COURT of Appeal has acquitted housewife Esther Aman of murder. She was sentenced to death by hanging by the High Court upon conviction of murder, for killing six members of the same family by allegedly pouring poisonous substance into a bucket containing drinking water.
Justices Stella Mugasha, Lugano Mwandambo and Ignas Kitus ruled in favour of the Esther, the appellant, after allowing her appeal she had lodged to oppose both conviction and the sentence imposed on the trial court.
“We order the immediate release of the appellant unless held for another lawful cause,” they declared. Before determining the grounds of appeal lodged by the appellant, the justices wanted first to be satisfied on the propriety of the summing up to the assessors by the learned trial judge.
They noted that both counsel for the prosecution and defence were at one that the summing up in question was irregular because the trial judge influenced the assessors and he did not direct them on vital points of law.
According to them, Section 265 of the Criminal Procedure Act (CPA) mandatorily requires that all criminal trial before the High Court must be conducted with the aid of assessors.
The justices added that in terms of section 298 (1) of the CPA, after the close of the case for prosecution and that of the defence, the trial Judge must sufficiently sum up the evidence of both sides in the case to the assessors, who are thereafter, required to give their opinion.
In the matter, they noted that remarks by the learned trial Judge during the summing up might have influenced the assessors, who returned a unanimous verdict of guilty basing mostly on the evidence of one family member with the appellant, Verediana Aman and partly that of Chief Government Chemist.
“We think the directions by the learned trial Judge were clearly expressing her own findings of fact on the evidence and had nothing to do with wanting to get the assessors' opinion, but bent on influencing them to agree with her,” the justices said.
Under the circumstances, they concluded that it was wrong for the trial Judge to have made her impressions known to the assessors.
“We thus, invoke our revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act to nullify the trial proceedings on account of irregular summing up to the assessors, quash and set aside the conviction and the sentence meted on the appellant,” the justices ruled.
They stated that such defect on the summing up would have been remedied by ordering a retrial as submitted by the prosecution. However, having carefully scrutinised the evidence on record, the justices were hesitant to follow that course and satisfied that there is no evidence necessitating ordering a retrial.
The justices also concluded that the charge of murder was not proved beyond reasonable doubt against the appellant.
“Evidence on record including that of Verediana Aman does not link the appellant with the killing incident. (Forensic Toxicology Analysis Report) and (Chief Government Chemist) are silent of the fatal or lethal dosage of poisonous alkaloids," they said.
According to the justices, it was not in dispute that PW3 was originally one of the accomplices but discharged after the prosecution entered nolle prosequi.
“This necessitated her evidence to be treated with great caution because she had an interest to serve,” they said.
It was alleged by the prosecution that, on October 20, 2011 at Kalenge Village, Biharamulo District in Kagera Region the appellant killed six family members namely: Wilbard Melchior; Veronica Wilbard; Elivira Wilbard; Dorothea Wilbard; Gustaf Wilbard and Honoratus Wilbard.
On the material date at around 8:00am, a person identifies as Sosthenes Charles, while on the way to see his brother, found Gustavu Wilbard in pain unconscious lying under a tree and foam coming out of his mouth. He decided to call Mzee Venance Kayuvi, who was nearby farming and they took Gustavu home.
Upon reaching there, the two heard a snoring sound from inside the house and found another child Dorothea Wilbard with ailing conditions similar to Gustavu. They took them to the Kakonko Dispensary where they both succumbed to death.
When their mother, Veronica Wilbard, heard what had befallen her two children she collapsed and upon being rushed to the hospital she died. Wilbard Merikiory, the father of those children also collapsed and died while on the way to the hospital to see his ailing children and wife.
Other children, Elivira and Honoratus, who initially appeared to be fine, later they suffered a similar ailment and died. The appellant together with three other persons including Verediana Aman were arrested in connection with the murder of those people.
In the course of investigation, PW3 revealed that it is the appellant who directed her to pour what was alleged to be a poisonous powder concoction in the bucket of rain water taped outside the homestead of the deceased persons.
Thus, only the appellant was prosecuted but PW3 and the other persons were discharged following the withdrawal of the charge against them by the Director of Public Prosecutions (DPP).