19760823 TZHC Dodoma

N IN THE HIGH COURT OF -LNZANIL AT SNG[D4 ORIG-IN.L JURIsDICTION (DO DOMi REGISTRY) CR1 flLL SESSIONS CASE NO6 41OF.17 t Y THE REPuBLIC VERSUS SAMSON 510 UGUIJi CHARGE Murder c/s 196 of the Pon'l Code Z. JUEMNT ' M'TT'7f T - I LL'4L.J.L1. V L The accused Sanson Uguin, stnds charcd with five counts.ofmku'do.rc/s 196of the PenalCodo. He denied the • charges-. • It was the Re publit 1 6 case that the acciised on or about the. 11th dafofOctobor, 1974, in I±ha district, 'Singida, region, nurderd fiv persons - name1y Shilla iVikoma, Antoni Makala, AU. Mlulu, Pungu Magindu ud Kitundu Mkunbo. From the .evid:ónce of the identifying witnesses •(PTJ1, PW2, 2W3, PW4 and PW15) and that of the doctor, PW5), thoro can be:nc doubt that the above mentioned people havo-diOd. The only question tie court has to decide is whether it was the act dr contri- vance of the accused that caused the docths of the deceased persons. Tho following facts wore narrated to the court, and, : if I"may add.worenot at all in dispute. One LazaroMkunho • (PW13r.) a resident of Makunda village in :tha district, had pombo for sale in his honOstead on 1111-0/74. Many villagers visited his house to drink pombe. The accused was one., of the .vills who went there tO drink ponbe. So.oe - the deceased S CSOflS • •• It was the prosecution's argunent that while at the pomb.& plabe he accused, with intthit to kill or cause grevous harm to- some of the people who were drinking pombe, put P9iSonn;Epotof pom1can thatthe five deceased persons died soon after drinking the poisoned pombe In support Cfth. arGumoit the cour heard the evidence of Lazaro, (PW13). hccordlng to his testimony, the accused who is a1parently hisbrothor, arrived at the pombc place at LT - '2 about 4 p.m.•and that"ho invited him to si.t in his bedroom with his two conpanions ho.witnbs told the court that he gave to 'the accused two' thhilhings worth of pombë. free of charge,. ThXe witnos further testified to the CcTU4't that as he was busy outside the hous.0 1 . ecliecting drinking utonsils one Shupa Makale (Piii), complained t9 him tha't1 -thc accused had given him porabe which was smallL'gkerosine oil. The witnes was surlrisod to hoar. .tht the acc,isocUhad offered such p.onbo to Shupa aiho decided to ask him about Shupa's complainl. It was his evidence 't1b when he entered the bedroom ho foui4 the accused stir±'ing ponbo which was, in a potin the bedi- oom. He asked him what he was doing arl that ho' accused rolied that he was stirring the ponbo hpcaise he wanted to drink; Apparently the accused was now alone in • the room. It was'1'Lzaro's evidoro that he tasted thopombe in the pot ad,,'fOund''that it was.saelling kerosine oil It' was his' evidencethat he asked the', acused why he had put 'ke±'osine oil' in the poibo and why he had given Siupa : pombo smelling kerosine oIl but that the accused did not reply. The court was also told that whthi the acOused was invited to drink the pombe in thê pot with other villagers. h. said that he was going for a cqil of nature aid left the- room ' * .. And never cane 'back. 1pparently' the villagers said 'that keroino oil was harmless and they started drinking the pbmbe in the pot. 1ccording to Lazarot.s testimony he drank the pombewith 11 his close neighbours and 7 ,that after the pombe had been ex- hausted everyone left to his respective home. SoOn 'after he 00 hoard an alarm frora.&housc of one of the deceased persons (JJi'. house). He answered the . alarm arñ on arrival he' found that li had fainted. While at Au's honestoadho.hoard :anothor alarm coming from Shilla's house. He wöntthe±'c and foufld thatShilla (one of the deceased parsons.) had also fainted. It was his evidence that while he was at Shill'ais home- stead hoalso fell down'unconsci'ous. He gainodhis conscious- ness the' 'following day inKiomboi'Govornfrient hospital. Lazaro related to t1 ccurt that the pot was cloan and that it did not smell 'korosine oil' whoi he filled , it' with pombe. . One'Shupa, (Pwii), related to the Court:':ta,he was once ue.rriod to accusod's deceased mother. Jccording to his testimony when deceased's mother ded the accused deranded from him a nber,o cattle and millet alleging -that these were his lato ,otior'" property. The witness dc]4ned to sur'cnder any property to the accused, saying that all the 3 - property in his hc'usc belonGed to him and that accused's mother had loft no propdit for the accuso to inhorit. It was Shupa's tcstiti.óaay that tho accused got annoyed and said to him "You have refused togive ma some cattle, you will nt live to enjoy your wealth". On the 11th of October, 1974, Shupa wos among the villgors who h- ,%Ap yisitod Lzaro's placo to drink poPbo. .ccording to his evidence as he w-s there sipping his liquor the acusOd approachcd him nd 'offered h ~ifn a bowl full 'o pombo. The witness toOk th pombo. AS he was about, to drink it he found that it ws smelling kcrosine oil. He asked the accused why the pombo was 8md 1ling korosino oil and the accusod is said to have ropliod that it was "normal pombo". The witness asked th' accused t6 drink it firstbefore he, (PW11), drank and, according to the witnoss l thp accused refused to dn so. The witness handed the ponbo baok to the accused and he, (PW11), left the place to his hcuse. One, Iaknika Jllcumb o, (PW1 2), told the court that ho saw • the accused offering 'pobe to Shupa, ('Pwi 1), and that the accused iöfused tc drink the pombe when asked to do so by Shupa. This 'witness also told the court that aftr Shupa had left, the accused went into the room, càrying the pombe with 'him. - 'The evidence of Paulina, Lawolu, Sada, Hawa and Jumanne (PW6 9 PW7, PW8, P9 and PW.1O) rcsectively was to the effect %1 • that they also drank the "korosino solling" pombe and that - when thy"ä'±ived at their respective homes they fell down unconscious 'and hoy, in 'th following day, found themselves admitted' In Kiornboi GOvOrnmcnt hospital." Tho"doctOr', (Pw),' who performed 'ost-mortem examinations on tho dee'aod bodies gave evidence to the effect that he found the 'livers of the dead bodies enlarged and ws 'of the opinion that the deceased parsons could have died fxom poison- .ng. Asample' df the liquor in the Pot was sent to the •:rinc ipal Government Ohothist f or analysis. The Principal • Chemist,. (PW17), who gave evidence on.behalfof the actual Ohemjst who had onalysod the liquor, the latr had already left the country, rclatod to the court that thesample of pombo sent for chemical analysis contained glycoide. 'which pparenly is a collective name for severü drugs. It was 'the Principal. Chemist's evidence that it was iot'possible to identify any particular drug. Tho chemist told thc court that like all drugs glycoside can cause do2th when taken in large 4: quantities According to his vidence the amount found in the sauplc of poubo was less than .01 ml. grames and tht this wes the ason why it was not ossibl to identify as te what particular glycosido. was in the: sanfle of pombe. In his defence, given on oath, the accused denied the allogtion that he had put poison in the pombe. He said that his youngbrOtIr Lazaó, :(pV113), and his sister-in-law, (P7), told lies when t1:oysaid that they saw himstirring the jombe in thepot He said Lazaro lied against him because ho, (Lazaro), had at: one time suspected him of committing ddultory with his wife, As for his sister-in-law, he said that she told lies ageinsu him because at one tine he had quarreled with her over nialot. A to the evidence of Shupa (PW1'i ), that he, (accused), had repeatedly invit:.d him to get intr the room and drink ponbe with hin and. that he had offered him kerosino-smelling pombo, he said thet Shupa also told lics against hir' as thro ws bad blood between them. The learned ' state attorney argued.at.the :tidonCe. of Lazaro, (PW13), Lazaro's wife-., (P1 4 7), and.the testimony of Shupa and Fja1mnikajPW11 and P.W12 respoctively).pointod. irresistablyto the fact that it was thQ accused who had oisonod the pombO that caused the deaths of the •&ecoased persons. It was also argued that if the coart came to the conclusion tha- .it was the accused who had poisoned the ponbe, the court, it was arguod would have no alternabivo but to find that the accused had oisonod the pembo with ualice-af ore- thought end find him gui1ty.;ofmurder as charged..' . . The learned defonce ?ous.el on the othOr hand argued that the was no one who saw the accused iitroducing a foren eLoment into the pot of .pombe and that the ovidonco that thc accused was soon stirring the pombo wee Cnit circums-j. in the so far as the qucstion of poisoning the pomhe by the accused e - concerned0 T It was also subrnedL that even if the court found it as a fact that the accused wee found stirriiig the pombo such act it was arguod, was cepeble of an innocent oxpinaton. After my summing up to th gntleion assessors they were both of the view that there wa ls no sufficient ev&.donce connoc- ting the eccused with thr- deaths of the doceasod persons and found him not guilty of the of±'onces chnrged0 Iftor iaearing the witnesses as they testified, and in my observation of, their demeanour en. . bearing in mind, I was left innodoub't at all that the 'od man Shupa. (Pwif),. told S :1 the truth when he said that the .accusedrepstedly asked him to join him in the room so that he (acctsed) could offer him some pombe. Eqiiàll I agree with Shupars' iëstifnony thátihe accused brought him "kerosine" smelJ.ing ponibe thih pombe the accused refused to drink when asked to do so by Shupa0 Nakanika, (Pw13), supports Shupa's evidence to the hilt on this Point. I also accept Shupa' evidence as truthful when he said that there was enemity hetween him and the accused and that at one time the accused had. threatened him With death - The accused had said to Shupa -. "You will not live to enjoy your wealth" Lazaro and his wife piso impressed me as credible wLtnessei ' when they said th'at they saw the accused stirring the pombe and that he refused to drink the .poibè. in 16he pat when asked to do SO I agree with -the learned state att'ney that the evidence of Shupa .(.Pwtl'), that of Mákanika, (Pw12,), Lazaro (PW13) and the evidence of Lazaro's wife (PW7), tend to throw .a,lot of suspicion on the accied that he y have poisOned the poihe in the pot. . . . ... But, on the othe.r.hand., and as rightly argued by the learned def9ncé counsel ) -bhe evidence tending to suggest that it is the accused who poisOned the pombe is wholly circums- thiil. The accused was arrested on the same night. His house was searched but nothing was found in support of the prosccution case that it was the accused who poisoned the liquor. .. . Even .f for the sake of argument there was evidence which shcwed That the:accusod had introduced a foreign element in, the pombe there till remained the vital question to be decided .and'..t tha•t is - Whatwas the cause of the deaths of the 'Hd.ocesód pe±àona?T 1' . Neither.. the..doctor,..(PW5); nor the Principal Ciemist, (Pw17), were able to tell the court as to what was the cause of the deceased's death0 The doctor said in his evidence-in-. chief' inter 'alia: "In ray opinion the deceased could have died from poiaoning But I cannot be sure. ,.......In my opinion the dececd could have died from poisoxior abuse of alcohol". When cs's-examinéd by the defence . the dbctor si One cannot otally óverrule the osibI- lity,of alcohol poisoning, in the"absere M chemical analysis0 . I formed thc opinion that the poison they had injssted could hpe been an insect.icidell. When cross-examined by the court as to whether liver specimen of the deceased persons were sen-t to the chemical laboratory for analysis tho doctor. said "There was a muddle in labelling theliver • • specimens and ac such . the chomicai,l.boratory . .irl. 'Dar os Salám' could not carry dt' the chemical aialsis "tests".. . '.••- •• • In his evide'nce the Principal' Chomst aid that..1 mg. of gycoside was found in tLle sample of pombe sent for chemical antlysis. He ssid in his evidence-in-chief • "No glycoside can have lethal. offect,at,thef low dose 'of 001 mg." .. . ' On being cross-examined by the defence he said There is no inaecticide containing glyco- aide' s one of its components"., It would appear from the evidence that the doctor was of the view that the deceased may have been poisoned with an insecticide, The Princa,pal Chemist on t1e other hand only found glycoside an t1- . sample of pombe taken to him for chemicc1 analysis. . This being the position it was, 'on the evidence before this court, impossble to say what was the cause of the deaths of the deceased perons. Tho.matter is mado.all the more diffiuJ' by the fact that liver .spcimons wore, badly handled and resulted in muddled labefling and consequntly it was impossible to perform chemical tests on them.- There was I agree with the Republic argument that there wore some facts in this case which throw a lot of suspicion on the accused but as it was held by the Court of Appeal in thc case of cABI1:ID 4 SD oMATYAvRj) 144 "A more aggegation of seprate fact's, all, of which are inconclusive in that they are as consistent with innobence swi±h guilt, hs no probative force", •. • . "In order to justify,. bii":."circumtan±iál.: evidence, the inferrence of guilt, the i.ncul.paty'Thc±s, must be in'ompatible with' the'ñnocence. of 'tG accus'd arfi incapable of explanntion upon any other reasonable hypothesis than that of his guilt" •R.VKiERIG KOS nd another, (t949)A..c .A 1 -5 5 • • . .- ....7 7 - In the present case the prosecution has, I agree with the learned defence counsel, failed to reach this high standard of proof. SuspIcion that the accused may have been the person who caused the deaths of the deceased persons there was, but as to proof there was none0 I agree with the opinion of the gentlemen assessors that the prosecution has failed to prove the charges against the accused and I accordiny find him not guilty snd I acquit him. Ll DODO MA 23rd .Au;ot, 1976. N/S L DN IJE Alimwike fa th Republic0 Mbezi for the accused,,