20050204 TZHC Dar es Salaam

j • IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRir"1INAL SESSIONS CASE NO. 28 OF 2000. REPUBLIC VERSUS TATU RAMADHANI MENDE JUDGr4ENT T,a1-u, - R~.m.dr!h.,2n.,,i, _... ._.._.. -· "1Vl.onrlo I,_•~,_ k: J,_; charrior! •'::j,'-'-"1 I \1\/H-lh l'VI\.. i tho i'-' ii.. mura'e-1 of :::,.n 'i I I U1I infant; contrary to section 196 of the Penai Code. It iS alleged that she murdered the infant at kwa Mflpa Village within the District of th Kibaha, Coast Region, on 27 April, 1998. The accused has denied the charge. At the preliminary hearing on 13 th April, 2004, two facts were agreed as undisputed. One was that Chiku Selemani, the accused daughter, gave birth to a baby boy at Tumbi Hospitai 1 Kibaha 1 on 26 th April, 1998. Second, was that the baby died on 27 th April, 1998 in a bus while in the hands of the accused. At the trial, the republic was represented by Mr, Mganga, learned State Attorney and the accused was represented by Mr. Magafu, learned defence counsel. . The prosecution called a total of four witnesses to testify. PWl, Selemani Ramadhani @ Mende, was a half brother of the accused. He testified that on 26 th April, 1998, the accused asked him to drive her and her daughter, Chiku, to Tumbi Hospital Kibaha where Chiku was to be treated of diarrhea. He obiiged and left mother and daughter at the hospital. On 29 th April, 1998, he was interrogated by the police on the incidents of 26t11 April including the subsequent birth of a baby boy by Chiku and the dealth of the baby on 27/4/1998. He further stated that at the request of the police, he drove them to the accused place and she was arrested. Thereafter he drove the police and accused to Yambo, Bagamoyo, the home of the accused's uncle, vvhere the infant had been buried. He admitted that he did not know the cause of death of the infant and that he did not follow up the events thereafter. PW2, was Michael Mwilonge, a local government leader (Mwenyekiti wa Kitongoji), at Kibaha kwa Mfipa where the accused was also a resident He testified to know the accused and her daughter Chiku. He told the court how the police approached him on 29/4/1998 with a view to be led to the house where Chiku lived. He testified that he complied and he witnessed as Chiku, the accused 2 mother and the accused aunt were being put unde.r arrest by the police. He admitted that before the police arrival, he was not aware of the birth, death and subsequent burial of the infant. In cross examination . by one of the assessors, the witness testified . that, since 1990 when he assumed the Chairmanship, he had never heard of anything negative against the accused. Pw3 , was C 8520, D/CPL Clemence, a police officer who arrested the accused and investigated tile case. He told the court how they received information from some good citizens on the birth, death and burial of the infant. He stated that he carried out investigations which led to the arrest of the accused, Chiku and other relatives. He test!fied that upon arrest, the accused admitted the death of the infant !n her hands whiie on a bus home and that the body was buried at the home of the accused uncle in Bagamoyo. He told the court how the accused led the police to the burial site and how he supervised the exhumation of the body on 29/4/1998. His further testimony was that the grave was a shallow one of about l½ feet in depth and the body was wrapped up in banana leaves. The witness took down the accused Caution Statement, which he tendered and was admitted as Exhibit "P4" . In the caution statement the accused admitted that the baby died in her hands while traveling in a bus, but she did not know the cause of death. ,., .) r She also admitted to have had the infants body bu-ried at her uncles place at Yombo, Bagamoyo. Under cross examination by the defence{ the .witness admitted that she did not know the cause of death. PW4, was Baruna Mussa, a Medical Doctor at Tumbi Hospital, w!10 conducted post mortem examlnation on the infants body after it was exhumed. He was the author of the Post mortem Report which was admitted as Exhibit "PS". He testified that the body was blue in the mouth and pa!ms of the hand. He explained that the change of colour \Nas a sign of lack of oxygen in the body. Further explanation was that lack of oxygen couid have been caused by either internal to the braln or asplrat!on syndrome (Kumeza Kamasi). He ruled out bieeding because there were no signs of loss of blood. Under cross examination and re-examination, the witness ruled out that the infant was strangled because there were no signs visible on the tender body. It was also part of his testimony that oxygen flow into the infants body could have been interrupted by the type of cloth that was used to cover the baby. He stated that some of the clothes including some varieties of 'Khanga" clothes do not allow free flow of air. He further informed the court that the body parts were 4 _j all intact He also told the court that the grave was small and the body was wrapped up in.banana leaves only, According to the Post mortem Report, the cause of death was due to Hypoglycaemia (Starvation) and Asphyxia. That was the end of the prosecution case. The accused, DVl/1, was the only witness for the defence. Tatu Ramadhani @ Mende confined her testimony to the events of the fateful day, 27/4/1998. She told the court that she went to visit Chiku at Turnbi Hospital in the company of her half sister, one Mwanahamisi Ramadhani @ Mende, by then deceased. On arrival, she found that Chiku had been discharged. She stated that on the given birth the previous day; but Mwanahamisi made some unpleasant comments and remarks which did not please the accused. Further, she said that at the hospital, Mwanahamisi did not seem willing to assist. Under those circumstances, the accused had to carry the baby and Chiku's luggage including teapots, thermos, eating utensils, clothes, etc. to the bus stand. It was her testimony that as it was raining, she had to push her way into the first bus to arrive which had only one vacant seat. She further stated that Chiku and Mwanahamisi remained at the bus stand waiting for another bus which they boarded back home; Kibaha kwa Mfipa. But for the . accused 1 the story was different. It was her evidence that once 5 '• ·inside the busr she moved forward to the vacant seat! put down the luggage she was carrying and then sat down. The accused further evidence was that sh'e di$covered that the infant in her arms ·had died by the time she was settled in the seat of the bus. She further told the court how she was shocked by the death that she became totally confused and by passed the kwa Mfipa bus stop where she was to disembark from the bus. Instead, she disembarked at Kongowe, the bus terminal with the intention to board another bus back to kwa Mfipa. She realized that she had boarded a wrong bus again, when she was required to pay a fare of Shs. 500/= which was higher than the fare back home. She did not have that sum of money and started crying. A good Samaritan paid for her fare. As the bus was heading to Bagamonyo, she decided to disembark at Yorr:bo, incident to the uncie and it was agreed that the body be buried at the uncle's home; which was done. She explained that the infant's body was wrapped up in banana leaves at burial because castor leaves (Majani ya Minyonyo) which are traditionally used by villagers for infants were not available nearby. She testified that she returned to kwa Mfipa in the evening and informed her parents, Chiku and other relatives of what had happened and they all approved. She told the court that there was no formal funeral or mourning held for the deceased infant because it does not exist according to the Wazaramo customs and traditions by which an infant who dies is traditionally known as "Kizarara". Furtherr she informed the court that although 6 Chiku gave birth when she was under -preparation to undergo the traditional Zara mo ritual of "ngoma"; that was not the end of_ it. She said that according· to t_heir customs, a girl could undergo the ritu~I either before or after delivery. She also. took time to explain some apparent contradictions in her testimony and in the Caution Statement in that there was alapse of memory due to passage of time, confusion and in particular, that the caution statement was Limited to questions put to her only, She vehemently denied to have had any motive to murder the infant, her only grandchild, but attributed the death to mere accident. That was the totality of the evidence for the defence. The issue for determination before this court is whether, on the evidence above, it is the accused who killed the deceased infant. If the answer be in the positive, the next issue for determination is whether the killing was intentional. Our laws permit tvvo types of evidence to prove a matter; it can either be by way of direct evidence or circumstantial evidence (See NURDIN AKASHA ALIAS HABAB vs R (1995) TLR 227 and REPUBLIC vs SAID ZAHORO SAID, Dar es Salaam Criminal Sessions Case No. 4/1998, unreported). Having summarized the evidence above, it is clear that there is no direct evidence to prove that it was the accused who killed the infant. I will now proceed to analyse the evidence to establish whether there is sufficient circumstantial evidence to prove that it 7 could only be the accused an·d n.ot anyone else who killed the deceased. It was the defence submission that the accused vvas innocent and should be discharged forthwith. Mr. Magafu, learned counsel for the defence, contended that the prosecution had failed to prove the charge against the accused. He submitted that testimonies by the prosecution witnesses merely created suspicion against the accused because the infant died in her hands; and also the events that surrounded the burial of the infant. It was Mr. Magafu's argument that the circumstances that surrounded the whole incident including the burial were explained by the accused that it was in order under the customs and traditions of the Zaramo tribe to which the accused belonged; as far as death and burial of infants (Klzarara) were concerned, He challenged the prosecution for failure to contredict that piece of evidence of the defence. He also submitted that of tl7e four prosecution witnesses, it was on!y PW4, Baruna Mussa who testified that the death was due .to lack of oxygen. PW1,PW2 and PV\/3 testimonies on the issue were lacking. However, the prosecution submitted that the accused caused the death of the infant and that the kllling was premeditated. It was the prosecution contention that malice by the accused was inferred from her behaviour and utterances before and after the death; eg. Keeping Chiku's pregnancy confldentiai, traveling to Bagamoyo to 0 0 bury deceased, burial vvitnessed by only two people, withholding information of death from neighbours, etc On .that basis, the prosecution submitted that it had proved the case against the accused beyond all reasonable doubt and prayed for a conviction. Upon summing up to the three Gentlemen Assessors, they unanimously returned a verdict of not guilty. It was their view that the prosecution evidence fell short of proving beyond all reasonable doubt that the accused murdered the infant. Who caused the death of the deceased infant? It is trite !aw in our jurisdiction that before a court relies on circumstantial evidence to convict, the circumstances relied upon must be incapable of more than one interpretation (See HASSANI FADHILI vs REPUBLIC [1994] TLR 89). The testimonies of PVvl, PVV2 and PVV3 were essentially on events either before or after the death. None of the three witnesses knew of the cause of the death. It was only PW4, the medical doctor, who testified that the death was caused by lack of oxygen; as a result of the post mortem examination which he conducted on the body. The witness explained several causes that could have interfered or cut off flow of oxygen into the infant's body. The list included internal bleeding, strangulation, aspiration syndrome, the type of cloth that covered the infant, etc. He ruled out loss of blood or strangulation because there were no signs of loss of blood or strangulation marks on the tender body of the infant Aspiration 9 .,,. • syndrome was also ruled out because according to PW4's testimony-, the infant would not have been discharged from hospital until the problem wa? solved. By elimination, the only P.lausible cause of death was cut off of oxygen caused by the clothes that covered the infant. There was no testimony suggesting that the accused knew that the clothes that covered the infant would eventually cut off oxygen supply or that the accused specifically chose certain type of clothes to cover the infant with the knowledge that oxygen supply would be cut off. Tile possibility of lack of oxygen is corroborated by DWl's own evidence that it was raining, the bus was full and she had to push her way through the bus to reach the on!y vacant seat Under such circumstances of rain, the likelihood of over-protecting her grandchiid by covering him with several pleces of doth which cut off oxygen supply. cannot be ru!ed out . Mere accident is also another possibility. There is no doubt that the prosecution testimony created a high degree of suspicion. against the accused. PWl's testimony raised suspicion on the way the accused kept Chiku's pregnancy a secret; Pw2's testimony also raised suspicion in that the birth, death and burial were kept secret while PW3's testimony raised suspicion on why he was cheated that Chlku was not home, etc. Admittedly 1 strong suspicion was created, but DWl's testimony provided responses to most of the suspicions. At bestf there was strong evidence of suspicion against the accused. But it is a legal principle 10 • that "suspicion alone, however strong, is not enough to groun·d a conviction" {See THOBIAS MBILINYI NGASIMULA vs R. [1980] TLR 129 at 13_4}. A further principle of law is that "suspicion cannot take the p!ace of truth" {See ~OINA SI\NAKWI vs Rf C.A,T, Cr, App. No. 5/98 Mbeya registry, unreported ; which was relied upon by the Court of Appeal in BENO RASHID NDIMBO vs R, Cr.App. 27/97 Mbeya Registry, also unreported}. In the light of the evidence on record and the relevant laws, I am of the considered view that the circumstantial evidence tendered by the prosecution was insufficient to prove beyond reasonable doubt that it was the accused who maliciously caused tl1e death of the infant. Accordingly, I find the accused Tatu Ramadhani @ Mende not 11 guilty of the murder of the infant, wh,ch occurred on 27t April 1998. I therefore acquit her of the charge. Consequently, Tatu Rarnadhard Mende is to be immediately released unless she is otherwise legaliy held./-· o l \ T ~ l l - / ' C, 0 " !~ ' "1, . «it ,,.J_, . .' .. ·.,J~ i t~' - ~ t~ ,;., .!) {'~~ ~--·;, .. ~- ·.· Z// ,; .. t.:t·", . _:~ A/ .,-P - JUDGE 4/02/2005 11 L l