In the court of appeal of tanzania

IN THE COURT OF APPEAL OF TANZANIA
(CORAM: MSOFFE, J.A., KILEO, J.A. And KALEGEYA, J.A.)
CRIMINAL APPEAL NO. 132 OF 2005
ISSACK VICENT ……………….………. APPELLANT
THE REPUBLIC …………………….…. RESPONDENT
(Appeal from the Judgment of the High
Court of Tanzania at Tanga)
(Longway, J.)
dated the 8th day of July, 2005
in
Criminal Sessions Case No. 3 of 1996
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JUDGMENT OF THE COURT
28 June & 10 July 2007
KILEO, J.A.:
The appel ant Issack Vicent was charged with, and convicted of the murder of Veronica d/o Luka contrary to section 196 of the Penal Code bythe High of Tanzania sitting at Tanga in Criminal Sessions Case No. 3 of He was aggrieved by the decision of the High Court, (Longway, J.) hence The memorandum of appeal filed by the appel ant contains five grounds of appeal but his complaint is mainly twofold:- One, that the learned trial judge should have found that the delay in the
trial which took place 10 years after the crime was committed occasioned a failure of justice, and two, that it was wrong to rely on the evidence of
PW1 who testified 10 years after the incident and who was below 10 years of age when the incident took place. Mr. Joshua Msakamari, learnedcounsel represented the appel ant. The respondent Republic was The facts leading to the conviction of the appel ant can be briefly The deceased Veronica d/o Luka and the accused who were both residentsof Kwamdolwa vil age in Korogwe District had a concubinage relationship.
Each lived in his/her homestead but they visited each other occasional y.
Between 2/8/1993 and 4/8/1993, which is the day that Veronica met her death there developed some misunderstanding between the deceased and the accused over the paternity of the child Upendo whom the deceasedclaimed did not belong to the appel ant, while on the other hand the appel ant believed that he had sired the child.
PW1, Anjelina John was the key witness in this case. When she testified in 2003 she gave her age as 20 years which would make her about 10 years at the time the incident occurred. According to Anjelina on thefateful day, which was 4/8/1993 the appel ant went to their home with a maize cob, which he asked the deceased to roast. The deceased was not ready to roast it immediately. She went into her room fol owed by the appel ant who locked the door behind him. Anjelina testified further that she peeped through a window and she saw the appel ant fel her mother onthe bed and made her drink some liquid he had brought. When Anjelina saw what had happened she ran outside. She met with her grandmother Dorcas Yohana (PW4) but she did not tel her anything.
Shortly thereafter, the deceased was seen staggerring out of the house. She fel down and in no time her earthly life had come to an end.
Poisoning was suspected. Some specimen from the deceased’s internal organs were taken to the Government Chemist for investigation. According to a report of one Ninyisael Yesaya tendered in court by Gloria Machuve, a Senior Chemist, the organs were found to contain a chemical known as ‘gramaxone’ used for kil ing weeds. The report stated that the chemical
is fatal to human beings depending on the amount consumed.
In his denial of the charge against him the appel ant pointed out that the child Anjelina John was too young to know exactly what took place. He also pointed out that the non-production in court of the bottle containing the liquid believed to be gramaxone weakened the case for the
prosecution.
Arguing the appeal on behalf of the appel ant Mr. Msakamari submitted that the learned trial judge erred in failing to take into accountthe long time which passed between the time of the incident and the time the trial took place. He contended that the delay not only occasioned a failure of justice, but also might have resulted in the diminishing of the recol ection of witnesses. It was argued further that extra caution should have been taken before accepting the testimony of PW1 as being anaccurate account of the circumstances obtaining on the material date.
Mr. Mganga did not support conviction. He pointed that the key witness, Anjelina John was 10 years or less when the incident occurred which would make her a child of tender years by then. When she testified, 10 years later, she was an adult. The learned State Attorney was of theopinion that the trial judge failed to address herself to the effect of the long period of time that had passed between the time of the incident and the trial. He further submitted that the trial judge did not show that she appreciated the fact that the witness was barely 10 years old when the In addition to the above, Mr. Mganga submitted that there were some discrepancies in the testimonies of the prosecution witnesses which ought to have been resolved in favour of the appel ant.
The learned State Attorney was also of the view that the fact that the bottle with the poison that the appel ant is said to have administered on thedeceased was never seen and the fact that the chemist’s report did not show the amount of poison in the deceased’s body and if it could have caused death threw some doubt on the case for the prosecution.
The key witness in this case was Anjelina John. The incident occurred some 10 years before she gave her testimony and it occurred at a timewhen she was barely 10 years old. If she had testified at the time when she was 10 years old, then being a child of tender age, a voire dire examination would have been conducted in terms of Section 127 (2) of the Evidence Act, 1967 to ascertain whether she was possessed of sufficient intel igence to justify the reception of her evidence, and understood theduty of tel ing the truth. When she testified she was already an adult and the question of a voire dire did not arise. We think, however, that there was a necessity of putting her testimony to serious test before acting on it especial y considering the lapse of time that had passed between the incident and the trial. There is no doubt that passage of time sometimesdiminishes recol ection.
Further to that, as pointed out by Mr. Mganga, there were some discrepancies in the testimonies of the prosecution witnesses, which if theyhad been properly addressed, a benefit of doubt would have been accorded to the appel ant. For example, PW2, Al en Mbelwa, claimed that Anjelina told him that her mother had been poisoned, however Anjelina stated in her testimony that she told Al en nothing. PW4 Dorcas Yohana, also stated that Anjelina told her that the appel ant had given her mother some liquid, yetAnjelina stated in her testimony that she did not tel PW4 anything.
The testimony of PW1 should have been treated with extreme caution on another account. She claimed that she saw what took place in the room by peeping through a window. Mr. Madege, one of the assessors at the trial expressed uncertainty on the guilt of the appel ant. Among the thingshe was doubtful about was PW1’s description of how she saw her mother being given something. This is how the gentleman assessor put it; “PW1’s description of seeing her mother being given something
are creating suspicion to me. It has not been said if the window
referred to was glass or what material. If the window is like
windows we know one cannot see inside. It is not stated how
much light there was inside for PW1 to see clearly”.
We are satisfied that the doubt which the gentleman assessor expressed was justified. The learned trial judge failed to address herself to this aspect of the case. Had the learned judge properly addressed herself to thequestion whether PW1 in the circumstances of the case, was in a position to take an accurate account of the things taking place in that room, she would have probably found that the conditions obtaining at the scene raised some doubt as to whether PW1 was able to see exactly what took place in In his submission Mr. Mganga also pointed out that though the postmortem report gave the cause of death as suspected poisoning, the chemist’s report did not show the amount of poison in the deceased’s body and if it could have caused death. We agree with Mr. Mganga that any drug, even aspirin is a potential poison if taken in large amounts. Thechemist, Gloria Machuve who testified as PW5 at the trial informed the court that fatality of the chemical would depend on the amount taken and body weight. We are of the view that the prosecution case fel short of proving beyond reasonable doubt that the cause of death of the deceased was the intake of ‘gramaxone’.
The inconsistencies in the case for the prosecution, the fact that PW1 who gave her testimony at 20 years of age was barely 10 years old when theincident occurred, the fact that the conditions under which PW1 witnessed the incident were not favourable for certainty of occurrings, and the fact that it was not established that the amount of poison found in the deceased’s body was enough to cause her death were al circumstances, which were sufficient to raise some doubt in the mind of the trial judge asto the guilt of the appel ant. Such doubt should have been resolved in Having considered the matter as above, we find merit in the appeal, which we hereby al ow. The appel ant is to be released from custody unless held therein for some lawful cause.
DATED at TANGA this 3rd day of July, 2007.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR

Source: http://www.judiciary.go.tz:8081/help/topic/com.optima.infocenter.judgements/Court%20of%20Appeal/Criminal%20Appeal/IssackVicentVsRepublic%20%20132%20OF%202005.pdf