19821204 TZHC Dar es Salaam

j1. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 86 OF 1979 MKALYAKU KAMUHANDA APPELLANT AND THEREPUBLIC oe0000000 00000 000000e 0000000000..S. RESPONDENT ( Appeal from the Conviction and Sentence uf the High Court of Tanzania at Bukoba) (Lugakingira , J.) dated the 17th day of August, 1979 IN Criminal Sessiuns Case No. 122 of 1977 CORAM: Nyalali, C.J., Mustaf a, J.A., and Kisanga, J.A. JUDGMENT OF THE COURT NYALALI, C.J. • The appellant Mkalyaku Kamul - a was charged and convicted for the offence of murder c/s 196 of the Penal Code in the High Court at Bukoba and was given the mandatory sentence of death by hanging. She was aggrieved by the conviction and sentence; hence this appeal to this court. Mr. Raithatha, learned Advocate was assigned to argue the appeal or her behalf. The Republic was represented by Mr. Huka, larned State I ' Attorney. 'rom the proceedings in the High Court and this Court,, the following primary facts are undisputed between the parties. Sometime in June,1975 KAYANDA (P.W.3) and his wife were vcultivating their farm when they were summoned to go home by their child, namely MAMERTA (P.W.2). MAMERTA.was then about 7 years of age. Upon reaching home, KAYANDA and his wife found their younger child, namely CORNEL wriggling and writhing with pain. KAYANDA noticed a strong and foul smell from the child and from the water in a pot and pails inside the house. KAYANDA, acting on informati- on given by MAMERTA, decided to take CORNEL to Appellant's home Appellant was not found at her home but was discovered hiding in the bush. o..12. w -2-- In response to KAYANDA's challenge, she came otit of hidIng, entered her house', prepared some brine as first aid for the helpless child. However he child failed to drink it. KAYANDA then decided to take his child to 'Biharamulo hospital. The appellant refused to accompany them. The child expired on the way to the hospital. The police were informed with the result that appellant with others, who were acquitted at the trial, were apprehended. Subsequently, appellant led the police and others to a place in the bush in her village where a foul smelling bottle was found hidden. Dr. Felician (P.W.i) later conducted a postmortem examination on the • dad body of the chIld. He could find no apparent cause of death. He took some samples of blood and viscera from the body for chemical analysis. These things together with the foul smelling bottle and a sample of the foul smelling water were sent by the Police to the Government Chemist, Dar es Salaarn. There it was found that there was some sulphur and an alkaloid in the viscera and blood samples. Further- more it was established that the bottle contained Theodine, an insecti- cide containing sulphur but no alkaloid. In the sample of water, there was sulphur but no alkaloid. Both the alkaloid and the sulphur can' kill when taken in large quantities. It is the case for the prosecution that the appellant poisoned the water in the pot and pails in KAYANDA's.house and that the child CORNEL drank the poisoned water and died as a result. The appellant generally denies the accusation. The first point for consideration and decision Is a simple one, and it is whether the water in KAYANDA's house contained poison. On the evidence adduced by the prosecution, especially the Chemists' evidence, it is crystal clear that the waterin question contained sulphur which is a poison. The net important point for consideration is whether that poison was piiit.in that water by the appellant. The only direct evidence on .0./3. - - 3 'this point ia giveh by MAMERT a child of about ten years, who was allowed by the trial Judge to testify without being sworn. MANERTA had remained at home together with her younger brothers, that Is, the deceased and one STEPHEN. Speaking about the appellant, MAMERTA said, inter alia: "She came heading to the front of thehouse. We could see her on the way coming towards our house. She entered into the house. When we saw this we went into the house to see what Mukalyaku was up to. We met Mukalyaku just on the front door coming out of the house. She covered up herself with a shuka. I asked her. that something was smelling and what was it she had done there. She said "Mtajijua". She then went to her home. I entered the house and found that the smell was coming out of our water jug which had a white coating on it. The jug (mtungi) was in the sitting room near the front door. It was an earthen jug. We had other pots in the house, There was a little water in the jug in which I saw, the white substance. The substance was in the sufurias as well. I decided that when mother came I wuuld tell her what had happened. I had fetched water before Mukalyaku came there". MAMERTA's evidence was tel in 1978 before the enactment of Act No. 19 Of 1980 which amended the law regarding unsworn evideo of children of tender pears. Her evidence therefore required corroboration as a matter of law. There is sufficient circumstantial evidence to corroborate her testimony. The conduct of the appellant in going to hide in the bush when KAYANDA and his wife rushed back home in response to MAMERTA's alarm call is one piece of circumstantial evidence which points to the appellant's guilty conduct. Furthermore, appellant's attempt to administer brine as first aid to the stricken child without being Informed about the child's problem is another - piece of incriminating circumstantial evidence. Finally, there is the bottle which was discovered in the bush with appellant's assistance. The Chemist found it to contain Theodine. There was sulphur in the Theodine and sulphur in the water sample taken from KAYANDA's house. - We are satisfied and we find as a fact that the poisonous sulphur was put In the water in question by the appellant. 0 0 0 /4 kQ , J- - 00~ I —4-. -f The other important point for con i sideration and decision is whether CORNEL's death was due to the poisonous sulphur. As mentioned earlier the samples of blood and viscera taken from the body of the deceased were found to contain both sulphur and an alkaloid. Each of these chemicals :can kill if teken in large quantities. Unfortunately, the Government Chemist neither stated the fatal dosage of these chemicals nor the actual quantities fourid in the blood and viscera samples. The prosecution did not adduce evidence to exclude the reasonable possibility that the alkaloid could have been entirely responsible for CORNEL's death. In otherwords, we find it not proved that CORNEL'r death was due to the poisonous sulphur put by the appellant in the water. And since here was no evidence to connect the appellant with the alkaloid, the appellant cannot be held responsible for CORNEL's - death. • However, appellant's conduct in poisoning the water in KAYANDA's house is undoubtedly criminaL But ' evidence does not exclude the reasonable possibility that the deceased CORNEL could have taken a different substance which contained both sulphur and the alkaloid. That substance cannot be the poisoned water which contained no alkaloid. On the facts we are satisfied that appellant's conduct in adulterating Le water with sulphur amounts to the offence of Attempt to administer poison with intent to harm c/ss. 381 and 227 of the Penal Code. Under the provisions of section 181 (2) of the Criminal Procedure Code, a conviction for this minor offence can be substituted for the offence of murder for which the appellant was charged We therefore quash the conviction for murder and substitute a conviction for Attempt to administer poIson with intent to harm c/ss 381 and 227 of the Penal Code. With regard to sentence, w take into account the provisions of section 382 of the Penal Code which state: . . . /5. "Any person who attempts to commit a feiQOy, of such a kind that a person convicted of it is liable to the 'unishment of death or imprisonment for a term of fourteen years or upwards, with or without other punishment, is guilty of a felony, and is liable., if no tother punishment is provided, to imprisonment for seven years.t" The felony of Administering po.ison with intent to harm carries a maximum penalty of fourteen years. The appellant therefore is liable to a maximum sentence of seven years. Btshe has been in custody since June 1975, that is, for a period of seven y We therefore sentence • the appellant to a term of imprisonment ich will lt in her immediate release from jail unless d 1aine6 .th. -.rdjn fr \ other lawful 10 • •. i ••'.••• . -4, cause. U; , .Ha.4th:. / December, Dated at DAR ES SALAAM this •.k. .. .... d3Y j of .........1982 : F.L. NYALALI CHIEF JUSTICE A. MUSTAFA JUSTICE OF APPEAL R. I certify that this is a cop..the oigina1. REGTRAft 1 \