19970110 TZHC Dar es Salaam

.-- IN 'lllli HIGH COURT OF '1:AM:'.iANIA A'l' :UAR ES SALAAM C.L,:IJVlIJ\.AL .SESSIONS CABE NOo 72 OF 1990 THE HEPUBLICo. o o . o • • • • • • • • o • • • • • • • • • • • • • • • • P.ROS.;;;CU'I'OR versus CR.t:;CENS IA Al'-1A'l.'UB O O O O O O O O O O O O O O O C O O O C C O O C O O O ACCU s::m ,T U n G M b~ N T BAHATI 1~ The accused Crecensia Amatus stands chagged with the offence ef infanticide contrary to section 199 of the Penal Code in that on or about 25th l"my, 1989 at Gongo la Mboto area within the District of Ilaia and the region of Dar es Salaam, she did cause the death of her child, it being a child under the age of twelve months, by a wilful act, to wit, ·by ·burying the said child behind a house; but at the time of the said act the i~id Crescensia Amutus had not fully recovered from the effeet. of giving birth~ the said child, and by reason thereof the balance •f I. her mind was then disturbedo The accused pleaded not guilty to the charge claiming that the chili was bo·rn deado At the preliminary heel.ring, the following facts were not in disputeo In 1989 the accused was living at Uongo la Mboto, in Ilala :Uis.trict. In that year the accused was pregnant and on the night of 25th May, 1989 the accused suffered some stomach pains and shortly·· thereafter she gave birth t-o a male baby. '.L'he accused was alcme when she delivered the baby. After delivery the accll6ed d\.lg out a hole and burried the baby in it. 1h~ accused informed no one ~bout her giving birth to the babyo At the time the deceased was buried in the hole, the accused had not yet recovered from the effect of giving birth to the baby, and her balance of mind was then disturbe~ as a reason thereof.· On the following day i.e. 26th May, 1989 one D7270 P.C. Sy+.vester received a report to the effect that a de::,d body of a male·, child had been seen. Later the body was recovered from the hold whith the accused had dug auto 'l'he dead body was conveyed to Muhimbili hospital where a post mortem examination was conducted on it .. The doctor who performed the post mortem examination was of the opinion that cause of death was asplysia. The accused was arrested and escorted to a Police Station and later taken to hospital to be examined. The doctor who examined the accused formed the opinion that the accused had recently given birth to a baby after about a full termo The contents of the PF.3 marked exhibit P.l was also not in dispute. ,: & 0 0 0 "'/2 .. ... - 2 Since almost all the fc1.cts are not in dispute, there remains only one fact in dispute namely whether the baby was born alive~ The Pr6secution went about proving that the baby .,~s born alive as the accused was alleging that. the child was deQd when she delivered himo Dr. Kibopile PW.la specialist in pathology at the Pathology and Morbid Anatomy Department at Muhimbili Medical Centre, told the court that he examined the dec$~sed in this case and conducted a post mortem examination on the body. He was able to see some sand in the windpipe and in the lungs of the deoea~edJ although the body and its organs hid started to decompose. The presence of tp.e sand in the lungs and windpipe ( ~ :;.-achea) :, !"r·:inoed the 'doctor that the child must have breathed while burried in the hoihe thereby breathing in sand anci subsequently dying of asphysia. The report of the post mortem examination was tendered as exhibit P2. The doctor disputed the fact put to him by the defence counsel that sand could have got into the trachea and lungs through the decomposed body. He taid that in his opinion the child was born alive and that he was certain ,of this. The accused gave an unssorn statement in which she simply said that sh~ wae pregnant c1.nd t)i,:,n .,;,ho 1:,ct"e tl!.rth to a child whom she buried because it was dead. ~hen she was taken to hospital. She said in reply to questions put to her that she never hadrd the child cry and that the the child was cold and never breathedo She also said-that she had never seen a de~d persone After the usual submissions by counsels from both sides and the summind up, the assessors were unanimous in their view that the accused was not guilty as charged because the child was dead when she buried ito They said that the sand could have entered the trachea.and the lungs through the outside as the body had decomposed and not necessarily as a result of breathing. In this case the only fact ih dispute is whether· the child was born aliveo After due consideration of the evidence and the submissions as a whole, I am satisfied that the child was born alive~ The doctor's evi- dence who is an expert in this field of Pathology and Morbid Anatomy was to the effect that the child was born alive because he could find sand in the trachea and lungs which could come there only through breathing. The doctor clearly discounted the suggestion put to him that the sand ,ould have percolated into the trachea and the lungs through the body which had decomposedo The court would need very strong reasons to disregard I the evidence of the Doctor and hold the·contraryo Indeed althoggh there was some decomposition, it was not so grave as to make the body disinte- grate and allow sand to percolate as it were through the body.. After / / all the post mortem examination was done on 26/5/1989 at 10 aomo when death had occured on 25/5/1989 at nightc The degree of decomposition would not be such as to make the body porous as it were to enable sand to pass through up to the lungso I have no reason to doubt the Doctor's evidence on this mattero The accused's statement does not advc:..nce her ca,se as against the expert e'i.idenceo She claims that the child did not cry and that it was cold and it did not breath~o But this was her girst time birth and it would be wrong to think that she knew what temperature the child should have and whether the child was breathing. She told the court in cross - examination that she was standing and the child was delivered in that positiono I therefore differ with the gentlemen assessors for the reasons given above and I find as a f&ct that the child was born alive and subsequently died of asphysia after inhaling sand in its bodyo Since the accused buried the child who was alive and who subsequently died due to lack of .. air, I find as a fact th~t she caused the child's deatho And since the act of digging out a grave ~nd burying the child was a deliberate one, I find that she caused her child's death wilfully. Under the circumstancEs in this case I find that she is guilty of infanticide under section 199 of the Penal Code. I am satisfied beyond all reasonable doubt that the prosecution has pro~ed its case as required by law. I therefore find the accused guilty as charged and I convict her accordingly. Sgdo A. Bahati JUDGE 10/1/1997 Mrso Muruke: No record of previous convictions. ' Mitigation: - Mr. M ~ . The accused is praying for l~niency as she is suffering from T.B. Moreover when she committed this offence she was aged 13 years. Now she is 19 years. The accused is praying for leniency as this is her first o offence. She was not in her proper mindo Now she has a small child who is suffering from TB as well. There are these documents - medical chits showing that she and her baby are suffering from TB and are being treated. (Documents seen and notedo)• SEN'I'ENCE: - The accused has been convicted of infanticide under s.199 of the Pe.nal Coc.J.e o '.l.'his is a serious offence attracting life imprisonment. However in mitigation the accused has snid through her counsel that she is suffering from TB. OOOO#!f/40 (1 ·- L:- as well as her child" when she con~itted the offence in 1989 as she is 19 years old nowo She is therefor praying for leniencyo I take into account all those_ things said in mitigationo I however, ·., am not oblivion of the fact that this is a serious offence which is prev2lent in cities and towns and which involves loss of life to inno- cent childreno After due consideration o~ the circumstances, in this case, I release the accused on condition thE,-!: s:1e does not commit a si.mifar offen;e for a period of 12 monthso (' 1 A. Bo.hoti ogc.n JUDGE 10/1/1997 JTJ iJG~ 10/1/1997 thut this is the true copy of the originalo f, ,\ r. A<;Z:/rcT,, '-i,tarsxJ ·,~_,,/