19841124 TZCA Mwanza1

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: y±CoJo, Mustafa J.A. and Kisanga, J.A. CRIMINAL APPEAL NO0 54 OF 1983 B E T W E E N KENGOLO w/o ANTHONY • • 0 • APPELLANT A ND THEREPUBLIC. 0000.00 e 00 00 RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) Nushi, J. ) dated the 12th day of August, 1983 / JUDGMENT OF THE COURT MUSTiFA, J.A.: The appeliant was charged wfth murder. She was alleged to have administered poison to the deceased, a young child, as a result of which the deceased died. The appellant was convicted as charged, and is now appealing. The evidence briefly is as follows. P.W.1, Dada,.the elder sister of the deceased, gave evidence without being sworn, as she was a child of tender years. She stated that she and the deceased and another sibling went tothe appellant's place to play with the appellant's child. As they were p1ying there the appellant was seen to open a tin by using a knife and poured some content from the said tin onto some food, and asked P.W.1 and her companions to eat it. In the meantime.the appellant had sent her child away to chop some firewood. P.14.1 and her companions refused to eat, and the appellant called the deceased, a.child OftwO or three years old, and offered the deceased some cooked banana and which the deceased ate. The appellant thereafter - told P.W.1 to take the deceased back to P.W.1)s mother as the deceased was still being breasfed. P.WO and her companions went off to go home, and on the way the deceased developed certain symptoms, vomitted and was ill and was taken to, a relative P.W.2, who also testified. P,W.2 stated that on the material day at about 2.00 p.m. the deceased was brought to him in a state of illness, and he was informed that the deceased had eaten poisoned fogd. P.W.2 smelt the deceased and stated that he smelt thiodan, a brand of insecticide. P,W.2 took the deceased to a dispensary, but the deceased died shortly afterward0 P.W.2 visited the house of the appellant and there discovered a tin of thiodan freshly cut open and hidden under leaves and some cooked bananas in a sufuria which he alleged also smelt of thiodan. Eventully C0.0tents from the tin of thiodan, some vomit of the deceased, the viscera and other parts of organs of the deceased and some cooked bananas Were sent to the Government Chemist for analysis, and a Government Chemist report was duly obtained and exhibited in court. P.14.3, who was in charge of the dispensary to which P,14.2 took the deceased examined the deceased and observed that the deceased was frothing at the mouth and that the deceased's hands and legs were trembling. He smelt the froth at the mouth and he alleged he smelt thiodan. The child had difficulty in breathing. He was of opinion that the deceased must have taken some kind of poison. P.W,4, a police officer, gave formal evidence concerning the procurement of the vomit, the tin of thiodan, the cooked bananas, the viscera and other organ specimens extracted by the doctor who performed the post mortem examination on the deceased and the despatch of these articles to the Government Chemist; and he -3- formally produced the Government Chemist Report, being Exhibit 6, According to the post mortem report which was admitted in court under section 275 of the Criminal Procedure Code, the cause of ioath of the deceased was suspected poisoning. The appellant made an unsworn statement and called no witnesses. She denied the charge and alle g ed that POW. I must have testified as she i-Id in order to avoid being punished for not looking after the deceased properly who was under her care. The trial judge and the assessors, after due consijeratign, accepted the evidence adduced by the prosecution. The appellant, by his counsel, Mr 0 Butambala, has not seriously challenged the facts as adduced by the Republic. Mr. Butambala submitted that there was no evidence to link the appellant with the poison which allegedly caused the death of the deceased. He referred to the Government Chemist Report Exhibit 6. In the Report in the relevant passages in the relevant paragraphs it is stated: - Liver and Kidneys: "examination reveals a small quantities of Chioroquirie - 0.1007 mg. a fatal chioroquine dose is 20 mg. for every kilogram of body weight - Also detected "Organo Phosphorous" which is one of the chemicals used to manufacture insecticides. This chemical kills if a human being takes it in large quantities. - Thiodan Poison: Examination has established that the chemical in the bottle is Thiodan which contains "Organo Suiphurs" and "Organo Chlorine". - 4 Pieces of Banana Examination has beenconi-ucted and it reveals that the bananas contain "Orgarlo Phosphorous" which is also found in "A", i.e. the viscera ...". . . - 4'- From the Government Chemist's Report it would seem clear ' that the poison which killed the deceased was "Organo Phosphorous". The prosecution case was that some liquid from the tin containing thioc-lan belonging to the appellant was poured on the cooked bananas, and that the deceased was enticed to eat such bananas and died as a result. It was established that thioclan dontains 'Organo Sulphur" and "Organo Chlorine", but not "Organo Phosphorous", On the face of it, in the absence of any other evidence, the three chemicals are different. The "Organo Phosphorous" found in the cooked bar,anas could not have come from the tin of thiodan which the appellant was alleged to have poured on the cooked bananas, as it is not one of the chemicals constituting thiodan. It is not impossible that this substance "Organo Phosphorous" might have got on to the cooked bananas by some means unconnectec1 with any activity of the appellant. On the evidence adduced, nothing links the appellant with this "Organo Phosphorous" which would seem to be th poison which caused the death of the deceased. In the circumstances there, is a serious lacuna in the chain of evidence linking the appellant with the administration of poison, that is, "Organo Phospphorous'; to the deceased and in our view th conviction cannot stand. We allow the appeal, quash the conviction, set aside the sentence imposed, appellant be released forthwith unless otherwise a,w fu 11 f/ 4.''.•i" DATED at M&1'ZA Is 24tl, da>o November, 1984. ,) I F. L NYALALI CHIEF JUSTICE A. NUSTAFA JUSTICE OF APPEAL R. H. KI SANGA JUSTIE OF APPEiL I certify that this is a true copy o'f the original. (..L•'SHI SENIOrZ DEPUTY REGISTRAR