19720531 TZHC Dodoma

I ]JIGF C01J'?T OF T&NZIJII 0RI 1"I.L JU.dIniITIuIT (]oDoi. IST.) Criminal bessiuns Case ho. 9 of 1971 The Jepublic ye IE US IIM@I4couos7oJ. Chare; bfWW.J 0/5 195 of Penal Code. T TT ' (. M IT (TI ) (,) Li u .i i -i. .a i . On the 1 9th day of July, 1 970 the deceased Fatuma G-uledi left her home for an undiclosed destination 7.00 p.m. She did not rturn until the accused came 'to inform her causins that he had seen her lying drunk in a ditch. The • cusins accompanied the accuacd to the place where she was kneeling. She was in a critical condition and could not move on her own. The cousins and the accused lifted her and helped her home. She died in 'bed shortly after being laid there. It is what she told her cousins 'before she breathed her last that has implicated the accused. Needless to sa the accused has denie'.:.my responslbili - Gy x or her (dease) The dOctor who conducted the i)OSt mortem on the deceased's body found the deceased to have died of asphyxia due to drowning'. There is no dispute that this was dotually how she died and I hold it to have been proved that the deceased died of asphyxia due to drowing'. There was no medical evidence, however hat the deceased was drowned by the act of another person'. The only evidence we have is 'he. fact that a broiten 'iater pot and a wet floor were found. in Salima bd.allah's house. iissumlng - iaa ;ais warer was applied on the deceased, there is nothing to show how she could have d:LeJ by having water poured on hor I am therefore unable to say that the drowing which asphyxiated. the deceased was the act of another person. It was a pity that the doctor who examined the body was not available to enlighten the court as' to how the deceased could have drowned. Efforts could ]:iave been made at least, to. call expert opinion as to how the deceased could haro drowned. As things stand in this case, the only reasonable explanation is given by the accused who gave evidence that he found the deceased lying kneeling in the ditch with her face in the water which was in the ditch. The prosecution did not adduce evidence to counter this allegation 'and I find myoelf unable to rule this possibility out completely. I am unable to hold that the deceased w.',s drowned at Salima's' place although the presence of her clothing there tends to show that she must have been there that. evening. ]3ut even then, her presence there cannot be ascribed to the accused and the accused only. For, in the same house were some other tenants who could have used Salimats room for their own purposes. Several prosecution witnesses spoke of the dragging they saw leading from a spot on ;e,c alley way to Salima's backyard. There is neither re,,:'ofl nor cause to suppose that those marks and the faeces found in the backyard were the deceased's. Any person could have defecated in the backyard.. There is no evidence to exclude this possibility. h]aat is more, there is not the slightest hint that was the accused to the exclumion of every other persoe.whc coul have — •..... .... 2 — drageci whoever wn dragged into Salima 'S backyard Sauna's house was accessible to her tenants who could have dragged someone. What is there to exclude this posiility anyway? G-oing back to the Doctor's evidence, it is qjiito possible that the deceased may have been serually assaulted before her death- witness, the whitish substance found in her vaginal canal during she post mortem nan there is neither cause nor reason to suppose that only the accused and no one else could have raviehed her. Like the first assessor, I accept that the deceased's sandals and Khanga were found in Salima's room But in view of the lack of evidence as to whether Balima locked her room or not when she left with her boyfriend it cannot be said with any certainity that acceas to the room was available to the accused only and no one else. Although there is evidence that the deceased vlsltco. Salima's home that day shero is no avid once to shon that e ravishA in the room. She cou'ld h \TO been ravceheJ anywhere, for all we know. On she whole, theprosecusion case leaves so many gaps that one is left wondering wnether the accused should have been charged in the firJ ?lace. Perhaps the most damning evidence against the accused is the dying declaration rhich the deceased is said to have made accusing the aec.sed of killing her. The deceased's two COUSInS, Hadija Hema and Ass iya Saloka gave two different versions at the Prelid.1inry Inouiry. They came up with two more versions at the trial, all h... I all the deceae C 's djjiig words i .vc been cc 0 'u o in four c1i_J ereni w. ya by those who purpot to hacre hoard. thorn. The. two 11egadL that; they were uttered in the presence of the accused who did not contradict the deceased. The deceased who was admittedly imbecile uttered thoe words when her condition was critical. It is not clear whether shc-- uttered thorn in such a way that the accused hoard then, if he was there at all. The possibility of their having been utteed so inaudibly or so unintelligibly that the accused who had admittedly taken Assuming therefore that the deceased uttered her accusation in the presence of the accused, the accusation should still be treated with caution because the dooased was imbecile, Indeed the learned defence counsel submittod that under sectien 34 of the evidence act, i1O dying declaration of an an imbecile is inadmissibie. He was quoting Woodroffo s coxiunentary on the Indian law of evidence • This is' ce.:,.ent a ry on the law which is very similar to our oni hero and is thus of profound persuasive valie. The prosecution did not challenge this proposition and I fool constrained, to approve of it. I will at best take the declaration with extreme caution. It is settled las', repeatedly enunciated by the dast africm Court of Appeal, that a dying declarat ion can only be acted upon if there is circumstancinl or direct cvidcnco to corroborate .. it. The prosecution have conceded to the absense of directed evidence to corroborate she deceased. Jhas circunissances they have adauced have been shom to me not inconsistent with the accused's innocence. The evidence adduced against the accused could easily point to some- one else. ha evidence it has no probative value. I cannot say that it would IJO of any corroborative value in view of its inadeciucate and somewhat unclear nature. The learned state counsel urgued this court to convict the accused because he felt that there wee evidence to corroborate the dying declaration. He iound seis co::r000ration in the iact that the accused mes accused of homicide to his face without raising a finger in protest. To support his contontion, learned counsel relied on the case of ifIdidO WI3L, V Ud',,HJ)A 1965 F.A. 7a wherein the appellant's convic'cion was upliecl upon he inclure to deny the accusation made by the deceased to his face that he had beaten him. In i'.L1OZOS caso, the docoascJ was hoard by several peosie to repeat his accusation. The accused was brought and confronted with the accusation which he did not deny. The deceased was s -bill in his full sensos when he undo the accusation.. On the contrary the deceased in the present case was not in her iuli senses when she me,no her accusation, ,. . . . . • . . • • • • •,, 3. ,-.., .............. .. 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