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R. v. Daudi Mtwe, Crim. Sass. 136-Dodoma-68, 1/10/68, Duff J.



R. v. Daudi Mtwe, Crim. Sass. 136-Dodoma-68, 1/10/68, Duff J.

The deceased and two others had stolen a goat from a herd belonging to the family of the accused. They were discovered roasting the goat by two boys who had been guarding the herd. The boys recognised one of these men. One of the boys slipped away to fetch the accused told the others to wait behind with a dog while he went ahead. Soon they heard a shot, and ran up to find the accused standing some 35 yards away from the body of the deceased. In an extrajudicial statement, the accused said that when he had approached, one of the thieves had run off. The other two began to run off also; he called upon them to stop, then fired with his shotgun at the legs of one of them, the bullet unfortunately striking him in the head, killing him. In Court, accused said that he had called upon the thieves three times to stop before firing.

Held: The accused reasonably suspended that the three persons he saw roasting the goat had feloniously stolen it from his family. He had a right to arrest them under s. 32(1), Criminal Procedure Code; and under s. 19(2), he could use “all means necessary to affect the arrest of person attempting to evade arrest while under section 19 of the Penal Code question arises whether the degree of force used was reasonable, have been committed …. Theft of cattle is far too prevalent an offence in this country and the legislature has seen fit to provide for a minimum sentence which is severe but even so it cannot be accepted that the use of a lethal weapon – a gun – was justified in the circumstances …. More particularly when the accused had identified two of the suspected thieves”. Given that shotgun pellets spread after leaving the gun, it “may well be the truth” that accused aimed for the legs of the deceased. “It must be accepted, in the absence of any reliable evidence to the contrary, that the accused honestly accepted that he was entitled to fire as he did and had no appreciation that the method he adopted was excessive”. Nothing establishes that he intended to do more harm than was necessary to apprehend the suspects. Accused convicted of manslaughter; bearing in mind his poverty and “obvious anxiety to protect his little property,” and also the fact that he has now been in custody for 91/2 months, sentence of 2 years imprisonment imposed.

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