19841016 TZCA Tanga

4 it THE COUIP OF APPEAL OTAN.ZANIA AT T.ANGA (CORAL 14astafa i J.A.. Makame J,,.,A,. p K,js4nga, bRIMINAL APAL N04 8 OF 1983 B t '1" N ES E N RAMADtANISkADI AD RESPONDENT (Appeal frotn the conviction of the High Court of Tanzania at Tanga) (Mnzavas, J.K.) dated the 7th day of March, 1983 in Criminal Sessions Case No. 34 of 1979 JUDGMENT OF THE COURT MUSTAFA, JA.:,, The appellant was convicted of murder of his son, a'boy of six years of age. The boy was staying with P.W.2, his grandmother. One night at about 9 p.m. the appellant came to P,W.2's house to fetch the d.eceased 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 1 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 1 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 testified that the deceased was a healthy boy. P,W.3 corroborated in the main the, evidence of P.W2 and stated that the 4illage Chairman was duly inforrd and he instructed that nobody should laury the child until the Police arrived. The Police arrived the next morning. 2 The doctcr whd oon8ucted the postffiottem of the dhild found that ttó 5th and 6th cervical vertebrae of the desed were dislctei : he found bruise marks around the neck rd he %4ad of the view that - the djélocat±on was consistent with manual strangulation. The deceased was a healthy boy. The appellant gave evidence on oath. He testified that the deceased was a sickly child, and he had collected him that material night in order to send him to Bornbo hospital for treatment. He stated that the deceased was very weak when he collected him from P.11.2. On the way to the bus stand the deceased asked for drinking water and when he was about to drink water in the house of one Mohamed Salu.m the deceased suddenly fainted and fell down, and suffered a bruiBe on his forehead. He den.ed killing the deceased and said the d.eceàsed. had no injuries on his neck. The case against the appellant isbased purely on cirownatantia:- evidence, He took the deceased away at night, and two or three hours later, the boy had died. The boy was well and healthy when the aPpell. ; took him away. When P.W.2 and P.W.3 went to view the body, they were prevented by the appellant from touching or examining the deceased. The boy had died while in the sole custody of the deceased. The docto: gave the cause of death as dislocatioh of 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 rinking water, and collapsed He was testifying that the boy was extremely weak and was being sent to hospital for treatment. He mentioned the names of witnesses he want— to &ali, one that bad given a chit to refer the deceased to Bwnbo hospital, one that had supplied water to the deceased just before the deceased collapsed. But then he. dècidedyot to call any witneases, the court, in the exercise of '-its discretion under section 151 of the Criminal Procedure Code, called the gitnesses mentioned by the appellant. Three witnesses testified, and it became clear that the -3-- appellant had daliberately lied to the court. One withess denied that he had ever referred the child to Bombo hóspFt:al, another that he had supplied water to the deceased on the material or any night. Mr. Tahrali 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 bruiss marks on the neck of the deceased were daused by the appellant. He aPpearec to suggest that somebody else might have caused the bruise marks aftej the deceased had died and before he ts examined by the docto2' who performed the post morteu. With great respect to. Mr. Tahirali, that suggestion is fanciful and completely 1thout merit. The trial judg€ 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 acellant could have killed the deceased. We also think that the lies told by the appellant, to deliberately to mislead the courtree /material particularst 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, arart from stating that the appellant was sane and of sound mind, also oontined alleged statements by the appellant that he had killed the child because he thought his wife was unfaithful. That would lend further assurance to the mass of circumstantial evidence.adchiced which poin irresistibly to the appellant as the person who had, with malice aforethought, killed the ohild, 00 . . 14 L. -4- We find no merit in the appeal which we dismiss. DATED at TANGA this 16th day of October, 1984. A. MtJSTAFA JUSTICE ORAPPEAL L M, MAKIE JUSTICE OP APPEAL R. H. KISANGA JUSTICE OF PPEAL I cerify that this is a tr2y he original. ( B. P. MOSHI ) SENIOR DEPUPY EEGISTRJR -4