Makame and Kisanga, JJ.A. and Mapigano, Ag. J.A.: A woman called Constansia Matembo died at her home in Tingi Village, Mbinga District, on the 13th of July, 1989 at dawn. The appellant Vincent Sowo Mapunda was later brought before D the High Court charged with the murder of the woman. In a judgment dated June 19, 1991 Kazimoto, J. found the appellant guilty of the offence and convicted him accordingly and then sentenced him to suffer death by hanging. The appellant has come to us with a four-ground memorandum, in a bid to have the conviction quashed. He is E represented by Mr. Kameja, learned advocate, while the respondent Republic is represented by Miss Munisi, learned State Attorney.
The starting point in this case is the death of one Raymond Mapunda who was the F brother of the appellant and the husband of the deceased Constansia. Raymond predeceased Constansia, having died back in 1986. It was the prosecution's allegation that the appellant had, subsequent to the death of Raymond, made proposals to Constansia to "inherit" her and that his proposals drew a negative. This allegation was G based on the evidence of P.W.1 Sikolastika Mapunda and P.W.2 Salvius Mapunda who are, respectively, the daughter and the son of the deceased Raymond and Constansia, that the deceased Constansia had narrated to them such a story a few days before she died. If their evidence is to be believed, the appellant had also warned H Constansia that evil would befall her if she refused to become his wife. At the trial the appellant denied the truth of that story, and it seems to us that these allegations of proposals, rebuff and threats were not given much consideration by the trial judge. I
MAKAME JJA, KISANGA JJA, MAPIGANO Ag.JA
Constansia fell sick in 1989 and the objective symptom of her illness was the swelling A of the body. The treatment she received at Tingi dispensary did not cure the illness and, understandably, her condition became a matter of great concern to P.W.1 and P.W.2. Again according to these two witnesses, Constansia had narrated to them that the appellant had told her matter-of-factly that she would not recover her health and she B would indeed die because she had cultivated at a place where he had buried his medicine called "Kipalapala". It was admitted by the appellant at the trial that he had admonished Constansia in those terms. It was the appellant's contention that C Constansia had broken a heathen taboo by cultivating at a forbidden place.
There can be no doubt that eventually P.W.1 and P.W.2 came to suspect or believe that Constansia had been bewitched by the appellant, and it would appear that these feelings peaked when they were endorsed by a fortune-teller whom P.W.2 had D consulted. So on 10/7/89 a meeting was held to deliberate on the plight of Constansia, and P.W.1, P.W.2, Constansia as well as the appellant, attended the meeting. It was common ground that at that meeting the appellant owned up to the admonition. P.W.1 and P.W.2 then decided to take the matter to the Chairman of the Village, P.W.3 E Vincent Kawonga.
P.W.3 convened a meeting at his office on 12/7/89 to discuss the matter. At that meeting, which Constansia did not attend, the appellant again owned up to the admonition. He however assured P.W.3 that he had an antidote for Constansia's F affliction and promised to restore her to health within a period of three days. The meeting ended on that note and the appellant as well as P.W.1 and P.W.3 walked away to return to the home of Constansia.
It was not in dispute that the appellant set out from the office at a fast pace, taking a G different route, a short one. It was admitted by the appellant that when he reached the home of Constansia he proceeded to furnish some medicines to her. It was further admitted by him that when P.W.1 and P.W.2 came back to the place he had already left. Bearing in mind that it was just a matter of twenty minutes' ordinary walk from the H office, it must be accepted as a fact that the medicines were furnished to Constansia within a very brief space of time.
Constansia disclosed to P.W.1 and P.W.2 that the appellant had given her one medicine to take internally, and that she had done so; and another medicine to bathe with. The I two witnesses upbraided her for having swallowed the medicine in their absence.
MAKAME JJA, KISANGA JJA, MAPIGANO Ag.JA
In the hours that followed, Constansia's condition changed for the worse, and the A appellant was not to be seen around. In his testimony he stated that he was somewhere drinking. Around 5 a.m. on the morrow Constansia passed away. On suspicion of foul play the matter was reported to the police and the appellant was taken into custody on 14/7/89. On suspicion that the appellant had given poison to Constansia the police B seized three kinds of medicine from him, two of them in powder form and the third being herbal leaves.
The appellant denied to have given Constansia any medicine to take internally. He stated that what he gave her was the herbal leaves for external use. C
The guarded autopsy opinion, as stated in exhibit P1, was that Constansia possibly died of "poisoning with local medicine". Specimen of the liver and lung tissues as well as stomach contents of the deceased were taken and dispatched to the Government Chemist along with the medicines that were seized from 2nd appellant, for further D investigation. The report of the Chemist, exhibit P2, reads that all the medicines as well as the liver tissue contained organo sulphur and alkaloids; that organo sulphur is frequently used to prepare pesticides and is harmful if consumed in large quantity; and E that alkaloids are poisons and harmful if swallowed in large quantity.
As mentioned above, there was no dispute that the appellant supplied medicine to the deceased, and we find, as did the trial judge, that it was one of those seized by the police and later analysed by the Chemist. Those medicines contained poisonous F properties and in answer to ground 3 of the appeal, we are also prepared to go along with the finding of the trial judge that the appellant was aware of their toxic properties.
The finding of the trial judge was also that the appellant did actually give medicine to the deceased for internal use and that the substance was swallowed by her. The evidence G relied on by the learned judge was the dying declaration, i.e. what the deceased had allegedly related to P.W.1 and P.W.2 when the two witnesses returned from the office of P.W.3. This finding is the subject-matter of ground 2 of the appeal. H
Mr. Kameja, who ably argued the appeal and incisively said about all that could be said on behalf of the appellant, submitted that the trial judge should have felt unsafe to come to that finding in view of the fact that there was only one's word against the other's. Miss Munisi came round to agree with Mr. Kameja, and properly so, as we consider I that P.W.1 and P.W.2 were evidently witnesses
MAKAME JJA, KISANGA JJA, MAPIGANO Ag.JA
whose evidence should have been approached with circumspection, for the chances A are that they had twisted or embellished the words of the deceased.
However, if one is to take the trial judge's view of the matter, the question that would then arise is whether the judge was right when he went on to find that the death of the B deceased was caused by poison. Ground 1 of the appeal is directed against that finding.
As shown already, it is plain that the autopsy opinion was just prima facie and the only other material piece of evidence relating to this point was the Chemist's report exhibit P2. The point taken by Mr. Kameja is that exhibit P2 did not subscribe much to the C uncrystallized autopsy opinion and that the prosecution evidence was thus inconclusive of the precise cause of death.
That is a tenable point and we respectfully think that the trial judge would have come to a different conclusion if he had looked at exhibit P2 critically. The reason is simple. D The charge against the appellant was that he had killed the deceased by causing her to swallow poison, and the appellant denied the truth of that charge. The duty of the prosecution consisted, therefore, in showing that the medicinal or toxic substance so taken by the deceased was the cause of death. And we entirely agree with Mr. E Kameja that in order to discharge that burden it was essential for the prosecution to adduce evidence to establish two things, namely (a) the quantities and strength of the substances that were found in the dead body; and (b) the known minimum doses of those substances that are necessary to kill. For as Taylors Principles and Practice of F Medical Jurisprudence, Vol.II, 11th edition, elucidates at page 203, a poison in a small dose may be a medicine, just as a medicine like aspirin i.e. in a large toxic dose, a poison.
There is no such evidence in this case. What we have here is merely that organo G sulphur and alkaloids were detected in the materials submitted to the Chemist for analysis and that such substances are capable of acting injuriously on the body if taken in large doses, and we consider that this is where the greatest weakness in the prosecution case lay.
In view of the findings we have made above, it becomes unnecessary for us to deal H with ground 4 of the appeal which has reference to the question of malice aforethought, and we sustain the wherefore-contention set out in ground 5, which is conceded by Miss Munisi, that there was no sufficient evidence on which the High Court could properly have based a conviction for the offence charged or for any other lesser I offence.
We accordingly allow the appeal and set aside the conviction and the sentence, and A we order that the appellant be set at liberty forthwith if he is not otherwise lawfully detained.
B Appeal allowed.
C
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