R v Lazalo Tembo (Criminal Review Case 235 of 1941) [1941] ZMHCNR 7 (31 December 1941)

122 V o l. I I ] R. v. LAZALO TEMBO. Cr im in a l R e v ie w Case No. 235 o f 1941. P enal Code section 209—scope o f “ necessaries o f life ” —failure to send wife to hospital not within section—powers o f section 168 (2) o f the Criminal Procedure Code cannot be invoked if the minor offence is very different from the offence charged— scope o f section 214 o f the Pencil Code. The facte and the law are set ou t in the judgm ent hereunder. R ob in son , A . C . J .: Accused was charged w ith failing to supply the necessaries o f life to his wife, contra section 209 Penal Code in that he failed to send her to the native hospital to give birth to her child. She died from haemorrhage. It is clear to me that these facts do n ot fall w ithin section 209 Penal Code. “ Necessaries o f life ” are such as food, water and clothes. The question is : do the facts fit any other section, and, if it is a minor offence, can the conviction be changed b y virtue o f section 168 (2) Criminal Procedure Code. In m y opinion, in the special circum stances o f this case, the accused being a compound police boy at Lusaka, and m edical attention being free and readily available, facts which he m ust have known, it could be said that an offence contra section 214 Penal Code1 had been committed. It was his duty under the circumstances, not to om it to take precautions to avoid harm, especially as he had gone to his father-in-law for advice, and he had told him to take his w ife to th e hospital. But that charge is so different from a charge contra section 209 Penal Code that the conviction cannot be changed b y virtue o f section 168 (2) Criminal Procedure Code. The conviction, therefore, m ust be quashed. 1 Omitting to do an act it is one’s duty to do thereby causing harm to a person. Editor.