19840508 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: NYALALI, Co JO' MAK.AME' JO Ao AND KI SAN GA' JO A. ) ' CRIMINAL APPEAL NO. 47 OF 1982 BETWEEN JOSEi:H s/o KAMILIANGO & FIVE OTHERS.. • • • • • • • • APPELLANTS A N D THE REPUBLIC. o o o o o ot, 0 0 & 0 OJ O O O 0 RESPONDENT (Appeal from the conviction of the High Court of Tanzania at 'Bukoba) (Mfal1la, J.) DATED the. 2~th day 0f October, 1982, in Criminal Sessions Case No. 57 of 1980 JUDGMENT OF THE COURT . NYALALI, C.J.: The appellants in this case, namely, Deogratias s/o Katabazi, . -.. Yolanda d/o Adolf, _Kambalula d/o Adolf, Rozalia d/o Adolf and Steria d/o Adolf wer~ jointly charged in the High Court at Bukoba on information for the offence of murder - contrary to section 196 of the Penal Code; and they appeared as the third, sixth, seventh, eighth and ninth accused persons, respective?Y• They we.:-e charged together with one Joseph Kamiliango, who was the first accused at the trial, and Msafiri Abdallah~ who was the second ;accused. The sa.id Msafiri Abdallah. was acqui·:.:ted at the trial but the said ....,._ • Joseph Kamiliango was convicted together with the appellants as r. \ charged. The convicts were all aggrieved by the convictions and hence this appeal to this Court.. Unfortunately~ the first accused, that- is Joseph Kamiliango died before this appeal could b2 heard and his appeal thus abated by operation of law. Ini 1tially the information filed in the High Court included two other persons, that i::;;, Kafukulu Rwamweluka and Rubaziowa Bacheluka. in respect of whom a Nolle Prosequi was entered by the Director of Public 2 ... Prosecutions before the commencement of the trial. T~~; appeared as the fourth and fifth accused· persons_, respectively. The remaining appellants-, that i s , the third, sixth, ~eventh, eighth and nineth accused per~ons were represented in this appeal by Mro Kahangwa, learned advocate; whereas the Republic was represented by Mr. Mtaki, learned State.Attorneyo It is common ground that one Martina Adolf,• who 111(1:½s the e1der sister of accused Noso 6, 7, 8 and 9 was killed during the night of the 24th/25t!'1 December, 1978, in Kazilantemwa Village, Ikuza _Island of "Lake Victoria, within Muleba Districto All the ... remain~ng appellants and the deceased were residents of that !. yillaqe. It is undisputed that some time in December 1978 before the death of the deceased, accused Naso 6, 7, 8 and 9 travelled to • Kagunza Village on the mainland and visited the first accused~ that is, Joseph Kamiliango who has died before the commencement of this _appealo The said Joseph Kamiliango. was a traditional medicineman ·and the four sisters travelled back with him to Ikuza Island. They were acco~panied by one Msafiri Abdallah, who was the second accused at the. trial, and who was acquittf'd by the High Court., Furthermore, . it is undisputed that the dead body of Martina Adolf was discovered by a search party of villagers after she had been reported missing by her husbando The discovery was made_ on the 26th December, 1978, . near the home.stead and in the banana grove of the third and seventh accused who were husband and wife, respectively. In consequence of this discovery and as a result of interrogations made to the th,ird accused by the villagers,_ al~ the accused persons were . apprehended by the villagers that. same daye The dead body had a cut wound on the back of the head. Her left breast, vagina ., 0 111000000 oo/3 • -- - 3 and two ~ingers of her}. left hand were, cut off and mis·;~n<J• As a ~esult oi interrogations,. the first accusedt whose appeal has ab~ted, led a group village militia and others to the home of one Alo.is I Fabrian, where the first and second accused had been stayinga There the missing breast, vagina and one finger were recovered. It is further undisputed that the police were informed and they came to collect the accused persons and the dead body to help the police in their inves,tigations. Subsequently, the remains of the deceased were viewed by Dr. Twahibu Musoke (P.W.S) on the shor~s of Lake I Victoria on the 30th December, 1978. Accused Noo 1, whose appeal has abated, togeth~r with accused No·., 6, 7, 8 and 9 were taken before.the Justice of the Peace (P.W.4) to whom they made extra- judicial statements concerning the death of the said Martina Adolfo It is the prosecution case that accused Nos. 6, 7, 8 and 9 believed that the deceased was a witch who had killed, by witchcraft, many members of their family. They also believed that she had bewitched their father who was seriously ill at the time when they decided to pay the first accused a vtsit. To prevent the deceased from wiping out the entire family, the four sisters·, who appeared in this appeal, sought the assistance of the first accused, who agreed to kill the deceased on payment of a fee of which Shs. 800/- out of/ 5 hs. 100/- were paid in advance 13rd the balance was.to be paid upon accomplishment of the undertaking. It is part of the prosecution's case that pursuant to· this agreei:nent, the first accused killed the deceased and removed the parts of the body which ·were fou,nd missing. The defence of accused Nos. 3, 6, 7, 8 and 9 consisted in a denial of the prosecution case. 0000000/400 The first point for consideration and decision in this case I is whether the accused persons, who are the appellants in this case, participated in killing the deceasedo The learned trial judge considered the four sisters together as their defence and the evidence led by the prosecution against them is tlhe same for. each of themo We propose to adopt the same approach by dealing with the third accused first and concluding with the four sisters of the deceased as a groupo In convicting the third accused the learned trial judge stated:- "The evidential position then with regard to the 3rd accused is this: He mentioned the 1st accused as the paiticipant. in the killing and even knew where he could be traced, _the 1st accused has been proved to have indeed taken part in the killingo Both the 1st accused the proved killer and the deceased were at the home of the 3rd accused drinking pombe during the evening when the deceased was killed,, her body was found in the shamba belonging to the 3rd accused~ Since of the killers was a member of the drinking party at the house of the 3rd accused, then the kiliing must have taken piace in or near the house and .the body taken into the shambao That killing in or near hi.s house that evening by one of his guests against his own sister in law could not have been carried out without the knowledge of the 3rd accused. The reasons he ga've at the scene for the killing of the deceased, tallied with the reasons given later in the extra judicial statements by the siterso- This proved that the 3rd accused was an insider and party to this killing which took place in or near his house. 11 ·0 Mro Kahangwa has strongly attached the findings and views of the . learned trial judge . by submitting in effect that mere knowledge by •. the third accused about the background and circumstances of the death ' of the deceased, coupled with the discovery of the dead body of the deceased near the home of the third accused and the participation of the deceased and the first accused at a drinking party at.the home of the third accused prior to the death of the deceased, are not sufficient circumstanti~l evidence to.support the conviction of the third accusedo We respectfully agree with the submissions made by ·the learned advocate. Those circumstances can be given an innocent I explanation~ Firstly, the third accused could have acquired his 000000/Se I I ' I• 5 - Jetailed knowledge of the relevant facts by virtue of hi:. l)eing a member of the family which believed that the deceased was Lewitching them. Secondly, the deceased could have been killed without the participation of the third accused near the homestead after she had left the drinking party on her way b 9 ck homeo For these reasons we are satisfied that the conviction of the third accused cannot be sustained and we are bound to interfere with it. But first, we must deal with the case of the four sisters. Each of them made an extra-judiciai statement to the justice of the peace (PoW.4) which amounts to a confession to the effect that they hired the first accused to kill the d~ceased to pre-empt her from eliminating the whole family ny witchcraft. They paid an advance of Shs. 100;~ to the first accused and the balance of Shs& 700/= was to be paid after the ceceased had been killed. The extra-judicial statement made ~y the first accused also amounted to a confession by him which confirmed what th~ four sisters stated in their own confessionso Further confirmatj_e,n of thE. c0nfession made by each of the sisters and the first accused was given by P.W.7, Jacob Iliharugo, who lived in the same village as t!1e firs<.: accusedo He testified about seeing the four G~.c::ers ;:,aying the first accused a visit some time in December, 1978. Mr. Kahangwa, learned advoca·te for the appellants, has submitted that the four sisters acted under provocation arising out of their firm belief that the deceasEd was practising witchcraft and was determined to finish them off~ But as Mr. Kahangwa conceded, it is quite clear on the evidence that the four sisters did not act suddenly but they deliberated 1..:po,1 thc~ir move at a meeting held to consider their positiono ~1ey then travellea across the lake from their Island village to the mainland where they negotiated with the ., - 6 - first accused., The conduct of these four sisters cl,~a,:-ly shows that they had calculated their move with cool minds and in full possession of their faculties. The defence of provocation by witchcraft is thus not available t9 this "gang of four". They were a party to the killing of the deceased by hiring the killer. The same evidence also supports the finding of malice aforethought on their parto For these reasons concerning the case against accused Nos. 6, 7, 8 and 9 and the reasons concerning the third accused, we hereby dismiss in their entirety the appeals of YOLANDA ADOLF, KAMBALULA ADOLF, ROZALIA ADOLF and STE RIA ADOLF who are accused Nosu 6, 7, 8 and 9, respectivly; but we allow_ the appeal of DEOGRAT~AS KATABAZI, that is, the third accused, by quashing his conviction, setting aside his sentence and directing Lo M. MAKAME JUSTICE OF APPEALo SENIOR DEPUTY REGISTRAR.