19780925 TZHC Tabora

i\ (2-) IN THE HIGH COURT OF TANZANIA ATABOA ORIGINAL JURISDICTION (.abora Registry) I CRIMINI., SESSIONS CASE NO.22 OF 1978 The Republic versus TATU d/o SHOMARI CHARGE: Murder c/s 196: of the Penal Code. JUDGMENT MUSHI, J: The accused, TATU D/O SHOMARI, stands charged with the offence of murder c/s 196 of the Penl Code. The prticu1ars of the charge as set out in the charge sheet state that the accused on or about the 16th day of July, 1977 in the R'ion of Tabora, murdered one FRANCIS s/o PAULO. On 16/7/77 at about 9.00 p.m. - Issa Songango - P.W.3 while in his room heard someone singing or making some kind of noise otttsi.de his house but very near. Isa was , annoyed as he thought the chap was drunk and was distutbing his sleep. This Issa went to his tefl cell leader, Rajabu - P,W.4 to complaint ar'id with an intention of calling the cell leader to remove him from the place. After Rajabu had been told the story, he obliged to go and see the person. On artival at the place they found that the person who was making noise was the deceased who was known to both P.W.3 and P O W.,4 i Wht as the deceased lived very close to that place. On ibeing asked as to why he was lying there and making noise while his house was just four paces away, the deceased replied that he had been stabbed by his wife - the accused in this case. Rajabu and Issa observed the deceased and found that he had a stab wound on his side. Rajabu walked tothe:déceaséd's house to look forsomedloth to tie the wound with but there was nobody in the deceased's house although the door was open. As Rajabu was lkina h - - u atout the cloth he was looking for to tie the deceased's wound. The deceased's wife gave him the cloth and they - Rajabu and deceased's wife - accused - went to where the decea- sed was. The deceased was taken to the Police Station at Bukene and to the dispensary. Later on the same evening the deceased was sent to Nzega Ditrict Government Hospital where he was operated upon. The ceased died on 20/7/77. .• fl - 2 - •1s That the deceased " dd75eyondanydoubt. There is the evidence of P.W.6 - Dr. Kelin who conducted a post-mortem On the body of the deceased after the said body had been identified to him by ';W05 .' Richard Wathbira and Police Constable Phillimon - P.W,2 as being that of the decea$ed in this case. P.W.5 Richard had seen the deceased twice bfOre he was stabbed on 16/ 7777 and on when he 17/7/77/went to see him at the hospital for three days before the " ....... . deceased died. Regarding the cause of death, aft f±om"P.WI,LPM.....?., P.W.3 and P.W.4 who saw the...stab woutid..on.,.the body of the deceased+ the main evidence is that of the,Doctor.: According to the postmortem report, the doctor has given two causes. These were- Cut wound through abdomen .4th, .inury to the spleen. (Qperated at Nzeg.a }ospitaL). Pneuthonia0 The report is further elaborated in the summary which saysthat the '..decesed died of Pneumonia whih occurred an operatin which was .. necessary because .f an: intrabnominal cut wound, with injury to the spleen. . Thedoctdrwho conducted the postmortem and who g:aJe evidence in '.thi& case ,:w,as one of the doctbrs' who had.Qperated upon the 'deceased. rr - he d'octotoldthe'court. th.twen' thedeceased-was gent to the - - hospital, he had a stab wound. between the 10th and 11th rib, and-that -: there was plenty of bloOd 5.n,the stomach and the spleen was injured. The QperatiQn was necessary to remove thebloosi.-axid..tti'ijured spleen. If this was not done,.the doctor said,..thejdeceased wqild.have died in very few hours. According to the doctor the last cause of death was lung complications which-could, have been caused by many factora.one of which culd be as 'a result 'of,. the .operation> Because of the medical •evidence, it has been suggested by defence that as the doctOr was of the opinion, that'.,the last cause of death i.e0 pneumonia could have been caused by many ac'tors#,.there has been art intervening 'factor between the stabbing and death of, the deceased. - It was contended.therefor,' that the stabbing. wasot the only cause, if at all of death. On the evidence I am not persuaded that is so 0 First of all there is the evidence that surgical operation was necessary in order to treat the deceased in arr attempt to save his life. 'There i" nO 'vidence 'to show that 'the surica1 , operation was not done with the ñecessar' kholedge,skill and accepted medical care. - Also there, i.s no indication from the po.,orteni report or from the doctor that'.he deceased was suffering from any other diseased which could have caused pneumonia. It is an accepted fact that a surgical operation like the one carried upon the deceased leave alonea stab wound injuring the spleen with internal haemmorhage like the. one inflicted on the deceased is an interference which may :,reui.t into many side effects. As there ws no other apparent cause, I am satis,fied that the lung complication was a diret result from, the surgical operation .• as stated in the pomortern. Consquently, as the surgical eperation was a necessary treatment on the deceased, I am fully satisfied, that the stabbing was the main cause of death of the deceased. I now turn to the evidence connecting the accused with this offence. The only evidence connectiiig the accused with this offence is the statement of the deceased which made to the witnesses that it'.was•.the accusäd who stabbed'him. Issa Sangongo - P.W.3 and Rajabu Mdhamed '- P.W.4 told the 'court that when they asked the deceased as to why he was lying near somebody's house while his 'house was very close, he told them,that he had been stabbed by his wife— the accused in this case.. Then there is the evidence a of p.W.5 - Richard Wambura who visited the decesed in the hospital on 17th, 18th, 19th and 20th of July. 'The witness 'said thaton 17/7f77 the condition of the deceased was very bad and he wzS unable 'td €a1k. On 18th and 19th however, the deceased's conditioi :).dt improved and was able to relate the story as to how and who stabbed him. Acco'dingto 'the wi'tnss# the deceased told him that after arriving at his home,.hd asked his wife to cqok ugali for him but the wife (accused) refused. After that the deceased pushed the accused., After which the deceased started towards'the bed but before he reah,ed the bed, the accused picke a knife which was on the cupboard and stabbed him. P.W.5.said , that this story was repeated, several times and 'the deceased was very clear and positive on his ttatement. A knife was found where the deceased was picked and P.W,,5 identified it as belonging to the deceased. When this knife was' picked on the day of the incident it was found to have some blood. from the evidence. of POWO5, whose evidence I take as truthful, I find that the deceased did make the satemerit to the effect that, it was his wife - the accused who stabbed him under the circumstances described by the deceased to the witness. .14 4 - The statement of the deceased must be taken asa dying declaration. As .1 said-earlier thrs is the only evidence connect±ng the accused with the dfféhd. Such statements are admissiblefor obvious reasons that the person naking it is no longer available to testify before the court, lik oth& witnesses0 Such evidence lacks the èross-examination to test the credibility and truthfulness of the statement, of the glver. As a result other tests have to be applied to test the credibility bf such statements before they are acted upon. Commentators on this section have said and I quote:- "When dying declarations are received, their weight must depend greatly on the circumstances under which they are made. Their credibility and value will also vary with the circumstances of each particular case." In this present case the deceased made the statement that he was stabbed by the accised. 'a. thd place where he was picked by.-khe witnesses, According to the;witnesses the deceased condition was not bad, Later the deceased made the statement in the hospital a day ­'afte-k arioperation. The condition of the deceased was described as reasonable and as in a condition to talk and recollect the events, which culminated to his being stabbed. Taking into account that the deceased hadbeen stabbed in the .stomach and a surgical operation I would tend to believe the witness that the deceased was in a condition in which he could, and did tell the story relating to the incident. Whether such an account is a true story of what actually happened is another case, The other area which could add weight to the statement are the surrounding circumstances under which the offence was committed. There is eviddnce that the accused and the . deceased had been drinking together from about 2.00 p.m. td around 6 or 8 p.m. The deceased was found lying not far from his house - • - - - The knIfe which was found at the sc-ne w identified to belong to the deceased 0 According to the deceased's statement, the acused stabbec hm in their house. How did the knife which was alleged to have b eenl.uped to stab the deceased get at the place the deceased was found lying? Did the deceased remove the knife after he had been stabbed and takeit with hi:m? Apparently the knife whose blade is about six iiiches, wa vrymuch bent near the handle. This fact has not been explained as to the cuae of the knife been bent. If the knife had been bent before, then it would be most iinlikely to be able to cause the cut wound df the description caused to the deceased. Or did someone fall on it: 1any possibilities remain unanswered in respect with,the: knife. I I - 5 - If the incident took place on the deceased's house,there is possibility that there would be some blood somewhere in the house or at least between the house and the place he was found lying0 P.w.4 - Rajabu said he saw no blood in the house of the deceased 0 P.W..I - Police Officer did not impress me to have carried out proper investigation regarding this pointo With so many aspects of the surrounding circumstances remaining Unanswered, one cannot take the statement of the deceased without some reservations 0 And as it is the only e'idence linking the accused with the commIssion of the offence, it is most unsafe to act on it and convict the accused With an offence of murder 0 ± would respectively join the assessors in their unanimous views that the accused is not guilty of the offence. I find the accused not guilty and she is acquitted 0 4N. M. I4USHI, JUDGE 25/9/78 0 Coram: N. M. Mushi, J. hr. Massaba - State Attorney Mr. Sang'ka - Defence counsel. Judgement read in court. Assessors thanked and discharged. NZEGA N. M. MUSHI 25th September, 1678 - JUDGE. Certified true copy of the original. G 1 GISTnJ4r, TAB 11. ( "