19731122 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUIHA. ORIGINAL JURISDICTION (Arusha Registry).. CRIMINAL SESSIONS.CASE NO0 17 OF 1973 THE REPUBLIC versus NOEL s/a ADAM, AGED 20 YEARS, TANZANIAN CHARGE: Murder c/s 196 of the Penal Code0 JUDGMEN Makame, J. The accused NOEL ADAM is charged with the murder of a person called SAITOTI SINDATOO He has pleaded Not Guilty0 P0W02 Dr0 HARBHAJAN MAND told the Court that on 22/12/71 he performed a post mortem examination on a body identified to him as Saitoti Sindato's by TARETO,SAITOTI and BARIMENA SINDATO in the presence of P' O CO FflWTN. ,.'Tari.to wJo says Saitoti was his £QL1IL' barimena who says Saitoti was, his elder brother, and P.000 EDWIN MWANJALA; respectiv1y' P'0W06, P0W01, and'PW7, all cOnfirm the doctor's testirnoriy'on this0 I am therefore persuaded • to believe that it is true 'Saitoti'is dead, and further that it was on his dead body 'Dr0.Mand did the post thortem on0. Dr0 Mand t'oldthe court that the d 6 ceased's spleen had a rapture, 2½" x 1 11 , and tti&L there iwas blood i"the parionea1 cayity0 He also found evidence of an old lung disease0 He was of the'ôpinion that the deceased died because of shock and haemorrhage as a' result of the ruptured spleen0 I believe the. doctor did find. the injury and I accept his opinion as tothè cause of death0 Of the two people, who, witnessed the alleged assault, Daniel Loroja and his son Reuben, tne latter the court was informed could not be traced0' hANIEL LOROJA was POW04O According to'him at about 7 p0m0 on 28/11/71 his Unr1, 1 ho rIoco'd, - imcci cii4 his 'son Reuben, were on the±r . wy to gather some honOy when they came across the accused who, without uttering a word, started assaulting the witness0 After beating, kicking, and knocking down 'the witness the accused turned on the deceased whom he threw down and kicked on the left ribs as the deceased was prostrate0 The accused then ran away, taking with him the karai P.W. 4 had0 The three then went to P0W04 1 s house via the homes tad of one Michael Ndeiego, a cell leader, to whom they made arport and he advised; them to go to report to the Police0 The deceased was holding his ribs and unable to walk on his own so he had to be assisted by Reub.en0 From 1 ho P1icc Post Tengeru - they went'to the H,e1 1-h CciiLre where' the deceased was admitted0 OnQ rimy , tue witness 'reckons ten days after the incident, the accused was apprehended by the Police and it is then that the witness came to learnthat aaitoti was dead0 'P0W01 BARMENA SINOATO and P.W. 6 TARETO SINDATO told the Court that the deceased told them about his being assaulted0 . Barmena says the deceased saw him the morning following'the, assault and told him he had 'been knocked down by Adam's son and felled on a furrow 0 The witness seemed undecided as to whether he got the news from the deceused himself 1 7~ '—s ' - - ---" , . 1 ' 4 1. . I iis evidence. ,; , ' •. . TARETO says he saw his father on 29/11/71, that is on the day immediately after the alleged assau].t0 Father told him he had been assaulted by Neel but did not say why0 Although the witness was thus informed he did not bother to find out from the accused, his neighbour, why he had assaulted the deceased0 After he was discharged the deceased con Uriued. to be in poor health and the witness found that his father had a small wound on the left ribs0 The deceased said he was hurt there0 The alleged report by the deceased to his son was on 29/11/71 and the deceased did not die until over twenty days later0 The deceased did not have any external iniury to alarm him and, assuming that he already had a ruptured spleen when he was admitted in hoSpital, P.W. 3 ANASELI TEMU, the Medical Assistant at West Meru, failed to diagnose it, t would appear that even the private doctor, Dr0 Ghatke, to whom the deceased was taken for further treatment after being discriargecl. from West Meru, was unable to detect the cause of the deceased's pains0 With the foregoing in mind, I am not able to say with certainty that the deceased was in a hopeless expectation of death when he related the assault to his son, assuming that he did so0 I caniot therefore regard the alleged statement as a Dying Declaration and I accordingly reject that part of Taretos evidence regarding the alleged statement by his father, According to P,W,3, the Medical Assistant, he saw the deceased on 1/12/71. The deceased was ref erred to him by the Police after he had complained of being assaulted on 28/11/71 He found the deceased had a small bruise on the shoulder girdle and because after being treated the deceased continued to complain of pains he. told him to go to the Gbvernraent Hospital, Arusha, P,W,5 WAILOD MGERWA did not: come into the picture until after the deceased had died when he went to arrest the accused on 21/12/71. He says P;.,4 toll him that the acu5ed jumped on the deceased when the latter was frying .to stop P,w,4 from assaulting P,1,4 after P,W,4 and the accisëd had exchanged the word 'Usiku" and the accused would not let them pass. I must however warn myself that it is clear frofti this piece of evidence that whatever P,4 might have told the police man Mgerwa was after the deceased had died, and so there could have been a motive for finding a scape goat0 P.W. 7 EDWIN MWANJAL) is another police officer. He says he took down statements of Reuben Daniel and his father P,WO4O Mr0 Kapoor, learned Defence advocate, persuaded the court to have these statements admitted through P,W,7, the person who took them down, because it was not anticipated at the beginning 9f the trial that the file in the Primary Court Criminal Case, in which the accused was charged for assaulting r,W,4, and which would throw some light on the present case, would not be available because, it now transpires that, according to the Police, it was destroyed in a fire along with some other court files, Reuben Daniel was not called as a witness because it was not possible to trace him, P.C. Mwanjala told this court that he took down the statements on 28/11/71, which would be on the same da' of the alleged assault, The Defence argument, as I understood it, is that if it was.true that the accused assaulted the deceased as well, he ouid have been charged for that assault also when he was taken to court for assaulting P,W,4. That may be so but thereis a Prosecution cbn.tention,sa1•bejt not with one united voice, that that could not have been done because at the ime of trial the deceased was already in hospital0 I say not with a united voice because, whereas P,1 ,1,4 says the deceased was in hospital during the trial Tareto, the deceased's son, says his father as in fact present and gave evdence, Despite the lack of harmony in the prosecution case tegarding this, it does seem to me, with respect to the learned Defence attorney. that the benefit A - -3- 0 of promoting the Defence argument by having the two statements in is outweighed by the incriminating contents of the statements0 In the statements Daniel and his son clearly allege that the accused assaulted the deceased as well0 However, a difficulty 'I arises in so far as I am unable to agree with Mwanjala that he took down the statements on 28/11/71, that is the same day as the alleged assult0 Of course, if he really had taken down the statements on the same day as he alleges, they would be of considerable weight against the accused because it would have meant that the accused was incriminated quite soon after the alleged assault0 As I have sid, however, I am not convinced that P.W. Nwanjala has been wholly truthful. Perhaps because he derelicted his duty, he did not record the Date etc., on which he recorded the statements. But that is not all: I have carefully read the two statements, which are in Kiswahili, and, having done so I have no doubt that they were recorded after, and not on 28/11/71; and quite possibly a long time afterwards. If they had been recorded on 28/11/71 they would have started with "Ler" or some such word, and not with "Nakumbuica tarehe .28/ll/71" Reuben's statement puts±heatterbeydndTdoubt for;,:toward:the end itsas "késho:;yakeyu]e.me&/dio àkaja policekurepert". How could Reuben have said "kesho yake" if he wasmaking the statement on the same day, 28/11/71? It is possible the statements were recorded when the deceased was already in a bad condition, and so the temptation to lay the blame on some one was great. It is reasonable tohold that the deceased did not make a report until l/12/7l when hewas given the POFO3 O The accused said on oath he and 1 1 JO4 merely pushed each O 1,- * other when they met on the road and P O WO4 said the accused could not pass because he, the accused, was in the habit of walking about with b.urglars0 In fact the deceased went to his aid and was later present in court, as POWO6 also says, when the accused was convicted and fined for assaulting the witness Daniel. Of course, it would not be reasonable necessarily to draw an adverse inference from that conviction and hold that the accused assaulted the deceased as well. I find it established that the deceased was present when the accused and POW O 4 had a scuffle with each other and I believe, as I have said, that the deceased died of a ruptured spleen some 22 days later0 However, the evidence is not such as would enable me to assert with certainty that it was the accused who unlawfully injured the deceased and caused him to die. With qreat respect I am uneale to agree with the gentlemen assessors both of whom found the accused guilty of Manslaughter0 I give the accused the benefit of doubt, find him Not Guilty, and accordingly pcquit him. Arusha: 22/11/73 (L0 M. MAKAME) JUDGE Assessors thanked and released0 ARUSHA: November 22, 1973 (L0 M. MAKAME) JUDGE /cwm