19740815 TZHC Dodoma

4'Sf12. —: • IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO,. 13 OF 1974 THE REPUBLIC VERSUS MOHAMED s/o HUSSEIN charge:. Murder c/s 196 of the Penal Code, J U D G M ENT - 'MAPIGANO AG,, J The accused Mohamed Sb. Hussein is charged with the murder of one Sefu slo Omari Doto0 The particulars of the information show that the murder took place on or about December 13, 1972.. in the Dodoma Region. What is not in dispute is that the said Sefu Omari Doto is now dead. He died on the day aforementioned at a place called Handa in the district of Kondoa, a short while after he had taken some pombe along with four other persons0 One of those other people, a child of tender years, also died almost at the same time,. This naturally spurred suspicion that the pombe they had just drunk had been fouled. This suspicion was reinforced when Dr. Charles on performing the post.mortem on the dead body of the deceased Sefu Omar:L Doto could not detect any external mark of injury, but observed certain features which were suggestive of the assessed having died on account of poisoning, Toxiclogical examination of the deceaseds body tissues, namely the liver, the kidney and the spleen by the Government Chemist at Dar es Salaam, showed that they contained certain substanc,. of a family called glycoside and alkaloid which,. according to the opinion of this expert, are poisonous if are ingested in a body in large amounts- And the body fluids, that is the blood and urine, showed that they contained small quantity of alcohol. Though it was not said by the expert that that kind of glycoside and alkaloid was ingested in the body of the deceased in large amount, there is strong indication, having regard to the finding of Dr. Charles, that death was due to poison and that most probably the pombe which the deceased consumed on December 13,. 1972,. had substantially to do with that. Is the accused responsible for the death? It behoves me to examine the evidence 'before making a finding on this partient issue. There is evidence which is not in dispute that on December 11, 1972 7 that is two days before the death, there was some cultivation in the shamba of Bula d/o Dafi (PW2) who is the mother in law of the accused As it often happens in this part of the country, Bula iJafi had prepared some local pombe for the people who came to help her in that work, who were mostly her neighbours and close relatives. She sent three gourdc full of the pombe to the shamba and this was consumed without any incident. She kept another gourd containing the same staff at her house and this was also consumed either on that very day or on the following day, again without any incident,.. She sent another gourd to her son Rashid Koka (PW4) which was received by Rashid's wife called Araf a i-iusseiri (PW3)0. According to Araf a, she took one or two sipq and then kept the gourd in her bed—room. She thought that that pombe was quite normal n Thereafter shQ also procc?ded to Bula's shamba where she worked with ' her husband and the other people who had gathered there. The acused c. . . ./2 •C0.0..O, did not appeav there but there is no evidence that he had been asked to, and according to his account which is not disputed,, he had gone to help Bula's brother called Hole, who also had a piece of cultivation to do in his shamba. Nothing of importance took place on the following day except that there was free drink which was offered by Bula, at her house, and there is dispute whether the accused who passed there took any pombe or not, which is immaterial. It is also not in dispute that on the following day, the 13th, there was yet anOther cultivation in the shamba of the deceased and that Araf a (PW3), Asha Mtotoli (Pw8), Mwanaidi Salimu (PW7) 9 the deceased himself and his wife Mwanaidi Koka (PW9) who is incidentally also a daughter of Bula, attended and worked in that shamba. The deceased had nothing like pombe to offer these people and when one or two suggested that a drink was befitting, Araf a recalled that the pombe she had received from Bula two days back was still lying idle at her house 0 She revealed this to the group and it was agreed that the pombe he fetched from Araf a's house0 Mwanaidi Salim (PW7) was sent to fetch it and she proceeded to the house and was given the gourd by Arafa's husband, Rashidi Koka, who allegedly had not touched it before. This pombe was taken to the shamba where all who were there, including Araf a's child Tatu, helped themselves on it. The evidence of Araf a, Nwanaidi ICoka, Asha Ntotoli and Mwanaidi Salimu is that the pombe smelt of something like Kerosene, and Asha who had taken a smaill quantity of the same on 11th, alleged that the smell was strange. A short while after and irnmediatelly on leaving the shamba the deceased was heard to complain that he was feeling sick, that he was feeling dizzy and then he started to perspire profusely and then could not talk any more. A first aid which was known by the local people was administered on him, he was made to swallow a certain medicine obtainable in shops and known in local perlance as "arobaini" as well as some soap foam and some ashes. The idea was to make him vomit. He did not respOnd, he did not vomit and in another moment he lay prostrate and died. However, before he died one after another of those who had drunk the ponibe also started to perspire, to tremble and to become unconscious0 They were subjected to the same experience and symptoms and they were also subected to the sanie first aid. All but Arafa's child were revied. It is submitted that this first aid could of itself have been pernicious. But it is difficult to accept that, for it appears that it successfully worked on four of the victims who undeniably vomitted a great deal on swallowing the doze. In any event the fact that all the people who drank the pombe suffered from the same upheaval shortly after, indicates strongly that it was nothing else but the pombe which occasioned the effects. Now, a sample of the pombe which remained in the gourd was sent to and examined by the Government Chemist. It was found to contain a noxious substance termed Organo Chlorine insecticide, a form of Organic clorine which is a poison 0 However, this pombe was only a small quantity of the pombe which had been prepared by Bula Dafi and the rest of it had been taken without any harmful effect, and most importantly Araf a herself had drunk some of it two days previously and had not experienced any adverse effect It is therefore well to assume that somebody had admixed something noxious while it was lying at Arafa's house. The prosecution contends that it was nOfle other than the accused who had done precisely thatkIhát is the basis of this contention 7 I will revert to two pieces of evidence in this regard. The accused is implicated by the evidence of his own daughter, Tatu Mohamed (PW5'), She is a girl of tender years and she gave her.evidence not upon oath or affirmation 0 It is evident that she was at the house of J3ula on 11/12/72 and that she had been staying there since she stopped breast sucking. She alleged that when every body had gone to Bulats shamba, the accused appeared at the house alone.. He asked her for a fire with which to light a cijarette. She went into the house alone, fetched the fire anc gave it to him0 He lighted a cigarette. She further alleged that she left the place leaving him there but she had not seen him entering any house while she was th3re. The prosecution would have this court believe that the accused must have entered the house of Rashidi and Araf a which is situated near . . . o 0 0 that of l3ula, after Tatu had left him in that vicinity, and that the accused must have then proceeded to introduce an insecticide into the pombe in there. , It is submitted that there was powerful motive which could have induced him to do that, and I would agree that all was not well between him and his in laws0 For the fact which can hardly be denied is that the accused had quarrelled with his wife, one Mwajuma, who is the daughter and sister of Bula and Rashidi respectively. She had deserted him for about two months and by his own account she had resisted to go back to him. There is also evidence to show that she had played further truant and had disappeared from her parent's house a few days before this incident and no body seemed to know where she had gone. I am told she has now come back to her mother 's house and that there is strong indication that she had been at a place called Babati. What hse has been doing at I3abati I would not, andI suspect strongly that even the accused would not know s It is also clear and understandable that the accused has been anxious about the behaviour of his wife, whether justifiably or not it is an open question, and by the testimony of Rashidi and his wife Arafa p he had on occasions manifested his displeasure by making veiled threats to them. He would remark that since his wife had disappeared while she was staying with them they would "see" 0 However, the question here is whether the accused visited the house of Bula on that day as alleged by his daughter Tatu. The accused denied this allegation very emphantically and if it is Tatu 9 s allegation alone which the prosecution relies on this issue, I am bound to find that it has not been proved, as Tatu's evidence must in law he confirmed by other independent evidence. This brings me to the other leg of evidence on which the prosecution hinges their contention 0 It was alleged by SMII Nalompa who first investigated this case that in due course he carried out a search at the house of the accused in the presence of.Hussen Oman (PW9)Nalompa's allegation which is corroborated by PW9 is that he found a small bottle at a pole inside the house, which on examination was seen to contain medicine. When he questioned the accused •ibout it the reply was allegedly that the medicine was for an eye disease0 This bottle was seized and later on sent to the Government Chemist for examination. The outcome of that examination is that the bottle contained an insecticide called Orgarlo cholonine, exactly like the one which had been found in the sample of the pombe which the deceased and his companions had taken on the fateful day. But the accused denied that his house was never searched by the witness and that a bottle containing the substance was traced in his house. The assessors believed the prosecution contention and I would, with respect, share their view. I cannot see why the two witnesses should have decided to conspire to connect him with this grave accusation. The contention which is advanced by the prosecution is that the accused on being irritated by the behaviour, of his truant wife must have contemplated on doing mischief towards hid1aws as a measure of vengeance for his injured feelings. And that he must have gone to the house of Bula on having known that some pombe had been prepared there, and that he must have poured the insecticide into the pombe at the house of Rashidi when his daughter Tatu had left the place. It is said and there is evidence to support itth.t the accused could not have found access to the pombe in any way difficult because he appeared to be familiar with the place and that in any event the door to the house of Rashidi was not and was never secured during day. It is also said that asa reasonable man he must have known or he must be deemed to have known that that act was bound to bring about disastrous consequences on the people who would drink the pombe, and that therefore he caused the death of the deceased who drank it subsequentely, of malice aforethought. Notwithstanding' that he had not intended to do deceased any harm, it is submitted that on the basis of the doctrine of transferred malice be—e -QQ-$ he is guilty on the charge. On the other hand the defence argues that there are real shortcomings in the prosecution case, even granting that the accused was found in possession of an insecticide called organo chlorine. There being no direct evidence to show that it was the s00000/4 ....../4 accused who put the insecticide into the pombe, the question which is posed and which is stressed is how can the court be satisfied beyond a reasonable doubt that it was but the accused who fouled the pombe, It is submitted that there is no basis for excluding other persons in the neighbourhood from that couré of conduct, and much less, such other people having1had possession of the saine insecticide.. This to my mind may be somewhat a remote possibility, but I must confess that it is one which has persistently ripled in my mind, and I feel that I 'have no justification' for rejecting that possibility outright, gravely doubtful of that as I am, Secondly, it is argued by the defence, that there is no clearevidence that it is the insecticide which was found in the pombe which caused the death, and that therefore even assuming that the accused was the one who put the insecticide in the porabe, he cannot be held,responsible for the death, Now what the expert found in the various apocimens were, certain substances which belong to the famiiy of glycosido and alkaloid as well as a small amount of alcohol. The expert did not purport to accertain how much of these the deceased had taken. He merely stated that that type of glycoside and alkaloid are poisonous if they are ingested in large amount. But even believing that the deceased died of the glycoside and alkaloid which he had taken as I am tempted to believeI am still confrontec here with the perplexing report of another expert of the same office to the effc that what the sample of the pombe which the deceased had taken showed, was organic c!hlorine, which to any ordinary man would seem to be a diff&,ent kind of poison. In the absence of any clarification that the type of substance found in the deceased's body was the same or in effect the same as this organic chlorine the issue that the' death was due to the poisonous insecticide which was traced in the pombe, cannot therefore be conclusively or difinitively Lesolved. Much as I feel that the accused was most probably respond-. ible for thc 'death of the deceased, I am unable to say that his guilt has been proved with the certanty required in a criminal case and I am gald that one of the assessor holds the same. I have to give him the benefit of doubt and begrudgingly acquit him. It is ordered that he he relased forthwith unless he is held on another lawful ground. Judgment pronounced in court at Kondoa this 15th day of August, 1.974. Mr. Alimwike for the Republic. Mr. Nbezi for the Accused. Accused present. D.!NO JUDGE