19861205 TZHC Dar es Salaam

~ I /M lllj7 r:._r '.fiIG :rrGr:[ COUn'.P ff? TANZANIA OHIGUTAL JURISDICTION ( :)LE ES SALAJ-J.-IJ.. REGISTRY) ClU~ ""IHAL SESSIONS CASE NO. 28 OF 1985 The Republic versus o co o o o o o o o o·o • • o ACCUSED \ J U D G E ME N T \ \ :trlAJ?IGANO J • , The accused person Chepe r.Twangomola stands clmrged with N""lanslaughter, contrary to section 195 of the Penal Code~ He has pleaded not guilty to -the charge. Several salient matters are not j_n dispute in this co.se. The incident which gave :cise to t;1is case took place on December, 18, 1983, at a pombe- shop at fJlimba in the Kilombero District. The. accused ~erson, one Matia Mengu and other persons of the village were drinking a local liquor at the place on that Sunday. In the cource of the drinking a fight took place in which the said I\-Tatia Mengu wn.s·involved. Hatia Mengu was hit with pieces of baked bricks severally and he r:;ust:::ined serious head injuries~ He was admitted in the hospital, but his con.di tion deteriore.tcd end he died in there ten days lDter. Death was due to cerebral trau.ma,, About theonly point that arises for deter,nination is whether the accused person was responsible for his deatho There is only one prosecution witness who has testified-on that_pointe She is PW 1 Amina Selemani, the proprietor of the pombe-shop. She did not seem to know how and w.hy the fight startede She was then inside a building. She came out when she heard a commotion outside and she said she saw the accused person locked in a fight with the deceased person. Next, she said, she saw the deceased pGrson fleeing from the ·• scene and the accused person hurling chips of baked bricks at him. She said she saw one· of the c:'iips hitting the deceasecJ. deceased person and she saw hini falling down. At that sk.ge, she said,she rushed to the police station to report the incident, '.'.1hen the police called at the scene, she added, the deceased had left the plnce. She said -she saw the deceased person in the hospital on the following day. She observed that he was in a critical condition. The accused denied thnt he assaulted the deceased person, though, he said, the deceased had given him offence~ According to him, the deceased had tried to despoil him of.-.l:.is liquor and when he put up some resistance the deceased charged to strike him with a stick. He ducked the blow' nnd the stick landed on one of the patrons, one Obedi Ki tekoo This Ki teko then eng2ged the 0 •• 0 0 " •••• • /2 .,,, \-,...,deceased in a fight and he, the accused, l~ft the place. me surmised that the deceased person aied at the hand of the said Obedi Kiteko. The two aGsessors hctve gone by the evidence of P'i/ 1 Amina Selemani and advised a conviction. I accept that advice. Like them, I was impressed by Amina Selem.am. I am satisfied that she told this court the truth. I accordingly find thnt the accused fought with the deceased person, that the accused inflicted several blows with chips of baked bricks on the deceased person and thc:t the deceased peiFson died from the head injuries he thereby sustnined. It might well be that the deceased had given him offence by trying to extort his liquor. It might be true that the deceased wanted to strike him with a stick. It might be true-that the accused was justified to take defensive action and repulse the danger. But the deceased person subsequently took to his heels, I would thus hold that at that ,oint t}.1e accused I s right to self-defence ran out and his act of hurling the chips at t.:..te decensed became one of aggression or revenge and, .j .~· therefore, uhlc:.vr.ful. I ), ,I! I ~ I find him guilty of the offence charged and convict him accordingly. f·t°IJ.A,--r·-rrJ···· 1---r :..(_A,,._ ·· '· i) D.P, I1A:PIG/~IJO .. ~~------- JUDGE./' 5/12/1986 Judgement-pronounced in court in the presence of the advocates and the accused person-. __.,,,,,--~""'- 11►.Jl.-_ 0.--'1.L' . Cl..h"-.,t V ._1 / D.PJ HAPIG.AJ.I~ JUWE KIUICT;- Nothing to say. MUHULA; - The accused is a first offender.- He is married and has seYeral children who look to him for their livelihood. His health is poor. He has swollen knees. He hns been in custody for about three years. I ask-the court to take these factors into consideration when assessing the sentence. SENTENCEJ- I take into consideration the period the accused hc.s been in remand custody. On the other hand there is a need to emphasize that people who go to pombe-shops to dri1~c should endeavour to keep the peace. I send the accused to jail for seven yea.rs. DAR ES SALJ.i.Al'J I 5th December, 198~ ·'