Republic vs Mwajuma d/o Mkumbo (Criminal Sessions Case No. 69 of 1981) [1982] TZHC 606 (2 December 1982)

I IN TETE HIGH COURT OF T ANZANIA , AT SLNGIDA ORIGINAL JURISDICTION (DoDoI nmsmy) CRDtENAL SESSIONS QASE NO. 69 OF 1981 flMPJNA, 3- . The accused, Mwajunia JYumbo, stan charg ed with rurder contrary to section 196 of the penal dode. It is alleged bythe proseoution that on or about the 22nd da3fr of August, 1979,, at Kyengege village in Iramba District, Sirigida Region 1 the accused niirdered one Makala John. The accused has denied the charge. Briefly, the prosec.ition evidenc.e is a. C ollows. The deoceased, Makala John, was a smal- boy, aged &oix rine rnoithst the time of his d.eth on 22.84979. On that day, to deceased's mother Kyunyu KiMu (Pw.2), asked her relative, Msua Shukia (PW.6) a girl then aged about: 16i3rears old at that time, to take bare of deceased while ICyunyu worked in)(shamba. According to Msu (P1.6), she sent the deceased outside the accusodts house, and there they 2layed wtth.othr chidren. The aOcused then appeared and cairid the deceased into her hoçiae., saying she was going to give to the deceased somefood. later, the accused returned with thodoccased who ias cring, and she told tff ta,ko the deoe.eed back tO his :mo - er o at on seeing her sons .2 noticed that the deceased was smelling of insecticide. PW6 Msua said that the accused had taken deceased inside a house. Kyuriyu trrod to breast—feed the deccased but the deceased 1 would not suck any milk. The deceased was fed wita a raw egg but she vomitted.. PW.2 Kyunyu reported to th&Jfard Secretary Pw.3 All Nyuba who instructed that the deceased should be sent to Kinampanda Hospital. This was done but the deceased died at the hospital 4 few hours later. ......./2.

2 P he accused wa6 arrested the same day and interrogated* She admitted she had 9isoned the deceaseci According to the militiaman, Pw.5 Gabriel Msilo, the accused was tied with ropes and put under arrest. Two militiamen, Pw.5 Gabriel and one Ginery were instructed to guard the accused at the house of one Gorcon. About midnight, Pw.5 Gabriel interrOgated the aco.usd arid nbthleed to release her if she made a confessloii. The accused. admittod tho killing and offered to show where the remains of the poison was. Mat same night villagers, including the Ward Sccretary P.3 All, a ten—coils lender, P 9 4 Samson arrived at the house where the accused was beii guaided and the accused sent them to her house where she showed a bottle outside her house. When this bottle was opened, itwas found to contain some liquid and it was suspected to be the poison. The Ward secretary said be had alb received a bottle which contained the deceased's omituz. The two 'oottles and the aOcuscd wea soi-r to th' Policb Sttión at Kiombi... ¶hbn the dead'body....f +he decease aemined by a doctor to tlt to find. the oaue of doath, the doctOr failed to establish what caused the deaths t6 he recorded in his postmortem examinatiofepbrt (etht. t,.. SPecimens from the liva., Kidney,ooz. a4. the whole stpnnch with both bnds tied were removed apd sent tothè ..................................................... Government Chemist f or apalyi s. However, the ChemisV6 report (ibit P.1) shows .hat what was received by the Chemist were two. bottles only. One bottle contained small quantity of tophene. whch had organo chlorine. The other bottle contained vomitus which had organo chlorine and tophone. There is no evidence on what..hpened to the zecimens of the liver, .splebn, 4thiey.s and tomechnrmovd..;t fromthe. deeeaed 1 s bodyi; Pw..i /Cbnsbable was prent: dur the postmortem exaiinitinbf the decebsajd that al.he.ia.s given to take to the Gotidrnment:Chen,iat;i wvr he...twotsma1l bOttles containing t.he:.:allegod poiÔnnd the vàmitus.D/SergeantnHebn that h.oniy.saw..:bh.osc tobottl at tt4 PoilnStat.jn ahd.hô as.prosent when they ersetied and. hcdidd. to PWi transmission to the Govornment'Chernjst .. ;. . . . ...........-.. . :Theacctsod gave CidencQ bn oath. o.. siWth foiid oua l the. deceased; and otbbr nii children at ...h hOuO Th&ausd M gave them foodrand sh pp eed.bd. tb. ih.well to.: draw- t7at6ro, the accused returnodnto.herhouee .ehefond thóoii-ildren.haci fiñih.ed:.the fodand.:they had gpno.away.. in............n ..;i . .:. . •;. .j - .ffl .. i. :.. . ... .................

g 3 S •. Later, when the accusd was at the well, she was arrested and it was a1Ioe1 she hadpoisonocltho deooaziolq. ..Tho oiecicIied the allegation. ShQ was sent to ciedoceaeed' houso cro nd also denied that she had poisoned the ecoaod The ocuod u put im1or arrest. Blac was seit to the Ward SccTetaTy' s Q'fico where shj 1 in denied the allegations. AftoT the d000aseL iad died, the aecuoi sent to her house which was searci ccl but no poi on w f'ouid t1ioro • die Vas sent to a cert2in house whore she w uacd. Her hous wac eafhod f second. time but no poison wa found. The acc14ec1r rotu*oJ 'be tie house where the militiamen woio guardir her. Later i the one of the m iiaiea,r Gabrol cntinuol interroatin the accsd and he rorna - od to lease the accused if she adinittod tr't she had killed the 1oaer1 • The aQcused was convinced t5t if s4j qr,aamitted she wotd c ioloaod. So she admitto to Pw.5 Gabriel. i.ccordang bo the aoct. ed, Gab'iel told her to say that theromainin3 bottle was outsid.e her house and he told. her that he would signal whore t'i. bottle was n the1 arrived at her house. mien the aroh parby arrived latr La b they sent thu accused to hex house. On rcachiag blie house, r.5 01a1riol directol the torch to a spot on thy oof aio acciaed sow a hot c and she told. the se.rch pary that u hp poison shb hl unod. The accused tol tho court that she onl admitted because 0f..the póthises made by Gbr±: ol .ia . :1 ... ... . •:.: ...... ...................... T1oaccuneJ dad ash to call ar au )Q5• One thin hich the pr000ution has 1. estb1ihe and whioh the defence does not aisputo is that akai:sohn i, c1eIci. That has been proved by the cridenoe of Lhc deceased's moLh'r, P.2 Kyunyu and P.l D/ConstabL ohmcJ whe was, preoirb when the dead body was idontifio be tho doctor. There i lo tie 2ostmortem oranunation report (exhibit P.2). I hold that uhe cil hLuola John is ded. ithat caused uho doabh of uho deceased coull nQt be ostahlised by I: .. . .. the doctor ho performed the osbmortem ox"miftation on the dead body. The report (exhibit P.2)states "CausEm of d.ôathziot irnown at the moment till a report from the Government Chemist is obtainel on, the specimens forwarded to him. 1' As already stated earlier in this judgement, the specimens wcro b ion fromthe liver, Kidneys, Spleen and the whole stomach with bob ends tied. It is very that these specimen never .ieached tho Govemient Chemist. .

. j... .... . . ' The Chcmitts roport is on a botGlo of insocticid.o and anothei' bQttIO 6ontai1-11n vomitus. A lot of ques - ionc remain unanswered. r It is not lmown what happened to the specimens of liver, Kidney, spleen n ~ stomach takLn from the deceased's body. Since this was a Police tmasc, it io assuriocl the speoiron were rdvon to police for Qnward traniassione to ho Governinc t Chcnut for analysis-. Instead qf td the spocimonsj the police sent vornitus to the Government Chrnist There is no evidence to hot from whore the omitus was obtinod It is noi in c-v-idea whoi:er the vomitus was taken from the deceased. All the evidence that the vomitus was from the deceased is hearsay. Under thoec circuinstancos it cannot be said with any cè±'tainty that the vomitus was from the deceased. Neither is there any eyidonse that the s:?rscimons reached the Government Chemist and, if so whether they Contained any poisond from the forogoiz k 3 , the prosecution has failed to prove what cause the th de4h of the docoased That alOne is sufficient to dispose of tao case. I ax-ce with the Idy ascsor that since the cause of death has not been cstablshed the Chd - the accused has net been provdd On that jruu h d aloë the, ao.sued in entitled to ?äcduittal. There is another aspect of thin case. Lv-en if the causo of cloath had boçn otabiished, ho diü ovidc o agaaast the açmcusod is, firsl of all y th ivn by Pw.6 Mua s. dud aged sevon years, and the allce 1 confeuon by bho accuse i14 I observed Msua very carefully when she tostified. In view of her bender a,o, she did, not under-. stand the nature of an oath. So she avo ovidonccithut 'bein sworn.

• •j_H The inoidcnt took plaso when Pw.6 Msua wa about fdu years old. Her alle,auuon t t the 1cuce1 cent the decoaseJ. iside a house and 3 fed decoased WlUii poOi as llQubtful o bcluovo. The witness mid not go inside tha house. hs 1t not kflow what took place bhero. In vuer of lieu tender go she carrnc be oeote1 to recollect vi v ijl y what took pace. iurm. e.moro, h adnrbtod;n cross onanation that tne dcceasa1's mot1ic, Pw.2 IQrumyu told herwhat'to bay in court. The court cannot rely on such a rilonce. Rogar1ln3 tne alleed <onfosion bj h11 accused, there is evidence that tic accused was tie 1 uia rbps. P,ao was not a free agent and I the lleied confession was t o'icfJrd not voluntary. I agree with the so c ond asscssoi inst the accu ccl did not make the confession voluntarily. - - - - - - - dJ

5 I am thoref ore unable to place any reliance on iti It is noteworthy that the alleged bottle containign poison was recovered, about midnight outside the accused's house. If she had voluntarily confessed to the killing, she would. have proceeded immediately to produce the poison. The long delay between the alleged confession and the recovery of the bottle cast a lot f doubt on the volintariness of the confession. The bottle was founi outside the accused's house where anyone could have putit. Pw.6 Gabriel himself conceded that he induced the accused into making the confession by promising to release her if she confessed. That proves further that the confession was not voluntary. It is for those reasons that I agree with the unanimous opinions of the two assessors that the prosecution has not proved the charge against the accused.. Accordingly, I find. the accused not guilty of the offence chare.i an.i I acquit and discharge her. SII'GIDA 2nd December, 1982 Assessors, are thanked and. discharged. SI1'GIDA 2nd December, 1982 Tf. J. IVIAINA JUIGE J. MAINA JUDGE /rJpond.o I