IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: Nyalall, c.J., Mwakasendo, J.A. and Kisanga, J.A. )

CRIMINAL APPEAL NO. 56 OF 1979

B E T W E E N

B O M B O TOMOLA .............................................. APPELLANT

A N D

THE REPUBLIC RESPONDENT

(Appeal f r o m the conviction and sentence
of the High Court of Tanzania at Babati)
(Mwesiumo, J.) dated the 3rd day of
October, 1980,
in

Criminal Sessions Case N q . .10 of 1977

JUDGMENT OF THE COURT

N Y A L A L I , C.J.:

The appellant, Bombo Tomola, was jointly charged with her

sis tor, namely, Tabu Tomola, in the High Court at Arusha for the

offence of murd e r - contrary to section 196 of the Penal Code —

b u t was convicted, jointly with her sister, for the lesser offence

of m a n s l a u g h t e r - contrary to section 195 of the Penal Code, and

was sentenced to twelve m e » t h s 1 i m p r i sonment like h e r sister. She

was aggrieved b y the con v i c t i o n and sentence and h ence this appeal

to this Court. Her sist e r i s f apparently, not appealing.

Mr. Kiritta, learned advocate, appeared for the a ppellant in

this appeal and the Republic was represented b y Mr. Mlawa, learned

State Attorney.

According to the proceedings in both this court and the trial

court, the following p r i m a r y facts appear not to be in dispute

botw o o n the parties : thnt one- Adna d/o Bombo died on or about

the 20th of October, 1976, at Kiru Village in Hanang District

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within the region of Arusha; that prior to her d e a t h she had

b e e n paying a v isit to the homestead o£ P.W.2 in connection

with the sickness of her father-in-law, who was also the f a ther

of the appellant and of the a p p e l l a n t ’

s sister as well as of

P.W.2; that during this visit a quarrel erupted involving the

d eceased and the a p p e l l a n t s sister who was jointly charged

with the appellant; and that in the course of this quarrel

the s i s t e r of the appellant, who appeared as the second accused

at the trial, assaulted the deceased who died soon afterwards

at the s cene of the assault; that the sister of the appellant,

who was the second accused at the trial, then left the scene,

a pparently to go and report to the police, but before she could

do so was fcpuAd by her brot h e r who is the husband of the deceased

and who escorted her to the police station where she found

the appellant already in custody; that later the police visited

the s c e n e of crime and drew a sketch plan of the scene; that one

D octor Aloisi Mruashwa, who gave evidence at the trial as

P.W.l, also visited the scene of crime and did an autopsy at

the scene; that s u b s e quently both the appellant and her sister,

who was the second accused at the trial, were taken before a

justice of the peace, that is P.W.6, to whom each made an

extra-judicial statement.

Similarly, according to the proceedings both in this

C ourt and at the trial court, the following primary and secondary

facts appear to be in dispute betw e e n the parties: it is tl>e

p r o s e c u t i o n case that when the deceased was paying a v i s i t

at the h omestead of P.W.2 she uttered der o g a t o r y or modcing

remarks regarding the sickness of the appellant's father to

the effect that the oldman was not sick trut would soon

u n d e r g o real suffering; and that as aresult of such re^^rks

both the appe l l a n t and -bar eiste*- ifthe second accused at the trial)

...../3
b e a t u p the deceased to death. Furthermore, i t is p a r t

of the pros e c u t i o n case that in the extra-judicial statements,

ma de b y the appellant and her sister, each confessed to k i l l i n g

the dece a s e d .
On the other hand, the appellant in her defence put up

an alibi to the effect that she was away washing her clothes

w h e n the deceased was b e a t e n up and that it was her sister

(the second accused) who b e a t up the deceased. The defence

of the second accused at the trial was consistent with that

of the appellant.

The f irst p oint for c o nsideration and decision is whether

the a ppellant confessed to the Justice of the Peace in her

extra-judicial statement. The appellant admits m a king a statement

to the Justice of the Peace, that is P.W.6, but she says that

w h a t she told the Justice of the Peace is the same as what she

n arrated in her defence at the trial and the magistrate who

recorded her statement made up his own story.

P.W.6, the Justice of the Peace, gave evidence at the

trial and produced the extra-judicial statement w h ich he claims

to have been made by the appellant. In that s t atement produced

at the trial as Exhibit P6 the maker of the stat e m e n t clearly

confessed to killing the deceased.

The learned trial judge considered the issue whether

the statement produced at the trial was actually made b y the

appellant and stated

"After full consideration of the evidence in this case

as far as it was given b y the Justice of the Pqace
(P.W.6) I am f ully satisfied that the Primary Court
Magistrate gave a true version of what was narrated
to him. In other words, I fully join hands with one
of the gentlemen assessors or generally that all of
them that the Justice of the Peace told us exactly
w h a t transpired in his office..".
 We h a v e also evaluated the evidence on record and we find

no ground for differing from the conclusion of the learned

trial judge. After all, no objection was made against the

p r o d u c t i o n of the extra-judicial statement at the trial and we

can see no reas o n why the Justice of the P eace transformed an

alibi into a confession'. Moreover, there was evidence to the

e f fect that before tha appellant was handed over by villagers

to police custody, she had earlier made a similar c o n fession

to P.W.4, who is her ten-cell leader.

It is true that the confession was repudiated b y the

a ppellant at the trial and the learned trial judge was aware

of this and he therefore proceeded to look for c orroborative

evidence as a matter of practice. He found it in the testimonies

of P.W.2 and P.W„3.

P.W.2, w h o is the sister of the appellant, testified to

the effe c t that she s a w the appellant and the second accused,

who is not appealing, drag g i n g the dead body of the deceased

into the compound of p.w.2's homestead. P.W.3 testified to

the e f fect that on the material day she was passing b y p.W.2's

homestead when she saw the appellant and the second accused beating

up the deceased. P.W.3 thereafter proceeded to r e port the matter

to the appropriate village authorities.

W e agre-% with the learned trial judge that the testimonies

of P.W.2 and p.w.3 provide ample corroborate-on of the repudiated

confession. It is also our considered opinion thot since the

appellant had made an earlier similar confession to h e r t-en—cell

leader, that is P.W.4, the learned trial judge could have k&sed

hjs conv i c t i o n entirely on the repudiated confession without

J..ooking for c orroboration since, u nder the circumstances, the

c o n fession could not be anything but true.

 The next point f o r consideration and deci s i o n in this case

is whet h e r the appellant caused the death of the deceased. The

learned trial judge was satisfied that the appellant caused the

death of the deceased. The evidence on this p oint is on two

levels: Firstly, there are the testimonies of eye-witnesses who

claim to have known the deceased, those are P.W.2 (the sister

of the appellant), P.W.3 (a neighbour of P.W.2) and P.W.4 (the

ten-cell leader). These witnesses claim to have seen the dead

b o d y of the person whose death is the subject of this case and

w h o m they knew. Secondly, there are the testimonies of persons

who claim to have seen the dead body of a person who was identified

to them as being that of Adaa d/o Bombo. There is P.W.l, the

d o ctor w h o performed the autopsy on the dead b o d y of the person

i dentified to h i m by one Bura Ntomola and Patrice Cyprian -

both of w h o m were not called to give evidence at the trial -

in the pres e n c e of one Dete c t i v e Serg e a n t Charles. There is

also P.W.5, Detective S e r g e a n t Hamisi, who visited the scene

of crime and drew a sketch plan of the scene on information

g i v e n to h i m b y -p.-w.2, H e also claims to h a v e b e e n accompanied

by the d o c t o r who performed the autopsy at the scene of crime..

On the evidence of the eye-witnesses, there can be no doubt

that the deceased Adaa d/o Bombo died soon after being b e aten up

b y the appellant and the second accused.

Mr. Kiritta, learned advocate for the appellant, has

submitted in effect that on the evidence of the eye-witnesses

there can be no finding that the death of the deceased was a

result of the beating administered to the deceased by the a ppellan t

and the second accused. He also submitted, in effect, that in the

absence of evidence to show a comm o n intention betw e e n the appellan t

and the second accused and the absence of evidence to show which

of the two assailants administered the fatal blow, the appellant

cannot be held to have caused the death of the deceased.

 5 -

Furthermore, Mr. Kiritta submitted vigorously that the

fai l u re to call at the trial the persons who identified the dead

b o d y t6 the doctor renders the medical evidence valueless in so

fa r as the issue of identity of the dead body and the cause of

death are concerned# He argues that the identity of the body

examined b y the doctor is not established as being that of the

person whose death is the subject of this case.

We propose to deal with this last submission first. We do

n o t a$ree that the failure to call the two persons w h o identified

the dead body to the doctor results in a failure :to establish

the identify of that body as being that of the lady whose death

is the subject of this case. We say so because there is c i r c u m s t a ­

ntial evidence which irresistibly points to the identity of the dead

b o d y as, being that of the lady whose death is the s u b ject of this

case. There is the evidence of P . W.l (Doctpf Aloisi Mrua^hwa)

and P.W.5 (Detective Sergeant Charles Hamisi) who testified

to the e f f e c t that both of them visited the scene of crime and

the doctor performed the autopsy in the presence of one police

S e r g e a n t Charles arid that the said Detective Police Sergeant

Charles Hamisi drew a sketch plan of the scene w hich showjp

quite clearly the location of the house of the lady whose death

is the subject of this case, and also the location of P,W.2's

homestead. Since, on the evidence, the body of the deceased

r e m ained at the scene of crime until the arrival of P.W.l,

and P.W.5, the circumstantial evidence is such that it gives

rise to an irresistible inference that the body on which

P . W . l did an autopsy is the body of Adaa d/o Bombo, whose death

is the s u b j e c t of this case. We find it fanciful the suggestion

b y the learned advocate for the appellant that police sergeant

_________ /7
 7 -

Charles Hamisi (P.W.5) cannot be the same police Sergeant

Charles mentioned b y the doctor (P.W.l). The authorities

cited b y the learned advocate appear to support the view that

c ircumstantial evidence, where available, can be used to establish

the identity of the dead body in the absence of d i r e c t evidence

on the issue.

In the case of Enoclea Ewul v. R. (1931 - 34) T.T.L.R. 65

the brief judgment of the court of Appeal for Eastern Africa statea:-

"The appellant has been found guilty of murder and s e n t e ­

nced to death. The evidence in our opinion amply supports
the conviction, in his examination in the Lower Court
which was read as evidence in the High Court he said:
'Whgt I have said to the police officer is w h a t I saw
with m y own eyes and that is all I want to say.* w h a t
he said to the police officer reads as follows: 'I then
held the woman b y the c hest while yoweri took the spear
arjd thrust it into the woman's vagina. He drew it out
and dug it in the ground. He then told me to take the
spear and hide it. I told him to do it himself. He said
he had not a good house to hide it in and said 'Take the
spsar and hide it in the roof at the back of your house.'
Yoveri then again got on to the woman's stomach and I went
awfcy quickly and hid the spear in my h o u s e . 1'. That the
appellant was beside the w oman Akechi shortly before her
d6ath is borne out by the evidence which f u r ther shows
that he was carrying a spear which according to the
medical evidence had blood on the shaft. The evidence
of Sgt. Zekeri Makuda is that he found this spear hidden
in, the thatch of the appellant's roof and that the
appellant v o l untarily said to him: 'This is thez spear
with w hich accused one and I killed deceased' adding
'Accused one and I killed deceased beca u s e she was* -
bewitching us'. Daudi Makuda, Chief of Lubonge, also
gaye evidence of the appellant having said: . 'That is
thp spear accused one and I killed the deceased with'.
All this evidence is clearly sufficient to convict the
appellant provided that the evidence of identification
ia satisfactory. N o t only at this session of the Court
of Appeal but at many sessions it has b e e n necessary to
point out the care that should be exercised in recording
satisfactory evidence identifying the body of a deceased
person as that of a particular person who was seen to
haTo received the injuries resulting in death. If for
instance A gives evidence of B having been mortally
injured and the latter's body is brought to hospital
where Dr. C conducts a postmortem examination on it
A should bo called as a witness to identify the body
and the doctor who conducted the post-mortem examination;
and the doctor should be asked to identify A as a person
who was present when the examination was conducted.
In the present case Dr. M c D a n i e l , w h o conducted the
post-mortem examination, said: 'I performed post-mortem
on body of adult native (female) brought to Tororo
Hospital and identified to me by Yowana as being that of one

/8
 8 -

"Akechi cf Apeipci The lacuna here is that

Yowana was not called as a witness. The learned
Acting Solicitor General while drawing attention
to this defect addressed to us a convincing argument,,
viz., that Akachi had b e e n injured in a peculiar .
and brutal manner according to the eye-witnesses
and that the w oman examined b y the doctor bore
signs of having baen injured in a s i milarly peculiar
and brutal manner. This fact taken together with
evidence of d eath of persons who had seen the woman
in an injured condition prior to her death and were
present at her death is in our opiriion sufficient
evidence of identifi c a t i o n but the cases where such
evidence would not be available can well be imagined,.
The appeal is dismissed.". 1 1

It is clear in that case that the identity of the dead body

was established not b y dire c t evidence but by circumstantial

evidence of the peculia r injuries.

In the next case of R. v. Slrasi Bachumbira (1936) 3

E.A.C.A. 40 the brief facts of the case are contained in the

headnote of the r e port which state:-

"The appellant was convicted of the m u rder of one

Mutundi. Witnesses who were present when he stabbed
Mutundi gave evidence and there was evidence that
seven days later a person called Mutundi was admitted
to hospital suffering from a wound caused by a sharp
instrument, but there was no evidence identifying this
person with the p e rson stabbed by the a p pellant.”.

On page 41 of the judgment of the Court of Appeal for Eastern

A f r i c a the Court stuted:-

"No person was called to say that the Mutundi who died
in hospital was the same as the Mutundi who was stabbed
by the appellant, and the question for us to decide
is whet h e r the death of a man alleged to have been
murdered has b e e n properly proved. It is hard l y necessary
to s a y that the onus of proving this is u p o n the crown.

Counsel for the crown submits that there is a strong

inference from the circumstances that the Mutundi who
died in the hospital is the same as the Mutundi who was
stabbed b y the appellant. We are of the opinion that
to establish such a fact from circumstances an irresistib l e
inference must be shown. Is there such an irresistible
inference. The facts are that on the 19th October one
Mutundi in the district, of Masindi was admitted to the
hospital suffering from p wound in the left side. All
the witnesses who saw the stabbing on the 19th October
refer to the victim of the assault as the deceased and in
all probability think him dead, we do not think that
we c a n say that there is an irresistible inference of
the identification.'1.
..../9
 This judgment is a clear authority for saying that circumstantial

evidence which is suff i c i e n t in identification of a dead body

m u s t be such as to give rise to an irresistible inference of

identity.

in the third case cited by the learned advocate for the

appellant, that is the case of R. v« Mpande s/o Ndele (1938)

E.A.C.A. 44 the Court of Appeal for Eastern Africa adopted

and applied the principles stated in the first two cases.

In the fourth case cited by the learned advocate for the

appellant, that is the case of Tumbo s/o Ngalishi v. R. (1953)

20 E.A.C.A. 173, the brief facts of the case are contained in

the h e a d n o t e of the judgment where it is stated:-

"The appellant was convicted of the murd e r of his mother.

A witness ideQfcifiad the deceased at the mortuary,
giving only h e r name without adding anything more by
which she could bo identified.".

The Court of Appeal for Eastern Africa stated at page 173:-

"The learned Counsel for the crown has pointed out that
the evidence as to the i d e ntification of the deceased
b o d y after it had been taken to the mortuary was not
satisfactory, in that tha witness gave only h e r name
and did not add anything more b y which she could be
identified* This c ourt has on occasions before observed
that the mere giving of the name is not sufficient.
Actually in this case there are sufficient pointers
in the other evidence to establish beyond d oubt that
the body of the dead woman, described by the identifying
witness as Agnes d/o Sauka, was in fact the wife of
the witness Mshenzi and the mother of the appellant.".

It is clear in this case that though the d i r e c t evidence was

n o t found to be sufficient to establish the identity of the dead

body, the defi c i e n c y was made good b y circumstantial evidence.

It is probable, though n o t quite certain from the judgment of the

Court of Appeal for Eastern Africa, that the d i r e c t evidence was

found to be insufficient on the basis that the name of the deceased

was given by a witness who did not disclose h o w he came to k n o w

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the deceased, for otherwise we cannot-'see how the i d entification

tyy name of the deceased b y a close relative or a pers o n who

p r eviously knew the deceased would be found to be insufficient

identification.

The medical evidence accepted b y the learned trial judge

in the pres e n t case shows that the deceased died of cardiac and

r espiratory arrest which could have arisen ftom a broken spinal

cord in the neck, on the a-ye-witness' testimony of P.W.3, w h o

corroborates the confession of the appellant as well as the

confession of the second accused - a confession which implicates

the appellant - we are satisfied and find as a fact,, like the

learned trial judge, that the deceased sustained a broken spinal

cord in the neck in the course of being beaten up b y the appellant

and the second accused.

The question which arises is who was the author of the

fatal blow or blows which broke the spinal Cord? obviously, if

the appellant was the author of the fatal blow or blows, she

could be found to have caused the d e a t h of the deceased;, but if,

on the other hand, the fatal blow or blows were administered

by the second accused, the appellant would not be found legally

responsible for the death of the deceased unless the situation

falls either u nder the provisions of section 22 or s e c tion 23

of the Penal Code, which deal with parties to a criminal offence

and offences committed b y joint offenders in the prosecution of a

comm o n purpose.

On the evidence adduced at the trial, and accepted by

the learned trial judge, there is nothing to s h o w that the

appellant was the author of the fatal b l o w or blows in the neck.

However, in the appellant's confession to the Justice of the

Poncc (P.w.6), thoro is the following statement in Kiswahili:-

/II
 - 11 -

"Mimi nakumbuka m namo tarehe 20/10/76 k a m a saa 10.30

jioni marehemu alikuwa anapigana na d a d a yangu
ndipo na mimi nikaenda k umsaidia dada yangu
k u m p i g a marehemu.".

It i s 'evident from this statement that the role of the

a ppellant in the incident, which resulted in the death of the

deceased, was that of giving help to the second accused in b eating

up the deceased, in c o m m o n legal parlance, the appellant aided and

abetted the second accused in beating up the deceased, and she is

covered by the provisions of section 22(c) of the Penal Code, ,

and she therefore caused the death of the deceased.

We have reached this conclusion after considering the

medical evidence along with the confessions of the appellant and

the second accused - confessions which are corroborated by the

testimonies of P.W.2 and p.w.3. We do not, however, accept

Mr. Kiritta's s u b mission that the appellant could not have

b e e n convicted in this case without the medical evidence

r egarding the cause of death of the deceased. The medical

evidence in this case is d i r e c t evidence of the cause of death;

b u t d i rect evidence does not preclude the cause of death being

proved by circumstantial evidence. There m a y well be cases

where the m e d ical evidence as to cause of death is essential

for a conviction, but i n our considered o p i n i o n 1 this is not such

a ca^e. since, according to the confessions of the appellant '

and that of the socond accused, the deceased died on the spot

very soon after b eing b e a t e n up with sticks by the appellant ■

and the second accused. It is our considered opinion that the

c ircumstances in this case are such as to point irresistibly to

d eath being due to the beatings administered by the appellant

and the second accused. It makes no difference that the beatings

could have trigerred off some other factor such as a heart

attnck which killed the deceased, since the situ a t i o n would fall

w i t h i n the provisions of s e c t i o n 203(d) of the Penal code u n d e r which

O O . « Q . / 1 2
 - 12 -

••a person is deemed to have caused the death of another person

although his act is no t the immediate or sole cause of death ...

... if b y any act or omission he hastens the d e a t h of a person

suffering uoder any disease or injury which apart from such act

or omission would have caused death;*'.

With regard to malice aforethought, 'the learned trial judge

agreed with the lady and gentlemen assessors who sat with h i m to

the effect that the appellant and the second accused did not intend

to kill the deceased. The appellant and the second accused were

therefore acquitted on the charge of m u rder b u t convicted for the

lesser offence of m a n s l a u g h t e r - contrary to sect i o n 195 of the

Penal Code - as there was no justification for killing the

deceased.

With regard to the sentence, the learned trial judge imposed

1 sentence of twelve years' imprisonment on the appellant and the

second accused. He decided to impose such sentence because, in

his view: "This is a very serious manslaughter case almost

bordfering murder,". with due r e s p e c t to the learned trial judge,

wc do no>; think this was "a very serious m a n s l a u g h t e r case almost

b ordering murder" since, as the learned trial Judge notad,

death occurred in the course of a m inor squabble. Moreover, no

vicious weapons were used. We are convinced that had the

learned trial judge prop e r l y directed himself on the issue, he would

not have passed :what he considered to be an exemplary sentence.

We will, therefore, reduce the sentence.

In the final analysis, therefore, the appeal against the

c o nviction is dismissed, but the appeal against sentence partly

s u c c e e d s , to the extent that we reduce the sentence to five

ye a r s ' l m p r i s o n m e n t .

The n p p o l l n n t ’
s sis tor, thnt is the second accused at the

trial and w h o has not appealed, also falls in the same position

/13
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jurisdiction of this Court is exclusively appellate, we are

not in a posi t i o n to grant any relief to the appellant's sister

unless she appeals against the sentence.

We note that b y now it would be very much late in

making an "appeal, b u t we will exercise our dis c r e t i o n in

gran t i n g h e r leave to appeal out of time to this c o u r t if she

so wishes.

And we order accordingly.

DATED at ARUSHA this 20th day of November, 1980.

F. L. NYALALI
CHIEF JUSTICE

Y.M.M. MWAKASENDO
J U S T I C E OF APPEAL

R. H. KISANGA
JUST I C E OF APPEAL

I c e r t i f y that this is a true c o p y of the original.

( H. A. MSUMI )
SENIOR DEPUTY REGISTRAR