ibrahim machawala vs republic 1987 tzca 81 4 may 1987

xi" Tin c o u ?lT of op ,,T IJ^TfL ~£S£±J{i! r'U'5T.,.F_. ...■ ■ A D Q-- crifit;;.l ..,?:?^i no. 54 of 1986 IBR U-IIK 17 /..-L..................... ,?P1LL.*NT Versus Tip R e p u b lic . . . . . . . . . . . . . . . .............h :ss ::o n d 3 ijt (Appeal from the conviction and sentence of The rligh Court of Tanzania at Iringa) (R.J.h. Mwaikasu, J.) dated 18 th hueust, 19-86 in Criminal Sessions Case ITo. 48 of 1986 jirp.Ti: 1 x 2 of gi-r: court F U 3 T^g.1, ^G-. C . J. The appellant vras charged w i t h and convicted of m u r d e r i n g the deceased his v/ifc b y knifing her on the neck. The deceased . suffered cut wouads which cut her trachea and jugular veins and the qause of her death was due to haemorrhage as a result of such wounds. From that conviction the appellant is appealing 1*o this Court, The prosecution case depended in the m a i n on a dying d e c l a r a ­ tion of the deceased w h i c h was allegedly heard by ?72 and P7'4* On the m a t e r i a l evening, after the deceasod had been injured; the deceased ran to the house where ?v/2 v/as staying w i t h her parents, The deceased was asking for P.74? who was the father of ?V7t, and who was a ten-cell leader. P 72's evidence “ 'as • . as follows; M ... I ixnmsdiatoly took a bicycl ■and followed m y father at the river, I found h i m and then came back w i t h him, le found at home m y mother and the deceased. Then the 10 cell leader had examined her. he sent some one to inform the village Chairman and the village Secretary^ ..... while I was at homo after calling m y father m y m o ther asked the deceased the cause of her injury and she replied thrr.t it was when sho v/as asked where she had been that day and upon replying that she was around at homo that the accused remarked that she would tell her (sic) whore she had been. Thereupon the accu s e d jumped upon her and throw her down and then started inflicting tlie injuries on her w i t h a knife Later after such, statomcnt the village Secretary and the village C-aainnan arrived but t h e y could not have any word w i t h her because she was by then in a critical condition..” P /4 testified and said on being informed by her daughter Pv72, he rushed home and found the .eoeasad lying injured in the k i t e h e n of h^g house. The deceased, when asked by ?./4, said that she ha- been injured by her husband w i t h a knife, and n o t h i n g more. So, as far as the evidence relating to the dying declar a t i o n is x o n c e m c d , it will be not i c e d that P-.Vfs mother, to w h o m it was alleged by P72 that the deceased had related the incident, did not testify. ?'./2 related what she recollected, including the sijan^e as to reason for the stabbing. P./4 related what he heard, the fact of stabbing only. It would appear that both P72 and P74 talked of the same declaration by the deceased. The ap- ellant was duly arreste ’by P.71, a detective sergeant, shortly after the killing. The appellant made a cautioned statement w h ^ Q h was admitted at tha trial without objection. However ?V/I was cross-examined by the appo.-lant ?s counsel as to whether the appellant v/as beaten and handcuffed in order to induce him to make the c a u t i o ­ n e d statement, P./I denied that suggestion. In the cautioned statement the appellant gave the foll owing narrative. On his arrival home on the m a t e r i a l day his wife, the deceased, was not at ho..;c but returned about ■ §• hour later. The deceased gave him some cooked vegetable to cat w h i c h %he appellant consumed. .fter eating th_-: food, the a p p e l l a n t suffered a s t o m a c h a g h e # The appellant also stated that ho had smelt - foul s u e 11 like some D.D. E a r k pesticide in the food. The appellant asked the d e c e a ­ sed what had she put in the food and the deceased replied that she had not p u t anything in it. The appellant then asked the deceased to eat some of the food w h i c h remained, but the deceased r e f u s e d ti> do On her refusal tiic ap .ellant and the deceased had a fight and the appellant decided to stab, mad did stab the deceased w i t h a knife, in order, in his words r'*wc would botn d i e ”, T h e appellant stated tint his mother, who testified as P * 5 , w a a w i t h them when the. fight to-ote place, a n d that P ’?5 t r i e d to intervene in tiie f i g h t } lout by then he had Qli*o«id.7 siabbsd the d eceasad* It would seem that, during that i n c i d e n t „ 01117 the appellant, the decease a aiio. P'.<5 ^oro in xnc promi se s , and it would also appear that, all tnree had consumed a considerable a '.omnt of local liquor, Pi5 oestified and stated tnat snc was lying in bed on the m a t e r ial day in tne a p p c l l a n t *s house when she heard the appellant and the deceased coming bade and later heard then quarrelling^ P:75 was surprised to hear the appellant . complaining that*the deceased had put medicine in the porridge she had cooked for him. She had not known of any quarrel between toe appellant and the de c eased before that incident^ . I n Court the appellant testified. Ho stated that on that day w h e n he arrived home at about 7 ,0 0 p , m t he found the deceas e d s t r u ­ ggling w i t h a bandit w h o m he could n o t recognise. He stated that he fought with the bandit and chascd the bandit out of the house into the bush where the bandit, managed ta beat, him into u n c o n s c i o u s ­ n e s s and ho remained in the bush t h a t night. His wife, the deceased was stabbed by the bandit who had a knife. He stated that PV/5, his m o t h e r ? was asleep in a drunke n stupor and could not have witnessed any incident^ He denied that p /5 saw him struggling w i t h the deceased, • He had no quarreJ. with PW5, but believed -that P..'5 was coached by the Police to say what she did. Ls regards the cautioned statement he had m a d e , he alleged that he only repeated what he h?.d been taught by certain police officers who had beaten him b a d l y in order that, he would make the statement he did to P'.7I, ’ .That ho had said in the cautioned state m e n t was untrue, /hat he had told t..... Court in evidence was the true, v e r sion Mr, Mwakasungula appeared for the appellant before us. He applied for and was granted permission t d 3*^0. £>±1 <>.dditional ground of appeal which, waa ::Thc appellant acted under provocation as he belie v e d the deceased had administerad poison to him", ...../4 (MwaUcasu, J) 'Hiia irial juccge^considored the defence put up by the apped-Lar at his trial. The judge concluded that the account^ given by the appellant that the deceased was l d l l e d W -a baaidit w a s ^ s i m p l y -a fiction'1 and rejected it, was of the v i e w The trial judge / . that the claim of the appellant in the cautioned statement that he was given poison by the. deceased could have amounted to provocation*, But. the judge said nHowever in the light of the d e c e a s e d ’ s own denial of such cautiencd statement to have been a t r u t h ­ ful account, that aspect of the basis for the defence of provocation, cmuld xiat be put for consideration by the lady and gentlemen, assess or s f** W i t h respect that is a misdirection. That d e f e n c e could and should have been consideredj together w i t h the other defence s put up. ./e therefore gave leave far that ground to bo a r g u e d before \kS on appea'l. The trial judge accepted, the dying declaration made by the deceased as the basis of the conviction of the appellant of murder. I n his judgment he said, on this aspect, ;tThe assessors came to a unanimous verdict that the accused was guilty of the offence charged T h e y accepted particularly the evidence of PV/2 and Pi4 on the d e c e a s e d ’s dying declaration saying that that was actually the cause of the fight duo to accused’s own jealous; after suspecting where the deceased could have been. They also accepted what had been testified by P.o There is an error here. P74 did not support the allega t i o n of the a p p e l l a n t ’s jealousy. Ke heard n o t h i n g about it. The trial judge then proceeded •'I wholly accept ..... what has been testified upon by P.* 2, P..-4 and F.v'5....... except for P.f5’s addition that the cause of the fight was a poisoned food that the accused was forced to complain about. That part of her evidence is not reflected in nor statement to the Jolico". . y v£itia respect the tzvL*l ;ju4.ge again erred. here. In the £ii*si» place no sbaoe.^ent bo the police made by P/5 was produced i n Court ? ano. P./5 -vs.s not given an opportunity to explain an i n c o n s i s t e n c y 9 if any"* Ls such no reference a t all could nave been made to any such alleged statement. In the second place, oven if the poison element were m i s s i n g from such statement it did not n e c e s s a r i l y mean that that picce of evidence could not be true. P/5 gave that defe.il in her testimony. In his judgment the judge had stated inter alia ;'They (the assessors) also accepted thst ’ /hat had been testified by the P.75 was not out of any throats or spoonfeeding by P7I as alleged by the accused, but v?as a truthful account of that she. had to a n d did sa.y freely before the Court './e are of the view that P./5's evideiice in this m a t t e r of the suspected poisoning of the food was credible. It will be noted that only PI2 alleged that she. had he a r d the deceased say that the reason for her fight with the appellant was the a p p e l l a n t ’s enquiry as to whore the deceased had been. In our view, that did not ne c e s s a r i l y rule out that the appel l a n t had also complained about suspected poi'sonod food. ic think that PV/5's evidence, as given -at the trial, would corroborate the allegation nade by the appellant in his cautioned statement that he suspectcd lie was given poisoned food by the deceased. L dying declaration generally requires corroboration before a conviction is based on it. In exceptional c i rcumstcnc e s , such corroboration may not bo required. Hero the fact of k i l l i n g by the ap :ellant in the dying declaration was corroborated by the evidence of P.75 and by the a rpcllant in his cautioned statement* But tho circumstance in wuic.h the kil l i n g took place is a m a t t e r we have to consider. We think taat there is sufficient evidence, on the basis of the cautioned statement and the testimony of P..5? wn i c n wo accept as truthful, t o show tnat th: apnellant coul . v e r " ' e l l nave susp-^-ciod. that the deceased had -adminis-te.i'ed poisoii-to iiis food.. -■ \ *■ Wc do not rule out the possibility that p./2 ’ s rec o l l e c t i o n of wnat she had Iioardmightbc faulty, as P .-/4 did not support h e r 5 it was also possible that the deceased did not spell out all the detailed circumstances. The evidence of the only witness at the k i l ling was PV/5, and her t e s t i m o n y supported the allegati o n of suspected poisoning. In the circumstances wo think it was not possible to exclude the likelihood that the a p p e l l a n t ’ s version as given in his cautioned statement m a y w e l l be true. In that event, the issue of provocation was open to him, as indeed acknowledged, b y the trial judge. We think that it was likely that the appellant d i d h o n e s t l y suspect that the deceased had tried to poison him. and that he had k illed Linder provcwiation. We allow the appeal, quash the conviction for murder, and set aside the sentence of death imposed on the a p p e l l a n t . We substitute therefor a conviction for manslaughter. We se n tence the appellant to 7 years imprisonment. D'.TID at E33YJ. this 4th day of Fay, 1937. T M s judgment i s not agreed by I.Tr* Justice Makame, A. ’ "TJ3TAFA 4/5/1987 ~ f - ... ;,G, OHTJF JUSTICE ^ r AL I certify that this is a true. c^py a£ ttae origins; 1„ (J.H. Ksoffe) D E P U T Y R'UGI 3TR :.R