republic vs jordan raphael mshamu 2006 tzhc 201 28 june 2006

IN THE HIGH COURT OF TANZANIA AT TUNDURU * (SONGEA REGISTRY) CRIMINAL SESSIONS CASE NO. 5 OF 2006 . ■THE REPUBLIC VERSUS: JORDAN RAPHAEL @ MSHAMU I 28/6/2006 • i Corams Hon0 S . S a Kaganda, Jo Mr, S$dekia - State Attorney for the Republic ■» Present» Mr« Mbogoro - Defence Counsel for the accused person - present l Accused person: Jordan Raphael @ Mshanu - present Inter^rer: Mshamu English into Kiswahili and vice versa Notice of trial on Information of Murder c/s 196 of the Penal Code w|as duly served upon accused person on 27/4-/2006 Information real over and explained to accused person in Kiswahkli and they are required to plead theretos PLEA o|? ACCUSED; It is true that I killed the dece^*?*^ Unintentionally. SoSo Kagenda, Judge• ■Entered a plea of guilty0 SoSo Kaganda, Judgeo 28/6/2006 l ’prsiy to tender Facts tro the Charge and read it over to the!'’ accused as follows © *• The accused was 21 years old at the time of committing the crime against Mpalumbe-0 The deceased was step-mother to the accused, they were born from same mother* On the'material date, the deceased and accused were playing *? gambling game with a pay of 50 cashewnuts to the winner® The accused won all games and was therefore entitled for the cashewnuts but t h e ‘-deceased refused to release them0 The deceased attacked the accused with bore hands and the accuser responded to it# The accused was provoked and j picked up a stick and attacked the deceased on his head. The accuse3. then, ran away0 Several witness abserved the fight an*l it was repo­ rted to the accused's mother. She walked to the scene of crime and found the deceased unconsious and he died few days later at Mkomaindo Hospital* On 18/11/2005 the deceased's body was evacuated and examined by the Doctor0 Dr„ Sadiki reported that death was due to nederate severe brain tissue© By then the accused was still at large and he was arrested on 12 / 1 1 / 2005. On 13/11/2005 the accused admitte.1 committing the offence before the Police and later before the justice of Peace0 He has also pleaded guilty before this court. 1 pray to tender the post mortem report as exhibit,, Defence Counsel; No objection® Court; Almitted and marked exhibit P 01 0 Defence Counsel; Jtfo objection Court; Admitted and marked exhibit P.2 SoS«, Kaganda, ! Judge„ State Attorney; I pray to tender the extra judicial statement '• I | as exhibit. ■■ Defence Counsel: No objection,, . ■ t ffourt^ Admitted and wark-ed ;exhibit P 03» Stote Attorney: I pr^iy to tender the sketch map as exhibit Defence Counsel; No objection,. Court; Admitted an! marked exhibit P.4- SoSa Kaganda, Judge., Accused; I admit to the facts of the charge,, Co u r t Accused person Jordan Raphael Mshamu is hereby convicted on his own plea of guilty to the offence of Manslaughter c/s 195 of the Penal Code« S*£>o Kagan da 9 Judge„ 28/6/2006o Previous Convictions; No previous record but the offence carries a Maximum of life Sentence. * The Icourt has a descretion to pass a lesser sentence but it should be considered that the accused had no legal right to terminate the deceased’s life0 The offence was committed at ;■ . . . V-- '"I*-* i '■+.■. a gambling* frame and the accused did not use any weapon on the accused as such the defence force was exessive. The accused inspite of his relationship to the deceased did not even assist hiiTi after the attack® He therefore deseves a severe punishment. We submit* SoSo Xaganda, v ; Judge Defence Counsel t Mr. Mbpgoros We'pray-for leniency on following reasons: The accused is a young man of 21 years old.s He is still single« l “ He is the firstoffender anl he has been under custody for seven monthse i - Weadmit the penalty provided for unler the Law but we tfcink that will spoil the accused rather then correct him - It is true thrt the accused used a stick in attacking the deceased but that was reasonable because the deceased was elder than the accused. He just picked the nearest then closeby as such he did not wish for the consequences - The accused has pleaded to the offence from day one as such he derserves the courts leniency0 ! S 0S © Kagnnda, Judge„ 28/6/2006 - 5 - Sentence: 'The apcused Jordan Raphael Mshamu has been convicted on his own plea of guilty, to the offence of Manslaughter. He pleaded guilt^r from the date of varrest, before the Police and before the justibe of Peaceo The offence was committed during a gambling i game,'which is also an illegal gaae0 The accused mercilessly i killed his own brother ..bkorn by the some woman0 It Is obvious i ''*? . that their mother was left in a bitter State on that occassion. i i The offence carries a maximum of life Imprisonment0 The Defencje Counsel has pleaded for leniency on several reasons including that the accused is first offender. I agree with the i Learned State- Attorney on that, the accused had use3. exessive force ion response to the ?ttack on which his brother attacked i him bore h*mds0 I believe being a y-ojun&er broiiier^the accused could have chosen other alternatives other than picking a stick and bounce it recklessly to the deceased's head«> I do i respect the principle that first offenders should be reasonably considered and more so where such offender has pleaded guilt;/, but th^t does not mean that it is a quaranteed certificate fur by the 'penalty as provided for/the Law0 Each case should be lookediat on its own merit* With that view I believe and I am oonviced to hold that the accused's presence in his society is unwanted in the near future, he should therefore be kept ! away ftfom them, including his own family for good period of timeo I therefore sentence the accused to nine years Impriso­ nment as from today0 i i i ScSo Kaganda, i I Judge• 6 Eight of appeal to the sentence explained, SoSc Xaganda, 28/6/2006 i I certify that this is s true copy of the original DoK'MRAWGO DISTRICT REGISTRAR. SSfC/ESY