19870528 TZCA Dar es Salaam

,,,..- ·- t 'ri ~ IN THE COlTRT OF APPEAL OF TANZllNiil. AT DAR ES SA~ COR.AMi MAK.AME.; J .A.~ KISANC-A 9 J .:~ 0 fmd 'm~r~,~- CRIMINAL APPEAL NO. ·63 OF 1985 Between D/SGT. ARCHIBOLD & OTHERS • 0 i • .AJ?PELLAN'IS And THE REPUBLIC • • • • • • • • .R1!BPONDENT (APl)ea1 from the conviction of the High Court of Tcnzonia at Sineida) (Huhumbika, 9 J.) dated. the 17th day of June 9 1985 in Criminal Sessions Case No~ 17 of 1984 .. ' JUDGMEi~T OP THE COURT KISANGA 2 J .A.~ The three appellants 9 all police men 9 were jointly charged with murder contrary to section 196 of the Penal Code 9 but were convicted. on the lesser offence of n::mslaughtor and each sentenced to 2 years' imprisonment. They are now appealing against both 1 conviction and sentence. Briefly the c3se for the prosecution was as followsi- The ,-. deceased was a lmown bandit in the area where he lived. On 13. 7 .81 i I..., the appellants went to arrest him on suspicion for the offence of .1 ,. Ii murder. The deceased. resisted the arr.:st and., at same stage, j escaped. and ran away but the appellants:managed to overcome him. j f They brought him to the police station where they handed him over f to the charge l:'Oom officer for custody while they went away. ., Three days later the deceased was adr.1itted. in hospital critically ill and. vomittine; blood. Ifo died on the s~ day from w.hat the doctor d.escribed as 2cute pulmonary oec:em. which, in the docto.r 1 s further . . t """ ...... .,_ ........... __ -- - - 2 - I I, I i I . "could have been caused by ',)ea t·in 6 1Wiv· · .-":h consioera .' bl e force or with sli~ht force for a ldng time. The 11 1 ! beating ought to h8-:e bcon 011 the chest for a long time i i . " 11 ! 1; The prosecution took the view tha.t it was th~ ap_ pell ants who inflicted I the fatal injuries at the time of th~ arrest• If 1 1 In their defences the appellants d.enie5 the charge, stating 1 • / I that no violence wns employed during the ar):'.13st:· of the deceased, and 11 : th.a.t after the arrest they handed over the d',/ece,i,,_sed. u to the charge I I : !Ii [1' l room officer for custody and that wos ell; t:hey, later heard thnt t;, I: 11 the deceased was at the hospital where he d.i!ed) I: ' I ' 11' I In convicting the appellants the trial judge relied on the I,' I, i i 1 de.ceased.' s dying declaration to his 011/Tl brot he.p (Po Wo6) ond to 1! I/ the Mediccll Assistant (P .W .5) which v.ras to }he! effect that the appellants assaulted him .in the chest usinrJ a. ~iece of wood. The 'I i' - learned judge went further £.md found that the ,I laying I declaration was ! ' d.uly corroborated by other evidence. Accor:a.inR' to him the corroborative circumstances were that~- (a,} i1 r the deceased was Ir _'1 lmown in the criminal investigation circle~ td be a vfolent and '11 I, rough habitual offender (b) the d.ecoased. r!siJted. the arrest ,1 I' i' i by the appellants Dnd ( c) after the dece8sed ~ms pl8ced. in the r ,I I' lock, up he had his feet cha.ined so that he/ : mi$ht not escape. ' 1 ' ~ Mr. W. M. Mnzava 9 learned Counsel oppearink fpr all the appell,mts, '/ ! · Ii submitted that none of these circUJ:1Stances' amounted to corroboration. I I We entirely og.ree. It does not follow thd.~ · t'he arrest of c1 person j who is lmown to be a violent and rough lmJitJnl offender 1 1 1 1 i Ii 1 : necessarily :invo,,?es tbe us.e of violence •..'/ ,I ~ I Ii ... J , !I ,/ I' /! I I t; Ii 'i I, ... ,'j I' ,/ - 3 - . 1I :1 Such a person can be arrested merely: res1[al/ning or holding him, especially where the arrest was effec~ed by /Ulole than one person as in this case. The same argument holdJ in tl::ie dase of a person who resists arrest. i The a.rrest of such a person can easily be effected If i without using violence especially whei. thel/ariest was done by three people. Nor was the chaining o1 the becLsed a corroborative ci~cur11St,mce. If I/ ! . It is clear from thG r\ecord. /jtha1~ the deceased had his i I !1 feet cha,ined only after he was placed, in ttie tck up so .that as a ha.bitual offender he might nOt escap~ from jcurody. It is quite apparent also that the deceased wos thus cnoined not by the l JI 1/ appellants but by those in whose custody he was placed after I l I his arrest. We can see nothing in this whichlwould lead. to the conclusion that the a,rrest of thE I .the appellants was defIeased.rbyl effected. with the use of violence. fhe 16jrnfd trial judge 9 therefore, erred in finding that the/ three/I cJcumstonces mentioned . above amounted to corroboration and for our 1~ort, upon a careful ,I ./ perusal of the record. we could find ~10 co1ilo~bration for the dying I i I declaration of the deceased,. I I I Learned Counsel for the defence submitted that the death of the I 1 deceased may have been due to other/causes not connected with any II 11 unlawful act on the pa;rt of the app~llantt I This submission is not without merit, .. · . There was evidence ihat l Jl i the course of resisting the arrest 9 the deceased ran away and fill do:-,m 'f"n the process, and 1 according to the post. mortem report: the d Le ksed had sustoined 1 . j 11 !! bruises on the knees and feet. Thf for hJ/ defence it was submitted /f that the dece::,sed might have sustfl¥1ed tlie .internal injuries leading to his death in the course of such !ran. !' i : i rrt trial judge referred to this wssi,bility but. dismuised it suiJarily merely by saying, I 1 ..... /t '/ 11 I I: r I I Ii :1 I I .! 11 ;, J J,1 Ii I 'It i ,!1 I, - 4 - I! I I I I , Ir ! I The explanation by the defence tqat j;the falling into the 11 1 ditch as alleged could have resulted in the type of 1 injuries that ca.used the de6eased//pe~son • s death is a wild~ goose chase and is ruled out as well 11 • 1 i if 1 1 He gave no reason for ruling out that possibility. With respect we think that this was wrong. ' shouldi At least he II :i1 give his reasons for 1 rejecting that possibility. In their/ def ence9 at the trial the II l appellants had stated in effect that {he d~Lfed fell face downwards at a ditch which had. some cement structureJ1 ~hat evidence was not : II' i, contradicted. and the trial judge did lnot say that he rejected it. In the face of such evidence we are una.~le to~re~ ect outright counsel I s submission that the d.eceosed raight hbve sustah.ned the internal injuries leading to his death ll1 tha! courJ o 1 i his running away and falling down. 111 There was yet another possibility tllat /the deceased might have died of poisoning. The :Medical AssiJtm1t ( P. W.5) is the one who ;irst saw and attended the decalsed Jonjhis admission to the hospital. Af3 stated before, tha debeased//wa~ in a critical condition and was vomitting blood. The decelsed told him that he had been assault ed by the pol ice;• Thell w7in e ss diagnosed pneumonia for which he prescribed treatment.,/ He also suspected poisoning and on that account he o~dered I 11th)I vomits to be sent , . ,I 1 I to the Government Chemist for exaDination. ,/1''1 he results of such examination, however, were never rl c e i vJ. I/ P.W.1 , the doctor who conducted the post mortem exaiaina.tloi1 aJo buspected. poisoning and for that reason he sent speciruens lr the! litr, blood and kidney to the Government Cbemint for examfna.tioh. : Results were received in respect of the liv~r and kidney only whJh lshowed that no poison could be traced in them. I II However, nc rr1lts wer received in respect ii ·1 •• ,. ••• /5. II I ) I I I Ii I .,11 :1 ,11 ,, I.· - 5 - l 1 II; 1, :1 I 1 ., o e oo ·t ecause the quan t 1. y sen t j was msu . (\ff J.cJ.en t f or ana1ysl13. '] • . f th bl d b l ·"l I' While the d.o ct or con ceded that the invest iga t ilns :I were in complete , he neyertheless ruled out poisoning as lssibl1l dhuse of death, and the lea,rned judge in hiS judgment stated l titI I 1 "According to the avaiia.ble medical evidence and the Chemist 's t pJVt (Exhibit P. 2) , poisoning is a bsolut ely ruled out" • TJs is tl t entirely sa tisfac tory. It seems to us that the investigations L far[cofducted were r;;tber . 1 oo inconc usive · I .. t o warran t sue h a ca t egorica• f 1i.n ' d. b b th th mg y o e t doctorand the trial judge. For, the rel was e~i4lnce that vomit ting blood could be due to poisoning in the ;,toraacr. I We think that the stomach contents of tha dece•sed racy hJve bel !oisoned without such poison being traced in the liver or thl lcidJY, may be, because I there had not \,been suf f icicnt time fol such vo;cson to be digested ·and to be a,bsorbed. into those organs. Sue h poJibil i ty, in our view, could be effectively ruled out only byl an •1lmf ation of the stomach contents to show that they were not poison adj whlich, however, was 1 not d.o~;. ' 1 'In a. further endeavour to canvas the ,oJ ibility of d.eath through poisoning, Mr. )!nzava, pointed out thal pul.Jnal oedema which according to the d.octor wa.s the cause of death, could ittlf be due to acute poisoning in the stomach. It is to he recaUA that according to the doctor, tha acute pulmonary oede!, in ~hi11 case could have been due to beating the <ieceased in the Jest JJ ~ ! consideraJJle force or with light force for a. long time. l But tir. Mn,zava referred. us to eant~r '" Tramna tic Medicine and Surgery fo~ t~e At torneJ'._ Vol. 7 para.graph 1685 a,t 'p', 609 where:i...."1 thilearn~d ~uthor says that in some cases of acute poisoni ., , ])Il,L,Lia and pulmonary oedema may develOp. It will be reca.lled .Jain t l t :roth ]JilOUIDOnia and pu1monary ·oedema were diagnosed in the dfic•{["ed in the present case• .•.. l/6. l y~ .._. , . ____. ., "'114,_A,..,.f"'·1-_•"'!,--,•------•-,,- - 6 - i1 1 , 1 ,I II . That is · to sey P.W 5 who attended the decea~ed ,!upon his admission 1 ; ; ' < -:i' 1 · 1 0 h' I, d t d th t l · ti 1 I o hospital diagonosed. pneumonia, ano. 1 :, ii. w. o con uc e e pos t i,: I i mortem examination attributed death to acute pulmonary oed.ema. In ! r I those circumstances it increasingly see.ms tha\~. tlke possibility of 1 . j l1 1 death through poisoning could not safely be rul .d out completely. 1 After a careful review of all tJ evidLJ, anO. for the rea,sons as set out in this judgment we are satlsfiedlth!t the evidence adduced in support of the ctnrge in this case t s nol s~ficient to sustain f 11 • convic,1::ion. ~ · e accoil'd mg _,,--:--;---w,-:-..,. J. _ · 1y a1 II 1 ow1 l.t l1e appea 1 9 q_uas h th e /, .· ' I Ii 1 1 co;~i~\~on and set.~~~~ the sentence.I It is fr.irther ordered . r. . thr.:: the. appellants be· sr \ l 11 free forthwith un!··1e~s they are 1I oth~_~ise lawfully held· ,fin custody. ! ..... \· c "'znA~~..a;t_DA:I7· · , / l .~S ALAAI1 this 28th d.ay . f way 1987. 9 "- "-..; •· -i. ' ...-,.,;;·. -..._,__-::::--.e;:!-o~· I I I L • I'•• r,1l(:,.KJJf,IE I ' W I r J JUSTICE OF APPEi'.1 I I, • ¼ ' -:;~- t1 ; ~ . I' original • • I