19841124 TZCA Dar es Salaam7

'.l ·: """ ::, ¼4 .,. IN THE COURT OF APPEAL OF TiiNZANIA AT MWANZA (CORAM: ,!'Jyalali. C.J., Mustafa, J.A. and Kisanga, J. 1-1. 0 CRIMINAL APPEAL NO. 54 OF 1983 BETWEEN KENGOLO w/o ANTHONY • ., • 0 e O • 0 • o o o e e o • APPELLANT A N D THE REPUBLIC. ■ 0 0 oioooeo o • e o o o o • • RESPONDENT (Appeal from the conviction of the High court of Tanzania at Mwanza) ( Mushi, J. ) - . dated the 12th day of August, 1983 JUDGMENT OF THE COURT MUSTAFA,~ The appell~nt,: was charged with rnurd~r. She was alleged to have administered poison to the decease:l t a young child, as a result of which the deceased died. The appellant was convictel ! as charged, and is' n~w appealing. I The eviden~e ,briefly is as followse P. Wo 1, Oada, . the elder sister of the dece'as1d, gave evidence without being sworn, as she ' ' was a child of tende~ years. She stated tnat she and the jeceased -·, and another sibling 1 went to the appellant's place to play with ! ' the appellant's child. As they were playing there the appellant was seen to open ~ tin by using a knife and poured some content from the said tin o;nto some food, and asked P.W.1 and her companions to eat' i~. In'the meantime the appellant had sent her child away to chop some firewooct. P. w. 1 and her companions ,. refused to eat, and.: the appellant called the deceased, a child of two or three yea.rs old, and offered the deceasE..>d some cooked banana and which the deceased ate. The appellant thereafter •••• /2 .ii 2 told PoW.1 to take the deceased back to P.Wo 1 1 s mother as the deceased was still. being breastfed. Po Wo 1 and her companions went off to 9c home, anj on t:·1e way the deceased developed certain symptoms, vomitted and was ill anJ was taken to a relative PoWo2, who also testified. P.Wo2 stated that on the material day at about 2o00 p.m .. the deceased was brought to him in a state of il:lness, and he was informed that the deceased had eaten poisoned food. PoW.2 smelt the deceased and stateJ that he smelt thiodan, : a brand of insecticide. Po W 2 took the O deceased to a dispensary, but the deceased died shortly afterward. 'I P.W.2 visited the house of the appellant and there discovered a tin of thiodan freshly cut open and hidden under leaves anj some cooked bananas' in, a sufuria which he alleged also smelt of thiodan. Even~--ually ~~Dtents from the tin of thiodan, some vomit of the decea~ed, the viscera and other parts of organs of the de¢ea'sed and some cooked bananas were sent to the Government Chemiit for analysis, and a Government Chemist report wo.s du:I.y obt,2litjed und exhibited in courto P.W .. 3, who was in charge of the Jispensary to which PoWo2 • I I took the deceased examined the deceased and observed that the deceased was frothing at the mouth an1 that the deceased's hands and legs were t.tembling.. He smelt th,2 froth at the mouth and he alleged he smelt thiodano The child had difficulty in I breathingo He was ,of,opinion that the deceased must have taken some kind of poison. P.We4, a p~li~e officer, gave formal evidence concerning the procurement of; th~ vomit, the tin of thiodan, the cooked bancclnc.s, the viscera und otper' organ spE::cimens extracb;.->d by the doctor ,who performed the pos;t mortem examination on the deceased and the desp3tch of these articles to the Government Chemist; ahd he oooo/3 ,~).:'. ~j 3 formally produced th~ G6vernment Chemist Report, being Exhibit 6. i :! According to the postl m~rtem report which was admitted in court i ! 1 unjer section 275 of'I th6 Criminal Proced\...re Code, the cause of death i ij of the deceu.sed was / s,.i:!spected poisoningo i I The i:lppellan:~ Ja,je an unsworn statement and called no wi tn.csses. I II ' She denied the charg;e Jnd alleqed that P.Wo 1 must have testified as she 1id in order //to :1 avoid b~ing punished for not looking after :1 'I the deceased property who was under her careo :/ 1j The trial j'l.p-dg'¢ and the assessors, after due consideration, I I accepted the eviden<t:e !~dduced. by the prosecution.. The appellant, . counsel, Mr.,'j b y h 1.s l . has not seriously 1B~tambala, . c h a 1 lenged th e f ac t s 1 'I 1 as adduced by the R/epu,blico Mro Butambala submitted that there was I 11 ' no evidence to link, tfle appellant with the p0ison which allegedly ,I ,I ,1 11 caused the death of tfue deceased. He referred to the Government j'I I 1_ Chemist Report Exhibi,t 6 .. In the Report in the relevant pass~ges I ;, . in j 1 h s 1.· t .1.s s t a t e d : th e re 1 evan t parag,rap I I'I . '/ a A11 - Li vet 3,,nd Kid rn~y s : 1/ 1J . "exa~ination n~veuls a small quantities of Chloroquine I I - ol_t 10 07 mg• • o o :i I1 a fbt9il chloroquine dose is 20 mg. for every kilogrn.m of .'/lbo9i y Weig ht a O O ' i Also detected "Organ,) Phosphorous" which is one of the I 1 1 chemicals used to manufacture insecticides. This I I 1 chemical kills if a human being takes it in large 'I II quantities. :1 /! . 11 B11 - Thi0.Ja,h Poison: I I Ex6milnation has established that the chemical in the bo'~t]e is Thiodan which contains "Organo Sulphurs" I 'I anp 11,0rgano Chlorine" o 'I i/ I i "C" - 4 P,ieces of Banana:- 1 i! Exa!miAation has been '..conjucted and it reveals that the ba~an!s con~in °0rgano Phosphoro"Js" which is a1s0 fo"4n1 /in "i1.", i.,eo the viscera 1 11 0 •• 0 i 'I I j o•••/4 I ,, •.;.. . ~-, -·--- _____,,__ . ·' . fr;_-:,, th~ Gsvernm~nt Chemist's Report i.t would seem clear ... that the poison which killej the deceased wns "Organo Phosphorous"• ' The prosecution case was that some liquij from the tin containing thiojan 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 thiodan contains "Organo Sulphur" and "Organo Chlorine", but not 11 0rgano Phosphorous u. , On the face of it, in the absence of any other eviience, the thre0 chemicals are differento The "Organo Phosphor,:)Us" found in the cooked bananas 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 unc~nnected with any activity c;;f the· appellanto On the evidence adduced, nothing links the appellant with this "Organo Phosphorous" which would seem to be the poison which caused the death of the deceased. In the circumstances there is a serious lacuna in the chain of evidence linking the appelli,mt with the administration of poison, 11 that is; 0rgo.no Pho$pphorous',' to the deceased and in our view th2 conviction cannot sti:!-nd o We allow the.· appeal, quash the conviction, set aside the sentence imposed, ;and order that the appellant be released forthwith unless .otherwis~ 1awft.Uly d,etained 0 ~ DATED at M~ANZA this 24th day of November, 1984. , s.-· ., '; F. Lo NYALALI CHIEF .!IUSTICE A. MUSTi,FA JUSTICE, OF APPEAL Ro Ho KISANGA JUSTitE OF APPEAL I certify that this is a true copy o-t·- the origina 1. ···-~·- -C -Bo,·Po ·MGSHI SENIOR 6EPUTY REGISTRAR