19731005 TZHC Tabora

1 . I - -- - - -- --- - -TH HIGH COURT OF TANZANIA AT TABOPA CRIMINAL SESSIONs.CAEJQa5.oFt9?2 THE REPUELIC versus PHILLI[PO @ BOBO s/a DANIEL Charge: Manslaughter c/s 195 PVC, JUDGMEI\TT. MW'AKIBETE, Ag, J. -... - Phii]Jpt @ 3obo s/o Daniel is with manslaughter c/s 195 of the _Peiioi Code, The particulars of the offence are that on mr about the 20th day of May 1971 in the District of Kasulu, Kigoma Region, he unlawfully killed one 1TYARUSHASHI s/o KASINDI. One NTAHOMVUKA d/ LUSAG.ALIYE P,7T1 the alleged mother of Nylushashi (deceased) informed LJIO' Court That on 20th May 1971 she had been to the Clinic with the deceased who had ma- laria for some five days. She did not find the Nursing Sisters and was returning home. She was nccompanied by her daughter. CHIZAt-K.TSINDI. On .their.wy home they met accused who al- leged1yenquiTed-where they had been, :Tbay informed him of their haing ben - t&- -bhe Clinic with the c.eceased and of their hatingmissedtheNur±ngSisters Meaiwhile one KIBOYOGO s/c NUUSA appeared and found them talking, Accused in the pre- sence of KIBOYOGO NYAKUBUSA is alleged to: have volunteered to treat the child with. an injecticn. They all douted accused ability to treat with injection becà.se they were not aware he was qualified or auth.riz.ed to. giie ±ijetions to sick people 0 IN There was an argument and allegedly he oonvinced them he was able to do the job. Accused claim as to his ability to give injections was allegedly confirmed by accused t s wife who alle- gedly accompanied accused. Accused allegedly took out his syringe, filled it with some medicine thwn1 from one of the twe bettles he was carrying and aiministered one injection into the' butt.ck of the deceased child, Accused had scarcely comple ted' the slf impsed task when the child suddenlr chaLged its / con'fposure and became helpless. Its-condition deteriorated and. accused with his company decampeu., The cIiild died on the spot 0 -. •ft•••• . P 0 "2 1' 7 'r r - 2 -. Information as to what had taken place was conveyed to the Police who on the following day arrested-accused and subse- quently charged him with the enccz P O Ll later identified the body of the child before a Doctor as that of her child - NTALUSHASHI KASThJDI. The evidence of KIBOYOGO. NY.AKUBUSA (P .T. 2) and that of CHIZI-d/o KAS]NDI (P.71.3) was substantially the same as that of PW.1. They all claimed they had known accused well even before the fateful day so that the question of ide- ntity of accused was never disputed 0 In addition, P.Ll and 3 confirmed that ncf other medicine had been given to the deceased child before accused administered the injection. The father of deceased child one KASThTDI KIRUNDOKOMA (p.w.4) informed the Court that he too identified the body of the deceased before the Doct.r who performed the post mortem examination as that of his child ffYALUSHASHI s/o KASINDI. It was finally indicated by the p family that their child was only 4 months old when the child died. Ther° was again the evidence of DR LAURIANO KAMBUGA the District Medical Officer Kasulu who was also i/c of Kasulu Government Hospital. He said it was he who conducted the post mortem examination on the body of one NYPLIJSHAHI KASINDI deceased on 25th May 1971. According to his testimony the body was in an advanced stage of putrification and that almost all the internal organs were decomposed. He was unable to find the cause of death - so he took some body tissues - a portion of a liver and that of a kidney - and despatchei them to the • G.ven-iment Chemist Dar es Salaam for toxicological examination. He later received the Government Chemist report which was to the effect that the Government Chemist had detected same 9.2 mgs/154 grames - of anti - malaria chloroquine - which amount was equivalent to 60 mgs4cg weight of body tissue. The report went on to say the lethal dose of chioroquine was generally 20 mgs per kg. weight of body tissue. It therefore followed that the amount of chioroquine found in the body of the deceased was three times the lethal dose. It was not disputed su'h a dose was capable if cauSing instant death of the chiid On the question of administering injections the Dr said only trained persons with certificates or licences to that effect were autho- rized to give injections. He said. all drugs administered by injection were poisons and as such they were to be administered . . S • S S • • / 3 - - V •.,, S - - according to appr'ved measurements There was also the pre- caution that some were to be given intramuscularly while others were to be given intravenously. Accused gave an unsworn statement 0 He adm:tted he met P.W.1 1 2 and 3 on the material date,, He said P.W.1 simply informed him, of her having been to see the Nursing Sisters with the child but that she missed them 0 According to him rrothing more happened and they parted. He vas suprised to see the Po- lice arrest him on the following day, and search his house be- fore he was finally taken to the Pblice Station where he was charged with the offence. He denied he administered an injec- tion to the deceased child as claimed by the prosecution wit-- nesses. Counsel for the Republic submitted that there was not a suintilla of evidence to indicate that accased;was authorized to give injections as he purported to do to the deceased. He said without authority accused act in administering an injection. to deceased as claimed by the prosecution witnesses was unlawfu". 0 . And since death was the direct result of accused at in giving the injection to the deceased accused must be taken to have caused the death by his unlawful act. He r.sked the Court to believe the prosecution witnesses that accused: initered an injection to the deceased when deceased died. He also asked the Court to accept the Government Chemist report as correct that the cause of death was an, excessive chloroquine found in the body of the deceased. He said since there 'was no evidence to suggest that deceased had been given nc.dicine by a person other than the accused - the only irresistible conclusion was that it was the accused who injected the excessive dose of chloroquine into the body of the deceased, The Counsel then - said even if it were to be taken that accused were authoiized to give injections, the question arose whether accused took -, reasonable care in giving the injection. He said the amount of chloroquine fOund in the body of deceased was three times the lethal dose. In his view such an amount did not indicate that accused exercised even the slightest care in measuring the dose he was to inject into the body of the deceased. On the contrary, he said, the amount found was indicative of neg- ligence of the highest degree' which wou.d properly be termed Criminal negligence He therefore submitted t1t accused was guilty as charged. • • • . /4 1 (/ L4 I_ • I • - - - - -- r - 4 - The defence Counsel submitted that there was no evidence from the prosecution side that accuced was not authcrized to administer injections - in which case the doubt should he reso- lved in favour of accused - so that if accused did administer the injection the act would never be unlawful. He said there was the possibility that the parents gave their child an over- dc3e of chioroquine tablets since such tablets were Qbtainable in shops. Alternatively native medicines with chioroquine con- tent might also have been given in excess - because the deceased child was alleged to have had malaria for the last five days before the fateful day and therefore the parents would not have let all the five days pass by without giving any medicine tr the child. As for the injection alleged by the prosecution to have p been given by accused to the deceased, counsel for Lhe defence said the Court was enjoined to believe either the accused story or that of The prosecution witnesses 0 He said if there was any doubt that the accused did or did not administer the injection the benefit of such doubt should be given to the accused 0 He finally asked the Court to acquit the accused. Both gentlemen Assesscrs were unanimous in the view that accused did administer the injection to the deceased as depssed by the prosecution witnesses. I saw the prosecutirn. witnesses give their testimony in Court0 I also saw the accused give his statement. I am satisfied the prosecution witnesses did tell the truth. There has been no suggesticn that there exist a'grudge between accused and the prosecution witnesses or any one if them - so that I fail to see the basis for the prosecution witnesses r'r any one of them to testify falsely against accused. All the three prnsecutirn witnesses claimed tO be eye witnesses0 In view of all this I am in full agreement with the gentlemen Assessors - that accused did adminster an injection to the deceasd As to the question as to who introduced the eycessive dose of chioroquine into the body of the deceased child - the Assessors were again unanimous in the view that it was .acused 0, The Assessors rejected any suggestion that the parents nigh - .; have given the chilë. an overdose of chloroquine tablets or an overdose of native medicine with chloroquine content. This in rp.r view, was a reasonable opinion by the gentlemen Assessors. Yhere was no evidence at all that the parents had ever given thei child any native medicine; - •.. 0•0 .4*1 I ,k* 5 - there was also no evidence that the parents or any one of them gave any killer dose of ohioroquine tablets during the five days interval. I am persuaded by the story of the prosecution wit- nesses who claimed they witnessed accused d:.'aw some liquid me- dicine from one of the two bottles which accus'd allegedly had with him and then introduce it into the buttock of deceased. There was no other medicine apart from the anti - malaria chlo roquine, that was detected by the Government Chemist in the body of deceased. The conclusion that it was accused who introduced that killer dose of chioroquine into the body of the deceased is therefore inescapable. Having held that accused did give injection of chloroquine to deceased - the question that follows is whether accused was authorized to administer injections. I he was not then his act of injecting deceased was unlawful and P since the act resulted in the death of the deceased accused would be guilty of manslaughter. But if he was authorized as by having a Certifi3ate or licence to administer injections - then there will arise another question as to whether he did use reasonable care in the performance of his authorized duty to inject people;. I will start with the question whether accused had the authority to administer injections. All the prosecution witnesses doubted accused was authorized to administer injections. Even before accused gave the injec- tion t.W.1 and 2 questioned him closely whether he was authori- zed to administer injections. Allegedly accused emphatically assured them he was authorized and was competent to administer the same, a fact that was allegedly confinned by accused's wife. It would seem in my view, and in such circunstances. that the burden is pn accused to prove on a balance of probabilities that he was authorized to administer injections. Having discharged that duty the onus would then shift to the prosecution to provi beyond reasonable doubt that he was not authorized to administtr injections 0 Accused has not discharged that duty before the- Court that hehad the ctuthority to give injections to people. His act of injecting the deceased was therefore unlawful. nd since the act resulted, in the death of the deceased accused must be held responsible for the death. He is in other words to-be deemed to have caused the death of the deceased child by an un- lawful act. Accordirgly the charge against him would seem to be proper. . . . . . . 4. '1' 6 Let us assume( for the sake of argument that accused act to inject deceaseld was lawful. Would it be said that accused performed his duy with reasonable skill or care? As the Government Chemist report indicates - the amount of chioroquine found in the hod of deceased was three times the lethal dose Such an amount does not by any standard indicate that accused did use reasonabe care in measuring the amount he was to inject iito the body of the deceased. The amount found symbolizes the highest degree o' negligence on the part of the accused. Such negligence amounted to what is known in law as culpable or Cr1- minal negligence. A qualified person or one who possesses a licence to administer injections is deemed to be possessod of adequate 1mowlege to enable him to tell what is safe, and what is 1ethal dose to be administered to a human being. Yet in tne S. instant case the chloroquine found in the body of the deceased was three times the lethal dose. Surely such an amount is ind:- cative of accusd Criminal negligence - when he administered the dose to the child. And since death occured as a result of the Criminal negligence on the part of accused -- the accused is to be deemed to have kused the death of the child by the unlawful omis- sion. In eithe' case therefore I find that accused was guilty of manslaughterL Acorngly I convict him as charged. Sgd. M. J. Mwakibete, Ag. Judge, 5/10/73. I, ious Convidtions: Nil. lea inMitigaion d/Counsel: Nil. ALLOCUTUS: 1/ have three children. Both my father and my ther are dead. I have been in remand for ¶ years and 4 months now. We are due to join Ujamaa Village and my wife won't have anybody io accompany her to the Uja:naa Village. I have no more. I pray for leniency, STTE1TCE: Acused was not invited or rqueted to give inje- ction to the edeased child And although the mother objected S • • . . ./ 7 -. -. I - 7 - to the accused offer to adiiinister the injection accused per•• sisted under the pretex that he had the ability to do the jc:'b well. when the accused won the consent & the mother he jfl cted into the deceased body three times the lethal dose of Lo réquine and the child died almost instantly, It was a very cruel act. I watched the accused throughout the hearing of the cae. Accused showed no sign of remorse although he nov: pleads fr leniency. It is not understo.d how and where ac- cused gets the medicine and the injecting apparatus . . I how ever, take into consideration the fact tba:. 9ccused has beer p in remand for two years and 4 months. At tb Sa7iC time I to give a deterrent sentence. He is sentend to 6 years in- nd risoninent. Sgd. M. J. Mwkibete, Ag. JudF e 5/10/73. Right of appeal explained. _ uL AG. JUDGE. Lbe te) ..-