SAID HEMED v REPUBLIC 1987 TLR 117 (CA)

 

SAID HEMED v REPUBLIC 1987 TLR 117 (CA)

Court Court of Appeal of Tanzania - Tanga

Judge Mfalila Ag JA, Mapigano Ag JA and Omar JJA

12 October, 1987

Flynote

Criminal Law - Murder - Defence of provocation - Killing in the heat of passion.

Criminal Law - Murder - Accused intended to harm another but harms a third person - Third person dies.

Evidence - Child of tender years - Whether evidence admissible.

Evidence - Standard of proof in criminal cases.

-Headnote

The appellant was convicted by the High Court of murder and sentenced to death. It was not in dispute that the appellant intending to harm an adulterer killed the deceased who was his own wife. He admitted from the beginning that he wounded the deceased byinflicting a panga blow on her face. The deceased subsequently contracted tetanus and consequently died. It was also proved that the assault was preceded by a matrimonial squabble between the appellant and the deceased and further that at the time of the incident the appellant and deceased who were originally wife and husband, were living separately. On the fateful night, the appellant contended, the deceased was surprised committing adultery with another man, her former husband and alleged that the F killing was prompted by provocation. This plea was refused by the trial court hence the present appeal.

Held: (i) Where a killing is done in the heat of passion, the defence of provocation applies and the killing is not murder, but manslaughter;

(ii) if a person feloniously assaults another in such circumstances as would make the killing of that other person manslaughter, by accident hits and kills a third person whom he never intended to hit at all, he is guilty of manslaughter;

(iii) as a matter of prudence, the evidence of a child of tender years requires corroboration before it can be acted upon;

(iv) in criminal cases the standard of proof is beyond reasonable doubt. Where the onus shifts to the accused it is on a balance or probabilities.

Case Information

Appeal allowed.

Case referred to.

1. R. v Magambo Kwenyema [1934] 1 EACA 169.

Judgment

Mapigano and Mfalila, Ag. JJ.A. and Omar, J.A.: The appellant Said Hemedi was convicted of the murder of his wife, one Esta d/o Rajabu, with whom he had begotten one child. The learned trial judge, Sisya, J., sentenced him to death. He has come to this Court in a bid to have the conviction altered to one of manslaughter. Throughout there was no dispute that the said Esta died at the hand of the appellant. 

The appellant admitted from the very beginning that he dealt her a panga blow on the face and wounded her, the incident taking place at Mtunda in the Korogwe District on Saturday 18/12/82. It appears that his assault was preceded by a matrimonial squabble D between the appellant and the deceased and that it took place when the two were living in separation. It was not in dispute that the deceased subsequently contracted tetanus and consequently died in the hospital on 31/1/83.

The appellant denied, however, that he killed her of malice aforethought. He set up a plea of provocation contending that he had surprised the deceased committing adultery with P.W.3 Zahoro Buge who was formerly her husband and that the killing was done in the resultant heat of passion. What fell for consideration and determination, therefore, was whether the killing constituted murder or nslaughter.

The prosecution produced P.W.1 Sylivester Rajabu the younger brother of the deceased. He was the principal witness for the Republic. He was a child of tender years. In the learned judge's estimation his age, at the time he appeared in the witness box in august, 1986, was between 9 and 10 years. If we go by that estimation, then the witness was aged between 5 and 6 years at the time the killing took place. He gave unsworn evidence, the judge having got the impression, upon a voir dire, that he was sufficiently intelligent to justify the reception of his evidence, though he did not understand the nature of oath. 

According to P.W.1, the assault took place near a latrine at 8.30 p.m. at the home of his parents where the deceased was then staying. P.W.1 was then answering a call of nature inside the latrine. He had asked the deceased to escort him to the latrine and she was standing outside the latrine waiting for him when she was set upon. The deceased I cried saying "Father, I am dying" and then ran to the second house of P.W.2 Julius Nyangasa, her paternal uncle, leaving P.W.1 behind. As it happened, P.W.1 did not see the assailant. But he denied that P.W.3 Zahoro was around, which, as we shall see presently, tended to support P.W.3's denial that the appellant found him with the deceased in flagrante sexual delicto. P.W.2 Julius confirmed that the deceased came to his house crying and bleeding from afresh facial wound. In reply to his question the deceased stated that she had been attacked by her husband at the latrine. He said he did not ask her why the appellant had done so. Hours later when the appellant was brought before the elders of the village he, C the appellant, alleged that he surprised the deceased committing adultery with P.W.3 Zahoro. P.W.3 who was also present vehemently denied that allegation, saying that at the material time he was at a disco dance somewhere else.

In his testimony P.W.3 stuck to that denial. He said that since her marriage to the appellant he had stopped talking to her. He went on to say that was not the first time for the appellant to make such a serious allegation against him. Previously, he said, the appellant had accused him of seducing the former wife, one Jane. According to him, the appellant failed to substantiate that charge when the matter was taken to the village elders.

The appellant gave evidence in his defence. He maintained that he surprised P.W.3 and the deceased lying on the ground committing adultery, P.W.3 on top. He said the two had not completely undressed but had only pulled up or down their clothes.

He was carrying a panga and he raised it and threw it to P.W.3. He said that this time around he wanted to leave P.W.3 with a mark, because on the previous occasion, when he surprised him committing adultery with Jane, P.W.3 had subsequently denied having done so, putting forth the question why the appellant had not left him with a mark. According to the appellant, the panga missed P.W.3 and landed on the deceased instead.

That was the substance of the evidence that was presented before the High Court in this case. After the two counsel had addressed the court and the judge had summed up the case to the three assessors the assessors stated the following opinions. The first assessor, who seemed to have accepted the version of the appellant, found that the appellant had killed his wife accidentally. The second assessor was of the opinion that the evidence in regard to the adultery was not strong. He added that "even if there was I adultery the accused killed deliberately". He advised that the appellant should be convicted of murder. He is entitled to that opinion. We wonder, though, whether he fully apprehended that the standard of proof A applicable in a criminal case of this nature is one beyond all reasonable doubt and that where the evidence burden shifts onto the accused it is sufficiently discharged by the accused by merely adducing evidence that casts a reasonable doubt in the prosecution case; and we are not sure that he understood that in this particular case, where the B appellant had put up a plea of provocation, the onus upon him was no more than to create in the mind of the court a reasonable doubt as to the truth of his story. The third assessor disbelieved the appellant's account and believed the testimony of P.W.3 that he was not present at the scene of the assault.

In his judgement the learned judge agreed with the observation of the two assessors that the appellant must have been tracking the deceased with what he described as a "homicidal frenzy". He found that the appellant did "quietly" cut the deceased with a panga and then disappeared from the scene, again "quietly". He associated himself with the view expressed by the third assessor and accepted the evidence given by P.W.3. He took the view that the evidence adduced by P.W.1 and P.W.2 afforded corroboration of P.W.3's alibi. He addressed his mind to the issue of mens rea and found that the appellant assaulted the deceased with the intention of doing her a serious bodily harm at the very least.

The substantive part of the appeal is against the learned judge's finding in regard to the intelligence of P.W.1. Counsel for the appellant Mr Kavuta has addressed us at some length on this point and referred us to the relevant materials on the record. He has F invited us to find that this child was not intelligent enough and to question his recollection of the event seriously.

In our considered opinion Mr Kavuta's contention about P.W.1's intelligence is not without some basis. In actual fact that contention squares with our own analysis and assessment. As observed above, P.W.1 was aged between 5 and 6 years at the time of the killing. He came to give evidence in the High Court four years after the event when he had attained the age of 9 or 10 years. He was then schooling in Std. III. But this is the child who told the court that he did not know the names of his parents, and that he was not aware of the fact that his sister Esta has died. We are amazed in our judgement we are not satisfied that P.W.1 was possessed of sufficient intelligence.

We therefore entertain serious misgivings about his recollection of the event. We are fully apprehensive of the fact that we are sitting on appeal and that we have not had the opportunity of seeing or hearing the witness. But on the materials on record we strongly feel that the finding of the A learned judge in respect of P.W.1's intelligence was not reasonably open to him and we are, therefore, obliged to disturb it. We take the view that as a matter of prudence the evidence of P.W.1 required corroboration before it could be acted upon.

The question that arises then is whether the testimony of P.W.2 and P.W.3 afforded corroboration of the evidence of P.W.1 Mr Mwale, learned State Attorney, appeared to think so. Like Mr Kavuta and Miss Mandari who appeared for the appellant at the trial we respectfully think not. We hardly find any corroboration in the evidence of P.W.2. C The material part of the evidence of P.W.2 wholly related to what took place elsewhere after the event. As shown, P.W.2 was not at the scene at the time of the assault. He could not have honestly sworn that the deceased and P.W.3 were not taken in the act of adultery. In this connection we have to point out that there is no evidential basis for the learned judge's finding at page 51 that the alibi put forward by P.W.3 was supported in material particular by the evidence of P.W.2.

If we believed the alibi of P.W.3 can sufficiently afford corroboration of the evidence of P.W.1. It has been submitted, however, that P.W.3 was a witness who had his own interest to serve and that it was unsafe to act on his evidence. We agree. It is possibly true that P.W.3 had been intruding into the appellant's matrimony. In sum we think that the defence of provocation should have availed the appellant. Of course the possibility that the appellant intended to hit P.W.3 does not detract from that defence. As was restated in R. v Mgambo Kwenyema, (1934) 1 E.A.C.A.169, if a person feloniously assaults another in such circumstances as would make the killing of that other person manslaughter, by accident hits and kills a third person whom he never intended to hit at G all, he is guilty of manslaughter.

Aside from that we think that malice aforethought was not sufficiently established. We are rather surprised that neither Mr Kavuta in this Court nor Miss Mandari in the High Court did touch on this point, but as we have pointed out, the learned judge adverted to H it in his judgment and found that the appellant intended to injure the deceased seriously. We get the impression that the learned judge did not examine the materials on record critically. It seems to us that the relevant materials evidence contained in the post-mortem report was of minimal help. There is hardly any way one can tell with I certitude how heavy was the single blow and how serious was the wound that was occasioned. As shown, the deceased died in the hospital on 31/1/83, that is 49 days after as the result of tetanus that had set in the wound in the meantime. We are of the view, therefore, that in any event the killing only constituted manslaughter and not murder.

We allow the appeal, set aside the conviction of murder and substitute one of manslaughter therefor. We sentence the appellant to imprisonment for a term of five years effective from the date of the conviction in the High Court.

 Appeal allowed.

1987 TLR p122