Offence Against The Person
Offence Against The Person
The crimes that involves the use or threat of physical force against another person.1
The main offences against the person are assault and battery, manslaughter, murder, infanticide,
illegal abortion and causing death by dangerous driving.
In another words offence against the persons are offences relating to violation of the right and
sustenance of life. The law has created these offences to forbid and prevent any act, omission or
conduct which will cause harm to individual or society at large.
In committing offence against person it may carry mandatory death that as a result of homicide.
Homicide these are the generally killing of human being it can be categories which are lawful
killing and unlawful killing.
Lawful killing includes killing an enemy in execution of war, killing in execution of lawful
judgement, killing in self-defense, killing in the course, killing in the course of arresting or
preventing a crime accidental killing.
Unlawful killing also includes, murder, manslaughter, recklessness driving, suicide and child
destruction.
Offence against the person consider to be unlawful since it is penalized under the penal code
division IV, chapter XX of Tanzania penal code.2
Manslaughter
According to section 195 of the penal code provide that “Any person who by an unlawful act or
omission causes the death of another person is guilty of the felony termed "manslaughter" An
unlawful omission is an omission amounting to culpable negligence to discharge a duty tending
to the preservation of life or health, whether such omission is or is not accompanied by an
intention to cause death or bodily harm”.
In manslaughter, these are homicide that do not amount to the crime of murder but is never the
less neither lawful nor accidental. Manslaughter may be committed in several ways, it may arise
2
[Cap. 16 R.E 2022]
if accused is charged with murder and had the mens rea required for murder (malice
aforethought) but mitigating circumstances that reduce the offence to manslaughter, this is
known voluntary manslaughter and involuntary manslaughter.
Voluntary manslaughter, this is committers in circumstances where the accused has killed with
malice aforethought and could have been convicted of murder but because of mitigating events
which lessen his responsibility for instance when a person kills under provocation it could have
been murder.
Involuntary manslaughter, this is an unlawful killing committed by an accused who did not
have malice aforethought. Example, killing under a mistake of fact or gross negligence.
In the case of Singh v. R. [1962] E.A 13, Singh was convicted for the murder of his wife. The
evidence was that, after an act of sexual intercourse Singh had strangled his wife and then tried
to make it appear that she had been robbed and stabbed to death on her way to an outside toilet.
Death was due to asphyxia. The defense argued that Singh killed his wife accidentally during
sexual embrace and that the feigned robbery was an act of panic. There was a real doubt as to
whether Singh intended to cause grievous harm or knew that he was causing grievous harm.
Murder
According to section 196 of the penal code provide that “Any person who of malice aforethought
causes the death of another person by an unlawful act or omission is guilty of murder”.
In murder, these are homicide that is neither accidental nor lawful and does not fall into the
categories of manslaughter or infanticide. The mens rea for murder is traditionally known as
malice aforethought and the punishment shall be sentenced to death this provided under section
197 of the penal code.
Murder is subject to the special defenses of diminished responsibility, suicide pact and
provocation
In R. v. Mohamedi Nite 1974 L.R.T N.36, the accused murdered the deceased. The incident took
place on the night when the deceased’s wife and the accused were returning home from the
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pombe party. When they were nearing accused’s house, the accused went for a short call and that
as he was returning back, the wife heard the accused raising alarm. She saw accused fighting
with her husband and that the accused felled him on the ground and stabbed him many times. i)
Malice aforethought is rarely proved by direct evidence it can often be inferred to the
circumstances viewed as a whole. The nature of the weapon used and the manner in which the
blow is inflicted are factors to be considered. ii) By using a lethal weapon the accused may be
presumed to have formed either an intention to kill or cause grievous harm. iii) Where death
ensures from a fight the person who causes death is normally guilty of manslaughter. iv) The
benefit of doubt will be resorted in favor of the accused.
Causation of death
Infanticide
According to section 199 of the penal code provide that “Where a woman by any willful act or
omission causes the death of her child, being a child under the age of twelve months, but at the
time of the act or omission she had not fully recovered from the effect of giving birth to such
child, and by reason thereof or by reason of the effect of lactation consequent upon the birth of
her child the balance of her mind was then disturbed, she shall, notwithstanding that the
circumstances were such that but for this section-the offence would have amounted to murder, be
guilty of the felony termed "infanticide", and may for such offence be dealt with and punished as
if she had been guilty of the offence of manslaughter of such child”
Infanticide, this is killing of a child under 12 months old by its mother. If the mother can show
that the balance of her mind was disturbed because lactation she will be found guilty of
infanticide rather than murder and punishment as through she was guilty of manslaughter.
In the case of R. v. Esther Ikumboka (1967) H.C.D No. 447, the accused was charged with
infanticide. She killed her new-born child in circumstances would normally amount to murder,
but that at the time of the incident the balance of her mind was disturbed as result of child birth.
It is not disputed that the accused was pregnant and she delivered a child. There is considerable
conflict as to whether or not this child was born dead or alive. The doctor, who performed post-
mortem examination, though adequately qualified, was not himself a pathologist and he did not
feel able fully to discuss matters, which demanded special expertise in the field. The accused not
guilty of infanticide but concealing the birth of a child.
Assault
According to section 240 of the penal code provide that “Any person who unlawfully assaults
another is guilty of a misdemeanor, and, if the assault is not committed in circumstances for
which a greater punishment is provided in this Code, is liable to imprisonment for one year”.
Assault, an intentional or reckless act that causes someone to be put in fear of immediate
physical harm actual physical conduct is not necessary to constitute an assault for example,
pointing a gun at someone is an assault, but the word is often loosely used to include both
threatening acts and physical violence.
Word alone cannot constitute an assault. Assault is a form of trespass to the person and crime as
well as tort.
Assault as opposed to battery relates only to causing someone to apprehend immediate and
unlawful violence being inflicted upon them Unfortunately judges speak of assault when in fact
they are referring to battery.
Elements of assault is Where a person is being lawful chastised, where a person is being
operated, where a person consents to the use of force in a game and is by law able so to consent,
where a person otherwise consents to and is able to consent to the use of force.
“There is no need for it to proceed to physical contact if it does, it is an assault and battery.
Assault is a crime independent of battery and it is important to remember that”.
In the case of R. v. Rev. Father John Rwechungura (1979) H.C.D No.168, it was held that the act
will be said to be unlawful assault if it is done in an angry revengeful, rude, insolent or hostile
manner, that is, the accused acted so with an evil mind. Therefore, an assault is any act by which
D intentionally or recklessly, caused P to apprehend immediate and unlawful personal violence.
A battery is any act by D intentionally or recklessly which inflicts unlawful personal violence
upon P. It is neither an assault nor battery for D to pull himself free from P who is detaining him,
even though D uses force. An assault is often described as an attempt to commit a battery or
other crime of personal violence, but this is too narrow, for an assault may be committed where
D has no intention to carry out a battery.
Battery
According to section 241 of the penal code provide that “Any person who commits an assault
occasioning actual bodily harm is guilty of a misdemeanor, and is liable to imprisonment for
five”.
Battery this is an intentional or reckless application of physical force to someone without his
consent. Battery is a form of trespass to the person and is a summary offence as well as tort, even
if no actual harm result. It actual harm does result; however, the consent of the victim may not
prevent the injury is inflicted in the course of properly conducted sport or games example rugby
or boxing as a result of reasonable surgical intervention.
Battery, generally consent is a defense to a battery and must of the physical contacts of ordinary
life are not actionable because they are impliedly consented to by all who move in society and
expose themselves to the risk of bodily contact.