Criminal Session 22522 of 2024 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) SITTING AT MPANDA CRIMINAL SESSION CASE NO. 22522 OF 2024 (Originated from Mlele District Court in PI. No. 6111 of2024) REPUBLIC VERSUS MASALU MAGEMBE @ KASOGA......................................................... ACCUSED JUDGMENT 9th & 11th October 2024 MRISHA, J. The accused person Masalu Magembe @ Kasoga had been found guilty and convicted by this court on his own plea of guilty to the charge of Attempt to Murder contrary to section 211 (a) of the Penal Code, Cap 16 R.E. 2022 henceforth the Penal Code. His sentence was however, reserved and he was scheduled to be sentenced on 13th day of September, 2024 which is why he has been brought today for that purpose. Before going to that stage, I find it pertinent to make a 1 summary of the facts leading to the mounting of conviction against the said accused person. It was alleged before this court that on the 3th February, 2024 the victim was in his room making the preparation for going to sleep. The accused person, who was the victim’s husband, entered in the bed room with a machete and started to cut her on different parts of her body including head and he also cut off the victim’s three right hand fingers. The victim recognized the accused person by the aid of a torch light and besides, they were living as a husband and wife. She raised an alarm which her children who were also at home, heard and run towards her room where they found their mother lying down with bleeding fresh wounds. He disappeared after awful act. That on 4th February, 2024 the accused person was apprehended near his house and the village chairman was among others who arrested him; he was then taken to Ilunde Police Station. Soon thereafter, the police officers initiated criminal investigation and later the said accused was arraigned in court and charged with the offence of attempted murder contrary to section 211(a) of the Penal Code the offence which he unanimously pleaded guilty and found himself being convicted on his own plea of guilty. 2 Upon the facts of the case being read over and properly explained to him by the prosecution attorney, the accused person admitted to correctness of those facts. Consequently, the court found him guilty of the offence charged and convicted him, as stated above. As it has been the usual practice, subsequent to the above findings and conviction, both parties were afforded an opportunity to make their submissions regarding the aggravating and mitigating factors. For the prosecution Republic, it was their submission that the above named accused person has no previous criminal records. However, they urged the court to pass a stiff sentence to the said accused person. For the defence side, their main prayer before the court was that the accused person be given a lenient sentence due to several reasons including, but not limited to the fact that apart from being a first offender, he was good citizen, he has pleaded guilty and therefore, served the time of the court and government’s expenses had the matter gone to a full trial. It was also their submission that the accused has been in prison remand for about seven (7) moths, he repented and learnt for what he had done to his wife, and that the accused person assisted the victim by covering her injuries in order not to lose more blood, that shows humanity. Lastly, the 3 learned counsel submitted that, the accused person is 70 years old, thus to let him stay in prison for more days will be a challenge to him, and that his health condition is not good too. He is also a father and his family depend on him. There is no doubt that the above-named accused person is responsible for the offence of attempted murder of Ester Masengwa and for that basis, there is no way he can escape from the legal consequences of being incarcerated due to his guiltiness, as specified above. However, having considered both the aggravating and mitigating factors as briefly stated above, it is my considered opinion that being a first offender and the an old man whose health condition is not good accused person is old enough and he is not in a good health condition, and also taking into account the fact that he has been in prison remand for seven (7) months which to my opinion is almost equal to a prison sentence, the said accused person deserves a lenient sentence. However, that does not mean his act of causing the victim’s death body injuries in an attempt to caused his death was lawful, but owing to the prevailing circumstances of the commission of the offence charged, together with the rest of mitigating factors, as I have reproduced them 4 above, it is my settled view that the accused person deserves the most lenient sentence, as I have just opined above. Thus, in the light of the above circumstances, and the reasons I have endeavoured to provide, I order that accused person be discharged on condition that within a period of one (1) year from the date of pronouncement of this sentence, should be of good behaviour in the society. It is so ordered. A.A. MRISHA JUDGE 11.10.2024 DATED at MPANDA this 11th day of October, 2024 A.A. MRISHA JUDGE 11.10.2024 5