republic vs mohamed hassan omary juma 2022 tzhc 15789 29 november 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT LINDI ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO 48 OF 2016 THE REPUBLIC...... ............. .......................................... PROSECUTOR VERSUS MOHAMED S/O HASSAN OMARY JUMA....... ..... ......ACCUSED JUDGEMENT 4/11/2022 & 29/11/2022 LALTAIKA, J. The accused person herein, MOHAMED S/O HASSAN OMARY JUMA is charged with Murder contrary to sections 196 of the Penal Code [Cap 16] R.E 2022. The particulars of the offence are that on the 7th day of April 2016 at Chikonji Village within the District and Region of Lindi he murdered one Endrew Mbemba @Mtanzania It is noteworthy that this is a retrial. The first trial lasted from 29/8/2019 to 03/09/2019. Having been satisfied that the prosecution had E.L LALTAIKA JUDGE Page 1 of 28 proved the case beyond reasonable doubt, His Lordship Ngwembe J. convicted the accused as charged and imposed the mandatory sentence of death in accordance with section 97 of the Penal Code. Aggrieved, the appellant appealed to the Court of Appeal of Tanzania. Exercising its appellate authority, the Apex Court in its Judgement dated 4th day of June 2021 ordered a retrial before another Judge sitting with a different set of assessors. At the hearing, the Republic appeared through Mr. Yahaya Gumbo, learned State Attorney assisted by Mr. Godfrey Mramba, learned State Attorney. This being a capital offence, the State fulfilled its obligation of providing legal assistance to the accused person through Ms. Happyness Sabatho, learned Advocate. I was also assisted by three Assessors; One gentleman assessor: Mohamed Ally Nasoro and two Lady assessors: Rehema Selemani Masanja and Zainabu Hamisi Manjambwa. I take this opportunity to register my sincere appreciation to the learned counsel and the gentleman and lady assessors for their dedication, commitment, and above all legal and factual insights that have contributed greatly to giving this judgement its current form and content. The brief facts of the case are that the accused person and the deceased knew each other for many years. They lived in neighbouring villages of Mtutu and Chikonji respectively. The two would often join other members of the villages at a local bar (commonly referred to in rural areas of Tanzania as a boozing club "Kilabuni") fondly referred to as kwa E.I. LALTAIKA JUDGE Page 2 of 28 Bintiwawilidawa for sipping local brew, partaking some soup and merry making. The KHabu\s in the center of Chikonji Village. On the fateful day, the duo was at Bintiwawilidawa's place. At around 22:30 hours they quarreled over payment due for the soup they had consumed. Apparently, each of them had eaten soup worth TZS 500. The deceased allegedly demanded the accused to pay for him, but the latter refused. The brawl was resolved, and the duo, accompanied by one Barnaba Daniel Anton (PW1) left the KHabu. Whereas the accused person was on foot as his home place was within Chikonji, the deceased and Barnaba Daniel Anton rode their bicycles under a bright moonlight but also having carried torches, enroute to Mtutu, a nearby village. No sooner had the deceased and his friend Daniel reached the main road than they came across the accused armed with a machete {panga). The accused dared the two to stop. Sensing the danger, the deceased and his friend Barnabas alighted and started running away. Nevertheless, the accused person, allegedly, successfully run after the deceased and started attacking him with the panga on the head, right hand and back of the shoulder. The deceased was later rushed to Chikonji Dispensary where he was pronounced dead. The accused was arrested and charged With murder as hitherto alluded too. ■<, J It goes without saying that the onus is on the prosecution to prove to this court, beyond reasonable doubts, the allegation levelled upon the accused. The next paragraphs are centered on such an attempt. E.L LALTAIKA JUDGE Page 3 of 28 PW1 in this case was Barnabas Anton Daniel, a young man in his late twenties and a resident of Mtutu village. PW1 testified that he knew the deceased Endrew Mbemba @ Mtanzania and that they were neighbours. He also knew the accused Mohamed Hassan Omary Juma as he lived in Chikonji a nearby village. It was PWl's testimony that on the fateful day, around 20:00 night hours he escorted the deceased to Chikonji village for shopping. They rode their bicycles upon completion of the shopping, they proceeded to Kwa BintiwawiHdawa [a local business premise] the defacto village Kiiabu. It was already around 21:00 hours going towards 22:00. Upon arrival at the Kiiabu, narrated PW1, Mang'oro (as the accused was commonly referred to) asked the deceased to buy him soup but he replied that he had no money that day. The accused was not impressed so he allegedly told the deceased that if he did not buy him the soup, he would not see the next day. To avoid further escalation of the fracas, PW1 added, he advised his friend ©Mtanzania that they had better go back home to which the deceased agreed, and they took off using their bicycles so did the accused who was oh foot. PW1 testified further that when they got in the main road, they met the accused person standing by the roadside. They could tell that it was the accused person (Mr. Mang'oro) because the moon was brightly shining, and that is when the accused while hiding the panga behind him, told the deceased to stop to which they did. The accused started attacking the deceased with with apanga. He hit him three times: on the hand, hand and on the back. The accused left behind the deceased lying half dead. With the E.L LALTAIKA JUDGE Page 4 of 28 assistance of one Issa Mtoroka who had come to the scene of crime shortly after, and having reported the matter to the village Chairman, they carried the deceased to Chikonji Dispensary where he was pronounced dead. On cross examination, PW1 admitted that he had lost his memories quit a few timesand prayed to be forgiven for not telling the court that the infamous Bintiwawilidawa, in addition to selling porridge and soup, also sells local brew, it was an oversight "nilipitiwa". It was PWl's testimony further that the late Mtanzania who was his friend for a long time, used to take Wanzuki and so was the accused and both Mang'oro and Mtanzania were customers of Bintiwawilidawa. On the fateful day, PW1 narrated, both had kickstarted the drinking spree "waiikuwa wameshtua kidogo"and he meant they were drunk "wote wawiii waiikuwa wameiewa". On being pressed further during cross examination PW1 prayed to be forgiven men for not telling the court that the deceased was the one who started the fight at Bintiwawilidawa's place. He testified further that he might have missed the real source of their conflict because, not being a drinker, he was seated far away about 30 meters away waiting for his friend to quench his thirst so they could go back home. PW1 insisted that the accused Mr. Mang'oro was not injured at all. On re-examination, PW1 testified that he never had any mental disease. PW2 was Mwanaisha Yusufu Mtumweni, a Medical Assistant working with Mingoyo Dispensary since 2013. PW2 testified that on 8/4/2016 she was picked up by a team of police officers who took her to Chikonji dispensary to conduct postmortem examination to a body of the Ed. LALTAIKA JUDGE Page 5 of 28 deceased that was kept there. Upon examination, PW testified, she discovered that the deceased had sustained three injuries; on the head 3cm wide and 4 cm deep, on the back of the shoulder 2cm wide and 1cm deep and on the right hand which was almost totally amputated save for a piece of skin that was holding it. It was PW2's testimony that the cause of death was severe loss of blood. The Witness tendered Postmortem Examination Report that was admitted as Exhibit Pl. On cross examination, PW2 confirmed that it is a legal requirement a postmortem report be accompanied by such documents indicating qualification and status of registration (practicing license) of the performer of the autopsy. PW2 also admitted that the template she used to write her report was made under CAP 24 of the LAWS of TANGANYIKA whereas we are now using LAWS of TANZANIA. It was PW 2's testimony further that although the examination of a deceased body is done by both the mortuary attendant and medical personnel, the medical personnel is the one with authority to fill in the postmortem examination report. PW3 was G7805 Detective Corporal Baraka Isaya Mwaipaja a police officer based at the Lindi Central Police Station with 12 years of experience as a police officer 10 of which as an investigator. PW3 testified that on 8/4/2016 he received a call from his supervisor ASP Boniface Taisamo ordering him to proceed to Chikonji Village to rescue the accused person and to investigate the scene of crime. Upon arrival at Chikonji the situation was tense as members of the community "wananchi" wanted to break into the doors of the Ward Offices and get out the accused to punish him. Order was E.I. LALTAIKA JUDGE Page 6 of 28 maintained as the angry crowd was dispersed and they drove with the accused to Lindi Police Station. He was ordered to go back to the scene of crime this time with one Dr. Mtumweni to conduct postmortem examination. It was PW3's testimony that the scene of crime looked very rough with signs of fracas and there was blood on the ground. With the assistance of one Barnaba Daniel Anton, (PW1) he drew a sketch map of the scene of crime. He produced the sketch map titled RAMANI YA TUKIO LA MAUAJI YA ENDREW MBEMBA HUKO KIJIJI CHA CHIKONJI dated 8/4/2016 and the same was admitted as Exhibit P2. On cross examination PW3 testified that he possessed the prerequisite qualification to draw sketch maps of scenes of crime and that he conducts his activities according to law. During reexamination, PW3 testified further that the training of police officers at the Tanzania School of Police included a component on map drawing and inspection of the scene of crime. PW4 was Issa Abdallah Mtoroka, a-thirty-five-year-old resident of Namndindi Village in the District and Region of Mtwara. PW4 testified that he used to live in Mtutu village in Lindi and only moved out in 2017. PW4 was quick to testify that he was aware of the demise of the deceased "tumeshamzika". He testified further that the deceased was his neighbor in Mtutu throughout his stay there. He also knew the accused person Mohamed Hassan Omary Juma whom he described as "mzoefu wetu"& typical southern Tanzania colloquial meaning a close buddy. On 7/4/2016 at around 22:00 hours when he was leaving the market "genge" at Chikonji village with one Mzee Ally, PW4 narrated thoughtfully. EL LALTAIKA JUDGE Page 7 of 28 they heard an alarm. It was an adult crying out "Mama Nakufa!" (Mom I am dying!). He rushed to where the groaning was coming from and upon arrival, he saw one person standing up and another lying down. The one who was standing threw away a panga into the roadside and told him to pick it up and that since the moon was brightly shining, he recognized the person as being the accused Mr. Mang'oro as he was famously called. The person lying down was the deceased whose condition he described as very critical because he was cut by a panga three times: on the hand, the head and back of the shoulder. It was PW4's testimony further that after reporting the incident to the Village Chairman, a neighbour called Ally Mtokoma gave them his motorbike with which they used to rush the deceased (marehemu) to Chikonji Dispensary. Upon arrival, the body Was examined, and the doctor announced that Mr. Mbemba had already died. He advised that the body of the deceased remained in the hospital till the next day when the police would be called. PW4 successfully identified the accused person and testified that he was aware that Mr. Mang'oro had been arrested "yupo kituoni" On cross examination, PW4 testified that he never heard that the accused person had committed anything like this before and that to the best of his knowledge, the accused is a good person. By a ruling delivered on 03/11/2022 in accordance with the dictates of section 293(2) of the Criminal Procedure Act [Cap. 20 RLE. 2022] this court found that the accused person herein had a case to answer and placed him on his defense. With the aid of his counsel Advocate Happyness Ed. LALTAIKA JUDGE Page 8 of 28 Sabatho, the accused gave sworn evidence (as DW1) but did not call any witness nor produced any exhibit. DW1 recalled that on 7/4/2016 in the morning as he got ready to go to the shamba he took his working tools: a panga and a hoe. He arrived in his shamba and worked for about ten and a half hours. Thereafter, DW1 recalled, on his way back home with his panga and hoe, he passed Bintiwawilidawa's place. Upon arrival at Bintiwawilidawa's place, he met the owner of the business "Mama mwenye nyumba" and her customer. He greeted everyone around, put down his tools, sat down on a bench and ordered a drink Wanzuki^A Tembo. It was around 18:00 in the evening. In the company of one of his lovers called Mariamu Nachilapa they had drinks until around 20:46 hours whereupon a person called Machonjo arrived to the Kilabu selling soup. He ordered soup for himself and his lover Mariam. DWl's testified further that, while he and his lover were eating the soup @Mtanzariia (the deceased) sauntered in, ordered his pombe and sat next to the owner of the business whereupon he chanced a bucket and a local lamp, He asked what was there and the accused responded that there was soup for sale. He was given soup for TZS 500 and started eating it. When the owner of the soup started reminding his customers that it was high time they paid for what they had eaten, recalled the accused, @Mtanzania refused to pay. He (the deceased) started insulting him (the accused) hence a quarrel ensued. Suddenly, the deceased allegedly rose and poured out the soup. The accused decided to pay the TZS 500 for the soup he had ordered as preparation to leave. Ed. LALTAIKA JUDGE Page 9 of 28 DW1 went on to testify that when the deceased heard that he wanted to leave, he (the deceased) tried to attack him, but he managed to escape with his panga leaving the hoe right there at Bintiwawilidawa's place because the situation was getting tense. DWl's recalled thoughtfully that whereas the deceased was young and powerful with a huge body he is very slander and there was no way he could fight him hence he left straight to his home place to avoid trouble. On his way home however, DW1 recalled, he saw the deceased leaving on his bicycle while he (the accused) was on foot. The deceased flashed him with a torch "akanipiga mwanga wa tochi" then two people the deceased @Mtanzania and Barnaba Anton appeared each with his bicycle one of them overtook him and stood in the front while the other remained on the back. The deceased @Mtanzania insulted him and tried to take away his weapon. In that fracas, DW1 testified, the weapon came his way and injured him on the upper leap. He started to struggle as the other person whom he later came to know that he was called Barnaba Anton advised the deceased to kill him and escape to a neighbouring country that allegedly, happened to be their place of origin. As he recalled the words that they wanted to kill him, the accused asserted, he lost "peace in his heart". Considering that he had the cut on his upper leap and the fight was going on, he had no other choice but to fight for his survival. He grabbed the panga from the deceased raised it up and cut the deceased's right hand with the panga. The fight continued till he decided to proceed to his home place leaving the deceased alive "niHmuacha mzima" E.I. LALTAIKA JUDGE Page 10 of 28 It was DW's testimony that while at his home place, some people went to arrest him. They included the Chairman and his team. They took him to the Ward Office for Chlkonji. At around 11:30 AM in the next morning some police from Lindi took him from the village to Lindi Police Station where he was told that he was accused of killing @Mtanzania. He then realized that he had a serious case ahead of him. On 11/4/2016, DW1 recalled, he was taken to Lindi Regional Hospital for treatment of the wound on the upper lip and pains in the throat. He was examined and given some tablets. On cross examination, DW1 confirmed that in his village of Chikonji he is known mostly by his nickname Mang'oro. He denied that the deceased @Mtanzania wanted to attack his lover insisting that he had told the court that there was a fight between him and @Mtanzania who was a huge person. He reiterated that there was no way he could [successfully] fight him. On further examination, DW1 admitted that he was devoid of any evidence to prove his treatment. On re-examination, he blamed the police bureaucracy for his inability to obtain relevant documents to prove his treatment at Sokoine Regional Hospital. It was time for the learned counsels to make their final submissions. Mr. Mramba, State Attorney, submitted on behalf of the republic while Ms. Sabatho made her submission on behalf of the accused. Mr. Mramba reiterated that the accused Mohamed Hassan Omary Juma @ Mang'oro was charged with one count of Murder Contrary to Section 196 of the Penal Code Cap 16 RE 2022. The learned counsel reiterated further that E.I. LALTAIKA JUDGE Page 11 of 28 on 7/4/2016, the accused allegedly did kill Endrew Mbemba @Mtanzania wilfully at Chikonji Village in Lindi. The learned State Attorney asserted that he was alive to the legal principle that in criminal cases the burden of proof rested with the prosecution as per the case of SAIDI ALLY MATOLA ©TUMILA v. R Crim App 129 of 2005 (unreported) and the often-cited English case of Woodmington v. DPP [1977] AC 462. It was Mr. Mramba's submission that to prove the offence of murder, the prosecution must prove four elements: (1) that there was death of a human being. (2). The death was unnatural (3). The killing was done with malice aforethought. (4). That the accused person is the one who caused the death of the deceased. On the first element, Mr. Mramba asserted that there was no doubt that a person called Endrew Mbemba ©Mtanzania was a human being and is now deceased. All prosecution witnesses, asserted Mr. Mramba further, had proved the same. He singled out PW2 who had examined the body and testified that it belonged to a human being. In that aspect, reasoned the learned State Attorney, the prosecution is fortified since even the defence counsel did not object such a happenstance. On the second element that the death was unnatural, argued Mr. Mramba, PW1 Barnaba Anton Daniel had proved that the deceased was a healthy person before the incident. He lost his life due to the attack by the accused, asserted the learned State Attorney. Mr. Mramba went on to argue that PW2 Dr. Mtumweni as a specialist, proved to this court that the death EJ. LALTAIKA JUDGE Page 12 of 28 of the deceased was unnatural because it was caused by severe loss of blood due to injury by a sharp object. Moving on to the third element, it was Mr. Mramba's submission that the accused person's evil intention had been proved in three instances: before the incident, during the incident and after the incident. Substantiating, the learned State Attorney averred that before the incident, when the two were at Bintiwawilidawa's place the accused told the deceased that he would not see the next day. This means, reasoned Mr. Mramba, the accused was willing to ensure that the deceased would not live to see the next sunlight and somehow, he succeeded. PW1 had told the court that the accused attacked the deceased on the head, hand and back of the shoulder using a panga, recalled Mr. Mramba and opined that the parts of the body that the accused person hit the deceased were vulnerable. Even the weapon used namely the panga, averred the learned State Attorney, is a deadly weapon. Mr. Mramba went on to opine that the wounds that were caused were very severe adding that the severity of the infliction was indicative of the evil intention of causing death. After the incident, averred Mr. Mramba further, the accused never reported to anyone. He went straight to his home place as if nothing had happened. This too, reasoned Mr. Mramba, is indicative of the ill intention of the accused person. To support his contention, Mr. Mramba referred this court to the case of Enock Kipela vs. R Crim App 150 of1994 (unreported) E.L LALTAIKA JUDGE Page 13 of 28 where the apex court provides for seven issues that can be considered in order discover malice aforethought. On the fourth element that the accused is the person who killed the deceased, it is Mr. Mramba's firm commitment that the prosecution had proved that the accused person caused the death of the deceased. Expounding on his point, the learned State Attorney reiterated that PW1 and PW4, who were eyewitnesses, saw the accused attacking the deceased and occasioning grievous harm. It was Mr. Mramba's submission further that, during hearing of this case, several legal issues were raised. He went on to itemize the issues as follows: (i) Identification(ii) Naming the suspect at the earliest stage (iii) Credibility of the witnesses (iv) Consistency and series of events, (vi) Burden of proof. The learned State Attorney rolled up his sleeves to expound on each of these points. I am not going to reproduce that part of the submission of the learned State Attorney, but he can rest assured that that such efforts were not in vain. The learned Defence Counsel Ms. Sabatho, on her part, conceded that her client was indeed standing charged with the offence of murder contrary to section 196 and 197 of the Penal Code. On ingredients needed to prove the offence as submitted by Mr. M ram ba, the learned Defence Counsel stated that shed agreed with the first three but opted to focus her energy on the fourth element namely whether her client had acted with malice aforethought. E.I. LALTAIKA Page 14 of 28 It was Ms. Sabatho's submission that PW1 whom the prosecution termed the only eyewitness did not know the source of the conflicts between the deceased and the accused person. The learned counsel averred that the deceased was the one who was causing trouble in the KHabu adding that PW1 had testified that both the accused and deceased were drunk. Flying higher on the helicopter of creating doubts on the prosecution case, Ms. Sabatho asserted that it was equally doubtful that the accused had told the deceased that he would not see the next sun. To support her contention, the learned Advocate went through her records and stated that during committal proceedings, PW1 never mentioned such a threat in his statement. It was Ms. Sabatho's argument that PW1 who was the eyewitness testified that while the accused was attacking the deceased he was just watching. PW4, during cross examination, reasoned the learned Counsel, testified that he was there during the incident. In normal circumstances, averred Ms. Sabatho, it is not usual for someone to be watching while another is being attacked. To that end, reasoned Mr. Sabatho, there is possibility that both [PW1 and PW4] were fighting the accused. Arguing for lack of ill will on the part of the accused, Ms. Sabatho opined that the accused did not run away but went back to his home place after the incident. was Ms. Sabatho's submission that according to section 246(2) of the Criminal Procedure Act Cap 20 RE 2022 an accused person must be issued with statements of all witnesses during comital proceedings. The learned Counsel expressed her doubts on whether the statement of PW4 E.ELALTAIKA JUDGE Page 15 of 28 was read out during committal proceedings. Ms. Sabatho prayed that the same be expunged from the court record. Citing the case of Adam Saleh @RFamadhani v. R. Crim App 547 of 2020 the learned Counsel averred that the Court of Appeal had emphasized on the importance of issuing an accused person with a statement of witnesses. Moving on to the aspect of identification, Ms. Sabatho asserted that PW1 was not able to mention the accused at the earliest stage because he testified that he mentioned his name in the police station. The requirement of the law, asserted Ms. Sabatho, is that the witness describes the clothes of the accused person but both PW1 and PW2 had failed to do so. To support his contention, Ms. Sabatho referred this court to the case of Yohana Kulwa @Mwiguluv. R. Crim App 192 of 2015 and 397 of 2016 CAT (unreported). It was Ms. Sabatho's submission that circumstances surrounding the incident pointed to the fact that there was a fight between the accused and the deceased instituted by the deceased. The accused person did what was possible to avoid him, asserted the learned Advocate adding that the weapon the accused used was a part of his working tools in the farm. Since it was night, asserted Ms. Sabatho further, it was not intentional but rather dependent on where they met. Arguing that the fight was instigated by alcohol consumption, the learned Advocate prayed that this court find the accused guilty of the lesser offence of manslaughter. She referred this court to the case of R. v. Stanslous (1969) HCD 32. E.L LALTAIKA JUDGE Page 16 of 28 The last segment of the trial was briefing to the assessors and inviting them to share their opinion. My briefing centred on the nature of the offence of murder, its essential elements, and the defence raised by the accused. At the end of the summing-up, the ladies and gentlemen assessors opined unanimously that the accused was not guilty of the offence of murder. The first assessor, Mohamed Ally Nasoro emphasized that the accused and the deceased quarrelled and that the quarrel started in a drinking place. The second assessor Rehema Selemani Masanja was of the view that the bad intention of the accused person (malice aforethought) was probably not there because there was Varangavaranga, matimbangomatimbangor mtifuano (brawl, fracas, fight) leading to death. The third assessor Zainabu Hamisi Manjambwa opined that since the deceased and the accused were seen in Kiiabuni the accused did not plan and had no bad intention. I have noted with so much respect the wisdom laden opinion of the assessors, but it goes without saying that such opinion does not in any way bind this court. I will come back to that aspect of assessors' opinion later. Having dispassionately considered submissions by both counsel and keenly scrutinized the evidence adduced throughout the trial, there are four issues calling for my determination: (i) Whether there was death of a person. (ii) Whether the death was unnatural. (Hi) Whether the said death was caused by the accused. (iv) Whether the accused caused the death with malice aforethought. E.L LALTAIKA JUDGE Page 17 of 28 The first issue is should not detain us. Not because it is less important but because it is the least disputed. Both the prosecution and the defence agree that the crux of this trial is the death of one Endrew Mbemba @Mtanzania at Chikonji Village within the District and Region of Lindi on the 7th day of April 2016. Killing of a human being for whatever reason is presumed to be unlawful unless proved to be either legal or justifiable. The erstwhile Eastern Africa Court of Appeal put it distinctly in Gusambi Wasonga v. Republic [1948] 15 EACA 65 thus: "[Ejvery homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law." Admittedly, this first issue is oftentimes taken for granted. In the case of Mohamed Said Matula v. Republic [1995] TLR 3 the Court of Appeal of Tanzania warned against assuming that death of a human being had occurred simply because the victim could not be traced. In that case the appellant was charged and convicted for stealing his stepson in a kindergarten. Later when the child could not be traced, he was charged and convicted for murder. The Apex Court held that proof of stealing a child was insufficient to conclude that the said child was dead. This brings me to the second issue namely whether the death of Endrew Mbemba @Mtanzania was unnatural. This issue is, likewise, undisputed. The deceased was a healthy member of his community who took part in day-to-day activities. On the fateful day, as narrated by PW1, the deceased had gone for shopping to buy school items for his daughter. Before returning home, he decided to pass through Bintiwawilidawa's, a local corner E.L LALTAIKA JUDGE Page 18 of 28 for rection. PWl's oral testimony was to the effect that he witnessed the deceased being attacked by the accused using a machete. PW4 had seen the deceased shortly before he died and had heard him groaning in pain before rushing him to hospital where he was pronounced dead upon arrival. PW2 Medical Doctor, took the oral testimonies of PW1 and PW4 to the next level. She deponed that upon conducting autopsy, the deceased had sustained three injuries; on the head 3cm wide and 4 cm deep, on the back of the shoulder 2cm wide and lcm deep and on the right hand which was almost totally amputated save for a piece of skin that was holding it. It was PW2's testimony that the cause of death was severe loss of blood. This means the death was not natural. On the third issue namely whether the said death was caused by the accused, both the prosecution and defence agree on the same. The duty of the prosecution to link up the accused with the offence has been discharged sufficiently. As per the English case of Woodmington v. DPP (supra) cited by the learned State Attorney, the onus of the prosecution to prove the case beyond reasonable doubt starts with establishing that the offence was committed and that it was the accused who committed it. The accused on his part, who testified under oath as DW1, agreed that he Indeed attacked the deceased with a machete leading to his death. This brings me to the last issue namely whether the accused caused the death with malice aforethought. Readers and scholars in the History of English law attest that establishing malice aforethought, the criminal EL LALTAIKA JUDGE Page 19 of 28 intention or even simply inner thoughts of another person has never been an easy task. According to one source, as long as 1478 Chief Justice Brian proclaimed, "the intent of a man cannot be tried, for the Devil himself knows not the intent of a man." Anon (1477) YB 17 Edw 4, fo 1, pl 2. (Quoted in Cheshire, Fifoot and Furmston's Law of Contract XTUeti. (London: Butterworth 1996) p. 29. History and metaphysics issued apart; I am alive to the leading Court of Appeal of Tanzania decision in this area namely Enock Kipala vs. Republic, Criminal Appeal No. 150 of 1994 (unreported). The relevant part provides as follows: "...usually, an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that intention must be ascertained from various factors including the following; (1) the type and size of the weapon, if any used in the attack (2) the amount of force applied in the assault; (3) the part or parts of the body the blows were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of a particular case, be sufficient for this purpose (5) the kind of injuries inflicted; (6) the attacker's utterances, ifany, made before, during or after killing (7) the conduct of the attacker before and after the killing." Technically, the accused in this matter cannot be regarded as an attacker. This is because, the killing was a result of a fight. In the case of Mungasiani Laizer @Chichi v. Republic [1994] TLR. 222 the Court of Appeal of Tanzania stated emphatically thus: E.I. LALTAIKA JUDGE Page 20 of 28 "It has been said times without number, and we would like to reiterate that where death is caused as a result ofa fight an accused person should be found guilty of the lesser offence of manslaughter and not murder." As alluded to above, the assessors were unanimous that the accused is guilty of the lesser offence of manslaughter. I got to learn new Kiswahili words I was not aware of "Vara nga vara nga", "matimbangomatimbango", "mtifuano." In his defense, the accused claimed that the deceased was a huge person, and he (the accused) was comparably older and thinner. If indeed there was no fight, the deceased would not have gotten off his bicycle, literally and figuratively. In common English usage to "get off one's bike" is an idiom that means to "become angry or irritated." The postmortem report indicates that the deceased's right hand was almost completely chopped off except for a piece of skin. The only possible explanation is that the deceased, after getting off his bike, used his hand to shield himself from the machete. Had he remained in his bike and try to speed away, he would be injured on the back by the machete thrown towards him. Although the finding on death caused because of a fight can sufficiently dispose of the instant matter, I am inclined to take the "fighting" farther. It has been argued that fighting is as old as humanity. Apparently, our ancestor the caveman had no wars as we know them today. However, fellow members of the kingdom animalia aggression between individuals was (and still is) a part and parcel of culture. In some pastoral (cattle heading) communities, EL LALTAIKA JUDGE Page 21 of 28 elders supervised fights were a way of reinforcing solidarity and respect. The winner would be accorded the respect that he earned and would be made a defacto group leader. The triumphant entry into the era of the rule of law has seen many if not most of the ancient practices outlawed if not outright criminalized. A legitimate question then is, why Would anyone use a panga to fatally attack another in a fight? The accused asserted that he did so for self defence. The relevant part of his testimony as per this court's proceedings provide: In that fracas, the weapon [machete] came my way and injured me on mytipper leap. I started to struggle as the other person Barnaba Anton advised @Mtanzania to kill me. He said since they were NOT locals of the area, they couldjust kill me. They were foreigners from [mentions a neighbouring country] and could go back there even on that day. The fight continued. As I recalled the words that they wanted to kill me, I lost peace in my heart. I had the cut on my upper leap and the fight was going on. I had no choice but to fight for my survival. I grabbed my panga from him. He wanted to attack me. I went back and fell. He came straight to me. That is when I raised my hand and cut his right hand with the panga..." As stated in the case of Wasonga (supra) every homicide is presumed to be illegal except where it is excusable or where it has been authorized by law. An excusable homicide includes but not limited to killing for self defence. But what exactly is elf defence? The Black'sLaw Dictionary 9th Edition at p. 1481 defines self defence as: E.L LALTAIKA Judge Page 22 of 28 "The use of force to protect oneself, one's family or one's property from a real family or one's property from a real or threatened attack. Generally, a person is justified in using a reasonable amount of force in self defence if he/she reasonably believes that the danger of bodily harm is imminent, and that force is necessary to avoid this danger." If we exercise our power of imagination just a little farther, the two men were in a pombe shop drinking. They had no grudges against each other before. Although the extent to which each of them was drunk did not form a part of the testimonies, the fact that the deceased could steal peddle away his bike shows that he was only moderately (if at all) drunk. Likewise, the accused could walk back to his home place without much of a problem. The accused who was alone and on foot needed to defend himself against the deceased and his right handman PW1. Premised on the above, it is my finding that the prosecution has not shaken the overwhelming evidence of the defence that the death occurred as a result of a fight. Moreover, the prosecution has also failed to disapprove the defence of self-defence raised by the accused. To this end, the offence of murder contrary to section 196 and section 197 of the Penal Code cannot stand. However, since all other elements of the offence have, in my opinion, been successfully proven the position of the law as per section 300(1) and (2) of the Penal Code [Cap 16 RE 2019] is conviction on a minor offence. In the matter at hand, a minor offence to murder is Manslaughter. E.L LALTAIKA JUDGE Page 23 of 28 Consequently, I convict the accused MOHAMED S/O HASSAN OMARY JUMA @ MANG'ORO of manslaughter contrary to section 195 and 198 of the Penal Code. It is so ordered. E.I. LALTAIKA JUDGE 29/11/2022 E.I. LALTAIKA JUDGE Page 24 of 28 THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT LINDI ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO 48 OF 2016 THE REPUBLIC ................................. ____ PROSECUTOR VERSUS MOHAMED S/O HASSAN OMARY JUMA................ .............ACCUSED RULING ON SENTENCE 29/11/2022 LALTAIKA J. This court has, pursuant to section 300(1) and (2) of the Criminal Procedure Act Cap 20 R.E. 2019, made a finding that MOHAMED S/O HASSAN OMARY JUMA hitherto charged with the offence of Murder contrary to section 96 and 97 of the Penal Code Cap 16 RE 2002 (now RE 2022) is guilty of the lesser offence of Manslaughter. No sooner had the court entered conviction than Mr. Godfrey Mramba, learned State Attorney submitted that the convict had no record of E,LLALTAIKA JUDGE Page 25 of 28 criminality. Nevertheless, the learned State Attorney asserted, the convict had caused death of an innocent person and the same amounted to violation of Article 14 of the Constitution of the United Republic of Tanzania of 1977. The learned State Attorney, sounding rather philosophical stated that even in the absence of malice aforethought and assuming the victim had been successfully treated he would have spent the rest of his life with physical disability. Mr. Gumbo emphasized that the deceased was a healthy and productive farmer, a parent, relative and friend to many. The learned State Attorney finalized his submission by calling upon this court to offer a stiff sentence to deter people from killing others and blame it to alcohol. The learned defence counsel Ms. Sabatho, on her part, prayed for leniency. She lamented that at 56, her client's age had advanced and he had been in remand custody for six years. Ms. Sabatho prayed for conditional discharge and in the alternative, that this court considers the time spent while sentencing. l am inclined to proceed to sentence the convict according to law. This is a "delicate balancing act". The Court of Court of Appeal of Tanzania in Katinda Simba ©Ng'waninana v. R. Criminal Appeal No 15 of 2008 (unreported) describes this delicate process as follows: c " The sentencing process is one of, if not the most intractable and delicate tasks in the administration of justice especially where the law has not fixed a minimum sentence. This is where ingenuity and Wisdom work together in order to lead us to substantial justice as no two cases are identical in all circumstances. This is all because there is no common yardstick or denominator for measuring the sentence which will match every crime." EL LALTAIKA JUDGE Page 26 of 28 An equally wisdom laden decision of the High Court of Kenya in Johnrochi Karieti v Republic [2018] eKLR provides as follows: "Reaching a fair decision in sentencing is neither an easy nor straightforward process; several considerations come into play. While sentences are defined by law, the measure of what is an appropriate sentence in a given case is left to the discretion of judges and magistrates. As Justice McArdle is famously quoted saying, "Anyone can try a case. That is as easy as falling off a log. The difficulty comes in knowing what to do with a man once he has been found guilty." I have considered the aggravating and mitigating factors by both counsel. Guided by the Court of Appeal practice of substituting a death sentence with an average of fifteen (15) years imprisonment term, I take the liberty to reduce the six years already spent by the convict in custody. See Moses Mungasian Laizer @Chichi [1994] T.L.R. 223 and Richard Venance Tarimo v. Republic [1993] T.L.R. 142 among other authorities. All said and done, MOHAMED S/O HASSAN OMARY JUMA is hereby sentenced to serve a Nine (9) years imprisonment term. It is so ordered. E.I. LALTAl KA JUDGE (T 29/11/2022 E.I. LALTAIKA JUDGE Page 27 of 28 Court: Judgement delivered by my own hands in the open court in the presence of Mr. Enosh Kigoryo, State Attorney, the accused and Ms. Rose Ndemereje, Advocate, holding brief for Mr. Hussein Mtembwa counsel for the defence. E.I. LALTAIKA 29/11/2022 Court The right to appeal to the Court of Appeal of Tanzania fully explained. E.I. LALTAIKA JUDGE Page 28 of 28