19770902 TZHC Iringa

IN THE HIGH COURT OF TANANIA AT IRINGA i¼ 3 44. ORIGINAL JURISDICTION (DODOMA REGISTRY) Criminal Sessions Case No 0 122 of 1976 Original Criminal Case No0394 of 1975 The Republic versus Phillip Mkemangwa Jumanne Mwakwavava Salum Mkakatu Charge: Murder c/s 196 of the Penal Code0 /JUDGMENT / MWAKIBETE, J The three accusd - Phillip Mkemangwa, Jumahne Mwakwava and Salum Mkakatu - stand charged with murder c/s 196 of the Penal Code; t it being alleged that the three jointly and together, on or about the 8th day of September, 1975 at Tagamenda Village - Luhota - in the District and Region of Iringa - murdered one Maisha Maliyabwana0 The three accused and the deceased used to work for one Juma Mkakatu - PWO2. They slept together in one roomed house provided by their master - the said Juma Mkakatu - PW02. The house was some 150 yards away from PW02s dwelling house0 On the material night the deceased who was ill for some days had his condition worseing0 His colleagues sent for their master (PW02) who visited the sick0 But because it was already dark it was agreed to send him to Hospital the following morning0 PW02 did not remember having been informed of the deteriorated condition of the deceased on the material night nor could he remember having visited the deceased that night - but evidence was overwhelrnng that he was infect called to the place and did infect visit the deceased the same night0 Early next morning PWO2 went to see the deceased again - only to find him dead0 Here the story is somewhat garbled in that according to PW.2 and the accused - in court - to open the door he simply pushed it since it had no locker and awoke the three accused when he found the deceased dead0 But in their caution statements 1st and 2nd accused appeared to say they were the first to see the deceased dead and 1st accused appeared to suggest that when they woke up and saw their colle- ague dead the door, to their house was as usual locked from inside0 The question as to whther the door to the house had a locker or not was vigorously disputed0 PWO2 and all the three accused stated emphatically that the door had never had a locker and tnat at night they just.pushed it to shut0 No mechanism was applied to open it either But according to PW03-the wife of PW02 - and PW05 and 7 - the two police officers who played pert in the investigation of the case - the door had a locker0 It was observed however that PW.5 gave a totally different description of the door from all others0 According to the accused persons the deceased body had all stiffe ned with its neck and l.mhs contracted0 Allegedly PW02 straightened the neck and limbs - to put them in position - and lay the body on a bed0 He had found it on the floor where dedeased used to sleep0 They explained that on the night in question deceased had fever, was vomitting and coughing and complained of headache and chest pains0 It w.Rs their settled opinion tht the deceased succumbed to the appare- ni como cy 4 1 3 :i' P102 ' "r '3 to b,:' s rnr vae'v Hc hoe',r -2- suggest!ed further that the deceased possibly died of epilepsy because he once heard of the deceased having fallen of that disease0 One Doctor Msina performed the postmorterm examination0 He observed the following: A fresh body of a bearded youngman about 21 years old0 Foaming from the mouth and bleeding from the right n6stril0 Neck very soft, cricoid cartilage, thyroid bone, oesophagus all v::ry soft and broken0 Rigor mortis present in othcr prts except neck which was broken0 Tongue bitten between teeth0 Trachea oesophagus and blood vessels around neck all compressedo Other organs apeared normal everywhere0 Deceased passed urine before death - bladder was empty and urine marks around right groin present. ' According to the doctor the observations supported the conclusion that the cause of death was strangulation at the neck causing asphyxia (throttling)0 Unfortunately Dr0Msina has since left Government service and could not be traced or procured without undue inconvdnience. The report was however produced and received in evidence under the provisions of section 275 (1) C.P.C. as amended by Act0 26/71. And by virtue of s. 151 C.P.C. one Dr0 Irare of GovernmentHospital Iringa was surrrnoned by the Court to explain in ordinary language the gist of Dr. Nsines observations hich later formed the basis of his conclusion that death was due to strangulation of the neck causing asphiyxia (throttling)0 All the three assessors doubted the correctness of the finding of the doctor that the cause of death was strangulation -- resulting in asphyxia0 They said that they were quite satisfied that the deceased was gravely ill on the material night0 They were of the opinion that most of the observa- tions - such as foaming from themouth, bitigof the tongue, stiff°ning of the muscles and passing of urine before death were not exc]usively consistent with strangulation of the neck0 They doubted whether the thro- ttling, if at all, was before death for - they observed - the report was silent on superficial digital impressions characterized by bruises and/or swellings and/or scratches of finger nails. They attributed the damage to the neck to the straightening of the neck by PW.20 The observations of the lady and gentlemen assessors are not without significance0 They are vecy persuasive indeed. I believe the doctor observed the damage to the neck s summarized0 Yet, as properly observed -/ by the lady and gentlemen assessors evidence is available, w ich I hold to be true, that PWO2 tampered with the deceased body before the postmorterm examination. There is no evidence to sugest that the act of PW.2 in straightening the contrcted and stiffened neck was incapable of occasioning the damage observed. I hold that 2W02's folly misled the doctor. I believe, after discovery of the damage to the n€ck which ar eared grave enough to cause instant death, the doctor refrained uing further tests for.Dthr possiblecauses of deaib. There is no suggestion that the Police of.icer who removed the body from the house tothe Hospital did attempt to check with the people he found at the scene - as to whether any'ody had tampe ed with the body in any manner. He ought to have done so - in the circumstances - before collecting it to Hospital. Had he done so he might hove discovered the irregularity which ought to have been communicited to the doctor - as a precaution against any misleading findings0 A person who is chclad or throttled alive is prone to struggle by turning, pulling or squeezing - to extract himself - occasioning in the process some form of superficial scratches nd/or bruised digital impressi- ons. It is not surprising threfcre that the lady and gentlemen assessors querried on the absence of th.:se !ajuries. . 0/3 - -3- - I agree al-so with the lady and gentlemen assessors that there was no evidence to suggest th.:t only throttling as in this case would always account for the foaming in the mouth, the biting of the tongue and the passing of urine before death0 It seems clear therefore that it was not established beyond all reasonable doubts th:t the deceased - Maisha Mali'yabwana - died of strangulation0 In view of the above finding it seems, the dispute as to whether the door to the accused's house had a locker or not is of minor significa- nce0 In any event - on the facts.- it would have been very unnfe to hold that there was any locker0 Inevitably a question could have arisen as to whether a person from outside could not have gained entry to throttlethe deceasedwho was apparently sleeping on a separate bed from the rest0 There are numerous doubts in the prosecution case0 The benefit of such doubts is given to the accused persons0 They are to be acquitted - it is GO ordered0 Delivered in Court at Iringa this 2nd day of September, 1977. IL M.J. MWAKIBE'IE JUDGE