19950612 TZCA Mbeya4

IN THE C:JURT OF APPEAL OF TJ1NZANIA h.'.L..~YA 1 CRIIHNAL APP!i:AL NO. 2 OF 1994 BETW.BEN SESILIA MBALJ\1111.lEZI. • • • • • • APPELL.ANT .ANTI T lffi REPUBLIC. • • • I. • ?..ES?ONDENT .. (1:1ppeal from tl1e conviction 3nd sentence of the rhc;:h Court of TanzanJ_d 8.t Suinbawan::;E) dated the 22.nd. d2y of Nover,iber, 1992 in Criminal. _SG_ssi_ons_, Case__No_.... /:.5...of,. 192.,g JlTDG?3i.\T OF _,.,.THE ~_____ .., _COU11T - · •.,,. ..... .. - ,.J'>,,,. .. ,,, •.,..... _ •• ,.,,,.,._ Tl..:1e appe 11ant ,....,-,,,--.---.-- ·' D/0 I~':)' 0.t;wl.ulil - , .. -. =~,I \w1-LLJA1.,.,:.G;;.. . t-e d was convic ' ✓· .f-:_;p- the mlffder of the dece;:-~sed JOHN w:AKrn·:r contrary to section 196 ,)f the Penal Code o She was sente.i.lCed to d.eath. Diss~tisfied with tlle conviction and se,;.,.tenc:e ~ sho has lodc~e6. th..:Ls appeal. This is a pathetic ce.se., It involves the death of a 9 yez:.r old boy who wus the child of the 60--vvife (P'iilol) of the a:./(18 lla.nt. The L:.cts giving rise to the case are sLn:plc. Briefly ste.tecl, _they are that on 6.3.1991 there wc:..s loc:.::l liqu.or (po:mbe) for sale at t;~e house of the appellant. Later in the evening thc,t ~b.y, at about 6000 p .,m. ~ v:1hen the de ceased returned fro1i.1 hRrcling cattle 9 he (decensed) was sent by his mother (PW.l) for his father at the c.\J_)pelJ..3.~t 1 s house. It is apparent th:;;,t w.hile at the ii \, • 2 house of the a1Jpe llant, the de ce,:;.sed n,;G offered local liquor 1 for 2 drink by the 2~;ii)ell2nt in a pl:1,stic jug. There<1fter 9 the cl.e ce2sed toGether with his father returned to the house of his mother 9 Pi"!. le After ts:lc,i,1c; the evening meal 9 tile d.E, ce;::;,scd st:.::rted co!nplaining of sev2:::..~e pain in the stmr1scl1. Soon, the decec:,sed started .vomi tting froth mixed v\Ti th the local liquor 9 porabe. Shortly, tJ.1e dececJsed died at about 7.00 p.mo 9 tlK sa;ne day. Accordint:s to the ii1other of the dece2.sed 9 (PW~l) at the ti:tile when the o.e ces.sed w2.s in pE;in, he~ sts.ted that l1e 0 (dece-~~sed) had been off2red for a drink, the local liqao_r 9 pombe by the ap_~:iellant vvhich he drank. . .As the death of the deceased vvc~s so sudden, the 2m::ie~I-J._c,_:nt was suspected of havinG pl2yed foul plc:y by poisoninc.; t~:ie local liquor offered to the dece2sed • .After the postmorteD exa;:n.inati on of the body of the dece2.sec1, specimen SGiilj_)les of the dc::ce::::scd.'s i.i.1testines 7 the ~'l_'t1J'",-:·'1.,·,::.i}Ce r~rom the :'Jo+t.L,8 whi 0 h t'-,r-, ,_. ._ -. V • .._, • • _r __ ..... ···,·y,J 0 1.J... l--nt , .• 1 :..~ J. Y Q 'ni'xed .d vvJ·t1·· • - •L the lic;_-L1.or offered to t.i.1.e deceased <'.:~:1d the vomit fluid ·were sent to the Chief G-overn::,1ent Cheraist for ,:.:::1ulysiso The report of the Cbief Govermnent Chemist (:,..]x. P5) had shown that tl1e samples cont.::.ined diazinon which is poisonous and hc.rrnful to hwnan beincs if taken in s"1fficiel1t q_uanti ty. Follo·ai:n6 the death of the deceased 9 s local reconciliation meeting wc1.s held c1t the deceased's 7j_l.L'. 0 e where 1 the ap~)elL:mt admitted poisoDi:ng the dece;~socl 1Jy offering him t::i.e .local liquor 1 J)Oi"c1be which, she h2c-:.. mixed with diazin.o.iJ.• The appella,nt 1_1.;:;s subfequently, cheiru;ed \,vith • 0" ,,/3 '. 'a 3 the mu.rc~er of the dec22.sed. _b,t the trial 9 defending herself in a sworn statement 9 the c:;:;y~JclL:mt adaraantly denied offerinc the local liquor to the deceasedo 3he 8dmitted that the cl.ocsased partook in dri;.1king the liquor to:::;ether with the other children. The lc:::rncd tri~l judge rajected the ZJ}))OJ.lant's defence as :fi-•ivolous. 1.'he aiJrell~nt was convicted as charsed. On appeal to this Court, Mr. Mwa11golo 9 learned Counsel who E:c1.v-oc2.ted for tho E(J'.;Je llant had filccl three grounds of 2.p~_)e8l. From the bar, Mr. l.'.iwangole o,rc;ued those grounds together. He stated that in the 1-;:i.3in, there was no dispute about tl'1a facts as est2.blished from t11e evidence" The fact that on 6.3.1991 there iW.:s liquor at t.l:lo house of the appe.ll2nt 1:md that the dece::ised drank the liquor was not in dispute. He also admitted that diazinoh P3S found in the store of the a11iJellant w~uch was used fo:-c killing rats. What v:cs disputed, Mr. i<wangole indice.tedv was whether the apysll:;,nt ~1ad mixed the poisonous diazinon with the liquor which t110 deceo.sed drank. He submittoc.l. that the charge of murd.cr h.L:c1. not beE.m }?roved bo cause it 112,d not been e staolished that tho appellant had intentionally pl2.ccd the poison in tlle liquor D.nd. offered it to the de ceased. · ThJt 21s the diazinon was ke1Yt in one of the six plastic contE·.iners around, offereC::. the liquor to the deceas8d in the container in which cliazinon was kept.. In this way, he sa.id, the appellant could not be convicted of murder ss this was accident(\l. In such circur,1stancss, the 2,);;iollant, if :~t a11, 4 should have be(~n convicted of the le sscr offence of manslc:.u{;hterp Mw. T!.rwa.nc;ole urged. As re:~,::;rds t.he alleged confession by the aJ11ellE.nt to have poisoned the deceased, Hr o l'.~w;',.ngole stated thct the appe llcmt in her defence had consi st•3ntly been denyinc,;. Soy he cont8nd.ed, the trial court should not have relied on such confession in convi ctj_ne; the appo llant. i1s the salient issu;)s are not Li dispute 1 we intend to addr0ss ourselves on the question whGtl1or the appellant intGntion:::lly mixed diazinon with the liquor offered to the dcce:'.sed. In this rsg2,rd 9 ivlrs eakuru, learned Senior 0 State Jttorney who appeared for the res~·io.i1dGnt RepublicP with eloq_uence cow1tercc-:. the argwi1Gnt adv.:-mced by t~r.rr::wangole that it ws.s accidental that the dece.:J.SC;d · was offered liquor in a cont.::1iner in w.bi ch e.iazinon was ke~"Jt in the appc llant I s sto::.:."'e f o:i:-- the purpose of killints rats.. Wirs. M'.akuru:i learno-d Senior State .Attorney fv..rther stated th,::t in view of the prosG cution evidence ,;1dduced, the def0mce of accident was not availc~.ble. On this, the evidence on record reveals a vasci1L:~ting position of the appello.nt. That is, at some st<2,c;r:;, the ap1:-1ell2nt had ste.ted tl.:e;t the d2ceascd had been poisoned accident1:1.lly by drinking liquor from a utensil. wh.i ch he;d been used for keeping DDT c:.:.id d.ic::zinon poison. Next, it is in evidence e.ge.in that sl1e,cll2n3ed her position when she ad.mi tted to h~.ve pois,::med the do ceased by offering him tj_m local liquor 9 ~i:Jornbe, which shn,hc:'.d. mixed with diazinon. T.his is fully supported by the evidence of PW.3 and F:7. 4. It was 9 we trLi.~, a signif i c ::.nt factor in ,t 5 taken i:L:to accow1t by t}1~: trial judcse. r\Irs. l\1akuru 9 le ;.Tned Seni.or 3tc:..to ,\ttorne y 9 had_ subuit-'ced. that the co.nfr,ssion of the ~?.;<_:i(,llant before ST}\NSLi~US K.AZIULAYA (PV.3) is true en.d voluntary. She further submitted thc:\t t.bis confessio.i.1 wc.s crucial in detern:,.inin0 the issue w'._ic:;ther the a:YpoLL2nt mixed diazinon I with tJ.1e liquor intentionally. V/€ E:::;rcc v1ith Erso lVIakuru on this l)oint. If, as cl8imed the a:,;r:1cll,,,11t was forced by PW.4, 2. policeman~ to acLut the offence, but then what reason v-1,::;s there for her not to tell tl1e truth before PW. 3, the VilL:~ge Executive Secretary? To our minds, FW. 3, in the position of the Village Executive S2cretary, is much closer to the residents of the area incluq.ing the a1-1pe llant in resarc:1 to the day to day social sffairs. He (PW .. 3) is I,_,. norr;12lly involved in solving social :i_Jrobler1S of the vill2,5ers. So, we seo no reason for the o.ppellant~s claim that she was forced to li1.::lce the confGssion at the villag0 before P'd. 3. And so, v1.c ;::i.re in agrecncnt 'lti tr~ Mrs. rJakuru. 7 learned Senior State Attorney that the trj_al court was justi:ficc1 in acceptines the confession .by the appellant at the ville,:;e before PW. 3 as truthful. \7hat is the nature of the confession. PW.3 stated that on 7/3/1991 a meeting w2.s called. in connection with the d.82,th of the deceased. It was attenu.cd by the Village Chairman, PW. 3 himself 2nd other villac~ors. In that meetinc, the appellant Z1drn.i ttod to have offered local liquor, pombe, to the dece2,sed mixed i7ith diazinon. P"i'IJ.3 further stated tha,t the c:.~,::ipc llant broucht b2f ore tl1e 6 m,::eting a bottle contain.inc; diazinon 9 p2rt of which she 1 had mixed with the liquor offered to tho eppGllant! She (a.:;;:ipoll..,nt) also showed the container v;llich was used by the d8 ceased in drinkinc; the liquor offered. \Vhen taken to the cert Office P PW.3 w0;.1t on to state I tl1.c Gppellant plcc::de<..i. for mercy for whv.t she had done in poisoning the de ce ;J sod be cause she r1,::. s 11li sled by Sat an f the de vi 1. On 11 The accused told us thst s.:.-1e wa.s sorry for h8ving gi vcn t11c. poison to the dcccasedo She s:-:id. 9 3atan 9 the devil, h2.d misled. hc:r. 2nd th3t she asked for mercy for t;;_,,_2 matter to end up there. She 1w:.:.s ready to pay a heL'.c.l of cc1ttle to us so t.hat no action is taken aea.Lrnt her". This we tlu.ruc, and s.s correctly submitted by· Mrs .. Makuru 9 l2arnod Senior State I1ttorncy 1 clearly indicates that the appc lle.nt on her own volition ads.ii tted to have poisoned thG deccG.sed with diazir1one Tl1ere vn.s no ros;son at all we think, for her to co ;,rn far as askin,s to be forgiven ~rnd thcJ.t it was due to the Sat3n 9 the d.cvi.1. that she poisoned the deceased. If she had not done, vve can hardly sec any 1~eason vvhy she should s2,:/ all this. From this statGi(K'nt 9 there is no doubt in our ;·,:u.nds that the eppe lla.nt was in full k.i."lowledgc of whc.t she did. In our consic~ercd view, it follows that the C1.J~)~:lla!'1t nlixed the :poisonous diazinon with the local liquor~ pombe, which she of:fcrGd. to the dece.~scd intentio112..lly. ., 7 .As for the accident as claimed by -c.~1e ;Jppellant 9 we are satisfied tM.t the ·question of acci,.lent does not 9 in the circumstances arise. 'i✓e say so~ be c~-'.U.Se 9 as correctly statecl by r-r.rs. i'iiakuru, lec.1.rned Senior Jt~.. te Attorney, if it wGre by accident th2.t one of the containers in the I n1;>pe llcmt vs store retGined some trac~; s o:f the poisonous diazinon kept for killi.i.1.g r::1ts, surely such an amount would 11.ot be of such sufficient q'uantit7 .:.•..s to affect the dece:.sedo Bu.t the position in here is clif:ferent •. J.\s can be seen from the Chief Government Ch:!t11ist I s re1Jort Ex .• P5, expert oyi11ion is to tl1e effect that dic:.zinon in sufficient quantity is harmful to a hu~.ian bein,,;. T.'.·1is ls what happened to the dece8sedo He clieo_ ;:;fter drin~dne:: the liquor cont1:';i.i.1inc; the substance in which c&se, the amount involved must h~;_ve been of considei~L-\ble quantity. So 9 the question not c.ccoptable. Tl1ere was also the question of t:::.e evidence of .ANITHA CONsrrA:~TI:i:W (PW. 2). I t is 9 to be notec':. t.::iat in the course of the :;_Jroceedings 9 Fd .. 2 wss treated as a hostile witness. That PW.2 havins been trested 2.s a hos·ci·J_e witness, it is comr'fton knowledge that her testimony c::;s the learned trial jud;~o rl8 scribed r:be conics as worthless as if she had not testj_ficdn., On this, the learned jucl3;c correctly addressed hims2l:f. However~ it is further notc6. from the record that in vciri ous parts of the judgment~ r?:fcrence to the evidence of PW. 2 has b0e.n ii1ade. This, it has been stated by Er. ::.:wangole, learned. Counsel 9 infli,,LJ.1.ced the learned . Nhile t, 8 l "" reference has been 1T121de to the evidence of PW.2 which, as already pointed out had no evidentii:.il V~'.',lue, yet we appre ci,,:tc .the difficulty facing the trial judge in 2•,voiding any mention of P'il .. 2 completely as she was centrally involved in the incident. That notwi thstanding 9 on o. full consideration of tlle evidence as a whole, we do not tl'link that the reference to the evidence of PW.2 did in any way occasion any injustice to the e.p~Jellant 9 s case. In the result, we ere satisfietl th:-::.t the appGllant havinr; r11ixed diazinon a poisonous substc.nce with liquor which she intent.ionallr offered to the O.ece3sed, who died as a l~i.:; sv..lt of th3t drink, s11e was 1 .es f ov.nd by trial court guilty of murder. There is no mari t in. the appeal, accord.ii1r~ly we dismiss it in its entirety. DjTED AT ~!IBEYA THIS 12TH DAY OF JUNE. 1 1995 • JUSTICE OF A~L _______ L.m. I'.WALILii ...__.______ JUST I CE OF ...._AI?P::~J.lL ______ D. Z. LUBUV.t:., JUSTICE OF _.,.._~,- AP~2~~11L I c3rtify that this is a true CO}!Y of the original. ·jj/' '1/ ,S1i..:'.,1?.r.ALI) DEPUTY RE,'.HSTRAR •