19871211 TZHC Dar es Salaam

IN TBB lt[GH·C9UR~ OF Ti.NZANIA .. r.~_. ~GC..U_J ~- AT DAR ;§S~S£.W4 ORIG!NAL JURISDIC~~ ( DAR '.ES S.ALAAM REGISTRY) i ' CRIMINJ;L SESS! 00S -CASE NO •••••••• · 29 OF 1986 · REPU:S;LIC VERSUS,, • • •••• ·•.•.!.• £.ANDAY GJJ...iA SlJNDAY GAMA, ·the a.ocu.sed in. ·this oase, i;l charged with. mauslaghter c/s 195 of the Penal Code. It is alleged in the particulars ·of the offenee that he~ 1'lt the 15th day of Jane, 1985, in Dt>.r es Salaam Region, unlawfully killed ~e llAUDI S/t MNANGA. He has denied the t:::uth of these allegations. To prove the charge cJ8ainst the accused the pr(1secution called a total of £our witnesses. Rajabu Y..hatibu ( PW 1) Dlu.di These -«ee• , ·Gema ( PW 2) -Sultani saidi ( PW 3) and lrtsp. Timothy ( PW.4) Mr.• ~t1zi, State Att0rney, represented the Republic during the trial ' 0£ the case while Mr. Tungaraza of the fanzania Legal Corporation appeared for the accused. The undisputed facts of the case are that both the accused and the perso~ he is alleged to have killed, Daudi Mwange., were \ residents ot Ilala, here in .the City of Dar es Sale.am. I ! In the evening on 15/6/85. at about 10 p.m. they were both in a STOUP of youths at a Kio:lk on Moshi Stre~t, Ila.la. In the group ~are also PW 1 and PW 2:,e-s 3-Ccused's elder brother. They .J. PN.2 were at the Kiosk chatting and having drinks. The:i in the course .of doing so an argument developed between the accu3ed and ~.udi Mwa.nga. about football clubs. The a.c">Used was for Pan African Football Club while Daud.i Mwanga was for Simba Sports Club. >J. the course of the arguments Do.udi Mwaxl{Sa. attempted to beat the accused. <kl seeing this PW 2 tried to intervene on the accused.is side and quarried .Daud.i _Mwanga_Lto what he wanted to do to :~,o. younger bro~er. · f. e, ~udi Mwanga was defiant and .PW ~-picked a small ~ s h bin and threw it in his (Daudi· .~: Mwanga' s) direction. Jr.udi Mtra:ie::. ducked and it did not hit him. He (Dau.di Mwanga) then tU:tned. to PW 2,. _'~he latter• however took to his heels, h~ fled but Daudi Mwanga pursued him •. He oaught up with him at Mina Hotel, near :Moshi/Tabora Street and they got locked PV:" 1 BaY:•hEt arrived 3.nd sepc.,,rated them. ., . in a f5P:ht .. They !!,topped 'tightinB; e. ci .::+arted. to walk hor.1e,, On the way ·they met another youth called Willy · . '-- said. to :Daud:i_ Tuiwa.nga :, Pig<'llc1. no.o, usi w:-wgope ni watoto we,dogo he.o:; or ·;v0i-:cls to th.is:· effect., On he;:,.ring this D2.udi Mwc.ng,?, resumed the fight wi tn PY! 2~ The P,ccused who by tp.en vras with them, notioed that his lir0th-:r ( :?Vi c.) wr,,s being ov.erp0\1ereci by n~~udi Mw.?.ng.i in that .fight" . He t~11,!re.fo o p.ick_·J. a pi ace of brick rui.d hit D.::.ud.i Mw..ng.?. • ?''" with it on the right side o.f hi.s fo:".'ehead.,· The Report on Post Mort~m -:,tured Exnmine.tion ( EJL'-;~ J?.,:::' ,•"J0ws that it the skull on the forehe¥1,. Ch being so hit :D2.udi. M:wrngo. :::al.lapsed Md fell down~ The accused left the scene , nd · :tlcc'~.. ?eople ste.xted converging and fine.Uy reports got to :?w 3~ who Y12.s Dr:.1.,_di Mwruiga::·s guardian here in Dar es Sa.la.am and with whom l)audi Mw2nge, was living,, He ( PW 3) went to the scene • .Among other things he lo~ked.for wd found transport and rushed D;,.udi Mwanga·to tie rolice Ste,tion 1 P2.ng211i; Ilalac The police told him to go and bring t le piece of ·brick with whi:.h De,uai Ivlwanga had been struck_. He , .mt back to the scene and took it,, He hande{ it over to the Pol:. }(', The latter then go.ve him a PF 3 e.nd he took Dr,udi Mwange. to in, 'la Dispensaryo They treated him ther2 and allo\1ed him to return r,or,9,. He reg2ined his consciousnesso 'Ib: ·next day, his condition ":,: sened and PW 3 took him to I\'~uhirnbili Ifaclical Centre. He was ad.11itted therr: en JB/6/85, however: he c i..~d in hospital, at the NiuhimbiLi fa~· ic.A.1 'Jr:mtr0, en 21/6/85 .Dau.di i'Manga'a father, the police 3.1::.d PW 3 .I.c; ·.,:J t.i fiea. his ( Dau.di Mweng. L: s) body to a doctor who oarrie, cut an aui, .... -;y on it~ From i.he foregcrJ.; ·- ::.t iu cloa:r the,t Daudi ;:fr,.:mgc. is dead. There•is n( 1 'ispute on this.., The defence does 1.:,t dispute. I find therefore r.s R fact that DaPci.L M,wng2. is dead, ~ shall henceforth in this jUC€ 'l_ent rc:- rr./'e•~y•i t'.,Z to him RS ir the '}0')eased 11 o I am cc cisfied beyond dcubt too~ and I· fi:e that he did not die from natur1s: causes,, He v1as id.lledo The Repo:-l ;·.-:'·. Post :Mortem Ex:amination ( Exh., P-~1) state that he hc.d a fruc tured right temporal bone with ::Nb a.rchnoLJ _ haem2.toma wi'1en his bot·, ,,1as examined and that his death was die to subarchoid haematoma, This ::,·... ether with the I other evid~nce I have set out above leaves tr.,,·. qur..:stion of the cause of the dec€ased 1 s death beyond dispute~ I have no doubt also that the deceased i:1;; killed by the accused in this C/'•,se,, There is no dispute 11s to thi 3; the prosecution have established it and thA, defence does not rHs"":::te it~ ,0003/o ~ . ['ho,ro r,xc only ·t;wo pointa of clinpu:~a,_.:,.n~l which I i:mnt now o=aiA.ar ~..nd dotoroino, ia tho 02,130. Tho Zirot one is i,ri·~ll r0,_;c .rcl as 1 to how the. c,ccus<Y: lcillcd tho decce,ooc~.. T'no soc')nc1• one ic ·vf..,cthcr .,.,;,be o.oeusocl io crinina,lly rc:::ipo;1oiblc :for t;ic killi...7.c; of the clocoi.".Socl • uhich ho coru:.1Htc6.• On the fir·Jt poii.,.t, tho :--.eC"c1.GC(l j_n hiG ovic.cnco, which he olco·tcd · to c;ivo on o.fiirno..tiol1, :::.i-ktod. tlF·;~ ,-r:::.m1 ho notico,l ·ch-.,,t,hi:J brot::01• (PW 2) wcs boL"lc; ovorpm·rorocl 7 ho piclrn:l n, :::.i,:r,11 i_)icoo ·of brick a..'lcl wa1ri;ocl ·co fri:.,:;hJ.;011, ·i;ho cloocc,ood wi·c::. H~ :Zo :::i::.icl~- 11 I wns fric}.:d;onin,:; h:il:1 b:r i21clic -,-;;inc tI:.,1t I 1-ro....""ltcd ·i;o t!J.:rd-, it o.:t ::in.- U11::01~tmv,tcly -~J.:c )ioco of ~)rfok slippo(~ fron r-tr hand do1m ( nc1 I flocl. I "i-·Tc\S only ·i;:.:r00."iioninc ·co Jti].:.row tho piece I of br clr: l,t clcooe.socl' but i·~ r.ilip1,oc~ f:ro,:1 uy 1,.:-'.,l•:'. r,;;,1cl hH tr.a-ow H hinsclf ., . ,. i On this s ·,no point Pi'T 1, 2.11 oJo uHnooo fo t:·:: i:nc:i.dont, s.tc:i.:tod in his evid.encoj•- 11 Acc-,.1s0d, when ho saw ·i;h _·i; '.,.ic brotb.,r D,:udi G,•,1:10, h;_-,_d boon ovo::-.'po'lroI"ocl., pic!rnd a pioc::, o~: o. c:01:1ont '.:lr::.c'.: 2,.;:1c!. throw iJG on 0:.10 sLlo of tJ.-.c pli'.co ul:.o::.:·0 ·i;!:'.o dccc-.,~Jocl c:.nc.'!. D2.uc1i ''o·( ""C''"L' r·c~i) .L... c;,.., V ,.~J ...__ d.ccc~. : ic<.1- 1-ro. o ducking f:cqr_1 JV~\ -c i-jiccu c-:Z :):r'tclt C'21f,_ j.,11 c1oil:.~ so it :.1.i-[; h:i!n on t;:i.c >.c:~,_c:.; J)oco,--,oc(!_ ·Lon :.~ell tlo.-r.,1 l:.l-1<.-. col,l0,paorl11 • 11 • • ¾ .. • o . . . . ., .. :in dv.ckil1c; f:i.t:n.1 tl::.:·:i; ~Jric~:;: . '1cc ::,\:::: o-:':. .::1.~c.;:.:o:.'\. on \ -the siclc vrb.oro tb.o- rrG,,~10 1·"--~i:3 :(;:~llil:.(~~ D.l"!tl it l:-.it 11i..r:1n • Finclly1 PU 2 plainly S(--.id tl.:.e:ii ·i;L:.c ~~cct~;:,c:d )ic1.:cc1 2. s·i;ona c,m!. .t.,. ~ __ew· it a·, tho dcccc.soda• I-l; hi"+u hin 0_~1 -!-•,,.., "·'·'•'-' ·"o·c ,l, . .· ,.,,.,d 1, ' ( -'·h , ,1, • Ca.,,.;.:,c. =• -C li.,.u ~sod) flccl. Dhclcr oroos c:i-:,cni;.12,•cion by Lir. I\u::.:·,, ,r;-,:,:;2, he -~1..i,~d1- . ' ,i should. 102.vo oo 11 • \ l. -4 ✓-~ Now ,did tho c.,ocuscd hit tl:o ctccoo..,;cd o.ccidont.-;lly? I an o:e 'li}ie View 1;ha:'li tho..t wc.s not tho 0[':.SOo H -~I_,.o piece of b_:r:j.ok only slipped· fro:-.1 his lu'Jlc1. n.o lw 1:-.c-,CJ frb. ·:~cd, I clo not tJ.:i,"11; i 1t wcru.ld have been of such <'.L"'l :i..:1po.,c·~ ou -;;:,.o ~:eoot,so~l_ 1o skull ch ·to cU,d 11ot slip. Whot:.!Ol' ho throw it :b.1 -;;:_-,_o D2Jlli.o:c o:::plrd.nod by .:il'lt1 not i:mrdor • Throuin..::; it ill -~ho or.n:.:cJ..' c::pld,1ocl 1Jy PW l or PU 2 0JJOV.11"li ·to nciuol: 11.c-}~.-~or, provid.ecl ·c:.:-c,-;; :•rh::/c 1 1·csu.H0d fror.1 so cloinc So I 0..:.:.1 sd;is;;ioct ::.13.10 s )one". poin·~ for co11Girlor,;ho11 c..uc! J.c·tcrr.1:i.11~..-;;ion r:.i·iscs fron tho fc,c· ·-~ .::::t the r-;ccv.se:: w..--,,s 2, bo;7 o:c only o lc7'?l'l ( 11) ;;,c.:w.'s a:~ the tii:ic .::.c ·:illocl ·;;he decoc,Dcd. ::C'..:c clc:i:onco tllcr9:.Zoro, quite natur2.,lly I ·-~hinJ.c, raisocl tho clofonoo of 1r_1r.12.turo ::v.;o. T.1.'.'.is, I would S~ 7 ' wd:i ·i;;.:o n::,in do:fonco to t>.,, &l ~·cc O BoJtih loc1r11cd. cov.iiscl id,dro~ood the court 01:b.;:,.1.'":.:,rGivoly on tl,.o l::-,1t rclatin:; ·to t>.c defence re.is;:id., I will l:orc rcsJ.;.-~·;;c it briefly. Thol'C is n. rcbu·ttablo pr~r.-c:.;.:ip'Gioi.1 of lo.w tlv~t ,c- c'.:.il..l of u..n~lor 12 ye.<-'..:i.'O of 2..;c is no-'i; rospon~iblo :P.o1· cny orir.io lJlllor.m i·t is proVQc: t½£'.t ,-/i; the tine IJii is not nccoso11ry to l)r·Jvo lG101·tJ:ocl.;o th~~JG the .-,,ct ho did Wc'.S lorrally 1-r.ro:,:,:::;-; bn·t ):;:nowlod:;c ~;h,,,t ·i;hc .-,,ct uc:,s :-.1or.-1,lly wronc; nUGt be as in:f'croll"'tiir.-.1 ovdcnco of i:1.£I1S r,::[, o·cl:,o:.:' ov:i.d.oncc ti·.,·,t t!lo aomi.sod knew -'jj:.,.nt ho w .r:i C,.-Ji;.1.::; soi:10trL .. 0 • • ,.10:..•r,lly uron:.; nn:::rt; be· D,(].clucoc1,, In hi~ 'Ij"'Ul:10;.ri;s ·to ·chis c.;~1urt I.I:r·a K.;;rc•,rc..zi oulmi·tto1.:'.. 011 tl1ia point thf';~ ·the prooccntioa b.2-c:, 1Jy oviclcnoc, p:co~✓·oc. t)1,r~ tho e.ocur:.:ocl hwl ·l;ho cc;po..c i ty to 1010.r t212;ii hi ttinc tho clooc['.fJ,orl wi-'i;;l o., p ioco o:C of brick wn.s l'r.l'.'Oll:"S• Eo s1.iJmHtoc.l ·th,:i; the cvic1.c11cc to pi·ovo this connic·iiocl o:Z ·~he fol lowil1c f.2.c-lioro s - (1) Tl::·;i; tho moused m:!.S ii.1 Stcl, V wb.011 J:a coor.1Ht"'ocd 'i;ho o:f:follcc: - ci level o:Z oducr.:~ion w;::,,on b,_-; cou.lil be . 601toic.~crccl to h::.vc Enc.l m.tf1icn-t ii:rc0llic.;011cc to J:.:now hc~c'l'rcon wronc qml richt. '- (2) ~h,..t he himself said he wanted to frighten the deceased with the ·piece of brick. He therefore knew that a piece of brick could frighten a person and he must have known ' that it could frighten bec~use~ it injures. (3) That se•n after the deceased was hit and callapsed the acoused fled. He av.st have fled because he realised that he. had done. something- wrong. - Mr. Kyaruzi therefore submitted that the accused be t2.ken to have had the oa.paci ty to know that hitting a person with a piece of brick was wrong o In reply, Mr. Tungaraza contended that the accused was so young J ·ij: that he did not ha,e the capacity which the prosecution contend he had. en that po~nt that he w~s.in stdo Vat the relevant time he argued that the accused had stated in his evidence that he used to·h~ld last positio~s tn class and ther~f ore he was not so intelligent as to h2,ve the ciapaoi ty to know between wrong and right. Ch the point that he picked a.piece of brick with·which he wanted to frighte~ the deceased, he a,rgued that the piece of brick itself was not tendered •in evidence. He argued that if it had been tondered it would h2.ve been found to be so small that the accused picked it iimocently . ielieving that it was harmless. Finally on the point of fleeing, he contended that the accused fled not because he realised he had done something wrong but because he was scared on seeing the: deceased a friend of his callaps·e and fall down. Unfortunately Assessor Rukia Maulidi was not v3r: helpful in resolving this point. She g.it'" the o-:pi~-GO'.!... of n0t i,tilty because - the doctor who performed tho autopsy on the deceased' :1 body was not According to her he was a very important wit. es sand failure , to oa.ll him was fatal to the :proseoution case. Assessor Abubakar : Juma.nne found the accused guilty as cha:!ged though he did .not seem to fully 'J appreciate the point he was supposed to decide Le. whether ; the accused had the capacity to !mow that hitting the deceased with a f ~ . st piece of brick rras wrong. Be that as it may, I am fL·.lly- satisfied that the accused had the ca1;a;;,i. ty to know i;hat ;\it was wrong to hit a person with a piece of brick. This evidence •' consists of the three factors stated above and nhich were the basis ~. / of Mr. Kyaruzi' s submur.sJ,ons to this court on the point and also the \'~ 1 fact that the accused was i n t . e l . l e ~ to app:cociate whicl'.t \ '..~ ·,(,11!': -:,"· ~;~·~·:) 1 ·f, ,rf, · ·,~~ ♦.; •· \:,.;:\~ .11r?:,·i!!>iii.~---..;~i.;.~-:~:~lc'~i1ii-i'1:::·r ~:· .. :': ~t c~.ii:~~ir'~\ • ;~ "a0 .... , . . ··~ . Ii • .. . .,.;;, . . . ~-- ~ ... ~ . ,_ . ' f • • '\ _....,_ . J ... 6 - Pootball . Club h9 should support and-to involve himself into disputes in defence of his cluba Second,ly he ·was intelligent enough to appreciate that his brother was being everpowered and to think . that he should act in his defence br threatening the deceased with a piece of brinka Considering these and the fact that he then fled after hitting the de~eased there is no doubt that he had the capacity to lqiow that he w~s doing wrong when he hit the deceased with the piee~ of bricko I do not accept Mr. Tungaraza' s a.rsaments that he fled because he was scared after the decea~e4 collapsed. Ih! fled. because he knew that he had done. soroothing wrong. For these. reasons, I find that the defence of irmna'ture age is not available j:9 the accused. in this casea . In 4 e final result then I findLthe prosecution has proved L that the chare l e,gainst the accused in this case beyond all reasonable doubt• I .find hi n 0,uilt afl charged. Delive:cei in court this 11th day of December, 1987 in the presence 0f both learned counsel, the accused and Assessor Rukia Maulidi. 41:((t)'?,l,L"'--. f'{YANDO, J t Mr •. !{yaruz.i ~ • 1·- Accused is first-offend.a~. 11/12/87 _ _ .. _ _ _ ~.;_----..... M:£• Tungara.za: My Lord and Lady Assessor, I prey that you be considerate to accused whc - Ls a young person and a first offender. Pray also t½at you consider that accused has le:Ji'nt a lesson from the experience of this Cij,Seo He has also suffered enough by being remanded: 1n a Juvenile Remand Prison before he was released on bail. He is 13 y~'ll's old now. ORDER The ~cused is a young boy of 13 years only. In ~&;t'IllS of s. 326 (l)(b) of the Criminal Pr~cedure Act, instead o£ convicting and sentencing him, I order that he be discharged ~ondi tionally on his executing a bond, with one surety, to be of scod behaviour end to appear for conviction and sentence when call~~ on at any time during a. period of one year from today. ///// l1✓7 Cc •t--c~c.Ci? 'lCT.ANDd, JtJroE 11/12/87 Court: Lad.y Ar.sessor thanked and discharged, KYAND O, JUIX;E 11/12/87 •·