HASSANI FADHILI v REPUBLIC 1994 TLR 89 (CA)

 

HASSANI FADHILI v REPUBLIC 1994 TLR 89 (CA)

Court Court of Appeal of Tanzania - Tanga

Judge Makame JJA, Omar JJA and Ramadhani JJA

CRIMINAL APPEAL NO. 111 OF 1993 G

18 March, 1994

(Appeal from the conviction and sentence of the High Court of Tanzania at Tanga,

Msumi, J) H

Flynote

Evidence - Circumstantial evidence - To ground conviction on circumstancial

evidence it must be incapable of more than one interpretation. I

1994 TLR p90

-Headnote

A The appellant was charged with and convicted of murder, and sentenced to death.

The conviction was based on circumstantial evidence. The deceased died as a result of

homorragic shock due to loss of a lot of blood because of incomplete abortion, said to

have been performed by the appellant. The learned Trial Judge was satisfied that the

appellant had committed the offence. On appeal it was contended that the

prosecution did not discharge its burden of proof and that the circumstances B relied

upon were capable of more than one interpretation.

Held: We are far from being convinced that the evidence is beyond any reasonable

doubt that the appellant performed the abortion.

Case Information

C Appeal allowed.

Cases referred to:

(1) Simon s/o Musoko v R [1958] EA 715.

(2) R v Lucas [1981] 2 All ER 1008.

Lamwai, for the appellant.

D Muna, for the respondent.

[zJDz]Judgment

Ramadhani, JA, delivered the following considered judgment of the court:

E The deceased, Mariam Hamad, died at Bombo Hospital, Tanga on 3 June 1990.

The death certificate (Exh P4) prepared by Dr Samuel Mgemwa (PW11) gave cause of

death as hemorragic shock due to loss of a lot of blood because of incomplete

abortion. As to that there was no dispute. The issue was who induced the abortion.

F It was also admitted that the deceased, on that fateful day, arrived at the house of

the appellant, Hassan Fadhili, a Medical Assistant with M/S Foma Factory, at 1 pm

walking alone but with some difficulty. That was deposed by Salma Fadhili (PW12),

wife of the appellant, who welcomed the deceased as the appellant, then, was not at

home. The appellant returned home at about 4 pm and, G after being told of the

presence of the deceased, attended her. The nature and the extent of that attention

was and still is an issue.

However, it is not again disputed that at about 6.15 pm the appellant took the

deceased in a taxi to H CIC Hospital. That taxi was brought, at the instruction of the

appellant, by Ali Tondwa (PW4), a tenant of the appellant. At that time the deceased

was in a bad state and had to be assisted into the cab and also out of it when they

arrived at the hospital. There, the medical officer on duty, Twaba Kajombo (PW7), a

medical assistant, was told by the appellant that the deceased had an abortion. At that

time I she was bleeding profusely. PW7, having reached the end of his tether,

1994 TLR p91

RAMADHANI JA

advised the appellant to take the deceased to Bombo Hospital. But instead of doing

that the appellant A left the deceased and retired to his home where he was met by

two elder sisters of the deceased: Rehoma (PW1) and Rahima (PW2). What was said

between the appellant and the two sisters is a moot point but it is undisputed that the

appellant and PW1 took a taxi to the CIC Hospital from where B they transferred

the deceased to Burhani Hospital and eventually to Bombo Hospital. From the house

of the appellant, the other sister, PW2, went back to inform their mother, Hilda

(PW5), who also went to Bombo Hospital to have a last glimpse of her dear daughter.

The deceased passed away shortly after her mother arrived. It is also common ground

that the appellant made himself C scarce immediately after he delivered the

deceased at Bombo Hospital.

The deceased was buried at Muhoza on 5 June 1990 only to be exhumed twenty nine

days later and be subjected to autopsy by Sylvester Enock Mdanya (PW13), an

Assistant Medical Officer II who D produced his report (Exh P5) that the abortion

was physically induced and that the uterus was perforated.

The learned Trial Judge, Msumi J, convicted the appellant of murder. He believed

PWs 1 and 2 that the appellant confessed to them to have performed the abortion on

the deceased and the learned E Trial Judge found that evidence to be supported by

the post-mortem report (exh P5). In addition, the conduct of the appellant provided

the coup de grace. The learned judge said: `... the accused's act of taking the deceased

from his house to the afore-mentioned hospitals and paying for transport charges

clearly demonstrates his involvement in the said abortion'. F

That judgment is the subject of this appeal. It has been bitterly attacked by Dr

Lamwai, learned advocate for the appellant, but dutifully defended by Mr Muna,

learned State Attorney, for the respondent. G

Two grounds of appeal have been advanced. The first ground has a number of fronts.

For the purposes of clarity we shall deal with every aspect of both grounds as argued

by Dr Lamwai, responded to by Mr Muna and the replies of the Counsel for the

appellant.

In the first ground the appellant avers that the prosecution did not discharge its

burden of proof and that the circumstances relied upon were capable of more than

one interpretation. H

As his first point in that ground, Dr Lamwai challenged the post-mortem report (Exh

P5). He pointed out that PW13 did not disclose his academic qualifications but

merely said that he was an Assistant I Medical Officer II. Dr Lamwai pointed out

that that particular

1994 TLR p92

RAMADHANI JA

A autopsy, involving exhumation of a body buried twenty nine days previously,

called for a sound knowledge of forensic medicine which PW13 did not even claim to

possess. As evidence of the lack of pre-requisite expertise, Dr Lamwai claimed, PW13

relied on the information which was supplied to B him by the relatives of the

deceased that it was a case of abortion. Apart from that, the learned Counsel pointed

out, PW13 did not display the thoroughness of an expert in that he did not give the

dimensions of the perforation of the uterus. Dr Lamwai urged us to ignore completely

Exh P5 and the oral evidence of PW13.

C Mr Muna merely said that PW13 had some experience on post-mortem in

addition to his training as Assistant Medical Officer. In any case, Mr Muna added,

even if that piece of evidence is discarded there is still the testimony of PW11 and the

death certificate (Exh P4) that some remains of foetus were seen. However, that point

was already covered by Dr Lamwai who admitted abortion but D reiterated that the

issue was who caused it.

Dr Lamwai said that a lot of credit was put on the two sisters, PWs 1 and 2, but he

argued that they did not deserve it as each had recorded two statements at the Police

Station in a span of a year. He E said that that should not have been necessary had

they been forthcoming. Mr Muna conceded that there are some discrepancies in the

two statements of both sisters but dismissed them as immaterial.

Apart from that, Dr Lamwai argued that PWs 1 and 2 were already prejudiced against

the appellant as `daktari anayofahamika sane sane hapa mjini kwa shughuli za kuton

mimba'. As such, Dr Lamwai F contended, PWs 1 and 2 pre-judged the appellant

and then claimed that the appellant had confided to them about the abortion. Mr

Muna refuted that and stuck to his guns that PWs 1 and 2 were told so by the

appellant and that they reported thus to their mother PW5 who unsuccessfully

resisted the G burial as the death was a police case.

Dr Lamwai attacked the veracity of the two sisters even further and labelled them

liars. He cited their H evidence that the wife of the appellant (PW12) came out of

the house and rebuked the appellant for his habit of performing abortions on others'

daughters. Dr Lamwai stated that that was denied by PW12 herself and also by PW4

who was there at the material time. Mr Muna said that that was a question of

credibility which was properly decided on by the learned Trial Judge who saw all the

four witnesses. In reply Dr Lamwai said that as it was a first appeal this Court could

still make its own I finding of credibility.

1994 TLR p93

RAMADHANI JA

As his last prong of attack in the first ground, Dr Lamwai asked whether it was not

conceivable that A the deceased went to the appellant when abortion had already

been performed on her elsewhere and by another person. He advanced this

proposition from two premises. First, he said that there is abundant evidence that the

deceased had not been feeling well that morning and even before it. This was said by

the mother (PW5) and the two sisters (PWs 1 and 2). The deceased, Dr Lamwai B

reminded us, missed a day at school and had to fabricate a hospital chit to explain her

truancy. Then that fateful morning the deceased was sluggish in responding to their

mother's request to her for a cup of tea. Indeed, seen after she had prepared one, and

was allowed by the mother to resume her C sleep, she did so in the corridor rather

than in her bed. Even the preceding night one of the sisters, PW2, who shared a bed

with her, said that the deceased had not been quite herself. Dr Lamwai wondered

whether the deceased had not been at it that early.

Alternatively, Dr Lamwai questioned the unaccounted for three hours of that fateful

day. The learned D advocate revisited the evidence of PW1 who left home with the

deceased and parted ways at about 10.00 am. The deceased was then proceeding to

her friend, one Rose, of unknown surname and address. Three hours later the

deceased emerged at the house of the appellant walking with some E difficulty. That

was about 1 pm. Dr Lamwai suggested to us that the abortion was performed at Rose's

and when the going became painful, the professional assistance of the appellant was

sought.

Mr Muna again dismissed the three hours as immaterial. What is crucially important

to him is the F fact that the deceased went into the house of the appellant unaided,

albeit with some difficulty, but came out of it completely helpless. Mr Muna also

questioned the dilly-dallying of the appellant for some two and a quarter hours after

his return home. If the the condition of the deceased had G drastically worsened at

the house of the appellant, Mr Muna challenged, why didn't a Medical Assistant as

the appellant was, realise the seriousness of the situation and rush the deceased to the

hospital. Mr Muna submitted that the deceased had not gone there for professional

assistance but for an abortion and that was why the appellant took that long before he

resorted to the hospitals. H

The second ground of appeal is that the learned judge erred in law and fact to find

that the appellant had the requisite mens rea. Dr Lamwai maintained that all that the

appellant did was to try to help the deceased and not to perform an abortion. He

argued that there was in fact not even actus reus and I hence there could not

possibly

1994 TLR p94

RAMADHANI JA

A be mens rea of any sort. Mr Muna's reply was simple: since the appellant

performed the abortion he knew that death could possibly result and when it did,

then mens rea was very much there.

As already stated, the deceased had incomplete abortion. That is not disputed. That

would cause excessive bleeding. We are prepared to take it that the abortion was not

natural but induced. The B appellant himself has been of that opinion and he was

told by the deceased. The question is did he induce it as claimed by the Republic and

found by the learned judge. As already said, that decision was founded on the

evidence of the two sisters. PWs 1 and 2, of PW13 and his post-mortem report C

(Exh P5) and the conduct of the appellant.

We start by examining the evidence of PW13 and Exh P5. We may as well state right

at the beginning that a strictly thin piece of evidence does not advance the case one

way or the other. It D confirms what has already been settled: the abortion was

induced. However, it does not tell us whether or not the appellant induced it. So we

are of the opinion that it should not detain us longer. Suffice it is to say that we agree

with Dr Lamwai that PW13 neither disclosed his qualifications for the job nor did he

display his expertise in his post-mortem report (Exh P5). We, therefore, ignore E

PW13 and Exh P5 completely.

So we are left now with the evidence of the two sisters and the conduct of the

appellant.

We take it as a fact that when the two sisters arrived at the house of the appellant, the

latter took the F former for a private chat. PWs 1 and 2 were supported by PW4, a

tenant of the appellant. The question is what was said. This is the word of the two

sisters against that of the appellant. On the side of the two sisters there is the issue of

the two statements which each wrote after an interval of a year. Admittedly, the

difference between the earlier statements to and the latter ones is not as black G is to

white. But definitely it is as pink is to red. The first statements implied that the

appellant performed the abortion. Thus PW2 said, for instance `huyo daktari ni

daktari amayofahamika sana sana hapa msini kwa shughuli sa kutoa mimba tuliona

hivyo ... narohomu anofanya mambo mabaya. Mdipo huyo daktari alituita na akasoma

... Nataka iwo siri kwanza huko nyumbani kwonu msisomo H hata mkuliswa somoni

amokauywa vidomge...' But in the second statements the message was so expressed.

PW2 said `... alituambia wasi wasi kwamba yoyo alimfanyia marokomu abortion'.

The question is why was this. One would expect, as Dr Lamwai said, that the two

sisters would not have I minced their words immediately after the loss of their dear

one.

1994 TLR p95

RAMADHANI JA

Apart from that the two sisters claimed in their examination-in-chief to have told

their mother that the A appellant had performed the abortion before even the

mother went to Bombo Hospital. However, in cross-examination PW1 said that `we

could not tell our parents this information earlier because we were confused as a

result of the deceased's death'. Even in re-examination by Mr Muna she B repeated:

`I was so confused that I could not tell my parents about this incident immediately

after deceased's death'. So even the parents were told the story of abortion and that it

was by the appellant after the burial. One wonders why or did PW1 know the nature

of the mission of the deceased to Rose? C

This brings us to the three hours which have not been accounted for. Surely these

cannot be immaterial especially in view of the evidence that the deceased was

walking with some difficulty when she was welcomed by PW12, albeit the wife of

the appellant, but all the same a prosecution witness. Rose could never be identified

to clear the air. D

All the same the situation is compounded by a fact which was conceded by Mr Muna.

There was no appointment between the appellant and the deceased and that the two

were strangers to each other. The deceased arrived at the appellant's at 1 pm and then

inquired from PW12 whether that was the E appellant's house. The appellant on the

other hand, returned home at 4 pm from his father-in-law's (PW1) where he was

chatting and had lunch. At home the appellant had to be told of the presence of the

deceased.

Now, if that was so, one wonders whether the appellant would be so bold or so stupid

to perform an F abortion on a total stranger within two hours after their very first

encounter. Or was this a case of `kuokoa jahazi' (save the situation) as Dr Lamwai

puts it?

We now come to the conduct of the appellant. Did it provide the circumstantial

evidence in which the inculpatory facts are incompatible with the innocence of the

appellant and incapable of explanation G upon any other reasonable hypothesis than

that of guilt? Simon s/o Museke v R (1). Let us see the various circumstances in that

light.

One conduct is that the appellant spent a considerable amount of time before taking

the deceased to hospital. Some two and a quarter hours elapsed before the appellant

took the deceased to the first H hospital. We do not know when the bleeding

started. Unfortunately the appellant was not cross-examined on that delay. So what

we have is the submission of Dr Lamwai that the taking of a patient to a hospital is a

matter of judgment and the most that can be said is that the appellant made an error

of judgment. I

1994 TLR p96

RAMADHANI JA

A True, PW7 at CIC Hospital suggested to the appellant that the deceased be taken

to Bombo Hospital. That was not done. The appellant said that he had to look for the

relatives of the deceased first. He found them and, as it turned out, PW1 `... advised

the accused to take her to Burhani B Hospital where we sometimes get treated'.

Then when they finally reached Bombe Hospital, the appellant left immediately after

the deceased was admitted. Dr Lamwai said that the appellant had already spent a lot

of time with the deceased and that at that juncture her relatives were already there so

the appellant retired home. That to us is a C plausible explanation.

There was also the issue of the paying for the taxis. The first trip to CIC Hospital from

the appellant's house could not have been otherwise. As to the second leg from the

appellant's house to CIC Hospital in the company of PW1 that can similarly be

understood. The appellant was looking for the D relatives of the deceased and PW1

suddenly emerged and she could not necessarily have been expected to carry money

on her. The suggestion by Mr Muna that the appellant should have awaited the

mother (PW5) from whom to recover the charges, is, as Dr Lamwai said, out of the

ordinary E when the deceased was in such a bad shape. Again the appellant could

have waited to come and claim his refund any time. So that omission could be

innocent and honourable.

Lastly, there is the lie which the appellant told the medical officer of CIC Hospital

(PW7); that the F deceased was from the appellant's dispensary at Foma Factory. In

R v Lucas (2) it was said:

`... To be capable of amounting to corroboration a lie told out of Court, must

first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the

motive of the lie, must be a realisation of guilt, fear of the truth ... people G

sometimes lie, for example in an attempt to bolster up a just cause, or out of shame, or

out of wish to conceal a disgraceful behaviour from the family ...'

There is no doubt that was a deliberate lie. We are not quite sure that the lie related

to a material issue. What was important to us is that the appellant took his patient to

the hospital. We feel that it H would have been different had he said that he had

picked up the deceased from the streets. Even that lie to PW7 is not exclusively

explainable in terms of appellant's guilt.

After all is said and done, an accusing finger is pointing at the appellant. However, as

this is a capital offence the evidence has to be watertight. It is possible that the

reputation of the appellant, if any, has I contributed to his conviction. But we are far

from being

1994 TLR p97

convinced that the evidence is beyond any reasonable doubt that the appellant

performed the A abortion. Suspicion, there is, but that is not enough.

So we allow the appeal, quash the conviction of murder and set aside the sentence.

The appellant should be released immediately if he is not otherwise lawfully in

custody. It is so ordered. B

1994 TLR p97

C