19841124 TZCA Mwanza 1

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: _C.J0, Mustafa, J.A. and Kisanga, J.'t. CRIMINAL APPEAL NO0 54 OF 1983 B E T W E E N KENGOLO w/o ANTHONY . . . . . a . . APPELLANT A N D THEREPUBLIC. 00 OO O0•0000000 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, J.A.: The appellant was charged wit}-imurder. She was alleged to have administered poison to the deceas, a young child, as a result of which the deceased died0 The appellant was convicte1 as charged, and is now appealing. 4 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 to the appellant's place to 'play with the appellant's child. As they were playing 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.W,i and her companions refused to eat,. and the appellant called the deceased, a child Of two or three years old, and offered the deceased some cooked banana and which the deceased ate. The appellant thereafter ...,/2 . 2- told P.W.1 to take the deceased back to P.W.ljs mother as r the deceased Was still being breafed. P.W.1 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 jnformed that the deceased had eaten poisoned food. P.W.2 smelt the deceased and stated that he smelt thiodan, a brand of insecticide. PO14.2 took the deceased to a dispensary, but the deceased died shortly afterward. 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 als9 smelt of thiodan. Evonthally coitents 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.W.3, who was in charge of the dispensary to which P.11.2 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 coirt under section 275 of the Criminal Procedure Code., the cause of death of the deceased was suspected poisoning0 The appellant made an unsworn statement and called no witnesses. She denied the charge and alle g ed that P.W.1 must have testified 4'she did 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 consideratign, accepted the evidence adduced by the prosecution0 The appellant, by his counsel, Mr. 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 Chloroquinc - 0.1007 mg. a fetal chloroquine 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. - Thiodari 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 beeniconducted and it reveals that the bananas contain "Orgarlo Phosphorous" which is also found in i.e. . the viscera ...". , . . -4- •7rcm 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 thiodan belonging to the appellant was poured on the cooked bananas, and that the deceased was enticed to eat such banaras and died as a result. It was established that thiodan contains "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 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 uncnnectcd with any activity of the appellant. On the evidence adduced, nothing links the appellant with this "Organo Phosphorous" which would scorn 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 appellant with the administration of poison, that is, "Orgono Phospphorous to the deceased and in our view the conviction cannot stand. We allow the appeal, quash the conviction, set aside the sentence imposed, and order that the appellant be released forthwith unless .otherwise lawfullyetained. DATED at MWANZA t' is 24thdy of Nol/?mber, 1984. -F. L. NYALALI • • •' CHIEF JUSTICE fl•' . / -/ .1, A. MUSTJFJt JUSTICE OF APPEAL R. H. KISANGA JUSTIE OF APPEJIL I certify that this is a true copy othe original. _( P18SHI ) SENIOrZ DEPUTY REGISTRAR