19740416 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 17 OF 1973 THE REPUBLIC VERSUS PETRO 5/0 FELIX Chag: .Murder c/s 196 of the Penal Code. JUDGMENT NNZA The accued Petro Felix stands charged with murder c/s 196 of the Penal Code. It is the prosecution case that the accused on or about the 13th day of June, 1971 at Dodomase village in Kondoa district, Dod.oma region., murdered one, Pius s/o Songita. The accused pleaded not guilty to the alleged offonce. From the edonce of the doctor (Pw1) and that of Matei Songita (Pw3) thero can be no doubt that a man by the name of Pius s/o Songita has died. There can also be no doubt from the doctor's evidence that the deceased died as a result of a raptured spleen accompanied with haemorrhage and shock., It was the Republic's argument that the raptured spleen was caused by a blow inflicted by the accused on the deceased. 1i upport of the proecution case six witnesses gave evidence. Dani Saki (?W2) testified to the court that on 13/6/71 . at about 11 '..m, accused's wife by the name of Bened:Lcta • d/o Mikami came to his i'use bleeding profusely from a head- injury and complained that she had been assaulted by her husan., • the accusede According to hi13 oidence he adviced Benedicta to report her complaint to their Ooli-•leader and that she left to their cell-leader's house. The witness also told the court that soon after Benedicta had left the accused emerged and asked him whether he had seen his wife.. On being told that his wife hd gone to their cell-leader the accused followed her. The witness further told the court that later the cell-leader, himsolf, the accused and the accused's wife went to where the deceased was lying (on the ground) near accused's house.. According to his testimony the cell-leader asked the deceased what was wrong him and that the deceasod replied that he had been assaulted by the accused. The accused was asked whether he had assaulted the deceased and that he denied assaulting him. The coil-leader (Pw3) also gave evidence. He related. to the court how on 3/6/71 Bonedicta went to: his house bleeding freely from a wound on her head and complained that she had been assaulted by her hushand. the accused. According to the ce1l leader's evidence Benedicta also told him that the accused had also assaulted Piis, the deceased, /2 -- . . ...../2 The witness further told the court that he asked the accused whether it was he who had assaulted Benedicta and that he admitted assaulting her after they had quarreled. The witness told the court that he went to where Pius was lying and that on interrogating him he said that he had been assaulted by the accused. The accused is said to have kept quite when he wa interrogated about what the deceased had said. Hassan (PW4) gave evidence to the effect that on 13/6/71 he and erie, Kumani went to the deceased's house where they drank pombe with the deceased. From there the three of them went to another house where they drank more pombe. From this house they went to another house where the deceased is said to have asked a lady in the house whether she had pombo. The lady replied in the negative. According to this witness he and the deceased asked the lady for some water to drink and that after they had drank water they all left the house towcrds deceased's house. According to his evidence as they were going the deceased told them that he was going back and told them that he would follow them later. As they were going they heard an alarm coding from the direction of the house they had just left, and that he saw a lady fighting with a man and at the same time they saw the deceased ±unfling away taking a d±fferent route from the One They we±e following, Accordin.g to his testi- mony they did not bother to i1iqui1e what was actually happening and that they proceeded ±6 thq deceased's house where they waited for him. As the debeased did not come they eventually left deceased's house and gent to Kwam±oro Inspector Kimbi (Pw6) related to the court how hE investigated the case. He produced to the court two sticks ("exhibit B and C") alleged to have been used by the accused in assaulting the deceased. In his unsworn statement the accused denied assaulting the deceased on the material day. On that day, he told the court, he was inside his house sleeping when the deceased cane to his house accompanied by two youths. He told the court that the deceased asked his (accused's) wife whether he had received her money the deceased had given to the accused to hand to her 0 The accused also told the court that the two youths asked his wife for water to drink and that she gave them some water0 According to his defence soon after the deceased and the two youths left. It was his defence that a few minutes later his wife also left the house saying that he was going to collect their children who were at the river. The accused further told the court that soon after his wife had loft he hoard her crying saying "Pius you have called me here to kill me." He hurriedly went to where his wife was crying and that as he was going he saw the deceased running away. 1 0 also saw the two youths running away but in an opposite direction from the direction the deceased followed. The accused said that he found his wife in a ditch with injuries on her face. He asked her what was the matter and that she replied that she was not going to tell him anyti:ing. He left her there and decided to go to report to his ceU-leder. The accused said that as he was going to the cell-leader he found the deceased lying on the ground and that he did not know what had happened to the deceased. Finally the accused admi;ted that his wife told the cell-leader that it was he who had assaulted the deceased but that he denied assaulting him 0 In his submission the learned state attorney argucd that although the prosecution case wholly depended on the dying declaration of.the deceased to the cell-leader (PW3) and to Daniel (Pw2), the declaration should be accepted as evidence against the accused as it was corroborated by the evidence of Hassan /3 S .13 The Republic however conceded that there was little • ' evidence in support of the argument that the accused had the necessary malice-aforethought when he inflicted the blows on the deceased and therefore pressed only for a conviction of manslaughter 0/5 195 of the Penal Code.. The learned defence counsel on the other. hand argued that the dying declaration of the deceased should be treated with caition as there was evidence that the deceased was in a critical state 'at the time he is said to have mentioned the accused ashis.assailant. It was also argued that the evidence of the cell-leader (Pw3) and that of Daniel (PW4) that accused's wife told them that it was the accused who had assaulted the deceased should not be accepted against the accused as it was hear say evidence. It was the defence argument that there was no sufficient evidence implicating the accused with the offence of murder or manslaughter. After summing up to the only assessor, (the other assessor havin been dispensed with u/s 270 of the Criminal 2 rocedure Code), he was of the view that it was the accused who assaulted the deceased on the material night and killed him and that he 'did so with malice-aforethough. He accordingly found the accused guilty of murder as charged. • As rightly argued by both counsels the only evidence tending to implicate the accused with the death of the deceased is the deceased's dying declaration to the cell-leader and to Daniel. In the case of PIUS JASU.NGA s/a AIJJMtJ v R. (1954)EACA j it was held"that the fact that the deceased told more than one person that it was the accused who had assaulted him was evidence of consistency but not a guarantee of accuracyt' The facts in that case are however clearly distinguished from the facts in this case. The attack of the deceased in JASUNGA's case took place at night and there was evidence that it was a dark night. G-reat caution had therefore to be exercised in reception as evidence of the deceased's dying declaration in so far as 'identification of the accused was concerned. In the present case the attack took place in broad day-light and as such the question of mistaken identification of the accused by the deceased can safely be ruled out. Indeed over and above the fact that it was day time when the deceased was assaulted there is also undisputed evidence that the deceased was well-known to the accused and vice-versa. It is however an accepted rule of practice that although there is no rule of law that to support a conviction there must be corroboration of a dying declaration, it is generally unsafe to base a conviction solely on an uncorroboratod dying declaration - do IALU and another (1946) EACA 169. The question to be answered is therefore whether there is evidence corroborative of deceased's dying declaration that it is the accused who assaulted him. This question is all the more important taking into account the evidence which con- firms the learned defence counsel's argument that the deceased was in a critical condition at the time he mentioned the accused as his assailant. There was the evidence of Hassan (PW4) which tends to show that the deceased, Hassan and another person had on the material morning visited accused's house. Hassan also told the court that as they were leaving the house the deceased went back and that soon after they heard noises and saw the deceased running away. They also saw a lady fighting with a man.' That the deceased visited accused's house on the fatefuly morning is supported by no lesser a person than the accused,himself. Indirectly Hassan's testimony that he saw a lady fighting with a man that morning is supported by the evidence of the cell-leader who told the court that the same morning accused's wife reported to him that the accused had assaulted her, /4 ...../4 On the evidence I see no reason to hold that the deceased had wrongly identified the accused as his assailant - Indeed the circumstantial evidence by Hassan, (PW4), supported as it is, by accused's own defence corroborates deceased's dying declaration that the accused assaulted him on the material morning. Accused's demeanour in court did not at all impress me. He was extremely uncomforlable in the dock and for no obvious reason etremely hesitant in narrating h 1 s story. Like the gentleman assessor I found no difficulty in branding him as an untruthful witness. The next question I have to decide is whether the assaulting of'the deceased by the accused was the cause of the death of the deceased. Doctor's post-mortem report (exhibit A) is to. the effect that the deceased died of raptured spleen, haemorrhage and shock. In his evidence in chief the doctor told the court that he examined the body and that he externally found a biiise at the back of dédeased head. lie did not find any other marks of violence externally. Internally he fbund that deceased's spleen had been raptured and that there was blood in the abdomen. He said that deceased's spleen did not appear enlarged but that it could have been, When cross-examined by the court the doctor said: "In a number of cases a blow on the abdomen could cause rapture of a normal spleen without leaving marks of violence externally." On further cross-examination he said: "A fall could cause an enlarged spleen to rapture," From the doctor's evidence it is extremely difficult to say with any amount of certainty what caused the rapture of deceased 1 s spleen; which undoubtedly was the primary cause of deceased's death. According to his evidence there were no external injuries on the deceased's body apart from the bruise he found on the deceased head, poste- rionly. If for the sake of argnont the court is to accept the prosecution case that the accused assaulted the deceased with a stick, and that the assaults were the cause of the rapture of deceased's spleen, one would have expected to find some external injuries around the region of the spleen. This is especially so given the argument that the assault was with so much force as to cause rapture of an internal organ. The doctor said that a blow on the abdomen could cause rapture of a spleen without leaving marks of violence externally. I have great respect to a doctor's opinion but in the present case I am totally unable to comprehend how a blow with a stick on the site of the region of the spleen, so violent as to rapture the spleen, could have failed to leave marks of violence externally The doctor also said that a fall can cause rapture of an enlarged spleen. The doctor was not all that sure whether deceased's spleen was or was not enlarged. Taking into account the doctor's evidence and the fact that, < rosecution, for no blame on their part, failed to produce as a witness; accused's wife, Benedicta, the only eye witness to the incident, it is extremely difficult if not impossible to say with that amount of certainty required in a criminal charge that it were the assault$ of the deceased by the accused that caused the death of the deceased. This being the position I have no alternative but to find the accused not guilty of the offence of murder. Nor is he on the evidence guilty of the lesser offence of manslaughter. I am however, on the evidence, satisfied that the accused did on the material morning unlawfully assaulted the deceased. I therefore under the provisions of Section 131 (2) of the Criminal 2 rocedure Code find the accused guilty of cannon assault c/s 240 of the Penal Code. N.t4AS JUDGE /5 ..../5 .. Pros: The accused is a first offender, In Mitigation have nothing to say. Sentence: Youare sentenced to one year imprisonment. R. b. A. to E.A.C,A. explaincd. DO.DOMIL.. 16/4/74 JUDGE I s-