peter simon msona vs republic 1987 tzca 48 21 september 1987

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA. fCORAM: MUSTAFA. J . A . . OMAR. J .A . A nd MFA LILA . CRIMINAL APPEAL NO. 87 OF 1986 PETER. SIMON @ MSOEA.. . . VERSUS THE REPUBLIC RESPONDENT (Appeal from the cor*vici x n o f the High Court o f Tanzania at Arusha) (jiushi, J . ) dated the 9th day o f October, 1306 m C rim inal,Sessions Case No, 60 o f 1984 JUDGMENT OF THE COURT MFAIiILA. Ag« J .A .: The accused was charged with and con victed o f murder by the High Court S ittin g at Moshi and was sentenced to death. This appeal is against both c o n v ic tio n and sentence. The p rosecu tion le d evidence in the Higfr Court to the e f f e c t that on the day in question the appellant met the deceased old man at a pombe shop c a lle d Salahe - where apparently without any p ro v o ca tio n he attacked the old man by beating him with a s t ic k on the back and le g s while t e l l i n g him to get out o f the p la c e . The deceased was in the company o f h is daughter-in-law P.W .l and went to another pombe shop c a lle d Rex where they continued d rin k in g. A fter some "I. Ane they l e f t the pombe shop t o retu rn home. On th e ir way home and as they were walking through a c o f f e e farm, the appellant suddenly sprang fo r the c o ff e e p la n ts w ielding a k n ife —with which he sta rted attacking the deceased. He out the deceased severa l times on the head i n f l i c t i n g sev era l v/ounds and l e f t the deceased ly in g on the ground. 'When the deceased was taken to the nearest dispensary with a P o lic e ^orm 3, he was trea ted and the fo llo w in g in ju r ie s were record ed : out wound 2 "x i"x ^ ' Scalp Harm Sharp wound l ’bc^'x^" Lt index Harm shgrp wound 2 x2 x 2 Rt ear Harm Sharp wound i"x£”x£" Rt ear Harm Sharp -L tiv l n Y ± t t Harm wound 4 -*-4 -*-4 Rt ear sharp 1 - L tl- ir J - IK r itl Harm %iai^ wound 2 2 2 Rt side o f fa ce Bruise l'b t^ 'x ^ ' Lt ear lob e Harm Blunt bru ise 1 It-.A-4 X v J jI-_vA.-4J j' Scalp Harm Blunt As in d ica te d the deceased was tre a te d and allow ed to go home with in s tr u ctio n s t o rep ort at the re g io n a l h o s p ita l f o r treatment the fo llo w in g day. The next day the deceased rep orted at Mawenzi H ospital where he was trea ted and allowed to go home. He was t o ld t o re p o rt back on the fo llo w in g Monday. On Sunday, the deceased d ied at home. His body was taken t o h o s p ita l where a post-mortem examination was ca rrie d out and the fo llo w in g in ju r ie s were noted: "Fr esh body wounds on his head - depressed compound fra ctu re o f o c c i p i t a l bones damaging bra in . And the eause o f death was recorded as "Eracture o f the Skull H^emmorrhage and shock” . Since i t was the appellant viio had e a r lie r assa u lted the deceased he was arrested and charged. At h i 3 t r i a l , the app ellan t denied the a lle g a tio n s le v e lle d aga.inst him saying that on the day he was a lle g e d to have assaulted the d e b a s e d with a k n ife , he was in Dar es Salaam attending t# h is business and that in any case the deceased d ie d o f in ju r ie s he re ce iv e d fo llo w in g an a ccid e n ta l f a l l from the goat-hut he was th a tch in g . 3ae learned t r i a l judge p ro p e rly analysed in d e t a il both the p ro se cu tio n and defence cases and having done so- he- r-ejected the defen se &ase in the fo llo w in g term s: *1 have taken into- co n s id e ra tio n a l l the p o in ts ■5.Qh which I have set out in assessing whether the defenoo TTitn03*es. d_a p a r tic u la r JVW,1» D.W.2 and D.W.3 were t e l l i n g the truth on th is iss u e , "but I have re g re tta b ly liP say th a t I have not the s lig h t e s t doubt in niy mind that a l l th e three w itnesses are a bunch o f l i a r s . lh§y teJ4 l i e s when they sa id that the deceased f e l l from the y©c£ o f a g o a t 's hut which he was th a tch in g. I fin d as a f a c t that the deceased did not f a l l from any I fin d that the deoea&Qd died as a r e s u lt o f the in ju r ie s he su ffere d on 1 7 /5 /0 3 and those injuri&$ were unlaw fully caused by a human b e in g ". Tjqf.fir on in tht> judgment the learned judge mad© a fu rth e r fin d in g o f f a c t that the app ellan t was the person who attacked the decoa^ f l •frau^ng hi m suffer j.njyrj^3 whioh subsequently* resulted in hi^ death^ We do not think i t is nece&sary tg deal at length w ith azff o f the grounds ra is e d and argued on b e h a lf o f the appellant at the hearing o f th is appeal as we are s a t i s f i e d that the learned t r i a l judge c o r r e c t ly found that on the evidence, i t was the appellant who assaulted the deceased on 1 7 /3 /0 3 and i n f l i c t e d the in ju r ie s recorded on the PF,3. Our only d i f f i c u l t y i s whether the in ju r y which oaused death namely the depressed oompound fraotlflT§ wh^p, damaged the b ra in was a ls o i n f l i c t e d by the app ellan t on 1 7 /^ /tJ ^ At the t r i a l in the High Court, the p ro s e cu tio n without saying why, applied to produce the m edical documents II?, v> and the pos^n ortem exam inatior^report without c a llin g the d octors who prepared ■feb.emj Mr, Munuo who a lso appeared in the High Court d id not ob ject^ Die re su lt was d isastrou s fo r the conduct o f th e 9&se^ 3he§e h ig h jy c o n tro v e rs ia l dotiuments were produced in •the absence Of the dogtgrs henoe very important questions which ■fche defence should have asked the dootors remained unasked and unanswered^ The .follow in g questions immediately came to mind: (a ) idre the in ju r ie s recorded on the postm ortem rep ort as the gause e f death c o n s is t e n t with the in ju r ie s recorded oa the P o lic e Form 3? (b ) I f they are and were caused on 1 7 /3 /8 3 by the a p p ella n t; cou ld the deceased have behaved so normally i . e . walking t f and. £rt>o the dispeas-asy and h o s p it a l a lt h a damaged brain? 4 - (c ) I f the deceased had reported f o r treatment as he d id at the dispensary and Mawenzi H osp ita l with depressed compound fra ctu re d o c c ip it a l bones and, damaged bra in , cou ld both these in s titu tio n s have f a ile d to diagnose such obvious and serious i f not f a t a l in ju r ie s ? (d ) Is a depressed compound fra ctu red sk u ll co n siste n t with a sharp or blunt o b je c t? (e ) For how long can one survive with a damagedbrain which remains untreated? (f) Is i t because th is in ju ry was not there on 1 7 /3 /8 3 and 1 6 /3 /0 3 when the deceased c a lle d at the dispensary and h o s p ita l that both in s titu tio n s were s a t i s f i e d he was in no danger and allowed him to go home? •‘*11 these in ju r ie s were c l a s s if i e d as "harm’1, so none o f them was dangerous to 'the d ecea sed 's l i f e as would have been the case i f they had been c l a s s i f i e d as "dangerous or grievous harm". Since th ese p ertin en t questions ;«ere n eith er asked nor answered in the High Court, the p o s s i b i l i t y that the in ju ry which caused death was sustained by the deceased subsequent to 17/3/03 becomes very r e a l. Defence witnesses may have to ld l i e s about the deceased f a llin g from the r o o f Of the goat hut, but th is d id not remove the need f « r the p ro se cu tio n to have lin ked by m edical evidence the f a t a l in ju ry t o the a ttack ^n 1 7 /3 /8 3 . In the absence o f such lin k a g e, we are unable to say that the p rosecu tion had proved beyond reasonable doubt th at the fa t a l in ju ry on the deceased was i n f l i c t e d by the a p p e lla n t. We re s o lv e these doubts in favour of the appellant and allow the appeal, we quash the co n v ic tio n and set aside the sentence. We had considered co n v ictin g the appellant o f assault causing a ctu a l b o d ily harm but a fte r taking in to account the time he has already sp-ent in custody, ab*ut- •4^- y ea rs, we discarded th e id e a . .... /5. - 5 - Accorclingly v/e orxler that lie be re le a se d from custody unless he is otherw ise lawful 1y detained. 1 DATED at ARUSHA th is 21st day o f September, 19o7« A. MUSTAFA JUSTICE OF APPEAL A o M o _.., Ci'.i*jR JUSTIC E OF APPEAL L„ I , MFALILA i ,S . JUS I I GE OF APPEAL I c e r t i f y that th is is a true copy o f the o r ig in a l. (J . Ho LiSOFFE) DEPUTY REG-ISEL'Ji.