what they described in court. •?W3 conceded that iNg.nila and Sendama went to the back of the, house and then When he followed same moments later he found the deceased having been assaulted and was told by PW2 that the accused had caused the assault. The incidence took place in broad day light and the witnesses Irnew both the accused and. the deceased before that day. So the question of mistaken identification does not arise. There also being no sugestion that P 171•& PW2 had any axe to grind in this matter the submission of the learned defence counsel sounds untenable, Regarding the weapon used 131113 said that he did not see any fimbos or clubs. But as I hm.vQ encleavoured to explain in the above paragraph it is quite possible that by the time he was seperating Nganila and Scndama-•no one was armed. Wha,t then ppe.nod at the bank ,f the hoLse was out o.hs s.iht, 0. the other hand in my .jbsorvation o PW3 I cot the improssin that ho was not telling the whole ,trtIi. and that he. had aometing up his sleeves ihich he .i.d riot want the court tD 1 rw. I hive n iiosiaioa jn .reat.n the evidence of ? Ti & i?i2 as beinr., true a..d tLat of 71,113 a s being suspect I tiierofjro rn't finair that t'e accused did a3sanit the Thc;asod nc.. catso L1 do t This however does not mean the end oE the cce, The questoI.i that :i1us.t fina1ii'. : b ro.s'lvod. is whether the accused in'assauitinr2, the deceased di,d'so'with ma1ice aforethought.. The accused in his. evidence 'tatedthat on the. day in ucsti on he had .drank. pombe at Mapeho' home before going to aba1as home. He drank foi some • t.ine at Ma'alas home and vent back to ipc. bo lace whore he continued drinking and eatia. He then finally wont back to rebalas iac c to drink Another \1tnOh3 who gave an account Of the dri.nkjn m th:t day ;ao thbala, According .t.D him drinking started at 7.00 a and th:t cemo eoaio wore etting drunk and ioavino oflo by onc,. The cocci v;as e-id to have come to the houcc. at. 1.03 , a t o Th.aat c 'd a t 5,00 p r 7 -r • / I . - 4 - LIN In view of evidence of the apparently heavy drinking that was going on, absence )f motive on'the hart f the accuSd to and kill thedeceased/ the fact that he hit the deceased once only and ran away,rave formed the view that there is a strong possibility that the accused was so drunk as to be incapatle of forming the specific intent recuisite in a charge of murder. 'Vith 6reat respect to t1 gentlemen assessors who returned a verdict of murder, I. find that the offdnce proved beyond. reasonable doubt is manslaughter and accordingly convict the accused of tha offence, ' I L O J O R. CWLTA JUDGE Previous Convictions: No nrevious convictions0 Mitigation: I pray that the court consiC.ers the following matters0 The accused has been in remand since January 1-97. That is a long period. He has boon under mental torture Ho. is a first offender. .Th6so factors, should he cons ..der.ed. Court: Adjouruiet for V. - .- L.JO. CW5 ......... H •JrDc•: -.. 13/6/34 . . 13/6/64 At 1O2O Cour± at Before . Appearances as before0 SENT EC In sentencing the accused I take into account the plea of the donc.e.. .coithsal in miti'atin ës cial-'Lyv the fact that the aouscd. has boon in remand. sinôe Janua.ry 1978 °. On the. other hand there is a need. of deterrin those who in gettin. drunk endanger the lives of other people. . In the cii'cumtaneea of this case I centonco the accused to 8 years imsrisonment. ..: f4• Ttp . . C}ITJA . ,,.. - ,,. .. - . .; . •• - i1 u5. JUDGE 13/6/84 LJRC/ATM limo.