R. v. Selemani s/o Hassani Crim. Sass. 160-9-69, 18/9/69, Mustafa

 

R. v.  Selemani s/o Hassani Crim. Sass. 160-9-69, 18/9/69, Mustafa

The accused went out at night to chase away wild pigs which were destroying crops on his shamba. Believing that the pigs had run away into the shamba of the deceased, his neighbour and relative, he went over to the deceased’s house where he woke up the deceased’s wife who told him she did not know where her husband was. He then went into the shamba alone and when he found the pigs he fired his shot gun. Later he heard a voice saying “you have already shot our brother in law”. The deceased had in fact been in the shamba and was found to have died from a gunshot wound. The accused was charged with manslaughter.

Held: (1) “There is evidence that it was a dark night. The accused himself said that the deceased also was in the habit of hunting pigs at night, as did all the other farmers in that area. When he arrived at the house of the deceased that night and did not find him, it would perhaps be reasonable to expect that the deceased could have gone into his shamba to hunt pigs. According to the accused’s own account he went into the deceased’s shamba, which was full of maize, he saw some pigs, and at the same time he saw a black shadow. Despite the fact that it was dark, and despite the fact that did not find the deceased in his own house, and despite the fact that the accused knew the deceased could very well be chasing pigs away in his own shamba, and despite the fact that the accused himself had whistled and called for the deceased three times from the deceased’s house before he entered the deceased’s shamba, the accused opened fire immediately without ascertaining whether the shadow could be the deceased or somebody else. In my view what the accused did was recklessness of an extreme kind. He was reckless in discharging a gun at night when visibility was very poor, in a shamba where the deceased could very well have been … I therefore am of the view that the degree of negligence was so high that what the accused did amounted to the offence of manslaughter.” (2) Sentence. “This is a sad case. It is clear accused and deceased were great friends. Deceased before he died had said accused should not get into trouble because what accused did was through bad luck. Accused had been grossly negligent in discharging a gun and killing deceased. However accused has been in custody for 5 months how and the death of deceased, his brother in law, must have been a sad blow to him.  I bind accused over to be of good behaviour for 12 months.”