19850518 TZHC Mbeya

JUDGiME MTfA, j• £ T1- e three accused personz narely ashid F1ngd.meza Sinkala the first accuse :areflcr 7 7 ussei Jiare. the rs.econd. accused, and odwell Samson Sinkari t tird accused 7 are all jointly and together chat'ged with the offence of maslaügter c/s 195 of the Penal Code in that they unlawfully killedDaudi i"akérere Siarne by beating him, The first accused person .dabhidi Fungameza .Sinkala plead ed. guilty and he got July convicted and sentenced to suffer 24. months jail whereas, e second accused Larence I Hussen3iame and Godwell Samsoi- irikari pleded.nt guilty tQ the charge laence the present trial. .. There is no doubt that the deceased died'a'violet death foi the doctor's report Ex.PI says that the dedeased died becaue of si- t ock as a eult of bledin houh the CD mouth and ndtrils. . . . .. .. ' L The only evidence in support o± the charge is the statement t1-e deceased s said to have made to Saidi Raisi (Pi.i) and)udi Kiloro (Pw 2) subsequent to his being beaten that the accused persons were his assailants. Before Saidi Raisi .(w.i) the deceased is heard to have told him that the - first accused inflicted gainst hip' a it oftblows Whereas the second accused gave 1-iim five blows and three kicks and the third accused gave hiri three blows. Ihen later he was taken before Daudi Kaloro (PW.2) the village secretary, he told him thathe was attabked-by tlie first and sébod accused and there was no mention of the third accused and" by then he was in a critical condition. Having so stated, he died. The second>and the third accused denied to have attacked the deceased only that theywent to -- t1-e sntintervene the fight between the -decased and th.e . first cøue. and when they reach.ed.the scene, they saw the deceased ireadyin a crit±äal condition and they stopped.) he first acbused from further beating up the deceased. It was bservëd by T'ustafa J. "as - he then was" i the case of R.V. Rutema Nzungu (1971) H.CD. No.445 whi'r t ........ observatidns I agree that it is a tue of -practi'cethat there must be corroboration of--a dying deciaration- A very telling instructive passage is to be found in "Field onBvierce" -SeventhEdition and it merits quotation in full:— . "The caution with which this kid of testimony should be received ha often been copm-nted upon. The test of the cross—examination may be wholly WantIng and.. . . . . .. . the particulars b f violence- rray have ocpr.e under -circur'tstances of bonfusion and surprise,calculated to. preve,t their being -. accurately observed"e - In the present cas.e- it seems iikey -that the deceased when-he made his dying declaration-s before PW.I and later to P14.2 - - he was not in full possession of his faculties on - any of the occasions when he accused the, second and the third accused as being his assailants. I sy o because it is in evidence both from PW.I and PW.2 t'at the deceased was by then in a critical condition and alo i is in evidence that before PW.I the deceased accused all the three accusd as being his ' - 44 -4 . to assailants but later before P he only accused the first and the second adbused: a 3 being his assailants ad there was no mention of the 3rd accusec. This being the position s corrob'oratio of IFe -&eàeased' s staterlent is — efen more necessary and I api sorry to say that in the present case corroboration of the deceased's statement is lacking. Mr. Ndunuru learned 5tate Attorne - argued that the second and third accused admitted to have been present at the scene of the crime but with respect, the two accused persons have explained the. reaso 1 of their being present at the scene was to stop the fiht between the deceased and the first accused It is in evidence from PW.I and PW.2 that the first accused reported to them by saying that he alone attacked and arrested the deceased and he wanted these two witnesses to congratulate him for his bravery. Thus the two accused's presence at the scene of the crime can not be taken to be corroboration of the deceased's dying declaration to PW.I and PW. 2. I warned the assessors o± the danger of relying On urjcorroborated. dying declaration of a deceased man but they all gave a uanirnous opinion that the two accused are guilty of the offence charged which opinion I do not agree. Because of the aforesaid I find both the second and the third accused not guilty of the offence charged and I duly proceed to acquit them. They are to be set at liberty unless they are held in custody for any other lawful cause. sgd. MTiNGA, J. 18/5/85. Delivered in open court In the presence of Mr. Ndu.nguru — learied State Attorney and Mr. Mwakilasa — leained counsel for the accused this 18th day of May, 1985. . sgd. T'iT 1 TA, J. 18/5/85. .. . . ..../ 4 I