19830914 TZCA Dar es Salaam 1

.r , :• ;~~ , l k - ~.. .j IN 'l'ITE COT.JRT OF L?P:&~L OF T~'JJ Z.:JHA '' AT Jl.'Jl ES SJJ.,::J:.M \ (CCR.t.Mg il-l"..::C."J:I.E 2 J ••·u 2 OM.:.R 2 J .I.. 2 li.ncl IGJ..LILli. 2 J .i'..) CRIMIIT LL AP?E.'.L rm ~4 OF 1989 1J3DULJ,.I::J.::J.J I J ::.F.:..RI I) 0 • 0 0- 0 • • o • o ,o • • APPELL,:.NT versus '.I'J..Ll:J R,WJBLIC • o 0 0 o•oo•oe,oc • • • o j>RlSP0NDI1'iT , (1'.pyoal fro::1 tho co:wictian of the High Court of ,Tnnzania at Songoa) _ (Kazinoto 9 J .) elated t!'le 18th day of }Iovenber, 1988 · in Cril'.1inal Sessions Case Ho. 6 of 1988 JIJDffiIIET OF :{iIE COURT OM.t.R, J .A.: The appellant was c.:1c1,rg0cl with 2:.1,.cl convicted of nw.rdor contrar,1 to soc tion 196 of t:10 Penal Codec Tho cJ,l)lJCl12,;1t had two wive::;~ t~ic firr.:t wife was PH.1 Laita d/o Raohid~ ~ . and t:1e socom'l wife w2.s t;lo clcco2.soll Hwamini Oii1ar. He b.ci.d four cl1ild.ren frou1 tl1c first wife a,ncl two c1-iildrcm from tl:e ,.;qcond wife one of wt.on e boy aged one year died with his r:~other in tl::.o fire, t1.mt cau.g~1t t.'.leir l1ouse in the night of 30th J anu2.ry, 1985. The scl 0 eyo wHness 1J0s L~es t~~e a.pi-,cllant is PW .1 Lai ta Rashidi wl10 w2.s s:t,eeping in another roor:1 with :rnr ·cllildren . when she was mralrnnocl by the fire on tllc vera.ric.wli adjacent to t;1e roora which t~10 appellant 2..r:.cl t!:o deceased ancl J.;_;:.eir 0110· year old son were sleeping

in. According to Lait2.. 1 s t0stil:101zy, s:::.e got out of -~:1e roo::i through , the sole ezi t door of t:10 house 2.ncl ;i.n i::;ucl: a, way that appellant was also awr.konec.l m1cl m2,;12,.0 cc.l to got outo T~:c doceo.sccl could ,1ot got out and. slle w2.s hcn,rd cr-Jir:.2,· how she would get ou-t and ple2-clocl for her son to be rescued. Sv.c:i assistance wa □ not" macle available to her. I .... •;2. ....t ) ... --. ~-' ,. ' () 1 2 The fire soo;-,rn to ]12,ve gut-'.;ed tho whole l:ouso wl:ich w.:_:i.,s mD..de of grass. Thero w2.s grass even on tl::.e floor on w11ich the nat was laid encl on wl1ich tho deceased w:::. :::: found. lying. PW .1 stated. that none of t~1eir possessions ' was saved~ all c:iickon were burnt~ .. OU t. 1 It transpired that because of her toothache dece2.cecl was not seen eating a11y-t;hL1g -i;l1at day. Thero w2,s :J. quarrel twenty days earlier between t!1c couple wl1ich led to -'Glle deceased. Wal1 . .'. G'l~1g a divorce n:,.-id tl1ey went to t~1e Concili2.tio:;.1 Boal'd ancl i-;iet ?Wi5 t:10 Socrotar-.1 on 10/1/85, but t~ey soon reconciled ni10_ lived togctJ.:er as bo:Zore. • Neighbours who wont to the SCOilC of t:1e fire saw -~he deceased ( and soi"JG e:::pressed t:1oir misgiyings c:l-1::.out t:.10 w;:,3r she dice_ 011 the nat with nor do2,d. child in c:. position wllicll s:.io_wod that sllo was cuding her c:1ild as if breast :feeding hi□ and

it was so peaceful 2•.1d clid not sh::iw t!J.e rcstlessncsn 2.ncl confusion whicl: a person being bun1t woulcl show. Wi tnossos wllo deposed on t:10 cle;:iea;.10r of appellc11:t after the fire, found ·hin absolutely speechless nncl cool, not grieving. Tl:e post"L1orten was concluctod of Nwawini Ooar srn:10 six nonths after her death wl:en b.2r body w2.s eYJ1uTJcd. . Fp flesh of ·i;!rn boey wr;,s found, it wns a ;:iore skeleton n.nd sor.10 intoatines ~ SDliiples of which were tnken end. sent to Govornnent Cl10nist 2.nd his report act-,1i~c·i:;ecl 3.S Eihibit. Heither tl10 c.1octor who porforr.,ecl t~1e postmortem 01::ar,1iae.tio11 nor the Govcr11111e11t Cl;euis~i:; go..ve evidenceo Tho Chemist ts report sllows that both s2.ill.plos of intestines of tho nether ancl the c~1.ilc1 contc.incd organo sulplmr which tlto report saic1 is used in the prcpar2.tion of pesticid.es 2,;.1cl that it is hamful to hu:1,,ui beings if o:rcessively ingested,. The appellant in his defence said. tb.at he did-not know how the fire started. •••/3. ~ .... 3 He and docensocl were asleep together when they wore 2.w2.ko;1ed by a.lam nt 3 2.o□~ they s2.w fire 2.nd l1e crawled to t::e outside of the roon and while he w2.s outside he hoard dece2,socl ask w~1ore would sllo pass. The fire hc1cl sprc2,c!. all over tho house by tl1e11 encl clue to sJJ.oko she must have died. Cn cross-exn,-:1ination he clenicd to

l1-J.vc poisoned her with tho pesticide tl:.c.;,t ho bow;::t for t!rn fan:1.11 In tJ10 circumstc.ncos of t.'..:is c2,so it is in our view pertinent to of the e.ppella;.rt; g The learncc: tri2,l judc;e saicl in l:is jv.c1f;-:nen-t; as nFron tl10 ovidonc e of l--"'W. 1 2.nd Pw o3 the accus eel did not take any action. PW.3 arrived at tho scene when tho fire was snouldering. lfo saw tJ-::.e 1Joclies of t~1e , <l.ecee.secl covered with as~ws burning,. Even a;i; t;.:.2.:t tir.,e t:10 accused dicl not botl::.or ·to put off t'.1.e fire. TiJ.c failure to save nnyt~:in(sj llic failure to 02,ve t:10 deceased ancl his act of passively looking- a:;; tho bo ..lies of d.ocoa$ecl bu.n1 out without putting off the fire wl:011 he could. 11,wo clone it as did PW .. 3 is conduct showing positively tha·~ ho lm;,.:;w thc.,t dccoc..sed ht":,d long dioc1.. bofo:;;c tho fire st2vrtec~ and il1 -;:,.y vi mv he poisono<l. tho;:1 i;.1 circu;:ist2,11ccs best know to l1iLrnGlf c::.;.1d t!icn sot fire to tJ::.e 1Jan!..1n in orclcr to destroy eviclor1co, -~J.:.v.s prchestrnting th,.1:I; deceased died of suffoc2.tion c,L~o to tho burning bn.nd.n,,. In ey judgGont -(;cl;:bg into accou:i1t tho circu.--:istancos of tl1is cr:.oo I !1old. tll~1,t the fire h2,:l not stRrtod accidentally, t1:iat it was intontio:v:dly aligb.tod., after seeing tl:at tl10 deceased hacl diocl, with ·i;Jio sole intention cf clos-t;roying

oviclonco., .I'ho nd.E1inistratio11 of poison clearly sl:;.ous an 1 h1-cention to kill or cc..uGe grievous 1mm. In this cc1,se -'.;!10 accused h2.d clearly displeyccl tlmt intentiono When tho boclics of cleconnocl were burning in flaD.es l10 was i11c1..ifforcnt to ti.01;1 boine bu.ri:1t. I find that r:ialicc 3.forot.::10ught h'.s 1Jem1 clearly ostabliob.od" • in the real@ of conjecture_. There is :;_10 evidence wlmtsoovor t!10.,t tho deceased 2,ncl hc:c c!:dld l:ncl over oaten ariyt~1ing cont3,ining t::o pesticide and tl1.;,,t was i;, the 210uso nor docs t~.10 presence of organo sulphur in the ' intestines tl:2.:'c w0ro found in t~e buric~l body of the docensccl six □ onths (1 I after her d~ath point eonclusively to the "excessive ingestion" •f the m2dicine in her body by the appellant or any •ther ,-erson.· It was at best·an opini.,n •£ the G•vernment Chemist which did n"'t amount to proof. In any case there is the possibility that she could have got the poison in her system by inhaling the fumes as the hut burnt.· The attitt.1de of the appellant after the death •f his wife can only be at worst a suspicious circumstance pointing. t•'his guilt but certainly ~ct proof of it ~r reinforcing any pro•f because thar~ is not any,. so far. His inaction in saving the life <-f his wif~ is not in our view a clear intention t• let her die but may be .:xplaincd bi the dictum that "n• one is

Obliged to abandon his own self preservation" and to attempt to kick at the burning wall I mada of grass ¼Ould amo~nt to playing.with fire with possible disasterous ccnsEquene'?,~. All in all, whatever extent the couple's strain2d relgtionship may have reached, this circumstance has C fallGn far short of convincing us that it had spearheaded this inaction on th~ part·of the husband in rescllll'1« • his wife. There is no 2videncc to the effect that the appellant with malice aforzthought Omitted to rescue his wife or committed the offence of poisoning her first and then set fire to the hoUse to cover .. his first act of poisonin!'. •' \ ,fo are of thE view that there _is just not that proof to su~tain the conviction for murder. We think the appeal ha~ merit. We allow it, quash the conviction ·"'··: for murder and s€t the appellant free unless h~ is-•therwise held in some other lcwful connection. • • D e O /5. ' .

OATED A. M. A. OMAR JUITICE tF' APPEAL ( J. H. MS0FFE) SENIOR DEPUTY REGISTRAR.