19892804 TZHC Dar es Salaam

~- l_' . ~• OF Tl~NZii..Nll:.. :rnr TIIE .r:rnn C0011T J'/1.1 DLR ES SAI.JJtM ORiGDJJJ, JTJRISDICTION CRIMINil, SESSIONS CASE NOo41 OF 1903 11EP'ul3LIC vorsU.'3 MALESO LEDEDYA JUJ)Ql\.filfll DiillATI 2 'i.!. The accused Maleso Lededy::i. stands charged with rn:mslaughtor conJ~r . '. ,'Ji~.., -~-'.~p sootion 195 o:i: the Penal Cod0. IIe has plen.d.ed not Gru.il ty. The f'.wts .';,;! . ~\·. a.s.rn~ed upon at the preliL-u.nary hen.ring arc that. Noliyc. Likoro is cleGd Emel . /that he died a violent death, ..... ~ '.['he accused fought with the deceased 2.:nd · 0 bSat r~ hira on. the head with a stiok.. The postr.1orten exar:rl.nation report is in it . respect of the deceased Nohiye, Likoro · and it shows that de2.th. was duo to head inju::cy due to depressed fraotv.xe of' the skllll..- The accused however disputes the fact that his beating of' the deceased c2.usecl tho death of the deceased\" I• ~a:enoe was adduced to the effect tha.t a report was· received at tho .. '(- Station Gairo about the deaiib. of the deceased who wa.s said to have Pol~e died sone 3 i.1ontha ago in October 19D6. The body WM C!i±UI1ed ru1d evcmtual]y exnr:iined by a doctor who found that cause of' death wa.s due to head injury due to depressed· fractured skuJ.1. lhe accused who was said to. have oaus0d 1 tl:.e cl0ath ,·ras a.ITes.ted and cJ.ia.rged. PW2 JU1tl101v Mshok:i. fold the cow..--t that in October 1986 the c10cused c.ar.1e to his home looking :for a goat to buy, Dut PW2 clicl not have al'.ly goat :for saJ.e. Then the deceC1sed aJ.so . arrivec.l . at his hone ·(PW2 1s hone) with a grou;p of' fellow Masais 11 T.he accused was seated and the deceased then flung a stiok fa1 order to beat the aycused., The c.lecen.secl was qu.:-uTelilig with the accused"' PW2 then chased the group of Masai raen :f'ror:a his hone, f'or the accused· and the deceased and. the others with the1:1 were all Masai young nen. The group lef't em went only a d.istMoe of' sorJ.e 15 paces and the qua:rrel was still on. It ended. in a fight and tl.10 d.eceased was hit on the · head. Pl:12 saw the inju::cy of the cleoeasecl. It w~s not a serious one antl the deceased clid not even complai...11. thaJc he had been injured. Then after alJoUJCi ten days PW-2 heard about the de2:th of' the deceased.. PW3 Leld.nanga Lelcolo 2, 1Jrother ::;. .... of the deceased also gave evidence. Ile said that the deceased cane fo his hone 6..11.d he was ooraplaining that he had been beaten on the head by MaJ.eso, 'I!!1e deceased clid not get any treataent and he WM sick right f'roiJ beaten until his death. In I:is cl.CCt:.CC(~ 2 IJ.~.10 accused had gone to the houe of Rf2 to get a goat for s.110. T'JJ.en the · · dedeased ccrJ.e there an.cl saicl to the accused· that the accused wa.s poking his nose in 1:iatters of aduJ. ts which do not concern hio. while he ( the accused; is a nero boyc Then the deceased took his stick to str:i.ko the accused and the accused r,1anaged to ward off the blow.,. Then Fii,2 chasecl th<D :frora hi~ home and they went to a oow path• There 2.gain the quarrel e:r-upted a.11cl ihe accused fought with tho d.eoeased by hitting hir.l on the headt- The accused explained in oross-ex:ami11.ation that there were actually 2grou;ps llafilely the deceased with his men ~ the a.caused 1-ii th his and that sone sort of fraoas erupted as they had all taken a lot of 1ic.ruor., The accused went on in his e:x:ru:rl.nation in chief fo say that he came to see the deceased again. some 15 .days after that inoidan~ Tl.le deceased and the accused gi-eeted one another and the deceased sai.d that he was not really injured by the l)eating. Then a:f'ter some months the accused _Ilea.rd that the deceased we..s sick suffering from preuraonia. Later on he hea.rd that the d.ece5:sed who ha.cl gone to local raed.ioinGfl_en : for treatment had died,. In oross-ex:ar.rination the accused ac1.m:i. tted that PW3 · ·. ~:· ·:· ~ would know better as to what actu.eJ.ly happened to t.rie deceasedi. After SUinr.ling u;p to the assessors all the assessors founcl that the accused was not guilty because in the ciroumstances he httcl the right of self defence, otherwise he would have been the victim. From the evidence aclduced, I have no hesitation in holding that the death of the deceased was caused by the beating which the accused gave him on the hoa.d. The evidenoe of PW3 toGether with the doctor·rs. report clearly establish th.is fact. Cause of death is sro.d in the post mortem exa:m.ination · report to be due to heed injury. due to depressed fracture of slru.J.1., There was a depressed fracture of the right lateral. side of the head according to the report, '!here was no evidence to show that the deceased sw."'f'ered another injury on his hea.clt The only injury for which there is .ev.i.clenoe is that which was caused by the acoused~ I therefore hold that the accused. oaused,., the death of the deceased. The second point :for consideration is whether the ld.llinG wa,s unlawful,. The accused has put up the defence o:f self' defence., The evidenoe clearly shows the deceased as the villain who started the. quarrel c::ncl pursued it until he wa.s bGaten on the l1cE.d., Tho accused talked of there l>eing 2 groups in th0 fighte This elo.ii'.1 is corroborated by PW.2 in certc1i11 rc::spccts because PW.2 said that the accused got tQ his ~:ome with a fellow :Masci and then the deceased came there too with other Mc.,sa,is, The accused also said that the . traca.s erupted for tl:.e second time and that it' led to a fic~1'..t with sticks w'.1ich eveJ'.'.yone was oar:c3ring. In iil,Y' view on tho :fnots as presented I find t>..:it t!-.c c,scL:cccl w2.:::; cnti tlc(1. .' . . . ~-·,..:·_::--J1 __ :.:c ,_,:;. .. ·.:..c . ... -....... ,.. . . ' ..... ··-· .J . .J_ _ ,_ .. • " ,J. ··-· 3 - accusing of im,-ol vi;_1g .>,.L.,rJcJ.f in .:i.c.lul t holcl -t:1c~t the DCCUOGCl w2..s GXercising !.::i:::i :ri:)':G cf .self--J.. efGi.lGG C:J.10. -tl::.:1.t ho used ro2.-sc1121,lc :force to wc:ix::L off -~:.,c d.2.11@;0r bocz:u.cc : 1.in -~:1e; p1·osooution hr=:.s c~j_sohn.rgocl its bu.:rdon of proof c T!.1e:: uc:2cnoc of self- l'lcfcnce in tcr"in.s o·P sootion ll3 t:1rough 1GC of the Ponal CoflG is 2:vaila'blo -iio t.1).0 accused,. . I -b.'•.orclo:ro fincl -t:':10 ci12.rgc not proved h:-:~o;,1{L o.11 roasor1c,1Jlc cloubt hncl I acquit -~-· .o a.ocu,Jccl 2..cconlin.:;ly,, T.ho accused s.".:culc~ 1:ic rcloo..sGd. fron oustoc:!jr fo::tl~wit>. v.nlcs:s !.:co is ...,.... hclct"-Ley~- other lc.H:fu.l C£W.. S0o . __ ... Dii.R ES Si1.L1-1./J.II 2;'.h:.i April+ 198_2., .