19710709 TZHC Dar es salaam

0 1jP - IN Tffi BlOB COUBT OF TANZANIA AT PAR BS SAL/tAM Crimtha1 Sessions Case No.71 of 1971 THE R1PtTBLIC vs. 0/tITANI s/o MtTT)UNTA CRARGs NURJMR contrary to section 196 of the Penal Code.

JUDGMENT OYIUKE J. - in this case the accused IS charged with the murder of DATJDI MMtAJi, The incident occurred in the night of the 12th November 1970 outeie the deceased's house at Nbesi in Mzizima district in the Coast Region.. The case for the prosecution was that In the night in question the deceased, his son Motciwa (P.w.i), his son's wife Luango (P.W.2), his daughter llyamirunge o his sister Toinyl and a viaitor Sositenesi a/c Xasuga sat outside the house drinkinç a local brew called 'KANOA.LA'. The deceased's daughter Nysirunge was a marriod woman and had visited the father that day. The memberS of this party helped themselves, liberally to Kangala. As the drinking progressed Sositenesi developed some interest in Nyarnirunge and made some immoral advances to her in the presence of the deceased. The deceased resented this and. started a row. He asked. Zoaiteriesi to leave and started to push Nyamirungo out of the premises and beat her in the process. The accused who had spent the evening in a pombó shop nearby appeared on the scene at this stage. Be held the deceased and remonstrated with him not to beat his daughter, This apparently incensed the deceased all the more and be turned on the ancused and floored. him. The accused alleged in his extra-judicial statement (exhibit 'A') that the deceased also hIt Mm with a stick. The accused got up and struck the deceased on the

head with some instrument. P.W.1 said it was a knife. PJ.2 said it was a dark night and she did not see Olearly what the instrument was. She testified that she saw the accused rise from the ground., raise his hand and, hit the deceased on the head. The deceaSod fell and the accused ran awaye not' ced that the deceased bled profusely from the wound be sustained in his forehead. P.W.l made a report to the police and a jolice ambulance was sent and tho deceased was carried to Muhimbili hospital where he died 9 days after admisøion. An autopsy was carried out on the body of'the deceased and the report was tendered as exhibit 'C'. The doctor who did the post- mortem examination had returned to Poland and was not likely to return to this countr. Her report, exhibit 'C', was therefore tendered under 8 .34(b) of the Bvidence Act 1967. The report showed that the deceased sustained a crescent shaped wound which fractured the skull bone In the frontal and parietal region. The cause of death was given as brain injury. The accused made an unsworn statement in which be adopted his extra-judicial statement, exhibit 'A4 In that statement be denied hitting the deceased or causing him any injury. Be stated .,, .2 AW 'iW 2. that he went to separate a faiiy quarrel and in the proøees the deceased pushed him down and hit him twice with a stick1 He roee arid ran away. In my summing up to the

assessors I asked them to consider whether it was the accused that inflicted the fatal wound on the deceased and if so whether what the deceased did to him, namely, pushing him. down and assaulting him with a stick when be was merely trying to bring peace, was capable of provktng the accused to the extent of losing his selfoontrol and inducing him to ettke the deceased and whether the accused was in fact provoked. The three assessors were unanimous in their opinon that the accused was provoked into inflicting the iatal blow on the deceased and that the accused was not guilty of murder. I accept the opinion of the assessors. 4r. Kflindu, learned State Attorney, has submitted that the deence of provocation was not open to the accused in that the provocation did not jutify the use of such lethal weapon and was not sufficient to reduce the crime to manslaughter. Be was contending in effst that there was no reasonable proportion between the provocatioti and the retaliatory act. I do not think that in Tanzania it is a rule of law that the retaliatory act must bear a reasonable proportion to the provooaton and that absence of such reasonable prpportionality deprives an accused of the defence of provocation. I am of the view that the question whether the retaliatory act is proportionate to the provocation is relevant in detsrmhg toetber with other factors whether the accused was really

provoked or whether he was merely using the provocation as an occasion or pretext for revenge. Once, however, it is established, that he was in fact provoked I do not think that the d.iproportionaiity between the provocation and the retaliatory act should deprive the accused. of the defence of provocation and preveflt the crime being reduoed to manslaughter. In view of the foregoing I find, the accused not guilty of murder but guilty of manslaughter. Delivered in open Court at Dar as Salaam this 9th day of V July, 1971- (G.c,M. OffflflCB)

JUDGE Accused: I have an old mother and 3 younger brothers are at school, They depend, on me for their sustenance. I have no father. I ask for leniency. Pprdhan: Aeoused had no ill will towards the deceased.. Be had good intentions. Be had drinks and. 'the provocation made him react only once. 99mit Disprpportionality and drunkeness should be regarded &ill aggravating aircuistancea requiring severe penalty. Court: The attok on the deceased was vicioue and the &rinka he took that night might have made him react violently to the provocation. If the accused had not been drinking heaVily that night be might not have been as ferooiou. I bear in mind however that be is ,a young man and first off ender. I sentence him to 8 years (eight) imprisonment. (c.c.M. oyimc) JtThG1