19841124 TZCA Dar es Salaam9

\ ~· ' ; I I . . , ...,. . ·. ih. /. ·-:. IN THE COURT OF APPEAL OP TANZANIA .nT Tl!NGA ( CORAM: . Musjia:t)H ,H .lh ~ ~ia~ame• J.• A. as~ ,Kis~p,ga. IT• A. ) CRIMINAL APPEAL NO. 8 OF1983 BETWEEN RAMADHANI SAID! • • • • • • • • A 'N D THB: REPUBLIC • • • • • • • • • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Tanga) (Mnzavas, J .K.) dated the 7th day of March, 1983 in Cri!inal Ses9ions C~9e No~ 34 of 1979 JUDGMENT OF THE CQURT MUST AFA 1 J. A.: The appellant waE convicted of murder of his son, a boy of six years of age. The 'hoy was staying with P.1'1. 2 1 his grandmother. One night at about 9 p.m. the appellant came to P.W.2's house to fetch the deceased and took him away in order,.· so he said, to send him to Bombo hospital. A few hours later, round about midnight, the appellant returned to P.W.2's house and told P,W.2 that the child had died. P,W.2 asked the appellant how did the deceased die, and he replied "God knows". P.W.3, the husband of P.W.2, and P,W.2 both accompanied the appellant to the place where the deceased was., and found that the boy was dead ,., lying in an uncompleted house. The·appellant prevented both P.W.2 ' ' and P. W. 3 from examining or touching the deceased,_ and stated that the boy had died by the wish .. of . God~ ~ P. W. 2 had testifiad that the deceased was a heal thy boy. P.~t3 corroborated in the main the evidence of P.W.2 and stated that the village. Chairman was duly informed and he instructed that nobody sho~ld ~urY the child until the Police arrived. The Police arrived the next .morning. ' ...... /2 ' . . f' The doctor who conducted the postmortem of the child found 'that t.h.e 5th and 6th cervical vertebrae of the deceased were dislocatea., he found bruise marks .around the neck, and he was of the view that the dislocation was. consistent with manual strangulation. The -deceased was· a heal tty boy. The appellant gava evidence on oath. He testified that the deceased was a sic~ly child and he had coltected him that material I night in order to send him to Bombo hospi:tal for treatment. He stated that the deceased was very weak when he collected him from P.W.2. On the way to the bus stand the deceased ~.~ked for drinking water and when he was about to drink water in the house of one Mohamed Salum1 the deceased suddenly fainted and fell· down, and suffered a bruise on his forehead. He d~n:-.ed .killing the deceased and said the deceasec had no injuries on his neck. The case against ~;he appellant i~ based purely on circumstantia:. evidence. He took the dHceased away at _night, and two or three hours later, the boy had di.ed.. The boy was well and heal thy when_. the aPPelL, .-~ took him away. When P. W. 2 and :P.o W. 3 went to view the ~ody,- they ware .pr"even,:te.d , by the. ~'PPeilant from touching or examining the deceased. The boy had died· while in the sole _ou~t.o.d_y. of the deceased. · The docto:~ gaVE:! · the cause of dea1h as dislocatioh :.o_f- the 5th and 6th cervical vertebrae, which was caused by: manual. strangulation, from the bruise -♦ marks seen by him around the neck •. The appellant stated that the boy just fell down, while: in the process of l,lrinking water, and collapseda He was testifying that the boy.was e;tremely weak and was being sent to hospital for treat~ent. He mentioned the names of witnesses he want':l to call, one that had given a chit to refer the deceased to Bombo hospital, one that -he.d supplied water to the de·ce·ased just before the. deceased collapsed. .But then he decided not to call any witnesses, ,, the oourt, in the exercise of its discreti~n under section 151 of ~he Criminal Procedure Code, called the wi~nesses mentioned by the appellant. Three witnesses testified, and it became clear that the ·-· .. /3 - 3 - ... :a1>pellant had deliberately lied to the court, r, One witness denied !•, that he had ever referred t.he child _to Bombo hoapi tal, another that " he had supplied water to the deceased on the materi~l or any night. Mr. Tahirali for the appellant. has submitted that the circums-· tantial evidence in this case does not lead irresistibly to the conclusion that it was the appellant who had killed the deceased. He particularly stressed that it was not proved that the bruise marks on the neck of the deceased were caused by the appellant. He appearec to s\lggeat that somebody else might have cau.sed the bruise marks afte.:. the deceased had died and before he was examined by the doctor who performed the post mortem. With great re.ape ct to Mr. Tahiral i, that suggestion is fanciful and completely without merit. The trial judge took into consideration the evidence of the doctor, the evidence of P, and P.W.3 and the evidence of the policeman who had seen the bruise · marks on the neck of the deceased before the medical examination and was satisfied that nobody else but the appellant could have killed the deceased. We also think that the lies told by the appellant1 · to deliberately to mislead the court, rela.ted / material Parti cularS • in that they were designed to show that the deceased was suffering and in very poor health, which resulted in his sudden collapse. There was credible evidence by P.w.2, P.W.3, And the doctor that the boy ..... was a healthy child and not weak or in poor health at all • There was also a report by a psychiatrist which; apart from stating that the appellant was sane and of sound mind, also contained alleged statements by the appellant that he had killed the child 'b.ec;ause he thought his wife was unfa'ithful. That would lend further assurance to the mass of circumstantial evidence adduced which poin·: irresistibly to the appellant a.s the ~rson who had, with malice aforethought, killed the child. • ••• /4 / ...,., \ .,. ; I cet,tifY that thiS /