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Criminal Law For Undergraduate. 2
Criminal Law For Undergraduate. 2
Criminal Law For Undergraduate. 2
BY SOLICITOR KATURA
CRIMINAL LAW 2
THEFT
Facts
The complainant was a tenant of the appellant and left without paying rent. Complainant rented
another house and when the appellant demanded his rent he failed to pay him, appellant told the
complainant that he will see the consequences in the evening, in the evening the appellant came to a
complainant and took two suitcases as well as bedsheets.
HELD; On the appeal against the conviction of theft , the high court allowed the appeal because
the appellant acted under bona fide claim of right due to complainant's refuse to pay back the
rent of appellant.
Case
Mazengo Nagala V. R (1969)
Facts
The accused was charged with theft but was convicted of attempted cattle theft. The evidences show
that at about three o'clock in the morning the complainant was awaken by the sound of cattle
moving and found four herd of cattle outside the boma were broken and the accused was trying to
escape.
Held
The act of moving cattle outside the boma but without moving them away did not amount to taking,
the appellant attempted theft.
Held:
The essential element of section 273, and all other cases of theft in the Penal Code, is fraudulent
taking or conversion. Here, there was no evidence that the contract required the accused to use the
very bags supplied to him for building the house. The act of the complainant in terminating the
contract deprived the accused of the opportunity of replacing the bags; his fraudulent intent was not
proved. Conviction quashed.
Sections 257 of TPC describes the “things capable of being stolen” as follows: sub-section 1 of
these sections provides: “Every inanimate thing which is the property of any person and which is
movable, is capable of being stolen.”
a) Inanimate thing i.e. not alive, especially the way humans and animals are e.g. a chair, table,
laptop, watch etc.
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
b) Property of somebody i.e. a thing which has no owner cannot be stolen that’s why in framing a
charge for theft, it always include the words “belonging to” to signify the importance of ownership.
Cases;-
1.Rose v. Matt [1951] 1 K.B. 810
Facts;-
The owner of goods who entrusts(assign the responsibility) them to another person in such
circumstances that the latter has a special property in them, he came and took them dishonestly due
to that he was the owner of those goods.
Held:-
He was guilty of larceny (theft) because he fraudulently took them away again. The word owner is
not restricted to the real (legal) owner only it will also imply to the special owner i.e. interim owner
or possessor, therefore it is quite possible for a somebody as a legal owner to steal his/her own thing
possessed by a special owner.
c)Movable;- A thing to be stolen must be movable, that means immovable things like land,
water and houses cannot be stolen, however, there are exceptions to this general rule as it has been
provided by sections 266 (2) of ZPA & 257 (2) of TPC as follows:
“ Every inanimate thing which is the property of any person and which is capable of being
made movable is capable of being stolen as soon as it becomes movable, although it is made
movable in order to steal it.”
This would cover situations when a person removes a door or window or roofs from a house in
order to steal it or water, air and electricity once they were made movable for the purpose of
stealing.
Cases;-
R. v. NDESARIO (1968) HCD 245
Facts;-
Accused was convicted of theft. There was evidence that a water furrow(narrow trench for
irrigation) traverses(pass) complainant’s shamba. Accused had no water right, but by a gentleman's
agreement he was permitted to take water from the furrow between 6 a.m and 9 a.m. It was charged
that accused had taken water during the night and used it for irrigation.
Held;
The accused was liable because was taking a movable object which was not belonging to him.
Cases;-
R. v. DANIEL KAMBEGWA (1968) HCD 333
Facts;-
Accused was charged with theft by public servant [P.C. 265, 270]. The prosecution stated that a
bonnet stand was missing from a motor vehicle, and that accused was seen some days later using it
as a walking stick. Accused answered the charge by saying “It is true.” When asked if there were
special circumstances which might warrant leniency(the fact) under the Minimum Sentences Act,
he stated that he had not know that the bonnet stand was of any use, and that he had taken it to use
as a stick.
Held:
(1) In a prosecution for larceny(theft), it is irrelevant that the property taken may be of no value, or
that the owner may intend no further use for it.
(2) In this case, the “plea(appeal) of guilty” was equivocal(ambiguous), since the gist(core
meaning) of accused’s position was that the bonnet stand had been abandoned. Conviction
quashed.
The doctrine of ‘Recent Possession’ means that where one is found with a property recently
reported stolen, that person may be held to have stolen it.
This doctrine has been developed through case law & it is not provided for by the Penal Code or
Penal Act but is under section 122 of the TEA, 1967 & 114 ZED where the court may presume the
existence of certain facts which thinks likely to have happened.
Cases;-
ELIAS v. R (1972) HCD 111
Facts;-
Crim. App. 115-Dodoma-71; 20/1/72; Kwikima Ag. J.
The appellant was found with a stolen watch and money bag three days after they were stolen from
the complainant. The appellant was convicted of housebreaking and stealing following the doctrine
of recent possession and the appellant’s failure to give a reasonable account as to how he came in
possession thereof. The High Court upheld his conviction and his sentence on these two counts.
When the appellant’s house was searched some poisonous drugs in the form of procaine penicillin
were found besides other suspect articles. The drugs were seized and taken to form the basis for the
third charge brought under Cap. 409 section 36 (1) to wit practicing medicine without due license.
Held:
(1) The prosecution committed a serious blunder in bringing the charge on the third count “in the
same charge as they brought the offense of breaking and stealing. This was clearly wrong in terms
of section 136 Criminal Procedure Code Cap. 20 which reads: ‘Any offenses whether felonies or
misdemeanor, may be charged together in the same charge of information if the offenses charged
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
are founded on the same facts or form or are a part of a series of offenses of the same or a similar
character’. It cannot be said from this definition that the offense of practicing medicine was
properly joined with that of housebreaking and stealing since it could not have been founded on the
same facts nor was it in any way similar to the offense of housebreaking stealing. In this sense
therefore, the appellant’s conviction on the offense of unlawfully practicing medicine was bad for
misjoinder even assuming there was evidence in support of it …. There was insufficient evidence
upon which to hold the appellant guilty of practicing medicine unlawfully. It would not therefore be
fair to allow his conviction on this count to stand since such defect is not curable under section 346
of the Criminal Procedure Code. Consequently it is hereby quashed and the sentence thereof set
aside. To this extent the appeal is allowed.” (2) “What should have been done was for the
prosecution to charge the appellant with the offense of unlawfully possessing poisons under the
appropriate ordinance. They had all the evidence to secure his conviction had they done so.”
Facts
Analysis
The sections provides two ways of breaking i.e.
(i) Direct breaking or actual breaking
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
Direct breaking is physical and actual. It involves breaking by unlocking, pulling, lifting any door,
window, shutter, cellar flap or other thing intended to cover an opening. Once any part of breaker’s
body (or any instrument he or she uses) is within the building the process of breaking is deemed
complete by law.
Indirect breaking on the other hand, is constructive or more technical, several forms of indirect
breaking are elaborated in the second paragraph of the concerned sections which are as follows:-
a) A person who enters after exercising some threat or artifice for that purpose
e.g. a child left in a building is tricked into opening the door or a child being threatened that the
building will be razed down if the door is not opened thereby facilitating access therein.
b) By collusion with any person in the building
e.g. a person is lawfully in a building arranges with another person outside the building to open a
window at night to enable the person outside to enter the building.
c) Entering through openings not intended to be ordinarily used as means of entrance,
e.g. A person used a door left purposely open to allow in fresh air or allow out smoke or otherwise
to gain anything from this building. This act will be regarded as breaking.
The offense of House Breaking & Burglary are shown under sections 294 TPC as follows:
(1) Any person who–
(a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit
an offense therein; or
(b) having entered any building, tent or vessel used as a human dwelling with intent to commit an
offense therein or having committed an offense in the building, tent or vessel, breaks out of it,
commits an offense of housebreaking and is liable to imprisonment for 14 yrs (TZM) or not
exceeding 10 yrs (ZNZ).
(2) If an offense under this section is committed in the night, it is burglary and the offender is
liable to imprisonment for 20 yrs (TZM) or not exceeding 15 yrs (ZNZ).
Cases;-
Lenderito Laidosoli V. R [1973] H.C.D N0.169. { Mlalamikaji alikua mpangaji wa mtuhumiwa
aliondoka bila kulipa pango, mtuhmiwa akaamua kuchukua suitcase yake na shuka zake }
[ Rufaa ya mtuhumiwa ilikubaliwa ]
Facts;-
The appellant was convicted of burglary and theft. The complainant was a tenant of the appellant
and left without paying rent. Complainant rented another house and when the appellant demanded
his rent he failed to pay him, appellant told the complainant that he will see the consequences in the
evening, in the evening at 10:30pm 10th May 1972 the appellant came to a complainant's house
broke the door and took two suitcases as well as bedsheets.
HELD; On the appeal against the conviction of burglary & theft , the high court allowed the
appeal because the appellant acted under bona fide claim of right due to complainant's refuse to
pay back the rent of appellant.
Facts;-
Crim. App. 348-D-68, 6/11/68, Biron J.
The appellant was convicted of burglary and stealing c/s 294(1) and 265, Penal Code and was
sentenced to imprisonment for two years and six months respectively, to run concurrently, and to
the statutory twenty four stokes corporal punishment. The appellant had previously been employed
as a house servant by the complainant. He admitted that he had taken the clothes from the
complainant’s room by opening the widow and “pole-finishing” then out. He justified this by
declaring that the complainant had dismissed him from his employment owing him three moth’s
wages, and, as the complainant had failed to pay the wages due to him, despite repeated requests, he
decided to take his clothes.
Held:
“If the appellant’s story is true, it would constitute a defense to the charge, as the appellant may
well have thought he was acting under a claim of right, The appeal is accordingly allowed, the
conviction is quashed, and the sentence imposed thereon is set aside”.
clear that if a person’s house has a chimney and a thief enters through this aperture, it is a burglary.
The reason in the latter case is that ‘it is as much closed as the nature of things will permit.” So says
Archbold, 35th ed., 1800-1802 and Russell, 11th Ed., 914-916. However, in connection with
gaining entry by overleaping a wall, Russell seems to rule out burglary (at 917). By definition, s.
293 of the Penal Code also seems to rule it out unless an aperture is left open “for any necessary
purpose ……” the present appeal seemed important because of the prevalence in this country of
houses having rooms without ceiling boards and with apertures between the inner walls and roofs of
corrugated iron sheets….. The Senior State Attorney …. Pointed out that there was no evidence
why the opening in the complainant’s house was left; it may have owed to lack of funds to complete
the wall. Hence it could not be said with certain that the opening was “for a necessary purpose” and
learned Senior State Attorney declined to support the conviction for burglary. With respect, I share
the view that in law no burglary was committed. Therefore I quash the conviction and substitute
one under s. 295 of the Penal Code for entering dwelling house with intent to commit a
felony(crime).”
1-Dwelling House:- This is the subject matter for of house breaking and burglary, a dwelling house
coul be either an ordinary building, atent or even vessel.
Cases;-
Ambari Zango V. R(1969) HCD 175
Facts;-
The appealant was convicted in the district court of Tanga of offence of Burglary and stealing, the
evidences show that the accused during the hours of darkness opened a door leading into enclosed
yard and took there some clothes which were hanging there. He was apprehended(arrested) with
stolen property in his possession.
Held;-
The conviction for burglary was upheld
Held:
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
His conviction was upheld. There was no requirement to have a physical separation. The counter
area was clearly out of bounds to the public and thus he was a trespasser in that part of the building.
2-Breaking (seaparate)
Section 296 ZPA & 293 TPC provides as follows:
(1) A person who breaks any part, whether external or internal, of a building, or opens by
unlocking, pulling, pushing, lifting, or by any other means whatever, any door, window, shutter,
cellar flap or other thing, intended to close or cover an opening in a building, or an opening giving
passage from one part of a building to another, is deemed to break the building.
(2) A person is deemed to enter a building as soon as any part of his body or any part of any
instrument used by him is within the building
(3) A person who obtains entry into a building by means of any threat or artifice used for that
purpose, or by collusion(deceive,conspiracy) with any person in the building, or who enters any
chimney or other aperture of a building permanently left open for any necessary purpose, but not
intended to be ordinarily used as a means of entry, is deemed to have broken and entered the
building.
Analysis
The sections provides two ways of breaking i.e.
(i) Direct breaking or actual breaking
(ii) Indirect breaking or constructive or technical breaking
Case;
3-Entry:- It must be proved that the accused broke and entered the building
Case;-
MOHAMED HASSAN v. R (1969) HCD 67
Facts;-
Crim. App. 348-D-68, 6/11/68, Biron J.
The appellant was convicted of burglary and stealing c/s 294(1) and 265, Penal Code and was
sentenced to imprisonment for two years and six months respectively, to run concurrently, and to
the statutory twenty four stokes corporal punishment. The appellant had previously been employed
as a house servant by the complainant. He admitted that he had taken the clothes from the
complainant’s room by opening the widow and “pole-finishing” then out. He justified this by
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
declaring that the complainant had dismissed him from his employment owing him three moth’s
wages, and, as the complainant had failed to pay the wages due to him, despite repeated requests, he
decided to take his clothes.
Held: “If the appellant’s story is true, it would constitute a defense to the charge, as the appellant
may well have thought he was acting under a claim of right, The appeal is accordingly allowed,
the conviction is quashed, and the sentence imposed thereon is set aside”.
HELD:
(1) A “breaking” must be “unlawful and without a legal right to do the act which constitutes the
breaking.”
(2) The intention to commit a felony must be present at the time of the entry. Convictions quashed,
and a conviction for stealing substituted.
Held:
His conviction was upheld. The question had been correctly put to the jury.
4-Night: so as the offense of HB to turn into burglary should be committed within the stipulated
time in either ZPC or TPC.
Case;-
Said Ally v. R (1973) H.C.D No.66
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
Facts
The appellant was charged with burglary but he was convicted of attempting to commit the offense.
The complainant was awakened by noises in the small hours of the material night. As he climbed
down he heard someone running away from the house. On flashing the touch he found that the door
glass had been broken. He called a police and took photograph of finger impression found on the
piece of glass. Where by later on the appellant was caught.
Held;
On appeal the judge said that “i am agreeing with the trial court that the facts did not constitute the
offense charged as there had been no entering, having regard to the time the offense was committed,
the appellant was attempting to break into the house in order to commit felony, thus the appellant
did not commit offense of burglary but attempted to commit the offense of burglary”
ROBBERY
Robbery is a form of aggravated( more serious) theft, in that it involves the offense of theft plus
force or threat of force on a person. The maximum sentence for robbery is life imprisonment.
Sections 285 (ZPA &TPC) defines the offense of Robbery as follows:
“Any person who steals anything and, at or immediately before or immediately after the time
of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or
retain the thing stolen or to prevent or overcome resistance to its being stolen or retained commits
an offense of robbery.”
Sections 286 (ZPA &TPC) provides the punishment of Robbery where for ZNZ is imprisonment
for a term not exceeding 25 yrs & Mainland is 15 yrs imprisonment.
There is other related offence termed ‘armed robbery’ which has been defined under section
287A of TPC and no definition has been given under ZPA.
Necessary ingredients
1- stealing (as defined in sections 266 & 267 of ZPA 257 & 258 of TPC).
2- accompanied with use or threat to use violence (force).
3- the use or threat of violence is directed to any person or property.
4- use of violence or threat of violence is used in order to obtain the property to be stolen or after
obtaining it, to prevent it being taken back.
1- Stealing
Held:
“The evidence does not support a charge of robbery the evidence would be more consistent with a
charge of simple theft, or possibly of stealing from the person of another. At the time the appellant
stole the hat, he did not use or threaten to use actual violence in order to obtain or retain the said
hat.” Conviction for robbery set aside, and conviction for theft substituted.
RAPE
(3) Whoever–
(a)being a person in a position of authority, takes advantage of his official position, and commits
rape on a girl or a woman in his official relationship or wrongfully restrains and commits rape on
the girl or woman;
(b) being on the management or on the staff of a remand home or other place of custody,
established by or under law, or of a women's or children's institution, takes advantage of his
position and commits rape on any woman inmate of the remand home, place of custody or
institution;
(c) being on the management or staff of a hospital, takes advantage of his position and commits
rape on a girl or woman;
(d) being a traditional healer takes advantage of his position and commits rape on a girl or a
woman who is his client for healing purposes;
(e) being a religious leader takes advantage of his position and commits rape on a girl or
woman.
(4) For the purposes of proving the offense of rape–
(a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the
offense; and
(b) evidence of resistance such as physical injuries to the body is not necessary to prove that sexual
intercourse took place without consent.
(5) For the purposes of this section spouses shall be deemed lawfully separated even if the
separation is arranged by the family or clan members.
Case;-
R v Williams [1923] 1 KB 340
Fact
The defendant was a singing coach. He told one of his pupils that he was performing an act to open
her air passages to improve her singing. In fact he was having sexual intercourse with her.
Held
That her consent was vitiated(spoiled) by fraud as to the nature and quality of the act.
Penetration
According to sub-sections 4 of sections 125 ZPA & 130 TPC penetration is an important ingredient
of the offense of Rape.
(4) For the purposes of proving the offense of rape–
(a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the
offense; and
(b) evidence of resistance such as physical injuries to the body is not necessary to prove that sexual
intercourse took place without consent.
Punishment of Rape
A person who commits rape in Zanzibar is liable for to be punished with imprisonment for life and
in any case for imprisonment of not exceeding thirty years with fine and compensation to the
victim.(Sec. 126 (1))
In TZ Mainland is imprisonment for life, and in any case for imprisonment of not less than
thirty years with corporal punishment, and with a fine and compensation to the victim.(Sec.
131(1)).
Gang Rape
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
Case;-
R.V. Chapman [1959] 1 QB 100
Facts
The accused was convicted of having unlawful sexual intercourse with his wife a girl aged 16 years
age, who they were separated.
Held
The court said that this was sexual intercourse outside the bounds of marriage, general rule is that a
husband cant rape his wife. But there are some exceptions;- (1) where there is separation (2)
Divorce
Case;-
MTUNDUCHILE AND OTHER v. REPUBLIC (1970) HCD 304
Facts
Crim. Apps. 257, 258 and 259-D-70; 19/8/70; Biron J.
The three appellants were convicted of burglary, stealing and rape and sentenced to a total of three
years and twenty four strokes each. According to evidence given by a woman and her daughter, the
appellants broke into their house, stole some articles and demanded to have sexual intercourse with
the daughter who was in an advanced state of pregnancy. The mother, fearing for the life of her
daughter, offered herself instead, whereupon each of the appellants had sexual intercourse with her
in turn. All the appellants set up defenses of alibi(defense of innocence).
Held;-
“The judge then set out s. 130 of the Penal Code where under the accused were charged and
convicted and hen continued” “The two women were alone in the house, which is apparently
isolated. They were threatened with death by three men armed with knives if they tried to raise the
alarm. Although the mother consented, in fact volunteered herself as a substitute for her daughter,
such consent is, to my mind, vitiated by her fears for her daughter’s health, and it is not irrelevant to
not that the section above set out expressly states that if the consent is obtained ‘by fea of bodily
harm’, the act would still constitute rape. The mother, apart from her maternal affection was under a
duty to protect her daughter, therefore I fully agree, with respect, with the learned magistrate that
the acts of the three accused constituted rape on the part of each. The conviction for rape is
therefore duly upheld. Appeal dismissed.
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
*Penetration
According to sub-sections 4 of sections 125 ZPA & 130 TPC penetration is an important ingredient
of the offense of Rape.
(4) For the purposes of proving the offense of rape–
(a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the
offense; and
(b) evidence of resistance such as physical injuries to the body is not necessary to prove that sexual
intercourse took place without consent.
Case;-
Fundi Omari Madega V. R (1970)
Facts;-
The complainant stated that she was raped but she had no evidences. She said that “ the accused
threw me to the ground and threatened to kill me if I tried to raise alarm , I was not wearing
underwear”
Held
The court said that in case of rape there must be evidence of penetration of penis into the vagina
though emission of seed is not necessary.
SEXUAL ASSAULT
CRIMINAL LAW FOR UNDERGRADUATE 2
BY SOLICITOR KATURA
According to section 135 TPC. Sexual assault on persons and indecent assaults on women
(1) Any person who, with the intention to cause any sexual annoyance to any person utters any
word or sound, makes any gesture or exhibits any word or object intending that such word or object
shall be heard, or the gesture or object shall be seen, by that other person commits an offense of
sexual assault and is liable on conviction to imprisonment for a term not exceeding five years or to a
fine not exceeding three hundred thousand shillings or to both the fine and imprisonment.
(2) Where a charge for sexual assault under this section relates to a boy or girl under the age of
eighteen years, it shall be no defense
Case;-
Case;-
R. v. SALIM s/o ABDALLAH (1970) HCD 38
Facts
Crim. Rev. 1-D-70, 14/1/70, Mustafa J.
The accused was charged with indecent assault, contrary to section 135(1) of the Penal Code and
was instead convicted of rape, contrary to section 131 of the Penal Code. Evidence was adduced by
the complainant that while she was asleep one night, she was suddenly awakened by finding
someone lying on top of her, and she then believed she had been sexually assaulted as she found
seminal fluid on her vagina and her thighs.
Held:
(1) “Rape carried a sentence of life imprisonment, whereas indecent assault carries a maximum of
only fourteen years’ imprisonment. Rape is certainly not a minor offense to indecent assault.
Section 181 (1) of the Criminal Procedure Code allowed a cognate and minor offense to be
substituted in certain cases.
The provisions of section 185(1) of the Criminal Procedure Code allow a person charged with rape
to be convicted of indecent assault, but not the reverse.”
(2) “Even on the evidence adduced, there does not appear to have been rape. There was no evidence
of penetration. In the circumstances, I substitute a conviction for indecent assault against the
accused, as originally charged, and set aside the conviction for rape.”
Case;-
Wilson v. Commonwealth(1942)
Facts
Accused was fixing a tire outside, a woman of 44years old called him and assisted him to enter into
house through the window, brother-in-law entered the room and found W having sex with her. W
was charged and convicted of rape.
Held;-
On appeal the accused said that he ddnt know that that lady was incapable of consenting. Sexual
intercourse with an idiot or imbecile is not rape unless the man knows that she is insane or crazy.
The conviction was quashed.
INFANTICIDE - Infanticide (or infant homicide) is the intentional killing of children under the
age of 12 months
Necessary Ingredients
1-that the deceased child was under the age of 12 months.
2- that the child’s death was due to an act or omission on the part of its mother;
3- that at the time of the fatal act or omission on the mother’s part, the mother was mentally
disturbed
Case;-
R. V. Esther Ikumboka (1967)
Facts
The accused was charged of Infanticide because she killed her born child at circumstances would
normally amount to murder but at the time of the incident her mind was not balanced and disturbed
as a result of child birth, it was not known when the accused had pregnant and when delivered a
child.
Held
The accused not guilty of infanticide but concealing birth
Concealing A Birth
Concealing a birth is the act of a parent (or other responsible person) failing to report the birth of a
child. The term is sometimes used to refer to hiding the birth of a child from friends or family, but is
most often used when the appropriate authorities have not been informed about a stillbirth or the
death of a newborn. This is a crime in many countries, with varying punishments.
The Offence of Concealing the Birth of a child is created by sections 216 ZPA & 218 TPC
Child Destruction
Child destruction is the crime of killing an unborn but viable foetus; that is, a child "capable of
being born alive", before it has "a separate existence"
The Offence of Child Destruction is created by sections 217 ZPA & 219 TPC.
For an Offence of Child Destruction to sustained, there must be proof:
(i) that the woman was about 28 or more week pregnant; and
(ii) the accused, by a deliberate unlawful act or omission prevented the child from being born
alive: and
(iii) the accused person’s deliberate act was not done in good faith for the purpose only of
preserving the life of the mother
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