HAMISI SAID MCHANA v REPUBLIC 1984 TLR 319 (CA)

HAMISI SAID MCHANA v REPUBLIC 1984 TLR 319 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Mustafa JJA and Makame JJA

March 26, 1986

D CRIMINAL APPEAL 2 OF 1984

Flynote

Evidence - Dying declaration - Declaration made in answer to questions - None of the

questions was leading question - Whether admissible in evidence.

E Evidence - Corroboration - Dying declaration - Declaration made while deceased

was in fluctuating capacity to talk - Whether safe to base conviction upon it without

corroboration.

Evidence - Corroboration - Corroborative circumstantial evidence - An important gap

in the circumstantial evidence - Whether it can corroborate.

-Headnote

F The appellant was charged with and convicted of murder. The trial judge based

the conviction on a dying declaration and corroborative circumstantial evidence. On

appeal it was argued in favour of the appellant that the dying declaration was made in

answer to leading questions and was therefore G inadmissible in evidence. The trial

judge's finding of corroborative evidence was also attacked.

Held: (i) The dying declaration was admissible because the questions put to the

deceased were not of such H a kind as to be likely to mislead him into making a false

statement;

(ii) since the declaration was made while the deceased was in a fluctuating

capacity to talk it would be unsafe to base conviction upon it without corroboration;

(iii) in this case there is importance in the circumstantial evidence such that it

falls short of the I standard required of corroborative circumstantial evidence.

1984 TLR p320

NYALALI CJ

Case Information

Appeal allowed. A

Case referred to

1. Regina v Mitchel (1890 - 1895) Cox Cr. L. Cases. 507.

F.A. Adamjee, for the appellant B

E. Malecela for the respondent.

[zJDz]Judgment

Nyalali, C.J. delivered the following judgment of the Court: The appellant, Hamisi

Saidi Mchana, was charged and convicted in the High Court at Dodoma with the

offence of murder contrary to section 196 of C the Penal Code, and was sentenced to

suffer death by hanging. He was aggrieved by the conviction and sentence, and

hence this appeal to this Court. Mr. Adamjee, learned advocate, appeared for the

appellant before us, whereas Mrs. Malecela, learned State Attorney, appeared for the

Respondent/Republic. D

From the evidence adduced by both sides at the trial, there is a broad area of

agreement on primary and secondary facts between the parties. On the 2nd of May,

1982, the appellant and his nephew, namely, one Issa s/o Bakari left Bareko village

together on their way home at Mitati village. While thus on their way, E they

passed by the home of P.W.6: namely, Salim Bato at Pahi Village in order that the

appellant could be paid some money which P.W.6 owed him. Furthermore, there is

common ground that the appellant and the said Issa Bakari later left P.W.6's home on

their way to Mitati village. The appellant reached safely home F that same day but

his nephew Issa s/o Bakari failed to do so. It is undisputed that on the following day

of 3rd May, 1981, the said Issa s/o Bakari was discovered seriously injured in a gully

near a path leading from Bereko village through Pahi to Mitati village. It is also

undisputed that the said Issa s/o Bakari was taken G to Bereko Health Center where

he died later at night. The appellant was subsequently arrested and a post mortem

examination of the body of the deceased was done by a Dr. Machalo at Bereko Health

Center on the 5th of May, 1981.

From the same evidence adduced by both sides at the trial, the primary and secondary

facts that are in H dispute between the parties lie within a narrow compass. The

prosecution asserts that the appellant left P.W.6's home together with the deceased,

and while on their way towards Mitati village the appellant attacked the deceased.

The prosecution also asserts that the deceased made a dying declaration just I before

he died. It is part of the prosecution

1984 TLR p321

NYALALI CJ

A case that the death of the deceased resulted from the injuries inflicted upon him

by the appellant in the course of the attack.

On the other hand, it is the defence case that the deceased left the appellant at

P.W.6's home and proceeded on the way home in the company of strangers who

passed by. The appellant later followed but B he did not find or see the deceased on

the way. It is part of the defence case that the deceased was attacked by a person or

persons unknown to the appellant. The defence also contends that the deceased was

not in a position to make a dying declaration.

There are a number of points which require consideration and decision in this case.

The first and most C crucial point is whether the deceased made a dying declaration.

The learned trial judge specifically considered this point and stated:

There is also the evidence of P.W.7 Ramadhani Mjili and P.W.11 Ramadhani

Issa Hamisi about the dying D declaration made by the deceased shortly before he

died. The gentlemen assessors believed that evidence. I can see no reason to disagree.

The evidence of the dying declaration ties up very well with the rest of the evidence

for the prosecution. The deceased told these witnesses how the accused hit him as

the deceased was walking in front of E the accused. It supports the evidence of

P.W.9 Amina who met them and saw that the accused was walking behind the

deceased. The deceased told the witnesses that the accused hit him at the back of the

head, and so the F deceased would not know what weapon was used. The deceased

knew the accused and they were only the two of them walking together to Mitate. So

there could be no possibility of the deceased mistaking the identity of the accused

who, according to the evidence, was deceased's uncle. It was at about sunset when

P.W.9 Amina met the G accused and the deceased; and the deceased was found lying

a short distance away from where P.W.9 Amina had met them. There could be no

doubt therefore that the deceased was assaulted by the accused when it was not yet H

dark. The deceased could not, under the circumstances, have made a mistake as to

the identity of his assailant and no one else was with them at the time. I hold

therefore that the deceased did make the dying declaration and that he identified the

accused as his assailant.

I Mr. Adamjee, learned advocate for the appellant, has attacked the finding of the

learned trial judge in respect of the dying

1984 TLR p322

NYALALI CJ

declaration, mainly on two grounds, that is: Firstly, that the deceased was in so

serious a condition that he A could not have been capable of making the alleged

dying declaration; secondly, that the dying declaration is inadmissible as it was

solicited by questions put to the deceased by P.W.6 and P.W.11.

Undoubtedly, the evidence produced by the prosecution shows beyond doubt that

when the deceased B was discovered in the gully, he was so seriously injured and

disfigured that he could not easily be identified. Furthermore, the same evidence

shows that the deceased was incapable of talking from the time he was discovered at

the scene up to Bereko Health Center where he was taken at about 6 p.m. However,

C the evidence also shows that at about 7.45 p.m. after the deceased had been

admitted at Bereko Health Center, he briefly talked to P.W.7. The evidence of P.W.7

and P.W.11 (that is, the Ward Secretary of Bereko) is to the effect that at about 11

p.m. that same day of 3rd May, 1981, the deceased was able to talk D to them at

length. There is also the evidence of P.W.5 (Omari Bakari) the elder brother of the

deceased who, together with the appellant and P.W.4 (the father of the deceased),

visited the deceased at Bereko Health Center at about 1 a.m. during the same night.

According to P.W.5, the deceased was able to briefly E say that he had been badly

injured, though he could say no more. So the effect of the evidence of P.W.7, P.W.11

and P.W.5 is that the deceased was in a position to talk between 7.45 p.m. and 1 a.m.

The prosecution case is that the deceased did speak at length to P.W.7 and P.W.11 at

about 11 p.m. and named the appellant as the person who had assaulted him. The

defence submits that as the declaration F was made by the deceased in response to

questions put by P.W.7 and P.W.11, it is inadmissible. In support of this submission,

learned advocate cited the case of Regina v Mitchel, 1890 to 1895 Cox's Criminal Law

Cases at page 507 where Cave, J. stated: G

In my opinion it was not a dying declaration at all, but an examination, and it

is not an examination which is admissible upon this ground, but a declaration. A

declaration should be taken down in the exact words which the H person making it

uses, in order that it may be possible, from these words, to arrive precisely at what the

person making the declaration meant. When a statement is not the ipsissima verba of

the person making it, but is composed of a mixture of questions and answers, there

are several objections open to its reception in evidence which it is desirable I should

not be open in cases in

1984 TLR p323

NYALALI CJ

A which the person has no opportunity of cross-examination. In the first place

the questions may be leading questions, and in the condition of a person making a

dying declaration there is always very great danger of leading questions being

answered without their force and effect being fully comprehended. In such

circumstances the form of B the declaration should be such that it would be possible

to see what was the question and what was the answer, so as to discover how much

was suggested by the examining magistrate, and how much was the production of the

person C making the statement. It appears to me, therefore, that a statement taken

down as this was, giving the substance of the questions and answers cannot be said to

be a declaration in such a sense as to make it admissible in evidence, and that

document cannot be admitted upon that ground.

D The facts in Mitchel's case are quite different from the present one in that in the

former case the deceased made her statement in the course of depositions being taken

by an examining magistrate and in answer to numerous questions which were put to

the deceased. Only the substance of the questions and E answers were recorded by

the magistrate. In such a situation, Cave, J. correctly held that there was a danger of

the answers given by the deceased of having been obtained by leading questions. In

our F present case, the questions put by P.W.7 and P.W.11 to the deceased were

certainly not leading questions. P.W.7 asked the deceased only four questions, and

these were, according to him:

I asked him what happened ... I asked the deceased what weapon the accused

used ... I asked the deceased if there G was any reason for the assault ... I asked the

deceased if he had money ... .

The deceased made his declaration in answer to these questions. None of these can be

said to be a leading question.

H According to P.W.11 he put five questions to the deceased. These were:

I asked the deceased who had injured him ...I asked the deceased why the

accused had injured him so badly ... I asked the deceased if he had any money ... I

then asked the deceased if he had any grievances against the accused I ... I asked the

deceased why he could not defend himself.

1984 TLR p324

NYALALI CJ

The deceased repeated his declaration in answer to these questions. We agree with

Mrs. Malecela that A none of these questions can be said to be a leading question.

We are satisfied that the questions put by P.W.6 and P.W.11 were not of such a kind

as to be likely to mislead the deceased into making a false statement. For that reason,

the dying declaration in this case is B admissible. We are satisfied that the deceased

made the dying declaration. However, in view of the condition under which the

deceased made the dying declaration, that is, the fluctuating capacity to talk, we are

of the view that it would be unsafe to

base a conviction upon the dying declaration without corroboration. We shall

therefore look for evidence C to corroborate the dying declaration.

The prosecution case depends entirely on circumstantial evidence. Apart from the

dying declaration, the prosecution adduced evidence from, P.W.6, P.W.8 and P.W.9

to the effect that the deceased was seen for D the last time walking in the company

of the appellant on the way to Mitate village. Can this evidence be taken to be

corroborative of the dying declaration?

There was evidence adduced for the prosecution by way of a sketch plan, showing the

place where the E deceased was attacked and subsequently discovered. He was

attacked at point "B" on the sketch plan, which is a path leading from Pereko through

Puhi village towards Mitale village. The deceased was discovered at point "A", some

10 paces from point "B". There was also evidence that a lot of blood was found at

point "B". The evidence of P.W.9, was to the effect that the deceased was discovered

at a point F one mile away from the place she had seen him with the appellant the

previous day. This is certainly not a short distance as the learned trial judge seems to

have thought. There is thus a gap, and an important gap, in the circumstantial

evidence. There is the probability that the appellant was not in the company of G

the deceased when he reached point "A". There is also the fact that the deceased and

the appellant were close relatives who, on the evidence, were in good terms. The

absence of motive for the killing of a close relative is another important gap in the

circumstantial evidence. So the circumstantial evidence H before us falls short of

the standard required of corroborative circumstantial evidence.

Since there is no other evidence to corroborate the dying declaration of the

deceased, it is unsafe to uphold the conviction.

In the final analysis, therefore, we allow the appeal, quash the conviction, set aside

the sentence and direct I that the appellant be

1984 TLR p325

A released from prison forthwith unless otherwise detained therein for other lawful

cause.

Appeal allowed.

1984 TLR p325

B