19721204 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA / ATDAEESSALAAL -11 • ORIMINAL SESSIONS CASE NO.65 OF 1972 THE REPUBLIC ............... versus .... ROSE KIHOMBE CHARGE: Infanticide c/s 199 of the Penal Code. SAIl, C.J. - In this case the accused, ROSE binti KIHO!1BE, stands charged with Infanticide. The particulars of the offence allege that: ROSR bt KIHOMBE, on or about the 9th day of Jaly, 1972 at Nyexninywili area, within Rufiji District, Coast Region, by a wiful act or omission caused the death ofher male child, being a child tinder the age of 12 months, by throwing the said child into apit latrine; but at the time of the said act she, the said ROSE bt. KIHOE., had not fully recovered from the effect of giving birth to the said child, and by reason thereof the balance of her mind was then diturbed.' Rose does not dispute that she delivered a male child at the material time. She does not dispute that the child was recovered from a latrine attached to her house. Her explanation of how the child reached the pit latrine was that she had gone to the latrine to attend nature call; that in the course of that exercise she heard that something had fallen in the latrine and soon later she discovered that she had delivered and the child had slipped down accidentally.. PA At the material time Rose was a teacher in the local school. The Eeadteacber, Awadhi, P.W.1, told, the Court that Rose woke. him up at mi1night and said that she had delivered a chjJd who accidentally slipped into the latrine. Rose asked him to help her to rescue the child. Awadhi stated that he rushed to the latrine leaving Rose, who was then crying, behind. By means of his torch he saw the child in the latrine at the edge of one side.' The child was still alive and was crying, He rushed to the neighbotirs for further assistance. Operations for recovery of the child coirninenced in that very night andended at about 8 a.m. when the child was recovered by Bskari., P.W.2, who had gone down into the latrine. Another hole was dug near the latrine. This was then connected down below with the latrine and bakarl went through the now hole to rescue the chiid • The child was found at one side of the latrine 'lying on its face.' It was covered with sand and stones, It appeared to be clean, i.e, it had been washed. Its tbi1ica1 cord had a clean out and was bleeding.4 After a wash and feeding by its mother the* child was taken to hospital but died on the way. A. nurse of the hospital, Mrs. iSelemanip P.W.4, first examined, the child. She saw some external injuries on the body of the chi1d, These were cuts on the nose, face and left thigh. According to her the tbilcal cord appeared to have been cut with a sharp instrument , • Postmortem on the body of the child was perfor.ed by Dr. Mulaga, 'P.W.'5, a Senior Medical Assistant with 10 years experience in practice, He noted rf i 11111 I I / '7 jIeft leg.' was fully according He noted that the umbilical oord had been cut and was bleeding as it was not tied. Aceordingto developed to him, and due to weighed external 6 lbs. 4 6% ha•emorrhage , him the child ol Death was, and sbock Dr.* Mi4a'ga went to see the pit latrine 4 or 5 da $ after , the inoident, He eould. not trace the placenta, He thought that the child could not have passed through the hole on the latrine without some adjustment as the hole was 5" (in width in front). He. noted. that there was some blood around.,the h'le on the latrine and also inside Rose!s Doom He examined Rose and found 'tha,t she had delivered a child about .] hours' before he saw the dead child. ; To him Rose :ar5d weakand anaemio and for this 'reason he gave her blood anssioi. The defence called Dr.. !1anek to give an opinion on 4 matters (1) the manner an timbilical cord could cut or rupture, (2) whether or not a child could pass through a latr,.ne hole 50 z 12" in size at the time of birth, '(3) disposal of the plaeenta' (4) the occurence of precipitated 'deliver The prosecution case is that Rose., s'fter delivering the child in her room or elsewhere, she deliberately drcpped it into the pit latrine in order to,, conceal the bi:rth The case for the defence is that the child accidentally slipped, into the latrine when Rose went to attend nature c'all, T'wo of the 3 asseSSoDS who sat with me,, Aman and a woman accepted the defence version as true and returned a verdict of not guilty 'in favour of Rose, The 3rdAssessor s alady, rejected the defence and accepted the pro secati on case In this case 'both sides appear to be equally strong and are supported by facts that seem to be independent.' The facts that stand against Rose are (1) that the child loked 'clean i.e* it had been was'ed before it fell into the 'latrine, (2) that the umbilical Oor& had a clean cut suggesting that it was cut by a sharp instrument and (3) that the placenta was not found at the latrine o:r inside the latrine, The which favour the defence are (1) that there was blood around the hole on the floor of the latrine indicating the child was born in the latrine, (2) there was no motive for Rose to conceal the birth as 'the child was fathered by her fiancee,' Junia Mohained, . who was intending to marx; her., (3) that Rose herself went to report the incident to the Head'teacer and aeked for help 'to rescue the child and '(4) that Rose appeared gefed and was crying when she reported t ..the Head'teaohe in answer to this Court's 'questions the Eéadteacher, who was the first person to get, the news and xilshed to the latrine, he stated that he believed the report of Rose that the child was born at the latrine and slipped down accidentally as he saw 'blood around the hole leading to , the latrine.' lie also 'stated that he believed Rose's 'report: because she" was crying when shereported the incident to hIm, 1 thik that the observation of the Headtea'cher should be given 'considerable weight although he had earlier Stated that he was at one stage suspicious about the v&ole affair as Bose refased to acrno'w1edge that she was pregnant when he questioned her before the incidnt 'I agree with the views of asseSsor 3 'that the investigation 'about the whereabouts of the placenta was i'ncOmlete and it 'vuld be unfair On the accused to assume that it was not in the latrine or near 'about 'that area when the child was recovered, Bakari who descended into the latrine agreed that he acted in'a hurry to recover the child and came up as quickly as possiblee It was dark and he had to use a torch at '8 a.m.' Dr. Mulaga went to view the latrine 4 - 5 days after 'the event That coujd have been too long a time to recover the placenta as it -. . might have rotten and got eaten by animeis, There was some argument on the,'aliegti.on that the child ppea'ed clean when it was recovered *i AU of those who spoke about this were men who have not dealt With cases of new born bdbieg ek Thisallegat1on would be more acceptable if it was / made by. a dootor or midwife or even an old woman who has asjsted mothers in labur Any, of such person would know how a new born baby would loOkelike.. 'The qstion of the State of the imb1licál cord was also debated, Dr Manek thought that the rough edge of the opening of the latrine or the broken bottles in the latrine could have out the mbilical cord thooghhe 'adde4 that the 'ctttting would in that case look 'rough 'and not clean The .nd assessor was, Of the views that the umbilcal cord might have been cut by the 'broken 'bottles that were found scattered at the bottom of the latrine,l This may not seem to be too remote a possibility. • Like 'the 2nd and 3rd assessors I find that the charge against Rose has not been proed beyond reasonable doubt 1 accordingly acquit he is to be set free forthwith with regard to this case.' 4 Delivereai'n Court at .Dar es Sslaam this 4th day of December, 1972, Sgd '(L Saidi)