saidi hemedi vs republic 1987 tzca 82 12 october 1987

AT T .,!-'! ! . -------------- t u k rook W T /iv n s t o the ( CORAM? OMiJ l, J 0_iv. , I-lFjJixLii, A g ,_J . ^ |- ^ A CRIMINAL APPEAL NO. 58 OF 1986 SAIDI HEhKOI. . . . . . . . . . . . APPJLLA1OT VERSUS T£S IlEFUHLIC. . . . . . . . . . . EiSSPOSDERT (Appeal from the con v iction o f the High Court o f Tanzania at Tanga) (S isy a , J . ) dated the 22nd day o f August, 1986 in Crimi nal Sessions Case No. 7 o£ 19^4 JUDGMENT OF THE COURT MAPIGANO. Afi, J.A .s The appellant S a id i Hemedi was con victed o f the murder o f his w ife , one -Csta d /o R ejatu, with whom he had. begotten one c h ild . The learned t r i a l jud^e, S isya, J . , sentenced him to death. Ho h?s cone to th is Court in a bid to have the c o n v ic tio n a ltered to one o f manslaughter. Throughout there was no dispute that the eaid Esta died at the hand o f the ap p ella n t. The appellant admitted from the very beginning that he d e a lt her a panga blow on the fa ce and wounded her, the in cid en t taking place at Mtund.a in the Korogwe D is t r ic t on Saturday 18/12/82,- I t appears that t h is assault was preceded by a matrimonial squabble between the appellant and the deceased and. that i t took place when the two were liv in g in sepa ra tion . It was not in dispute that the deceased, subsequently contracted tetanus and consequently died in the h osp ita l on 31 / 1 / 83 * The appellant d en ied , however, that he k ille d her o f m alice aforeth ou gh t. He s e t up a plea o f p rovoca tion , contending that he had surprised the deceased committing adultery w ith P.W.3 £ahoro 3ugc who was form erly her husband and. that the k illin g v:as done in the re su lta n t heat o f passicia*. What f e l l fo r con sid eration and determ ination , th e r e fo r e , was whether the k i l l i n g con stitu ted murder or manslaughter. The prosecution produced P , 1 S y liv e s te r ilajabu the younger broth er o-f the deceased. He was the p rin cip a l w itness f o r the R ep u b lic. He was a ch ild o f tender yea rs. In the learned ju d g e 's estim ation his age, at the time he appeared in the w itness box in August, 1986 , was between 9 find 10 y ea rs. I f we go by that estim ation , then the w itness was aged between 5 and 6 years at the t ine the k i l l i n g took p la ce . Ho gave unsworn evidence, the judge having got the im pression, upon a v o ir d ir e , that he was s u f f ic ie n t ly in t e llig e n t to ju s t i f y the recep tion o f his evidence, though he did not understand the nature o f an oath. According to P .W .l, the assault took place nesr a la t r in e at 8 ,3 0 p.m. c t the home o f his parents where the deceased was then sta y in g . P.W .l v:ss then answering a c a l l o f nature in sid e the la t r in e . He had asked the deceased to ea ccrt hin to the la t r in e and she was standing outside the la tr in e w aiting f o r him when she was set upon. The deceased cr ie d saying "Father, I am dying '1 and then ran to the second house o f P.W.2 Juliu s Fyangosa, her paternal u n cle , leavin g P.W.1 behind. As i t happened, P.W.1 did not sec the a s s a ila n t. But he denied that P.W.3 iSahoro was around, which, as we s h a ll see p resen tly , tended to support P.W .3'3 d en ia l that the appellant found hin w ith the deceased in fla g ra n te sexual d e l i c t c , P.W.2 Ju liu s con firn ed that the deceased came to h is house cryin g and bleeding from a fre s h f a c ia l wound. In rep ly to h is qu estion the decco.jed stated that she had been attacked by her husband at the la t r in e . He said he did not ask her why the appellant had done s o . Hours la t e r when the appellant was brought b efore the e ld e rs o f the v illa g e he, the a p p ella n t, alleged, that he had su rp rised the deceased committing adultery w ith P.W.3 ^ahoro. P.W.3 who was a ls o present vehemently denie»l that a lle g a t io n , saying that at the m aterial time he was at a :!is c o dance somewhere e ls e . In his tebtiaony P.W.3 stuck to thgt d en ia l. He said that sin ce her marriage to the appellant he had stopped ta lk in g to her. He went on -to say that that was not the f i r s t time f o r the appellant to make such a seriou s a lle g a tio n against him. P rev iou sly , he s a id , x , ______ _____ w . ~ i-.j-i-j ui t.u uumg aiG xorraer w n e , one Jane. According to bin , the appellant fa ile d to iruhstontiete that to charge when the n atter was taken/the v illa g e e ld e rs. The appellant gave evidence in his d efen ce, He maintained that he surprised P.W.3 and the deceased ly in g on the ground committing a d u lte ry , P.W.3 on to p . He said the two had not com pletely undressed but had. only pu lled up or down th e ir c lo th e s . He a s carrying a panga. and he ra ised i t and threw it to P. 17,3. lie said that t h is time around, he wanted to leave p.W.3 with a irark, because on the previous o cca sio n , when he surprised him cor:.”.’ i t ting: ad u ltery with Jane, P.W.3 tea subsequently denied, having done s o , putting fo r t h the question why the appellant had not l e f t hin with a mark.. According to the appellant., the panga missed P»W.3 and landed on the deceased instead.. That was the substance o f the evidence that was presented before the High Court in t h is case. A fter the two counsels had addressed the court and the rjudf'e had summed, up the case to the three a ssessors the assessors stated, the fo llo w in g op in ion s. The f i r s t a s se s s o r, who seemed to have accepted the version o f the a p p ella n t, found that the app ellan t had k ille d his w ife a c c id e n t a lly . The second assessor was o f the opinion that the evidence in regard to the adultery was not stron g . He added that i!even i f there was adu ltery the accused k ille d d e lib e r a t e ly ” . He advised that the appellant should be convicted o f murder. He is e n title d to that op in ion . We wonder, though, whether he f u lly apprehended that ;he standard o f p roof a p p lica b le in a crim inal case o f t h is nature is one beyond a l l reasonable doubt and. that where the evidence burden s h ift s onto the accused, i t is s u f f ic ie n t ly discharged, by the accused, by merely adducing evidence that ca sts a reasonable doubt in the p rosecu tion case. :md we are not sure that he understood that in th is p a r tic u la r ca se, where the appellant had set up a pica c f p rovoca tion , the onus upon him was no more than to crea te in the mind, o f the court a reasonable doubt os to the truth o f his s to r y . The third assessor d is b e lie v e d the a p p e lla n t's account and believed the testimony o f P.W.3 that he was not present at the scene o f the a ssa u lt. jja ma juagmenx tne learned judge agreed w ith the observation o f the two assessors that the appellant must have been tracking the deceased w ith what he described os a "hom icidal fre n z y 1'. He found that the appellant d id ''q u ie t ly 1' cut the deceased w ith a psnga and then disappeared from the scene, again “q u i e t l y 1. 3Ie a ssocia ted him self w ith the view tzpre;jued by the th ird assessor and accepted the evidence given by P.W.3. He took the view that the evidence adduced by P.W.1 and P.W.2 afforded, corrob ora tion o f P.W .3's a lib i. He addressed his mind to the issue o f mens rea and found that the appellant assaulted the deceased with the in ten tion o f doing her a. seriou s b o d ily h:rn at the very le a s t . The substantive p srt o f the appeal is against the learned ju d g e 's fin d in g in regard to the in te llig e n ce o f P,\7.1. Counsel f o r the appellant Hr, Kavuta has addressed us at some length on th is point and referred us to the relevant rx’t e r i o l s on the re co rd . He has, invited us to fin d that th is c h ild was not in t e llig e n t enough and to question his r e c o lle c t io n o f the event s e r io u s ly . In our considered opinion Mr, Kavuta's contention about P .W .1's in t e llig e n c e is not without some b asia. In actual fa c t that con ten tion squares with our own analysis and. assessment, As observed above, P.W.1 was aged between 5 2nd.6 years at the time o f the k i l l i n g . 3c ctmt to give evidence in the high Court fou r years a ft e r the event when he had. attain ed the age o f 9 or 10 y e a rs . He was then sch oolin g ' in Std. I I I . But this, is the ch ild who t o ld the court that he d.id. not know the names o f hie parents., and. that he was not aware o f the fa c t that h is s is t e r list a has d ied . We are amazed, and in our judgment we are not sa tisfie d , that P.W.1 was possessed, o f s u ff ic ie n t in t e llig e n c e . We th erefore en terta in seriou s m isgivings about his r e c o i l action o f the even t. We are f u lly apprehensive o f the fa c t that we are s it t in g on appeal and that we have not had the opportunity o f seeing or hearing the w itn ess. But on the m aterials on record we stron g ly f e e l that the fin d in g o f the learned judge in resp ect o f P.W.1*s in t e llig e n c e was not reasonably open to him and. we are, th e r e fo r e , obliged, to d istu rb i t . We take the view that as a n a tter o f prudence the evidence o f P.W.1 required corrob ora tion before i t could be acted upon. . rue question thet arisev. tbc.i is whether the testimony o f P.W.2 and P.W.3 afford ed corrob ora tion o f the evidence o f P *l/.1. Mr. Mwale, learned *>tate A ttorney, appeared to thinic s o . iiiLe i<r. liavuta and Miss ••bnc’ t-ri who appeared, f o r the appellant .at the t r i a l we r e s p e c t ifu lly think n o t. We hardly fine- any corrob ora tion in the evidence o f P.W.2. The m aterial part o f the evidence o f P.W.2 w holly r e la te d to whet took place elssvh ere a ft e r the event. As shown, P.W.2 waa not at the scene at the tin e o f the a s s r u lt. He could not have honestly sworn that the decensed ar:’ P.W.3 were not taken in the act o f ad u ltery. In th is connection we have to point out that there ie no c-vider.tia'l basis f o r the learned ju d g e 's fin d in g at paje 51 that the a l i b i put forwnrd by ..W ,3 was supported in m aterial p a rticu la r by the evidence o f P.v.r. 2, I f b eliev ed the a l i b i o f P.W.3 can s u f f ic ie n t ly a ffo r d corrob ora tion o f the evidence o f P .’ .'.l. I t he:.: been subm itted, however, that p.V.r, 3 was a w itness who had. his own in te r e s ts to serve and that i t was unsafe to act on his evidence. We agree. I t is p ossibly true that P.W.3 had been intruding in to the a p p e lla n t's matrimony, In sum we think that the defence o f provocation should 'a v e availed the a p p ella n t. Of course the p o s s i b i l i t y that the appellant intended to h it P.W.3 does not d e tra ct from that d efen ce. As was resta ted in v It oribo Kwenyema., (1934) 1 ii.A.C.A. 169, i f a person fe lo n io u s ly ^ sacu lts another in such circum stances as would sake the k illin g o f that other person manslaughter, by accident h its and k i l l s a th ird person v/hem he never intended to h it at a l l , he is g u ilty o f rc-aalfxrfcter. Aside fro n that we think that ;a lic e aforstaou^’ht was not s u f f i c i e n t l y esta b lish ed . We are rather surprised, that n eith er Mr. Kavuta in t h is Court nor Hiss Mondari in the High Court did touch on t h is p o in t, but as we have pointed ou t, the learned judge adverted to i t in h is judgment and fotuid th:.:t the appellant intended, to in ju re the deceased s e r io u s ly . We :'et ths inpress ion that the learned judge did not ex?aine the m aterials on record c r itic a lly . I t seens to us that the relevan t m aterials on record were not com pelling enough.. Quite obviou sly the medical evidence contained in the post-mortem report was o f minimal ho Ip . There is hardly any way one can t e l l w ith certitu d e how heavy was the s in g le blow and how seriou s was the wound that woa occa sion ed . As shown, the deceased died in the h osp ita l on 3 1 /1 /8 3 , that is 49 days a ft e r the a ssa u lt, o f tetanus that had set in the wound in the meantime. We are o f the view , th e r e fo r e , that in any event the k i l l i n g only co n s titu te d manslaughter and not murder, Ve a llo w the appeal, set aside the con v iction o f murder and su b s titu te one o f manslaughter t h e r e fo r . We sentence the appellant to imprisonment f o r a term o f fiv e years e f fe c t iv e from the date o f the co n v ictio n in the Hi£:h Court. DATED at TANGA t h is 12th day o f O ctober, 1987. A, M. A. OKA? ju s h c ic 0? Appin'ii'- L. M. Ilij'ALILA Ag. JUSTICE 0? D„ i-'. ■fig. JUSTICE OF A?i£.*L I c e r t i f y that t h is is a true copy o f the o r ig in a l. (J . II. SENIOR DEPUTY RESIoTllAR.