19720902 TZHC Singida2

IN TB HIGH COURT OF TANZANIA 4 ,---,--- I! III AT SING-IDA ORG-INAL /1I (Dodonla Registry) CRIr1IiI SEGSIONS CASE NO. 20 OF 1972 The Republic Versus UP Charge TIanslaughte - c/s 195 of the Penal Code. J ID G E N E N T The accused is carged with the offence of Manslaughter because he dug the guis of the baby when it was suffering from some abdominal disoas0 The prosecutions\case is that the baby died after he performed the illegal\o peration on it 0 The doctor who prformodhe post-mortem fouiid the child to have died of septoaor:;ia and tetanus D This is expert evidence which no one has attempted to dispute. The doctor went on to say that t&tanus bacteria thrive only whro there is puss He was of th6, opinion, therefore, that the baby contracted septocaomia It would therefore follow from such evidence that tetanus followed septooaeriia which in turn could have been causedby the operation which the accused is alleged to have per±'orthed on the Ohild 0 The doctor felt that the infection was oral\ But he was not certain whether it was this infection wl-iic,h gave rise to septocaomia. His observation on the postmortem report goes like this: whole skin was echymosod. The back ws arched 0 The gums were very necrosed with part of the guns scrapped awayc> I frmed the opinion that the child may have' developed tetanus due to the oral infection What is implicit in the \doctors observation is that the tetanus could have develbpod through infection elsewhere. Where the accused did no oven touch, particularly when it is. recalled that the child was purging and its.stonach was swollen before the accusd operated upon it. According to the evidence given by th mother and relatives of the daceased it was on account of the child!s illnos that the accused was called upon to treat it 0 The court is thus unable to make any definite finding that the infection giving rise to tetanus was nocessaily oral, and tl:ierefore duo to the operation performed by thp accused. This view is shared by one of the gentlemen assosors 0 According to the notIior of th deceased, P. W. 2 - Mtiji d/o Dude, the deceased cotracted some abdominal disease shortly after he was born. The abdomen swelled up and he began to purge0 In this Qvidence she is supported by her parents to whom she returned from her husband in order to have the baby. The court therefore finds it to have been established that the babyas ill before the acdused was -2- called upon to treat him. That the accused treated him has been established beyond doubt by P. W. 3, Sie Mhyau who herself went to call the accused so that he could examine and treat the child. In this she is supported by both her daughter and her husband. The accused has denied the charge without caring to call evidence to counter that of Sie Mnyau her husband and her daughter. All these three witnesses saw the accused scrape the gums of the deceased after examining them and declaring that the child had false teeth which needed to be uprooted before he could be expected to recover. I therefore accept their evidence in as nuch as there is no cause to doubt them. One may argue that they have lost a child and would therefoe like to blame their loss on someone. The accused on his part did not volunteer any evidence to back up his denial that he scraped the gums of the deceased with the arrowhead which the mother of the deceased and her parents identified in court to be the instrument he used to perform the operation. There was nothing in the demeanour of all these witnesses to suggest that their evidence should be taken with caution. The court is satisfied that the accused did perform the alleged operation on the child and that in doing so he acted unlawfully in as much as he was neither licenced nor properly equiped for the oporation,. Other—wise the accused would have produced his liconc eo The operation was to all intent and purposes illegal. As it has been pointed out earlier on, there is no saying V with certainty that the infection giving rise to tetanus was necessarily oral or that it was the direct result of the illegal act of the accused. In my summing up I directed the assessors that the accused could be convicted of a minor cognate offence if they found that the circumstances did not warrant conviction on the charge or that a complete acquittal would flout justice. The fist assessor disregarded. all the evidence and felt that the accused should be acquitted. He did not explain his opinion. This court cannot derive much help from such advice. The other assessor found the accused guilty as charged because althoug1_ -.i he believed that he was treating the deceased, he acted negligently., I am uncertain whether the accused, a reputed tooth extractor who had been performing similar operations succeesfuly, could be accused of negligence. The sort of surgery the accused used to perform is un}rnown to science. No one can therefore say whether the accused acted negligently in this operation because there are no set standards as in modern surgery or dentistry. The third assessor advised that the accused should he acquitted as there is no evidence to show that it was his operation which led to the tetanus that killed thedeceasad. While sharing hiS opinion that there is doubt whether it was his operation which caused the infetion that gave iise to tetanus, I would not acquit the accused because he has been shown to have unlawfully wounded the deceased albeit in good faith. Not being a licenced surg eon or dentist the accused was by law precluded from performing the sort of operation he did on the deceased. I would thereofe find, the accused guilty of unlawful1 wounding and convict him accordingly. H.'A. Kwikima Ag. Judge. Accused first offender: Mitigation: The accused has been in custody for ovar a year. The court should be lenient.. The accused sincerely regrets his mistake. Al tus Nil. / JfTJNOE: It was very unwise for the accused to act the way lie did when peoplewore being rounded up for performing similar oporations One only hopes that the period he has spent in custody and the anxiety he has endured for being charged with manslaughter are sufficient punishment to make him never repeat the offenco This court therefore finds no reason to be harsh with him0 H0 is sentenced to eight (8) aont1is imprioonmort .1 SiNGIDA M. H. A. KIKIMA 2nd Soptem1er, 1972- Ag. Judgo. ,I