Court name
Court of Appeal of Tanzania

Hamisi Said Mchana vs Republic () [1986] TZCA 5 (26 March 1986);

Law report citations
1984 TLR 319 (TZCA)
Media neutral citation
[1986] TZCA 5

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  Ibefore he died.  It is part of the prosecution

  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   Bhe 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 Hdark.  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

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

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.

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

  A released from prison forthwith unless otherwise detained therein for other lawful cause.
Appeal allowed.

B