R. v. Marwa Crim. Sass. Case 21-Musoma-71; 24/9/71; El-Kindy J.

R. v. Marwa Crim. Sass. Case 21-Musoma-71; 24/9/71; El-Kindy J.

The victim was found lying on the floor of a house with a number of wounds, including a swollen wound on the back of his head. He made a statement naming the accused as his attacker. Later, at a dispensary, he repeated the statement. He subsequently died. The evidence showed that his death was due to compression of the brain caused by a blood clot that had formed on the inside of the skull beneath the bruise on the outside. The wound have been caused by a heavy object and inflicted with great force.

            Held: (1) “[A] dying declaration is evidence which is admissible against an accused person, but such evidence falls into that class of evidence which needs to be corroborated before such evidence can be acted on.” But were circumstances exist showing that the deceased could not have been mistaken in his identification of the accused, a conviction can result even though such was the only evidence against an accused person. However, it is only on rare occasion that such evidence would be acted on without corroboration that such evidence would be acted on without corroboration [See R. v. Eigu s/o Odel and Anor. (1943) 10 E. A. C. A. p. 90, R. v. Muyovya bin Msumu (1936) 6 E. A. C. A. p. 128 and Pius Jasunga s/o Akumu v. R. (1954) 21 E. A. C. A. p. 331]. Such corroboration can either be circumstantial [R. v. Said s/o Abdalla (1945) 12 E. A. C. A. p. 67] or through the conduct of the accused id a declaration is made in the presence of accused [Mbingu v. Uganda (1965)E. A. p. 71] or by direct evidence.” (3) “Nevertheless, the weight to be given to such evidence could depend on various circumstances such as the circumstances in which the statement was made, the effect of the wound on the maker, ad the state of the memory and the intellectual power of the maker.”

(4) “In my view, it is possible that the deceased spoke but due to his weak condition he was probably not heard by everybody. However, in the light of the same evidence, I am unable to say that his memory and intellect had not been severely affected by the wound and the bleeding into the brain. As both medical officers testified, such an affection of the brain was not beyond the bounds of possibility. I would therefore place no weight at all on the alleged declaration as I am not satisfied that he was sound mentally when he made it. It would have been a different matter if there was other evidence corroborating this weak statement.” (5) [M]mere repetition of the same statement is not evidence of its truth, but only an indication of consistency o the maker’s belief. [See R. v. Muyonya Bin Msuma (1939) 6 E. A. C. A. p. 128]. (6) “I do not think that it made any difference when the deceased repeated the alleged statement as this would not necessarily indicate that he was sound in mind when he made it. In the normal circumstances, his condition would be expected to grow worse and it would not be unreasonable to infer this since he died slightly over four hour thereafter.” (7) Accused acquitted.