Criminal Session 101 of 2022 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

SITTING AT MPANDA CRIMINAL SESSION CASE NO. 101 OF 2022

REPUBLIC

VERSUS 1. JOSEPH JOHN @MCHALO -....................................... ACCUSED 2. PASCHAL ANDREW @DONASIO

JUDGMENT 2n & llt October, 2024 MRISHA, J. The two accused persons namely Joseph John @Mchalo and Paschal Andrew @Donasio were formerly arraigned before this court with an information of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2022 (the Penal Code) which they pleaded not guilty and instead, proposed to plead to a lesser offence of Manslaughter Contrary to section 195 and 198 of the Penal Code. As the counsel for the prosecution Republic had no qualm to that prayer, the charge in respect of that lesser offence was read over and explained to the first and second accused persons who pleaded Guilty to it. Thereafter, the following facts were read and explained to the said accused persons before 1 they court be given a chance to comment on the correctness or otherwise of the said facts. It was alleged that on 29th April, 2022 during afternoon hours at Kambuzi hoti village, the accused persons arrested and severely assaulted the deceased person Hamis Hassan Mrisho, a 37 years old man and a resident of Kambuzi hoti with traditional weapons based on allegations that he stole some maize, the properties of a person called Emmanuel Malale. The information on the arrest and assault of the deceased was communicated to the chairman of Motomoto hamlet Mr. Nemes Leonard Katembo who among other local leaders, arrived at the crime scene. At the crime scene, they

found the deceased in bad condition and surrounded by the both accused persons who were holding sticks. The said chairperson having seen the deceased in bad condition, wrote a letter ordering the accused persons to go and hand over the deceased to Kanoge Police Post for appropriate measures. The deceased health condition deteriorated, thus leading to his death. The accused persons carried his body through a bicycle and abandoned it into the bushes. Later on, that day the accused persons returned to the bushes where they had abandoned the deceased body; took and buried it, then they disappeared away from the village. 2 That, on 15.06.2022, the accused persons were arrested by wild forest officers at Ugalla Forest Reserve having entered into the said area without permit and were taken to Tabora for respective measures. The said accused persons were then taken and transported by Police Officer to Motomoto Hamlet where they arrived on the 17th June, 2022. The accused persons led the police officers and other local leaders to where they assaulted the deceased and thereafter, they showed them where they had abandoned the deceased body. Finally, they showed those officers where they buried the deceased body. The police officers managed to find the deceased body, but it was already decomposed. That, on 17th June, 2022 the deceased body was examined by Dr. Mohamed Joseph Budaga at

Kanoge Dispensary. According to the medical examination, it was revealed that the cause of death could not be established/ascertained due to decomposition of the body. The accused persons were interrogated and confessed before the village leader of the said hamlet. The accused persons were taken to Mpanda Police Station for further interrogation, and arraigned before this Court on 02.10.2024 and pleaded guilty to the charge of the manslaughter. Upon been given a chance to comment on the said facts, both accused persons admitted that the same are correct. They also raised no objection against the prosecution’s prayer to tender a post mortem examination report as an exhibit. Hence, the court admitted it as exhibit P1. 3 Consequently, the court found each of them guilty of the offence of Manslaughter contrary to section 195 and 198 of the Penal Code and convicted them on their own pleas of guilty to the said lesser offence. Their sentences were however, reserved and will be passed shortly. During presentencing hearing, the prosecution counsel pressed for a stiff penalty against the accused persons arguing that the deceased was an energetic person depended not only by his family, but also by the Nation for production and raising of an economy. Also, the prosecution attorney submitted that the accused persons could have other means of fixing the problem with the deceased instead of

taking law into their hands by punishing him to death and bury his body in order to hide some evidence. It was therefore, their prayer that the court be pleased to pass a severe sentence against the said accused persons for it to be a lesson to them and to the entire society. On the other side, the accused persons through the aid of their learned defence counsel, urged the court to pass a lenient sentence due to various mitigating factors. Among such factors, include the lack of previous criminal records on the part of the accused persons, their repentance after spending two years and three months in prison remand. Also, it was their submission that the deceased himself contributed to his death due to his behaviour of stealing other people’s properties. Another 4 factor was that both accused persons have families which depend on them and are energetic, hence productive for the national economy. Having gone through the above factors which are basically intended to help the court in deciding whether to reduce or increase the sentences to be imposed against the accused persons, I have also taken into account the fact that both accused persons have pleaded guilty to the lesser offence of manslaughter, thus serving the time of the court and expenses to the government. I have also considered the fact that among the facts admitted by the said accused persons are to the effect that

instead of taking the deceased to Kanoge Police Post for other measures to be taken, as directed by the hamlet leader, the duo steered away such direction. Instead, they decided to keep punishing the deceased person to death and buried his body which tells that they intended to hide the incriminating evidence against them. I have also spent some time to follow the guidance from the Tanzania Sentencing Manual, 2023 and come up with an observation that almost all the aggravating and mitigating factors submitted by the counsel from both sides have been stipulated in that useful book. However, while I am not intending to bury the guidance that a first offender deserves a lenient punishment for his guiltiness, I am also of the settled view that considering the circumstances of the case at hand, the accused persons deserve a sentence that will meet the 5 ends of justice due to their cruel behaviour as elaborated above. This is because, the facts which they have admitted, clearly show that they had all means to fix the problem with the deceased person instead of killing him by punishing him severely. They were not the owners of the alleged stolen properties, yet they punished the deceased to the great extent that led to his instant death. In my view, that is an immoral behaviour which need to be discouraged by any civilized society because if it is left to exist, there will be no need

of having laws regulating the conducts of people in the society, which is not the case in our beautiful country that has always been following the rule of law. Hence, people should always avoid taking laws into their hands and abide to the authorities’ directives. Thus, considering what I have stated and reasoned above, I hereby sentence each of the accused persons to serve a custodial penalty of six (6) years imprisonment. A.A. MRISHA

JUDGE 11.10.2024 DATED at MPANDA this 11th day of October, 2024. A.A. MRISHA

JUDGE 11.10.2024 6