katabazi nzabonemana vs republic 1986 tzca 57 25 june 1986

IN THE COURT OF APPEAL OF TANZANIA A t MWANZA CORAM: MUSt AFA, J . A . ; MAr AME, J .A . And KlSANGA, J . A . CRIMINAL APPEAL NO. 6 OF 1986 KAt ABa Z I NZABONEMANA. . . . . . . . . APPELLANT versus the r e p u b l i c ..................... .... . . . t . . respondent (A p p e a l from th e c o n v i c t i o n o f th e High C ourt o f Tanzania a t Mwanza) (Korosso, J . ) dated th e 21st day o f November, 1985 in C r im in a l S essio n s Case No. 54 o f 1983 JUDGMENT OF THE COURT MUSt AFA, J . A . ; The deceased was killed in the course of a break io and robbepy of 4-he house in which 4-he deceased was living wi4-h his parents. P.W .3, 4-he mother o f the d ecea sed , a l l e g e d th a t_ s h e c o u l d ^ i d e n t i f y th e a p p e l l a n t as^one o f the r o b b e r s . _ P.W.3 s t a t e d t h a t t h e r e was lamp l i g h t when th e rob b ers broke i n t o h e r room and th e ro b b ers were a ls o f l a s h i n g t h e i r t o r c h e s ab ou t. I n h e r e v id e n c e P .to .3 a l l e g e d th a t she re c o g n is e d th e a p p e lla n t and one P askal as two o f th e r o b b e r s . P.W.3 knew the a p p e lla n t w e l l and Paskal was P . W . 3 's b r o t h e r . P .W .3 _ a ls o heard t h e deceased say, b e f o r e th e degeased d ie d , th a t th e a p p e lla n t and one P r o t a z i had broken i n t o h is room, and had fo r c e d the deceased to d rin k some theodan , a poisonous substance* The deceased a l s o a l l e g e d l y s a id th a t th e a p p e l l a n t owed th e deceased Shs. 200/-. An oth er p i e c e o f e v id e n c e against- <-he a p p e lla n t was c o n ta in e d i n a c a u t io n sfa-t-emenf he had ©ade t o P.W.2, D/Sgt. A m a to ry ., P.W.2 a l l e g e d t h a f fh e appellan-t- had, v o l u n t a r i l y made th e sta tem en tf which i f tjrue and a d m is s ib le , c g n s t i f u t e d a c o n f e s s i o n t o th e g f f e n c e w ith ,w h ic h fh e a p p e lla n t was c tja rg e ^ .* P.WS2 r e l a t e d what th e a p p e lla n t a l l e g e d l y had Sfat-ed i n th e statem ent w r i t t e n down b y P.W.g and duly_thumb p r in t e d by fh e a p p e l l a n t * ^.Th§n P.W.2 wanted t o f e n d e r fh e statem ent as ao e x h i b i t . . A f t h a t s t a g e co u n s e l f o r fh e a p p e lla n t ^.obj e c te d f o t h e „ s t§ te m e n t as b e in g _ i n y o lu n ta ^ y . The c o u r t thereupon ru le d t h a t a v o lu n t a r y statem en t f o a p o l i c e o f f i c e r i s a d m is s ib le under S e c t io n 27(1 ) o f the E vid e n c e A c f . The ju d g e then said "W hether o r n of a statem ent was v o lu n t a r y i s a m a tte r t o be d e cid ed s u b s e q u e n tly . O b je c t io n i s t h e r e f o r e _o v e r r u l e d " . * , _ _ He thereupon a d m itte d _ th e s ta te m e n t, He d id n o t, then o r th e re a fte r, hold a t r i a l w it h in a t r i a l , , t o e s t a b l i s h whether th e statem en t wa§ made v o l u n t a r i l y , o r n g f* Thg onus was on t h e , p r o s e c u t i o n to e s t a b l i s h t h a f th e statem ent was made v o l u n t a r i l y , s e c t i o n 2 7 (2 ) o f f h e E vid en ce A c t . If is t r u e th e a p p e l l a n t ’ s cou n sel should have o b je c t e d t o e v id e n c e o f fh e c o n te n ts o f th e d is p u te d statem ent b e in g g iv e n b y P.W.2 e a r l i e r gn; but bisbelfe-i-ed o b j e c t i o n d id n g f _ d e p r i v e hiip o f the r i g h t f o o b j e c t on the b a s is t h a t t h e statem ent was not vo lu n ta ry , even fhough p r e j u d i c e , t o th e a p p e l l a n f had a j r § a d y occu rred by fh e ,c o n tg n + s o f the d is p u te d s-t-a^emenf b e i n g , r e a d _ o u f t o th e a s s e s s o r s , b e f o r e i t was d e c id e d w h eth er th e statem ent was a d m is s ib le or o t h e r w is e . de are o f the view that the t r i a l judge had er re d in a d m it t in g the statement when i t was o b j e c t e d to as b ei n g i n v o l u n t a r y without deciding, on evidence o f a t r i a l w it hi n a tria l, whether i t was admissible or not. In the circumstances it would not be r i g h t to g i v e credence t® the disputed statement. Another aspect of the case gave us some concern. We are not s a t i s f i e d that the cause o f death was c o n c l u s i v e l y e s t a b l i s h e d . A post mortem r e p o r t was produced i n evidence, but the doctor who a l l e g e d l y performed the post-mortem did not g i v e evidence. The post mortem r e p o r t gave the cause o f death as due to '’ poiso ning ". I n ’’Summary o f r e p o r t " i t was s t a t e d "he died due to poisoning (th e od an ). I n "E x t e r n a l appearances"........ ............c l o t s o f b l o od i n the mouth". I t i s not made c l e a r how the doc to r knew that the deceased had d i e d o f poi soni ng, or o f theodan - a poisonous substance. No examination by any a n a l y l i s t was undertaken o f any organ o f t he deceased. There was no evi dence o f any signs on the body which i n d i c a t e d t ha t poi soni ng had caused the death o f the deceased, and what the poison was. " C l o t s o f b l o o d i n the mouth" was not related, i n the post mortem r e p o r t , t o any s i g n o f death by p o is o n i ng . I t would seem t ha t the d o c to r had merel y seen the dead body o f the deceased, and on i n f o r m a t i o n g i v e n to him, had concluded t h a t the deceased had di ed o f theodan poi soni ng. It i s doubtful if he had r e a l l y performed a post mortem i n the sense t hat he cut open t he body and examined the organs i n s i d e t o a s c e r t a i n the cause o f death. P. ?f. 4, a medical d*c to r, was c a l l e d to g i v e evidence on the p « s t mortem r e p o r t . P. Vi. 4 s t a t e d that theodan was a v e r y poisonous substance, and could cause death r a p i d l y i f taken in a l a r g e dose by a person. P. W. 4 however s t a t e d that "Labor ator y examination is one o f the ways o f a s c e r t a i n i n g the cause ®f death. I t is d i f f i c u l t to say i f post mortem examination was perf*rmed". In these circumstances i t is d i f f i c u l t to say with any degree •f c e r t a i n t y that the deceased had died nf theodan poisoning a d m in is te re d f o r c i b l y by the a p p e l l a n t . We w i l l now deal wi th the i d e n t i f i c a t i o n o f the appellant by P. if. 3. There appear t * be a number # f in c o n s i s t e n c i e s between P. W. 3 ’ s evidence in court and her statement to the P o l i c e . In her statement t o the P t l i c e P. rf. 3 s t a t e d that 6 t i 7 persons had broken in to the housef w hile in Court she s p e c i f i c a l l y mentioned 3 persons only, with t h e i r names. In her P o l i c e statement P. ':'u 3 did not mention about a l i g h t in her room, ‘hut only torch lig h t , while in court she mentioned about a l i g h t in her room, as w e l l as the t o r c h l i g h t . P. W. 3 had r e l i e d »n the l i g h t i n her room as a means o f i d e n t i f y i n g the a p p e ll a n t. Again P . ’f. 3 in her evidence c o n t r a d i c t e d h e r s e l f at one stage. She s t a t e d she did not know wh*» had caught her by the neck, and l a t e r she s t a t e d that i t was Pascal, her brother, wh» was one o f the th re e persons she had named, who had caught her by the neck. P. tf. 3 s t a t e d in evidence that she t o l d the v i l l a g e r s in cl u di ng the v i l l a g e Chairman that the ap p ell an t and P.^saal and one P r p t a s i had k i l l e d the deceased. P. W. 6 Fulgensi t e s t i f i e d and sa id that he had heard P.3 sa yi ng that she did not know the person who hadk i l ^ d ........ the deceased. The v i l l a g e Chairman was however not c a l l e d te confirm whether P. Vi. 3 had t o l d the v i l l a g e Chairman the i d e n t i t y o f the k i l l e r . These inc on s is te n c e s and c o n tr a d ic ti o n s render i t necessary th a t P. /L 3 ’ s evidence should be co rr obo rat ed to some extent by other ev id e n c e . She i s the sole, i d e n t i f y i n g witness. The disputed statement cannot be used as c o r r o b o r a t i n g evidence, as i t s a d m i s s i b i l i t y was open t o v e ry se rious doubt. The dying d e c l a r a t i o n was a l l e g e d l y heard by P. -v. 3 h e r s e l f . The deceased in the dying d e c l a r a t i o n a l l e g e d l y mentioned two names, the ap pellant and one P r o t a s i . P. rf. 3 in her e v id en ce s t a t e d that she saw the appellant and Pascal in the deceased's room. There is i n c o n s is t e n cy between what P. s'j. 3 s t a t e d and the dying declaration. In the circumstances we think i t is unsafe to uphold the c o n v i c t i o n . We a llo w the appeal, quash the c o n v i c t i o n , set aside the sentence imposed, and or d e r that the ap p ell an t be r e l e a s e d unless otherwise l a w f u l l y detained. DATED at KWANZA t h i s 25th day o f June, 1986 A. MUSTAFA JUSTICE OF APEEAL L. M. M AKA ME JUSTICE OF APPEAL R. H. KISANOA JUSTICE OF At PEAL I c e r t i f y that t h i s i s a true copy o f the o r i g i n a l . {J. H. MSOFFE) DEPUTY REGISTRAR