republic vs michael selemani 2006 tzhc 255 29 june 2006

T H E U N IT E D REPU BLIC O F TANZANIA I IN T H E H IG H C O U R T O F TA N ZA N IA A T SUM BAW ANGA T ------------------------------------------------------------------- CRIM IN AL JU R ISD IC T IO N CRIM IN AL SESSIONS CASE N O. 8 O F 2005. T H E REPUBLIC VERSUS M IC H A EL S/O SELEMANI. Date: 29.6.2006. Coram: Hon. A. C. Mrema, J. For Republic: Mr. Malata & Mr. Mwangamila, both S/Attorney. Mr. Kampakasa, defence counsel for die accused persons. Accused: Present. Interpreter: Salim M nuo - English into Kiswahili and vice versa. Notice of trial of information for m urder c/s 196 of die Penal Code was duly served to die accused person who is now before this court. Information is read over and explained to the accused on the language known to him who pleads:- Accused: It is true, my Lord. Court: - Entered as a plea of guilty on the charge of manslaughter c/s 195 of the P.C. • Sgd: A. C. Mrema Judge 29/06/2006. FACTS O F T H E CASE Mr. Malata:- Accused Michael Seleinani and the deceased Maria d/o Kikoso were residents of KATANI VI LI A G E , NKASI D ISTR IC T, RUKWA REGION. Both were,husbawd and wife and in their marriage thev got six te e t c h e r children. Accused was a by profession. O n 3/04/2004 accused and deceased left their homestead and went to a public place called centre to drink. They continued to drink beer from 4.00pm up 10.00pm. At 9.00p.m, accused and deceased left the place at which they were seeping beer and went home. As they were about to reach home accused discovered that his wife did not have her watch (SAIKO), which accused bought lor her. Accused upon asking deceased as to the whereabouts of the watch, deceased answered that she gave the watch to a photograph shooter (mpiga picha) as a security in respect of alleged photographs taken on her by the unknown photographer, but the deceased had not paid for them. Accused pressed on the deceased to explain why she did not request for money from him to pay for the photographs. Deceased answered that she feared to tell him (accused). T hat act oi the deceased angered accused who turned to the deceased and attacked her. H e assaulted deceased by kicking her several times on her stomach and ribs. Deceased fell down and was injured on her head. She (deceased) was then rushed to hospital at Namanyere but she passed away in that night. Autopsy report reveals that cause of death was due to head injury. If no objection, I pray to tender the PMR. Mr. Kampakasa:- No objection, my Lord. Court: Autopsy report marked Exh.P.l. v S/A continues:- Also if no objection, I pray to tender sketch-map depicting environment at the scene. Mi . Kampakasa:- No objection. Court:- Sketch maptf marked Exh.P.2.\ Mr. Malata:- Accused was arrested and confession under caution that he assaulted the deceased to death - prayer to produce. Mr. Kampakasa:- No objection. Court:- Accused’s caution statement marked Exh.P.3. Mr. Malata:- T he accused’s PF3 shows that he was mentally sound and did not have any injury on his body - pray to tender it. Mr. Kampakasa:- No objection. Court:- PF.3 admitted as Exh.P4. S/A:- Finally accused was charged with the present offence, which he has pleaded guilty. Accused: Yes, my Lord, I have heard all the statements read out by the state attorney. They are authentic and I agree that they are true and correct. Court:- Upon the accused’s unequivocal admission of the offence as the charge sheet and the facts read out in support of the same, I hereby convict him on his own plea of guilty as charged. Sgd: A. C. Mrcma Judge 29/0(5/200(5. Mr. Malata:- My Lord, we have no previous criminal record against the accused. Mr. Kampakasa (Mitigation): Accused prays for leniency as follows:- (1) He is the first offender. (2) Accused has through out been co-operalive both to the police and in this court by admitting his unlawful act. d. (3) Accused enekifvewed'to held deceased to save her life. (4) Accused has six children, the eldest one is aged 11 years, and the last child is aged 2 years. Both his parents are dead. (5) H e is definitely very sorry and repentlul for the deceased’s death, his dear wife. (6) Accused has been in remand custody for one year, 1 month and 25 days. For the above stated circumstances we pray for a most lenient sentence. SE N T E N C E : I have put into serious consideration all the mitigating factors pointed out by Mr. Kampakasa, Learned Defence Counsel, on behalf of his client (accused). From the facts and circumstances of the case, I am inclined to believe that accused harboured a belief that his deceased wife might be having love affairs with the alleged photographer. II' that was the case, then one may be entitled to say that the accused is a fool, if not stupid, because it is hard to see how a reasonable person could act on speculation not supported with evidence. Alter all, if accused believed that deceased was having illicit sex with an unknown person, the solution was not to act barbarically to such an extent as to cause death to his innocent wife; solution would have been to refer the matter to both parents, or elders for a settlement, or solution and not to take the law in his hands. Be that as it may, there is undisputed evidence that deceased left very young children born out of wed-lock between accused and deceased. T hese children cannot any longer enjoy that love they would have expected from their deceased mother. In a way that is a punishment to them. T he only person they would now expect to *%et maximum care and love is from their lather (accused) who is - 4 - alive. They need necessaries of life, including education. It would amount to a cruel and double punishment if their father is ordered to serve custodial sentence. This court is a human creature sanctioned with legislative discretion to impose appropriate sentence based on circumstances befitting every individual case. In my considered view, I think this is the appropriate case to order conditional discharge to the accused purely having regard to the interests of the children who lost their beloved m other pre-maturely. In the upshot, I hereby discharge the accused on condition that he would abide the laws of the country and be of good behaviour, so that for three years from the date of this order he shall not commit any offence against any person, or property. In delault however, he shall be caused to serve in prison the same period of three years. This order is made u/s 320-(l)(b) of the Cr. P.A., 1985 Revised Edition 2002. It so ordered. A. C. M rem a Judge 29/06/2006. in the presence of Mr. Malata and Mwangamila, both Learned S/Attorneys lor the Republic, the accused and his advocate Mr. Kampakasa, learned counsel. A. C. M rem a j'+rtrtrfy 1hat 1 Ws'Ts*B nVT'co the O ri"in ;i5 O n h-r/.\,, Judge ......... .......^ 29/06/2006. ‘Qtiuirt.ef Tanzania ........... S U tiiS a H 'a n g a ............