19840802 TZHC Iringa

IJ ThE HIGC Y'FTANZANIA ATIIN.A H • ., -. ORIGINAL JRISDICTI'N (Nbeya Registry) N 81 OF 1983 -E REPUBLIC VpRSuS DAUIJI I4UIJLAGE CHARGE MANASLI.dJGHTER Contrary toSection 195 of the Penal Code. 1 . ,$.• -. JUDGMEN.T. MAIIA, DAUDI MUULGE, the accused in thjs case, stands charged with murder contrary..tc' section 196 of the. penal CQde.: It is alleged by the that on thp .Ls.t Li of Iiay, 1982 at Uhambingetc' village,,i Irinqa distic,thc ccued murderedcne.Mwndikáiamu Kjfusa. The. accused has denied the c.arge. .............. ., . ( Th, . area of dispute in this case is very nrrcThe.proscu- tien has prcved,..and the defenc2 does n .di.ptte, that Mwâdikalamu Kifusa i.s dead and that .hed5.ed.fcm h diniurycaUedby.the adcUsed. There was cvdence given by ..T.2 Jaim Kida a that he had brewed local liquoiknown 7,as !'KOONI" at his house on 33.5 1982:.and:Ttht abc'ti€ tenpep,e : .ass.emled..nt hishouse . .th2afterroor t,o:dtin.kthe ... local liquor. Those pecp1' ned s3istod Daima in havosting maize in his farm mong th peoplo wo were there rere tw' brcthers Pw03Ignas Nzelemela and P14 Jsoph Nzelemela. Iho .de.ceäsed.who was a 1'ca1 resdent of tht about 5 p.m. The deceased sat.nox1 tn £',4 Joeepb.•.nd.they drank 'together. The accused .nrrived,ther .cny q shor.t time af:ter the deceased. According to the evidence, the accused crried.a :biglflq stick which he put on the wall near th door. PW.2,..Daima ardW.4 Joseph said that the accused st down af.te.gree,tinq the;-.peqp;X.e whom he found in the hc'use, and.thtno.pche...W.as given to the acdused..: Pw.3 Ignas,hcweveri said that the accused, on arriving in the ho4se, put hls,sticknear:the wall, and he ws .giiren some local liqu'r by PW,2Daima. Thèh Ignas:said, thc: accused started singing and dancing as ho drrnk the pombe. None of the wItnesses IW r 1hCfl the ccked :pickd up the stick. PW.2 Daima sid he vias in h.s bdrocm when fhe assault took r - -• Pw.3 Ignas and P.4 Joseph sait iat thy sdddenly saw the accused hitting the ddceasd with the sticrn -th hdI hey all agreed that there was no exchange of c'rdc btidtha accused and the deceased at any t.me. According to the prosecution witnesses, the accused hit the deceased for nc reason at jl., .P - J.4 Joseph who was sitting next to the deceased saw thc' accusod trinq to hit the - -- - deceased agi and that the stick had ltrckon into two pieces afthr the first blow. The deceased fell dirid became unconscic'us. The accused was cerpoweredby Pw.4 Joseph b'efore he could stflkd again0 Daima and Ignas also assistd in tying the accused's hands with ropes0 Daima said that the 3C . cuieJ smelt strongly of..alcohl,. The accused was sent to a village eldr, PJ.lSimc'n Mwilc'ngwa who also found that the actu.ed smelt strngly of alcohol and he appeared drunks :Thp.decpasd had tche chrrie to Si't'shoise as hewas still unconscious Simon and Oairn. SLflt th- accused to hula Polite Pest while Ignas and Joseph renamed at the scn 2 together with deceased's brother-in-law, PW.5 Victr Kimerniie The decased died at dawn on 161982 Pelice were duly notified arid in the afterhc'onof 1.6.1982, Pw.6 Det. Sat Ismail Some of Police tririna visited the scene. He took from the scene the tick usd in the - scault the accusedts blood stained shirt The stick aed th- shirt were tendered in court as Exhibits P61 and P;esctively. Thd dead b'dy of the deceased was • sent to. Iringa Hospital where it ias ddly iderified by PW.5 Victor0 The doctor's report was tendered in Court under Section 275 of the -Criminal Prccdure Cede, as Exhibit 2.,3, as the doctor could not be found. The report shows th - t tho thceas-d sustained a fracture of the frontal parietal sidc of th skull, measuring 2 cm x 4 cm x 2 cm, and a lacerated loft eye0 eãth was due to brain damage with fracture of the skull. Tbc accused was accord rigly charged. In his unswoYn stat mont, th ccLsed Fld that he had been drinking local liquor that dy - nd h went to Daim's house in the evening where he bought some local li-uor f o r Sh.10/=. AS he was drinking it, the doceased -skd tb cused for the pc -'mbe but the accused refused to pert with the liT or,., The dceased asked again and the accused still r=usrd to ni 7, e him th-n pombe, Then, according o the accused, th deceased huecL'.him saying: "Mkundu wa mama yakc" (Your mother's anus)0 Th - s w -' rcis n'oyed ti ccused who picked a stick and he hit the deceased th head with that stick.\' The accused was then arrested0 He said tht he cid not wish to tall a witness., -- S. 4 The presecutic'n evidence h pic'vd b2 end 'ny. rescnable deubt that the deceased died fcm the hcd injury which inflicted by the accused The incident teek plate Lie! bread J.'y1ight in pi'eence -'.c"- -- cf the witnesses. The ccused dsLrt isput that I find there- - fc'ra ti dThiKifu is detd that his d ath was due to the injuries hich were causeçI' b r t ac ?usteà The accused said in hi 'fénce tha.t he was insulted by t deceased. T,e prcsecütic'n witresies who were present 2 aj the scen said that there was no exchange icfds between the accused4 and th dec'ased. P 4 Jc'seph Nzelemela net iZC1the deceased,, and.ifthere were any insults' the witnesses wcuLd have heard as the accusec ws sitting eppesite tc Jeseph and the deceased. P.3Ignas tee w nerby and he tee heard,noz4 insults uttered by the deceased I accept tht evidenc Like the gentleman and±dyasseser, I reject the accused's'defence efcvcçatien 'and that the deceased' did net àuse the accused at all. ,.,:.. t I new turn to the defebde of intexicatien. The accused si ae' had been dr±nking lecal liquer that day"frc'm mid—day t41l evening time when he arrived at Daima" heuse and he feund the n witnesses said thit the accused !Q1't'strengly of alcchcl,.There wa's else eviid e nce of ,PW. Igns Ngelemela that the accused sang and danced as he drank pc'rnbe in Daima"s heuse, Pccerdiñ.i1'tr PJ.1 Simm' r4wilcngwe the accus.etha'p'Péared drunk when he'was sent tc'Simn's heuse after'th ssault.'' In h'i fi1l Sbmissi'cn, Mr. Lündi 'learned S±ate Attc'tney % cer1ceded that" frm the presecutien evdeQce it nuldappear bht the accused was drunk whenhe..saulted'thd deceased nd he urgc2d the ccurtte'find him qUilty of as1ughtér' Mr. Mwakingwdlerned CeunsClr'tl'e accused àc'f f he same 'view and ha submitted that the accus6d WS.. incapabJe:cf frthinc the intent due te intexicaticn. Beth as"ecrs ' said that thetewas no truth in accused's allegatien ththé'wà' abused a nd they are'd with the presecutien witnesses that the déeas'ed did nc- t insult the" accused a t all." ' Frc'P th 'presecuticn'Cvidence ther~e ­ c,!~ri be no deubt that the accused arrived at 'Jaima's heuse in a drunken st-te. It is in evidence that th acc4se aned nd sang as h' '-rifed tin' the heuse. He was diñkinq 'the pembe whila dncing'nd Sihh 'That is &very c'dd behaviur. The accused wis knewn in the viii ge tc b e a nermal persen. e was else smellin. strengly ef alcehc'l. Sc'his allegatic'n that he had been drfrfking perr fer many heurs bcfrrehc went te - 6 • • /4 Daima's heuse is pssily tr'u0 The law en the subject of i'itc'xica€ic'ri in mur1der cases has been discussed in many cases decided bthis Ccurst and the Ceurt of Appeal fc'r EasteV Africa., In. R. V. Ste tie A1et, 1972 HCD • ;:• n 199 the accused and the deceased were ameng pc ple drinking pc'rnbe at a circumcisicn ceremc'ny. There . is a ptty quarrel. amcn seme peeple prsent and when the ecoasd intervened, the accused asked why the deceased did se There ws a brief exchange ef wc'rds,'whereupc'n the accused stabbed the deceased with dagger enthe chest. The deceased died frc'm the sta1 wc'uid; 4n iJicc j s8id that the accused must bve taken more pembe than he :ceuld.. haVe ceped with, hence his reckless and senseless act. There h a d been no iliwill against the deceased nd .se , no tLe killing. The rJy.explanaticn for the accused, 'S cc'nduct was he acted under influence of alcehel. The accused net able to £c'rm the necessary inti-it triJ- te us r r harm. He was fcuncl guilty of mansl-iughter. 'Anethr case en intcxicatieri was K - ihekeya uzeya and Anethçr 197 LRT n1G. In thil case the twc' accused had been drinking for leng heurs and when ciecf them nttamptd te r&p-n,Fie ether hit the deceased who went to rescue thwcmap.Rcth.were later cc'nvicted of murder by the High. Ceurt. But on appeal t1Q . Cc'urt ef Appeal quashed the ccnvictic'n cf the secend accused and held the one who cauS-d the fatl injury guilty of manslaughter. The Cc'urt ef Appeal cit9d th ase ef Melungu K3et v.R. 1959 EA 797 aria said "Th€ burden of prcvirvj th-t -n eccused perseni is capable ef fc'rminq the intent necessary tc'cc'nstitute the effence 'f murd'er always rmns nth th prr'secuticn It is net discharged, iF the prc'bability emerges frc'm the evidence thit the accused was incapable of fcrming that itrnt0 Nc' enus ef prc'ving this lies with the defence' In the prescnt c -isa, frcm the presecutien evide- nce, it is very pr'bable that the accused by his very c'.dd endudt- was drunk.Ihave i3ready described his ccnduct when he arrived at the hc-use her isnc oravicus ill4lll eg - inst the accused. In fact, they erev-r ev' uarre11ed fter drinking pc'mbe fer almest six hcurs cc-nti'eucusly, the ccusd he t-k i mee elc.hel than he could cc'pe with, hencc his r c 1clss -md snseless act The accused was acting undr the ii-luuflc f 4cc'hc1 an sc' he did net intend tc kill c'rte cius riri vcus hirm.. In cther wcrds, tJ -me presecutin has nct' prcvd üii.-arethcuqht -5-- It is for tNe foregoing reasons that I agree with the learned State Attorney and the learned Crunsl for the accused that the accused acted under the jfluence of alcohol when he struck the deceasedand so he is net guilty of murder but manslaughter. Beth assess'rs are of the smc opinion. I find the accused not guilty of murderbut I convict him of manslaugh€er cc'ntrry to Section 295 of the Penal Code. AT IRINGA W. J. MAINA, 2nd•August, 1984 JUDGE. Mr. Lundu: No rcerd of previous c'nvictioná Mr. Mwakiwe - Mltiaati'.n The icd is a, first offender and he has been in remand custody for tw years. He has two wives and four children. Both his parents are dead. His grandmother is lame and depends on him. I ask for lon::ancv, Accuse.d.Stàtes: I have nothing to add. S H N T N C E The acdused is a first offender but 1 take serious view of this case. The accused in his drunken state caused death efan inncent perscn People who get drunk and cause death should not expect leniency from the c urt, It is the duty of the Court to protect pecple against such violent attacks. The accused aimed at deceased's head using a heavy weapon. I sentence the•.accused to twelve (12) years imprisonment '- W. J. MAINA, AT IRINGA JUDGE. 2nd August, 1984. - Right of Appeal explained. V. I Assessors are thanked and disch7.ig4. 4 w 0 MAINA, ?fld AugUst, 1984 JUDGE 11