Judgement REPUBLIC vs CONSTANTINA FANUEL NJAU Criminal Sessions Case No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL SESSIONS CASE NO. 14 OF 2023 THE REPUBLIC VERSUS CONSTANTINA D/O FANUEL NJAU JUDGEMENT 15th & 17th October, 2024 MONGELLA, J. Constantina d/o Fanuel Njau, has been charged for the offence of infanticide contrary to section 199 of the Penal Code, Cap 16 R.E. 2022. She is accused of unlawfully causing the death of her newly born child, who was under the age of twelve months, for her own willful act or omission, but at the time of the alleged act she was under the effect of lactation and giving birth of the said child and by reasons therefore the balance of her mind was disturbed. The offence is alleged to have occurred on 25th November 2022 at Uru- Mruwia area within Moshi district, Kilimanjaro region. Page 1 of 9 The accused was granted bail pending trial. However, during hearing of this matter, the accused never entered appearance. It appears she jumped bail and efforts to locate her, even through her surety, proved futile. As such her surety, who is her husband, paid the surety bond and was discharged accordingly. Acting under the provisions of Section 264 of the Criminal Procedure Act, Cap 20 R.E. 2022, which empowers the High Court to regulate its own proceedings, the Court proceeded with trial in the absence of the accused. Her defence counsel, Ms. Mushi was however present and fully participated in the trial. The prosecution, as required under the law, had to exercise its duty to prove the charge beyond reasonable doubt. In that respect, it furnished three witnesses. The death of the child was proved by all prosecution witnesses. PW1, one Emmanuel Dawson Makundi, a medical doctor at Uru-Kyaseni Health Centre specifically proved on the cause of death. PW1 observed the cause of death being drowning in water. Describing further what he had discovered, he stated that he found the child’s heart beats had stopped and the respiratory system not functioning. As to the body features, he said that he did not find any injuries on the child’s body or broken bones, apart from a small injury on the tongue suggesting that the child had bitted his tongue. Further, he said that the child’s stomach had bloated and some foam oozing from the nose. He considered all these facts as signs that the child was in some kind of struggle, rendering him to conclude that the child died out Page 2 of 9 drowning in water. PW1 tendered the post mortem report which was admitted as Exhibit P1. One, Zakaria Kamili Njau also testified as PW2. He is the village chairman of Mruwia village. He as well testified as to the death of the child. He stated to have been informed by the accused’s husband of the disappearance of the accused who left with the children and later the child being found dead in a water channel. He testified to have witnessed the dead child in the water channel. He as well testified as to the mental state of the accused as being not well. Describing that he explained that the accused was employed to teach kindergarten children, but used to severely beat them. The accused’s husband, one Joseph Felician Mtalo, testified as PW3. He explained as to the disappearance of the accused person, the child being found dead, and as to the accused person’s state of mind. First, he stated that he was living under the same roof with the accused for about six years and were blessed with two children. He further explained that on 25.11.2022, the accused told him that she was going to her parents to greet them and she left with both children. He said that he waited for her until evening, but she did not return. That, he waited until morning the next day on 26.11.2022. In that morning, he phoned the village chairman, one Zakaria Kamili Njau (PW2) informing him that his wife had left with the children to her parents, but had not returned. He said that the chairman advised him to go to her parents and see if she was there. He went to the accused’s parents who told him that she never Page 3 of 9 arrived at their home. Following that information, they all mounted a search for her. In the course of searching, they noted a place where she had fallen. They as well found the other child, the first born, standing at the upper side. When they looked at the lower side the saw the second born in the water channel. After that, he decided to phone the village chairman informing him that he never found her at her parent’s house, but found the first child at the upper side and the second child at the lower side in the water channel. He said that the chairman advised him not to go close or touch the child until he calls the Ward Executive Officer and the community police. The community police and the village leaders arrived after one hour. That, they ordered the deceased to be removed from the water and said that the child can be buried or taken to hospital. He decided the children to be buried, however they told him to carry the deceased child to his home, so that the child is examined first by a medical doctor to see if it had any other problem or not. Explaining about the state of the child, he said that they found the child dead already as it was not moving, talking or doing anything. They then took the body home and waited for the doctor and police officers. When they arrived, the doctor examined the child and allowed them to bury the child. About the accused, he testified that during all that time until burial of the child, the accused was nowhere to be seen. That, she came back home after three months. When he questioned her as to her whereabouts, she replied Page 4 of 9 that she got afraid when she found the child already dead, thus ran away to hide into the bushes. He added that he failed to report the accused to the police as he saw the accused the accused so frightened while talking to her and he still needed to live with her. However, he said, after some time, the police officers arrived and told him that they needed to take accused. He then had nothing to say than to allow them enter the house and take her. On cross examination, PW3 stated that he never followed up on the accused on the first day she disappeared as she had the habit of going to her parents and not returning. He reiterated that he followed up and noted that she fell down. As to her health status, he said that the accused had the problem of falling and losing conscious. In that respect, he agreed on the possibility that she might have fallen and failed to handle the child. He added that the accused was by then breastfeeding, so he never allowed her to consume alcohol during that period. That the accused stayed in the bush for three months, something showing that she was mentally ill and it is possible that her mental illness caused her to commit the offence. After considering the prosecution evidence, I find it proving that the infant died an unnatural death. The nagging question remaining is whether the accused is the one who caused the death of the child. The offence against the accused is provided under Section 199 of the Penal Code, Cap 16 R.E. 2022, which states: 199. Where a woman by any willful act or omission causes the death of her child, being a child under the age of Page 5 of 9 twelve months, but at the time of the act or omission she had not fully recovered from the effect of giving birth to the child and for that reason or by reason of the effect of giving birth to the child and for that reason or by reason of the effect of lactation consequent upon the birth of the child the balance of her mind was then disturbed, she shall, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, be guilty of infanticide, and may, be dealt with and punished for the offence as if she had been guilty of manslaughter of the child. From the above provision, it is clear that the woman charged must have done an act or omitted to have done an act leading to the death of the infant. As stated earlier, the prosecution bears the duty to prove the offence beyond reasonable doubt. In that respect the prosecution ought to prove beyond reasonable doubt the specific act or omission committed by the accused which led to the death of the infant. See: Section 3 (2) (a) of the Evidence Act, Cap 6 R.E. 2022. The Court of Appeal in the case of Daimu Daimu Rashid @ Double D vs. The Republic (Criminal Appeal No. 5 of 2018) [2019] TZCA 366 (4 November 2019) explained the meaning of proof beyond reasonable doubt. While quoting its previous decision in the case of Samson Matiga vs. Republic, Criminal Appeal No. 205 of 2007 (unreported) it stated that: “A prosecution case, as the law provides, must be proved beyond reasonable doubt. What this means, to put it simply, is that the prosecution evidence must be so strong as to leave no doubt to the criminal liability of an accused person. Such Page 6 of 9 evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence. (See also Yusuf Abdallah Ally v. Republic, Criminal Appeal No. 300 of 2009, (unreported)). The said proof does not depend on the number of witnesses but rather, on their credibility (See section 143 of the Tanzania Evidence Act Cap 6 R.E. 2002 and the case of Goodluck Kyando v Republic, Criminal Appeal No. 118 of 2003, and Majaliwa Guze v. Republic, Criminal Appeal No. 213 of 2004 (both unreported).” The evidence presented by the prosecution is highly circumstantial. I am of this view on the ground that no single prosecution witness stated to have seen the accused doing any act or omitting to do any act leading to the death of the child. It is trite law that for a conviction to be based on circumstantial evidence, such evidence must be undoubtedly connecting the accused to the commission of the offence. In the case of Ecksevia Silasi and Another v. The Republic, Criminal Appeal No. 93 of 2011 (CAT at Mtwara, unreported), the Court of Appeal while quoting its previous decision in Shabani Abdallah v. The Republic, Criminal Appeal No. 127 of 2003 held: “The law on circumstantial evidence is that it must irresistibly lead to the conclusion that it is the accused and no one else who committed the crime.” In the case of Mohamed Selemani vs. The Republic (Criminal Appeal No. 105 of 2012) [2012] TZCA 221 (2 July 2012), the Court, while quoting a decision in an Indian case of Balwinder Singh v. State of Punjab, 1996 AIR 607 held: Page 7 of 9 “In a case based on circumstantial evidence the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.” It also quoted in approval the case of R. v. Kipkering Arap Koske and Kimure Arap Matatu (1949) 16 E.A.L.R 135 whereby the Eastern Africa Court of Appeal held: “That in order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than of his guilt, and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.” Considering the settled principles in the above-mentioned cases and considering the evidence by the prosecution, I find the prosecution failed to prove the offence beyond reasonable doubt. I am of this opinion on the ground that there is no evidence showing what exactly did the accused do leading to the death of the infant. So, it is not known what exactly happened to the child for it to be found dead in the water channel. It is not known as to whether it was the accused or somebody else who caused the child to drawn into the water channel, though PW3’s testimony points the accused as the last person to be seen with the child. Page 8 of 9 I have also considered PW3’s testimony to the effect that when the accused appeared after three months and he questioned her of her whereabouts and she told him that she got afraid when she saw the child dead and decided to hide in the bush. I find this piece of evidence insufficient to hold a conviction against the accused because PW3 did not explain as to what exactly the accused told him regarding what she did to the child or whether it was somebody else who drowned the child in the water channel. Further, PW3 stated to have found marks showing that the accused had fallen. I still find this assertion insufficient to hold a conviction taking into consideration that it could have been somebody else who had fallen at that place. The elder child who was also alleged to be with the accused and found at the upper side of the water channel would have explained on what exactly happened. However, no one bothered to fish out any helpful information from the said child. In that respect, I find the accused CONSTANTINA FANUEL NJAU, not guilty of the offence of infanticide she stands charged with contrary to Section 199 of the Penal Code, Cap 16 R.E. 2022. She is accordingly acquitted of the charge. Dated and delivered at Moshi on this 17th day of October 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 9 of 9