Dpp v. John Abdul Mwarabu, Cr app no 138 of 2003 (Manslaughter)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:      NSEKELA, J. A., MSOFFE, J. A., AND KIMARO, J. A.)

CRIMINAL APPEAL NO. 138 OF 2003

THE DIRECTOR OF PUBLIC PROSECUTIONS…………..APPELLANT

VERSUS

JOHN ABDUL MWARABU…………………………………..RESPONDENT

(Appeal from the conviction of the High Court

of Tanzania at Mtwara)

(Kaganda, J.)

Dated the 17^th day of October, 2003

in

Criminal Sessions Case No. 34 of 2002

JUDGMENT OF THE COURT

MSOFFE, J. A.:

            In the High Court sitting at Mtwara the respondent was charged with and acquitted of the offence of manslaughter of Fred John contrary to section 195 of the Penal Code. From that decision the Director of Public Prosecutions has preferred this appeal. Before us, Mr. Patience Ntwina, learned State Attorney, argued the appeal on behalf of the Director of Public Prosecutions. Mr. Herbert Nyange,

learned advocate, represented the respondent in resisting the appeal.

        At the trial the prosecution case was basically that on or about the 13^th day of May 2002 at about 12.10 midnight the respondent unlawfully killed Fred John. On the said day both the deceased and the respondent were enjoying themselves in a discotheque hall known as Blantyre in Mtwara. There were a number of other people in the discotheque at the material time. In the course of enjoyment the respondent beat the deceased. The deceased was admitted to Ligula Government Hospital where he died eventually. So, the prosecution case was based on the premise that the deceased died as a result of the alleged beating inflicted on him by the respondent.

        In this appeal Mr. Ntwina filed the following grounds:-

1.   The learned trial judge miserably erred in Law and fact in failing to evaluate and appreciate prosecution evidence which proved the offence beyond all reasonable doubts.

2.   The learned trial judge erred in Law and fact in rejecting prosecution circumstantial evidence which proved the deceased death to be due to beatings.

3.   The learned trial judge erred in Law and fact in reaching decision without consideration as to the prosecution case.

4.   The learned trial judge erred in Law and fact in delivering a judgment without points for determination and reasons for decisions thereon.

In support of the first, second and third grounds Mr. Ntwina essentially urged one major point:- That the  prosecution established the case against the respondent beyond reasonable doubt. In saying so, Mr. Ntwina contended that the prosecution evidence taken as a whole, and notably that of PW2 Juma Napone and PW4  Selemani Ibrahim Napala, established that the respondent unlawfully killed the deceased as a result of the beating in question. In his further view, there were no contradictions in the prosecution case. In other words, and if we may repeat, Mr. Ntwina was of the very strong view that the available prosecution evidence established that the respondent unlawfully killed the deceased as a result of the alleged beating.

The crucial issue is whether or not the respondent caused the death of the deceased. In order to answer this pertinent question we have to revisit the evidence on record, albeit in brief. Indeed, this being a first appeal we are entitled to evaluate the evidence afresh and arrive at a conclusion we will deem fit in the matter.

A total number of five witnesses testified for the prosecution. PW1 Ibrahim Napone stated that on the material day and time he was in the discotheque in question. While there, a certain young man came to him and told him that Fred John (the deceased) was lying down outside the hall. He walked out and found Fred John lying on the ground. He talked to him. The latter told him that he had been beaten by John and another person. He did not, however, know the person in the name of John whom the deceased was referring to.

PW2 Juma Napone was also in the discotheque. According to him, the deceased was beaten twice; at first in the hall and then outside. In the hall he saw a certain boy beat the deceased but he did not see John (the respondent) doing so. Outside the hall he saw the deceased being beaten by the respondent.

PW3 was Samli Ibrahim Napone. At best, this witness heard of the death of the deceased and identified his body at Ligula Government Hospital.

PW4 Selemani Ibrahim Namala was also in the discotheque on the material night. This witness had a lot to tell about what happened in the discotheque, and the fact that eventually he retired home where he slept in one room with the deceased. Throughout the night the deceased was complaining of stomach pains and had difficulties in

urinating. In the course of all this, the deceased told him that he fought the respondent on the night in issue.

PW5 WP4711 PC Janeth recorded the deceased’s statement. In the statement the deceased said he did not know his assailants. Indeed, PW5 tendered the statement in court, at the request of the defence, in which the deceased is recorded to have said:-

“…………..nikiwa kwenye muziki ninacheza na wenzangu akina Ibrahim Napone, John Uwendu huku tukiwa tunacheza nimelewa nilistukia watu nisiowafahamu walinipiga baada ya kuona nimeumia wenzangu wakanichukua na kunipeleka (hospitali) nyumbani na nilipoona hali yangu inazidi maumivu nikaja hapa kutoa ripoti kwani hao watu walionipiga siwafahamu na sijui nilikuwa nimewafanyia nini kwani nilikuwa nimelewa………”

In her evidence in court PW5 said that the deceased told her that he did not know the person(s) who assaulted him on the fateful night.

        The defence case was comprised of three witnesses. DW1 Hassani Mwalupa, an Assistant Medical officer, was stationed at Ligula Government Hospital at the material time. On 15/5/2002 the deceased came to the hospital complaining of stomach pains. After observing the deceased he operated him. On 17/5/2002 he, together with DW2 Dr. Rashidi Mlandoa and one Dr. Mpelumbe who did not testify, conducted a post mortem examination of the deceased’s body. Having done so, a post mortem examination report was prepared and eventually produced by DW1 and admitted in evidence without objection, at the trial. In their findings, the three doctors were of the view that the death was due to peritonitis of tuberculosis (TB). In the testimony of DW2, when conducting the operation the doctors did not see any indication that the deceased had been beaten.

 DW3 John Abdul Mwarabu (the respondent) was also at the discotheque on the day in question. In his evidence in court he gave an account of what he did on that night. For purposes of this judgment, we do not have to repeat all that he said on the point. It will suffice to say very briefly that in his defence he denied beating the deceased.

 Under S. 195 (1) of the Penal Code the prosecution had a duty to prove that the respondent by an unlawful act or omission caused the death of the deceased.

        The general rule is that in a criminal trial the onus of proving a charge against an accused person beyond reasonable doubt lies on the prosecution. Mr. Ntwina wants us to hold that the case against the respondent was proved beyond reasonable doubt. The question is whether the above prosecution evidence established the respondent’s guilt to the required standard.

        To start with, the prosecution case was not consistent. While PW4 said that the deceased told him that he fought the respondent, to suggest that in the process the respondent beat him, PW5 stated that the deceased said he did not know his assailants! Surely, if the deceased could disclose the respondent’s name to PW4 we wonder why he could not do so to PW5!

        In the evidence of PW2, as already shown above, the deceased was beaten twice; at first in the hall and later outside. This witness was positive that the respondent was not involved in the first beating. His involvement was in the second beating outside the hall. If so, and assuming that the deceased’s death resulted from a beating, no evidence was forthcoming from the prosecution to show that the death was due to the second beating and not the first one.

        Surely, in the light of the above prosecution evidence it cannot be safely said and concluded that the prosecution proved the case against the respondent beyond reasonable doubt. Indeed, we see no basis in Mr. Ntwina’s strong assertion that the case against the respondent was established to the required standard.

        In a criminal trial the general principle is that all that an accused need do is raise reasonable doubt as to his guilt. (See Georges, C. J. (as he then was) in Fanuel Kiula v R (1967) HCD 369). Having said so, we are of the strong view that the respondent did cast a reasonable doubt on the case for the prosecution. We say

so in view of the medical evidence which was produced at the trial. DW1 and DW2 were positive that the death was due to peritonitis of tuberculosis. Indeed, the post mortem examination report which they prepared and was eventually produced in evidence without objection was to that same effect, as already stated. The prosecution side did not bring any evidence to prove otherwise the above medical evidence. This is where we agree with Mr. Nyange in his view on the reasoning in Leonard Mpoma v R (1978) TLR 58 that where there is medical evidence to show that a person died of natural causes the prosecution has a duty to prove otherwise. In the instant case, in the absence of evidence from the prosecution to disprove the medical evidence we have no basis in agreeing with Mr. Ntwina that the deceased met his death due to a beating inflicted on him by the respondent. At any rate, as already observed and if we may respectfully repeat, DW2 was very clear, and uncontradicted for that matter, that in examining the body the doctors did not see any indication that the deceased had been beaten.

        As stated above, Mr. Ntwina did not say anything on the fourth ground of appeal.  In the absence of a submission by him on the ground, we find no justification in discussing it. At any rate, in view of the position we have taken on the first, second, and third grounds of appeal the failure to discuss the fourth ground is inconsequential.

        In the event, for the above reasons, the appeal has no merit. We accordingly dismiss it.

        DATED at DAR ES SALAAM this 27^th day of March, 2007

H. R. NSEKELA

JUSTICE OF APPEAL

J. H. MSOFFE

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

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