Rex v Ndele (Cr. App. No. 166/1937) [1938] EACA 44 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before Sir Joseph Sheridan, C. J. (Kenya); Sir Charles Law, C. J. (Zanzibar); and LUCIE-SMITH, J. (Kenya).

REX, Respondent (Original Prosecutor)

# MPANDE s/o NDELE, Appellant (Original Accused)

## Cr. App. No. 166/1937

#### (From H. M. High Court of Tanganyika)

Criminal Law-Murder-Identification of corpus delicti-Re-trial-Attempted murder.

Appellant was convicted of the murder of one Matongo. witness who was present when he struck Matongo hard on the lefthand side of the head with a panga gave evidence and there was evidence that a man was admitted to hospital suffering from a wound, caused by a blow of a sharp weapon such as a panga, on the left-hand side of his head which caused his death 4 days later, but there was no evidence identifying this man with the person struck by the appellant.

Held (29-1-38).—That there was not an irresistible inference that the person who died in hospital was identified with the person proved to have been struck<br>by the appeilant and that a retrial should not be ordered merely to enable a gap in the case for the prosecution to be filled.

Held further.—That the evidence established a case of attempted murder against the appellant and that the conviction should be altered accordingly.

Appellant, absent, unrepresented.

Dennison, Crown Counsel (Kenya), for Crown.

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—In this case we find ourselves confronted with the same difficulty as that which faced this Court in the case of Rex v. Sirasi Bachumira (3 E. A. C. A 40); that difficulty is whether on the evidence the body of the man alleged to have been murdered has been identified. Crown Counsel has submitted that he has a doubt as to whether the fact has been established and in our view there is substance in his submission. That the learned trial Judge was exercised on the point is shown by the re-call of Dr. Blackwood before the conclusion of the Crown case. The trial took place on the 2nd November, 1937, and the first witness named Ntonya binti Maliosi gave evidence that about two months before that date on the occasion of a circumcision ceremony she saw accused Mpande hit a man Matongo with a panga on the left side of the top of the head with the result that the latter fell down. On the 24th August, 1937, a native of between 45 and 50 years was received by Dr. Blackwood at Dodoma Hospital; he was alive and suffering from a wound on the left side of the head a very short distance above the ear; in the opinion of the Doctor the wound was due to a blow from a heavy sharp weapon such as a *panga*. The man died after 4 days in hospital during which time he was conscious but could not and did not speak. No witness was called to identify the man to the Doctor and nobody who knew him in life was called to say that the man who arrived in this injured condition at Dodoma Hospital was the man whom Ntonya said she had seen struck with a

panga by the accused. In answer to a question put by the Court the Doctor said, "The man's name was given to me in writing in a statement which accompanied him which was sent by the compounder at Manyoni. He was accompanied by a dresser. The compounder was Lopes. The letter I received from the compounder was a carbon copy of a letter written by him to me. That is the usual procedure on compounders sending in patients". A witness named Abiria said that the day after the circumcision ceremony he and one Mwaluko took Matongo to Manyoni Hospital where they told the doctor that the injured man was Matongo. Dr. Blackwood on being recalled said, "Definitely no other person was brought in from Manyoni around about that time with a similar injury. Not for a considerable time before. I cannot remember a case brought in from Manyoni with a similar injury". This evidence was an attempt to rectify the failure of the prosecution to call a witness who could testify that the man received at Dodoma Hospital was the same man who had been injured at the circumcision ceremony and brought to the Manyoni Hospital. The facts in Sirasi's case were very similar and in that case Crown Counsel submitted that there was a strong inference from the circumstances that a man named Mutundi who died in hospital was the same Mutundi who was stabbed by the appellant. In answer to this the Court held that to establish this fact from the circumstances an irresistible inference must be shown and proceeded to state: "The facts are that on the 19th October one Mutundi in the district of Masindi was stabbed in the chest, and on the 26th October one Mutundi was admitted to the hospital suffering from a 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 he died. We do not think that we can say that there is an irresistible inference of the identification". On being invited to send the case back for re-trial or for the taking of evidence the Court held, "We have of course power to do either, but what the Crown actually requires is the admission of evidence to prove the fact of death and nothing more and in our opinion additional evidence should not be taken to fill a gap in the prosecution's case. The Crown when it frames its information ought to have its case complete, and it has no ground of complaint on appeal when it appears it has failed or omitted to prove an essential fact, especially when it had the means of so doing. In this connexion the observations of Sundra Ayyar, J., in Jeremiah v. Vas (36 Mad. 457) are in point. This is perhaps an extreme case because it seems probable that the Crown would have had no difficulty in proving the necessary facts, but extreme cases must yield to principles which logically apply to them, and if we now let in evidence of an essential fact which the Crown ought to have proved at the trial we do not know where we should have to stop". In the case before us there is a serious lacuna in the evidence; it has not been proved that the man who was treated by Dr. Blackwood in Dodoma Hospital was the man who was injured at the circumcision ceremony or the man who was admitted in an injured condition to Manyoni Hospital. We would refer to the decision of this Court in Rex v. Enoclea Owul (3 Tanganyika L. R. 65), in which there was a failure to call a witness who had identified the body to the doctor. In that case the defect was overcome by the evidence of witnesses who had seen the deceased injured in a peculiar and brutal manner and killed as a result and their evidence taken with the medical evidence that

the dead woman on whom the doctor performed a post-mortem was found to have been injured in a similarly peculiar and brutal manner was considered sufficient evidence of identification. The present case is distinguishable in that no witness who saw the injured person at the circumcision ceremony or at Manyoni Hospital while he was still alive was present when the death took place in Dodoma Hospital. In our opinion it has not been proved that the Matongo who died in Dodoma Hospital was the same as Matongo who was struck on the head with a *panga*, for no person was called on the point.

What then is the position? The learned Judge accepted the witness Ntonya as a witness of truth and her evidence was that the appellant struck Matongo hard on the head with a panga causing him to fall and the witness Mwaluko said that he saw Matongo lying on the ground and that he had a bad wound. This evidence is sufficient in our opinion to establish a case of attempted murder against the appellant and of that offence we find him guilty altering the conviction accordingly and imposing a sentence of 7 years to run from the date of conviction.