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• .'... IN T} RIGH COURT OP TANZANI.A AT DODOMA ORIGIN'd JURISDICTION (DODOMA REGISTR) • CRNINAL SESSIONS CASE NO 45 OF 1976 THE REPUBLIC VERJS KITTJRTJ.. 5/0 SIKASA.. CHARGE Murder. c/s 196 of the Penal Code JUDGME NT MNZA. 2 ._L • The accused, Kitu±u,.Sikasa stands charged. with murder c/s 196 of the Penal Coda 0 Sometime in December, 1974 the accused, one, Lengu Gidawida (PW4).r,Jago:sta .Gitabeka (.15W..7) and, a erson by' the name of Gweidamwi /oMelongi tent to 'a poinbe shop at Singa village in Manyoni district where they drank poinbe , • According to the prosecuti:on case as'theseèopie were.: returning home j Gweida.mwi s/o Nelongi was subjected to violence and 4sustained cornpound fracture of his loft leg and that about six days later he died from the fractured leg. It was the p'osecution argument that the accused isthe peron who attacked the deôrased and that it WaF1 the attack tht caused deceased's death. From the evidence of G-urenda (PW.3.)-, father of.: the deceasd, and that of Lengu Gidawida (PW4,) 1 :brotherofthe' accused there can be no doubt that a person by the name Gweidàmwi s/o Melongi has died. What this court Iia has to decide is, what was the. ôausó of,d.eceased's death? In support of the prosecution case the learned statel attorney reforred' the court to the deceased's dying declaration to his father (PW3), to accused's brother (PW4) and Jacosta. (PW7) that it was.the accused who had assaulted him and fracturedhis leg, . . . . It wa the accused who had assaulted him and fractured his leg. * It was argued that althoigh dorroboration of a dying declaration is deirab1e it is nOt always necessary in order to:support a conviction, and that to say sQ would be tantamount to pIcing such evidence on the same plane.s accomplice evidence and that it would b. wpng for, th.. cOurt to 46 so. To fortify his argument, the leained state attorney quotd the decision of the Court of Appeal in R. v. ELIGU 5/0 ODEL LND ANOTH 9 (1943) E.A0C.A. 90 • It was further argued that accused's migration to:another village immediately after the deceised hd been rattacked corroborted deceased's dying declaration that it was the accused who had attacked him. . • . ' CI 2 - As to the argamen -b' as to whether the attack was the cause of deceasedts death the prosecution argued that on the evidenc the court should find- it as a fact that it was the attack that caused deceased',sdeath six days later. Asto;;malice aforethought. it was su:bmjtted that to cause fracture Of the leg the accused must have used a fairly big stick in inflicting the injury and that considerable force must have been used - And that this being the position the accused must have formed an intonton of either to kill the deceased or to cause him grievous harr hon he was attacking the deceased0 The court was on this argument asked to find the accused guilty of murder as.ohargod -• In the alternative the Republic argued that if •th- court fqund that the prosocienJiad failed to prove malice-afore- thought the acOüod bOuld be found guilty of the lesser offence of manslaughter, - In rebuttal the learned deerice counsel argued that there was evidence that the accusodha:d been drinking:from..morning up to the evening time (at about 7 p.m.), when he was subjected ..to..violcnce Itw was :slbjtted . .thaton.the. :vidnce it could • .osnab1y be inerred that the de.case wa dnthcwhen he was attacked and. that bcause of as possible that he cou1d have been, nist.ken yas- to hi:s ientificatibr of his assailant on the material nit. It was therefore submitted .:...that it. wouJ4:beunsaf.o. :to reJ.ie on th- ding declaration of the • deceased that it wasthe acus.ed whe.haft attacked s to the cau&e of death it was argued that even if the qpurt -came o .Q;QQflClUOiQfl that th aeeusd is theporson who • attacked the doeased there. -was, it was su £tte.:, lick of medical evidence as to what actually caused docca IS da.th . As to malice aforethought it was argued that there was no evidonc- as to the. size of the ti.ok the accuae. is;a1legod to have used • in inflicting. ie irj.ury :- It was also submitted thc-t on the evidence the accused could only be convicted of monsliughtor if the court was $atisf'icd •; that it was the .iijury whici, cusQd docoasodcs d.eath and that • the injury as inflictd by;:thc ac.ousod. It was finally argued -tht the prc$oc-ution h&d failed to •provobeypnd reasonablo doubt, that thQ:, injurysuffOrocl by the deceased was the caue of deceased's death and that thO evidence was only consistent with causing grievous harm. After my summing up to the gentlemen -assessos.,thoy were both of the view that it was the accused who inflidted the injuric.; on the dco.ased and that. the, deceased died from the injuries. They however •found that he did not int.eiid to kjll the deceased • or cause -him. grievous harm-when ho, ;was assaulting .the deceased. - They therefore found:theaccusedguiltycf thoaesser offence of manslaught -er In this.casoI'agree with tho. submissions by both counseithat the.iain ovidence:tending to-th-plicate the accused W the :eath of the deceased is decQas:od's dying decla-- ration. Thc lawas to what ount of weight should be plced on a dying .de.claration of the dOceased ha, timdwithOüt number, been stated by :this court and the Cou.t• of Appeal.. The law has boon and still is that There is no nüo of law that to support a conviction therc must be corroboration of a dying declaration, but it is. gOnerallyvery uisafeto base a conviction solely on uncorrcboràted dying declaration -,R. VS. NG-UNDULWA S/O JALU AND OTHERS (1946)E.C, Jj9 and PIUS JLSUNG 8/0 AKU4U V. R. 11 fl'Td 7. 331 . 0 •••3 17 0 0 • 9 t1IT3T S -nOAGTaD mTq pesrio PU'S .tTU et.jq. ttO pe59O0p T4 peqinsss pO5fl003 eL[q. O3t[q qnop quosoI puoAeq eAOXci o. aTqu ueeq itIo stiq UoqnOosoJcI oqq. qt peT;scs U2 I 'eouopp.e etq. ;o çiqoq. etjq trcoorr peet a -qq. st tpris Vpoq etfl. ;o qjud eqieurt.A. exorn u oq. qnq 20 T otq. o .oti mOTq Sçt p303ITp 8ASTJ[ pTflOPi CT[ p3SeOOp etfl. TIPI UOcUeJ1T U peuLt.xo; tYSL] pesfloo5 3L 3t 'uisscI Ut Vuo JT uoiquai o 03ITT STuO pno I .nq noTqeo;1 eopti ;o uoTsenb etjq epçoep oq. 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