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,
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
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 Fcontended, 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.
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
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.
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
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 Icontributed to his conviction. But we are far from being
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