bombo vs tomolo vs republic 1980 tzca 24 20 november 1980

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: Nyalall, c.J., Mwakasendo, J.A. and Kisanga, J.A. ) CRIMINAL APPEAL NO. 56 OF 1979 B E T W E E N B O M B O TOMOLA .............................................. APPELLANT A N D THE REPUBLIC RESPONDENT (Appeal f r o m the conviction and sentence of the High Court of Tanzania at Babati) (Mwesiumo, J.) dated the 3rd day of October, 1980, in Criminal Sessions Case N q . .10 of 1977 JUDGMENT OF THE COURT N Y A L A L I , C.J.: The appellant, Bombo Tomola, was jointly charged with her sis tor, namely, Tabu Tomola, in the High Court at Arusha for the offence of murd e r - contrary to section 196 of the Penal Code — b u t was convicted, jointly with her sister, for the lesser offence of m a n s l a u g h t e r - contrary to section 195 of the Penal Code, and was sentenced to twelve m e » t h s 1 i m p r i sonment like h e r sister. She was aggrieved b y the con v i c t i o n and sentence and h ence this appeal to this Court. Her sist e r i s f apparently, not appealing. Mr. Kiritta, learned advocate, appeared for the a ppellant in this appeal and the Republic was represented b y Mr. Mlawa, learned State Attorney. According to the proceedings in both this court and the trial court, the following p r i m a r y facts appear not to be in dispute botw o o n the parties : thnt one- Adna d/o Bombo died on or about the 20th of October, 1976, at Kiru Village in Hanang District - 2 - within the region of Arusha; that prior to her d e a t h she had b e e n paying a v isit to the homestead o£ P.W.2 in connection with the sickness of her father-in-law, who was also the f a ther of the appellant and of the a p p e l l a n t ’ s sister as well as of P.W.2; that during this visit a quarrel erupted involving the d eceased and the a p p e l l a n t s sister who was jointly charged with the appellant; and that in the course of this quarrel the s i s t e r of the appellant, who appeared as the second accused at the trial, assaulted the deceased who died soon afterwards at the s cene of the assault; that the sister of the appellant, who was the second accused at the trial, then left the scene, a pparently to go and report to the police, but before she could do so was fcpuAd by her brot h e r who is the husband of the deceased and who escorted her to the police station where she found the appellant already in custody; that later the police visited the s c e n e of crime and drew a sketch plan of the scene; that one D octor Aloisi Mruashwa, who gave evidence at the trial as P.W.l, also visited the scene of crime and did an autopsy at the scene; that s u b s e quently both the appellant and her sister, who was the second accused at the trial, were taken before a justice of the peace, that is P.W.6, to whom each made an extra-judicial statement. Similarly, according to the proceedings both in this C ourt and at the trial court, the following primary and secondary facts appear to be in dispute betw e e n the parties: it is tl>e p r o s e c u t i o n case that when the deceased was paying a v i s i t at the h omestead of P.W.2 she uttered der o g a t o r y or modcing remarks regarding the sickness of the appellant's father to the effect that the oldman was not sick trut would soon u n d e r g o real suffering; and that as aresult of such re^^rks both the appe l l a n t and -bar eiste*- ifthe second accused at the trial) ...../3 b e a t u p the deceased to death. Furthermore, i t is p a r t of the pros e c u t i o n case that in the extra-judicial statements, ma de b y the appellant and her sister, each confessed to k i l l i n g the dece a s e d . On the other hand, the appellant in her defence put up an alibi to the effect that she was away washing her clothes w h e n the deceased was b e a t e n up and that it was her sister (the second accused) who b e a t up the deceased. The defence of the second accused at the trial was consistent with that of the appellant. The f irst p oint for c o nsideration and decision is whether the a ppellant confessed to the Justice of the Peace in her extra-judicial statement. The appellant admits m a king a statement to the Justice of the Peace, that is P.W.6, but she says that w h a t she told the Justice of the Peace is the same as what she n arrated in her defence at the trial and the magistrate who recorded her statement made up his own story. P.W.6, the Justice of the Peace, gave evidence at the trial and produced the extra-judicial statement w h ich he claims to have been made by the appellant. In that s t atement produced at the trial as Exhibit P6 the maker of the stat e m e n t clearly confessed to killing the deceased. The learned trial judge considered the issue whether the statement produced at the trial was actually made b y the appellant and stated "After full consideration of the evidence in this case as far as it was given b y the Justice of the Pqace (P.W.6) I am f ully satisfied that the Primary Court Magistrate gave a true version of what was narrated to him. In other words, I fully join hands with one of the gentlemen assessors or generally that all of them that the Justice of the Peace told us exactly w h a t transpired in his office..". We h a v e also evaluated the evidence on record and we find no ground for differing from the conclusion of the learned trial judge. After all, no objection was made against the p r o d u c t i o n of the extra-judicial statement at the trial and we can see no reas o n why the Justice of the P eace transformed an alibi into a confession'. Moreover, there was evidence to the e f fect that before tha appellant was handed over by villagers to police custody, she had earlier made a similar c o n fession to P.W.4, who is her ten-cell leader. It is true that the confession was repudiated b y the a ppellant at the trial and the learned trial judge was aware of this and he therefore proceeded to look for c orroborative evidence as a matter of practice. He found it in the testimonies of P.W.2 and P.W„3. P.W.2, w h o is the sister of the appellant, testified to the effe c t that she s a w the appellant and the second accused, who is not appealing, drag g i n g the dead body of the deceased into the compound of p.w.2's homestead. P.W.3 testified to the e f fect that on the material day she was passing b y p.W.2's homestead when she saw the appellant and the second accused beating up the deceased. P.W.3 thereafter proceeded to r e port the matter to the appropriate village authorities. W e agre-% with the learned trial judge that the testimonies of P.W.2 and p.w.3 provide ample corroborate-on of the repudiated confession. It is also our considered opinion thot since the appellant had made an earlier similar confession to h e r t-en—cell leader, that is P.W.4, the learned trial judge could have k&sed hjs conv i c t i o n entirely on the repudiated confession without J..ooking for c orroboration since, u nder the circumstances, the c o n fession could not be anything but true. The next point f o r consideration and deci s i o n in this case is whet h e r the appellant caused the death of the deceased. The learned trial judge was satisfied that the appellant caused the death of the deceased. The evidence on this p oint is on two levels: Firstly, there are the testimonies of eye-witnesses who claim to have known the deceased, those are P.W.2 (the sister of the appellant), P.W.3 (a neighbour of P.W.2) and P.W.4 (the ten-cell leader). These witnesses claim to have seen the dead b o d y of the person whose death is the subject of this case and w h o m they knew. Secondly, there are the testimonies of persons who claim to have seen the dead body of a person who was identified to them as being that of Adaa d/o Bombo. There is P.W.l, the d o ctor w h o performed the autopsy on the dead b o d y of the person i dentified to h i m by one Bura Ntomola and Patrice Cyprian - both of w h o m were not called to give evidence at the trial - in the pres e n c e of one Dete c t i v e Serg e a n t Charles. There is also P.W.5, Detective S e r g e a n t Hamisi, who visited the scene of crime and drew a sketch plan of the scene on information g i v e n to h i m b y -p.-w.2, H e also claims to h a v e b e e n accompanied by the d o c t o r who performed the autopsy at the scene of crime.. On the evidence of the eye-witnesses, there can be no doubt that the deceased Adaa d/o Bombo died soon after being b e aten up b y the appellant and the second accused. Mr. Kiritta, learned advocate for the appellant, has submitted in effect that on the evidence of the eye-witnesses there can be no finding that the death of the deceased was a result of the beating administered to the deceased by the a ppellan t and the second accused. He also submitted, in effect, that in the absence of evidence to show a comm o n intention betw e e n the appellan t and the second accused and the absence of evidence to show which of the two assailants administered the fatal blow, the appellant cannot be held to have caused the death of the deceased. 5 - Furthermore, Mr. Kiritta submitted vigorously that the fai l u re to call at the trial the persons who identified the dead b o d y t6 the doctor renders the medical evidence valueless in so fa r as the issue of identity of the dead body and the cause of death are concerned# He argues that the identity of the body examined b y the doctor is not established as being that of the person whose death is the subject of this case. We propose to deal with this last submission first. We do n o t a$ree that the failure to call the two persons w h o identified the dead body to the doctor results in a failure :to establish the identify of that body as being that of the lady whose death is the subject of this case. We say so because there is c i r c u m s t a ­ ntial evidence which irresistibly points to the identity of the dead b o d y as, being that of the lady whose death is the s u b ject of this case. There is the evidence of P . W.l (Doctpf Aloisi Mrua^hwa) and P.W.5 (Detective Sergeant Charles Hamisi) who testified to the e f f e c t that both of them visited the scene of crime and the doctor performed the autopsy in the presence of one police S e r g e a n t Charles arid that the said Detective Police Sergeant Charles Hamisi drew a sketch plan of the scene w hich showjp quite clearly the location of the house of the lady whose death is the subject of this case, and also the location of P,W.2's homestead. Since, on the evidence, the body of the deceased r e m ained at the scene of crime until the arrival of P.W.l, and P.W.5, the circumstantial evidence is such that it gives rise to an irresistible inference that the body on which P . W . l did an autopsy is the body of Adaa d/o Bombo, whose death is the s u b j e c t of this case. We find it fanciful the suggestion b y the learned advocate for the appellant that police sergeant _________ /7 7 - Charles Hamisi (P.W.5) cannot be the same police Sergeant Charles mentioned b y the doctor (P.W.l). The authorities cited b y the learned advocate appear to support the view that c ircumstantial evidence, where available, can be used to establish the identity of the dead body in the absence of d i r e c t evidence on the issue. In the case of Enoclea Ewul v. R. (1931 - 34) T.T.L.R. 65 the brief judgment of the court of Appeal for Eastern Africa statea:- "The appellant has been found guilty of murder and s e n t e ­ nced to death. The evidence in our opinion amply supports the conviction, in his examination in the Lower Court which was read as evidence in the High Court he said: 'Whgt I have said to the police officer is w h a t I saw with m y own eyes and that is all I want to say.* w h a t he said to the police officer reads as follows: 'I then held the woman b y the c hest while yoweri took the spear arjd thrust it into the woman's vagina. He drew it out and dug it in the ground. He then told me to take the spear and hide it. I told him to do it himself. He said he had not a good house to hide it in and said 'Take the spsar and hide it in the roof at the back of your house.' Yoveri then again got on to the woman's stomach and I went awfcy quickly and hid the spear in my h o u s e . 1'. That the appellant was beside the w oman Akechi shortly before her d6ath is borne out by the evidence which f u r ther shows that he was carrying a spear which according to the medical evidence had blood on the shaft. The evidence of Sgt. Zekeri Makuda is that he found this spear hidden in, the thatch of the appellant's roof and that the appellant v o l untarily said to him: 'This is thez spear with w hich accused one and I killed deceased' adding 'Accused one and I killed deceased beca u s e she was* - bewitching us'. Daudi Makuda, Chief of Lubonge, also gaye evidence of the appellant having said: . 'That is thp spear accused one and I killed the deceased with'. All this evidence is clearly sufficient to convict the appellant provided that the evidence of identification ia satisfactory. N o t only at this session of the Court of Appeal but at many sessions it has b e e n necessary to point out the care that should be exercised in recording satisfactory evidence identifying the body of a deceased person as that of a particular person who was seen to haTo received the injuries resulting in death. If for instance A gives evidence of B having been mortally injured and the latter's body is brought to hospital where Dr. C conducts a postmortem examination on it A should bo called as a witness to identify the body and the doctor who conducted the post-mortem examination; and the doctor should be asked to identify A as a person who was present when the examination was conducted. In the present case Dr. M c D a n i e l , w h o conducted the post-mortem examination, said: 'I performed post-mortem on body of adult native (female) brought to Tororo Hospital and identified to me by Yowana as being that of one /8 8 - "Akechi cf Apeipci The lacuna here is that Yowana was not called as a witness. The learned Acting Solicitor General while drawing attention to this defect addressed to us a convincing argument,, viz., that Akachi had b e e n injured in a peculiar . and brutal manner according to the eye-witnesses and that the w oman examined b y the doctor bore signs of having baen injured in a s i milarly peculiar and brutal manner. This fact taken together with evidence of d eath of persons who had seen the woman in an injured condition prior to her death and were present at her death is in our opiriion sufficient evidence of identifi c a t i o n but the cases where such evidence would not be available can well be imagined,. The appeal is dismissed.". 1 1 It is clear in that case that the identity of the dead body was established not b y dire c t evidence but by circumstantial evidence of the peculia r injuries. In the next case of R. v. Slrasi Bachumbira (1936) 3 E.A.C.A. 40 the brief facts of the case are contained in the headnote of the r e port which state:- "The appellant was convicted of the m u rder of one Mutundi. Witnesses who were present when he stabbed Mutundi gave evidence and there was evidence that seven days later a person called Mutundi was admitted to hospital suffering from a wound caused by a sharp instrument, but there was no evidence identifying this person with the p e rson stabbed by the a p pellant.”. On page 41 of the judgment of the Court of Appeal for Eastern A f r i c a the Court stuted:- "No person was called to say that the Mutundi who died in hospital was the same as the Mutundi who was stabbed by the appellant, and the question for us to decide is whet h e r the death of a man alleged to have been murdered has b e e n properly proved. It is hard l y necessary to s a y that the onus of proving this is u p o n the crown. Counsel for the crown submits that there is a strong inference from the circumstances that the Mutundi who died in the hospital is the same as the Mutundi who was stabbed b y the appellant. We are of the opinion that to establish such a fact from circumstances an irresistib l e inference must be shown. Is there such an irresistible inference. The facts are that on the 19th October one Mutundi in the district, of Masindi was admitted to the hospital suffering from p wound in the left side. All the witnesses who saw the stabbing on the 19th October refer to the victim of the assault as the deceased and in all probability think him dead, we do not think that we c a n say that there is an irresistible inference of the identification.'1. ..../9 This judgment is a clear authority for saying that circumstantial evidence which is suff i c i e n t in identification of a dead body m u s t be such as to give rise to an irresistible inference of identity. in the third case cited by the learned advocate for the appellant, that is the case of R. v« Mpande s/o Ndele (1938) E.A.C.A. 44 the Court of Appeal for Eastern Africa adopted and applied the principles stated in the first two cases. In the fourth case cited by the learned advocate for the appellant, that is the case of Tumbo s/o Ngalishi v. R. (1953) 20 E.A.C.A. 173, the brief facts of the case are contained in the h e a d n o t e of the judgment where it is stated:- "The appellant was convicted of the murd e r of his mother. A witness ideQfcifiad the deceased at the mortuary, giving only h e r name without adding anything more by which she could bo identified.". The Court of Appeal for Eastern Africa stated at page 173:- "The learned Counsel for the crown has pointed out that the evidence as to the i d e ntification of the deceased b o d y after it had been taken to the mortuary was not satisfactory, in that tha witness gave only h e r name and did not add anything more b y which she could be identified* This c ourt has on occasions before observed that the mere giving of the name is not sufficient. Actually in this case there are sufficient pointers in the other evidence to establish beyond d oubt that the body of the dead woman, described by the identifying witness as Agnes d/o Sauka, was in fact the wife of the witness Mshenzi and the mother of the appellant.". It is clear in this case that though the d i r e c t evidence was n o t found to be sufficient to establish the identity of the dead body, the defi c i e n c y was made good b y circumstantial evidence. It is probable, though n o t quite certain from the judgment of the Court of Appeal for Eastern Africa, that the d i r e c t evidence was found to be insufficient on the basis that the name of the deceased was given by a witness who did not disclose h o w he came to k n o w - 10 - the deceased, for otherwise we cannot-'see how the i d entification tyy name of the deceased b y a close relative or a pers o n who p r eviously knew the deceased would be found to be insufficient identification. The medical evidence accepted b y the learned trial judge in the pres e n t case shows that the deceased died of cardiac and r espiratory arrest which could have arisen ftom a broken spinal cord in the neck, on the a-ye-witness' testimony of P.W.3, w h o corroborates the confession of the appellant as well as the confession of the second accused - a confession which implicates the appellant - we are satisfied and find as a fact,, like the learned trial judge, that the deceased sustained a broken spinal cord in the neck in the course of being beaten up b y the appellant and the second accused. The question which arises is who was the author of the fatal blow or blows which broke the spinal Cord? obviously, if the appellant was the author of the fatal blow or blows, she could be found to have caused the d e a t h of the deceased;, but if, on the other hand, the fatal blow or blows were administered by the second accused, the appellant would not be found legally responsible for the death of the deceased unless the situation falls either u nder the provisions of section 22 or s e c tion 23 of the Penal Code, which deal with parties to a criminal offence and offences committed b y joint offenders in the prosecution of a comm o n purpose. On the evidence adduced at the trial, and accepted by the learned trial judge, there is nothing to s h o w that the appellant was the author of the fatal b l o w or blows in the neck. However, in the appellant's confession to the Justice of the Poncc (P.w.6), thoro is the following statement in Kiswahili:- /II - 11 - "Mimi nakumbuka m namo tarehe 20/10/76 k a m a saa 10.30 jioni marehemu alikuwa anapigana na d a d a yangu ndipo na mimi nikaenda k umsaidia dada yangu k u m p i g a marehemu.". It i s 'evident from this statement that the role of the a ppellant in the incident, which resulted in the death of the deceased, was that of giving help to the second accused in b eating up the deceased, in c o m m o n legal parlance, the appellant aided and abetted the second accused in beating up the deceased, and she is covered by the provisions of section 22(c) of the Penal Code, , and she therefore caused the death of the deceased. We have reached this conclusion after considering the medical evidence along with the confessions of the appellant and the second accused - confessions which are corroborated by the testimonies of P.W.2 and p.w.3. We do not, however, accept Mr. Kiritta's s u b mission that the appellant could not have b e e n convicted in this case without the medical evidence r egarding the cause of death of the deceased. The medical evidence in this case is d i r e c t evidence of the cause of death; b u t d i rect evidence does not preclude the cause of death being proved by circumstantial evidence. There m a y well be cases where the m e d ical evidence as to cause of death is essential for a conviction, but i n our considered o p i n i o n 1 this is not such a ca^e. since, according to the confessions of the appellant ' and that of the socond accused, the deceased died on the spot very soon after b eing b e a t e n up with sticks by the appellant ■ and the second accused. It is our considered opinion that the c ircumstances in this case are such as to point irresistibly to d eath being due to the beatings administered by the appellant and the second accused. It makes no difference that the beatings could have trigerred off some other factor such as a heart attnck which killed the deceased, since the situ a t i o n would fall w i t h i n the provisions of s e c t i o n 203(d) of the Penal code u n d e r which O O . « Q . / 1 2 - 12 - ••a person is deemed to have caused the death of another person although his act is no t the immediate or sole cause of death ... ... if b y any act or omission he hastens the d e a t h of a person suffering uoder any disease or injury which apart from such act or omission would have caused death;*'. With regard to malice aforethought, 'the learned trial judge agreed with the lady and gentlemen assessors who sat with h i m to the effect that the appellant and the second accused did not intend to kill the deceased. The appellant and the second accused were therefore acquitted on the charge of m u rder b u t convicted for the lesser offence of m a n s l a u g h t e r - contrary to sect i o n 195 of the Penal Code - as there was no justification for killing the deceased. With regard to the sentence, the learned trial judge imposed 1 sentence of twelve years' imprisonment on the appellant and the second accused. He decided to impose such sentence because, in his view: "This is a very serious manslaughter case almost bordfering murder,". with due r e s p e c t to the learned trial judge, wc do no>; think this was "a very serious m a n s l a u g h t e r case almost b ordering murder" since, as the learned trial Judge notad, death occurred in the course of a m inor squabble. Moreover, no vicious weapons were used. We are convinced that had the learned trial judge prop e r l y directed himself on the issue, he would not have passed :what he considered to be an exemplary sentence. We will, therefore, reduce the sentence. In the final analysis, therefore, the appeal against the c o nviction is dismissed, but the appeal against sentence partly s u c c e e d s , to the extent that we reduce the sentence to five ye a r s ' l m p r i s o n m e n t . The n p p o l l n n t ’ s sis tor, thnt is the second accused at the trial and w h o has not appealed, also falls in the same position /13 - 13 jurisdiction of this Court is exclusively appellate, we are not in a posi t i o n to grant any relief to the appellant's sister unless she appeals against the sentence. We note that b y now it would be very much late in making an "appeal, b u t we will exercise our dis c r e t i o n in gran t i n g h e r leave to appeal out of time to this c o u r t if she so wishes. And we order accordingly. DATED at ARUSHA this 20th day of November, 1980. F. L. NYALALI CHIEF JUSTICE Y.M.M. MWAKASENDO J U S T I C E OF APPEAL R. H. KISANGA JUST I C E OF APPEAL I c e r t i f y that this is a true c o p y of the original. ( H. A. MSUMI ) SENIOR DEPUTY REGISTRAR