[1948] EACA 12

## COURT OF APPEAL FOR EASTERN AFRICA

Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and THACKER, J. (Kenya)

## REX, Respondent (Original Prosecutor)

$v$ .

## (i) MUNDULI S/O CHUI, (2) MUTI D/O MPAMBI, (3) NINAA D/O UGAA, (4) CHANGA D/O MWEKWA, (5) NJOKA S/O JAMBI, Appellants (Original Accused)

Criminal Appeals Nos. 264, 265, 266, 267 and 268 of 1947 (Consolidated) (Appeals from decision of H. M. High Court of Tanganyika)

Criminal law—Murder—Actual perpetrator of crime not apprehended—Whether sufficient evidence to sustain conviction of accused as principal offenders-Section Tanganyika Code. 22—Evidence of accomplices--Penal Corroboration.

The facts are sufficiently clear from the judgment. The appellants were convicted of murder in what is known as a "lion man" case. They were not the actual perpetrators of the crime and the evidence against them was mainly that of accomplices who were prive to the crime and took some part in its preparation.

Held (11-11-47).-(1) Where evidence that the accused were present at the killing and took an active part in it is that of accomplices only, other evidence of a direct circumstantial character to link the accused with the crime can be sufficient to justify conviction.

(2) If the evidence of accomplices establishes that accused helped to fetch the perpetrator of the crime (the lion man) and were spectators at the killing, in the absence of more positive evidence of participation it is unsafe to convict as they may have been actuated by motives of fear or curiosity.

(3) Whilst it is established that a keeper of a "lion man", who releases him for money received with the knowledge that he is being hired for the purpose of killing another, is a principal offender to the crime within the meaning of section 22 (b) or (d) of the Tanganyika Penal Code, the evidence against him must be clear and unmistakable, and if derived from an accomplice it must be corroborated on some material particular.

Appeals of second and fifth appellants dismissed. Appeals of first, third and fourth appellants allowed. Convictions quashed and sentences of death set aside.

Appellants absent, unrepresented.

Sir James Henry, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—All five appellants, whose appeals we have consolidated were convicted for murder on the same information in the High Court of Tanganyika. The case is one which has become known as a "lion man" case and is one of a series which have come before us on appeal during the present sittings—the melancholy facts may be briefly stated on a day in September, 1946, a woman named Chambi, the wife of the first prosecution witness Hango, was brutally murdered by a "lion man" who according to two eye-witnesses of the crime was in fact a woman dressed in monkey skins and armed with two long knives. This fiend appears to have taken Chambi into the bush and there to have torn her to bits. Later parts of a body were recovered and the uncle of the deceased recognized a human leg with a bangle on it as being one of the legs of Chambi. As all the appellants have taken the point in their memoranda that the identification of the body was not proved we think that we should say at once that in our opinion the evidence of the second and third prosecution witnesses which was accepted by

والتقدير العالمة

the learned Judge disposes of this ground of appeal. As the actual perpetrator of the foul deed was never apprehended, what this Court has got to consider is whether there is sufficient admissible evidence in respect of each appellant to sustain their convictions as principal offenders within the meaning of section 22 of the Tanganyika Penal Code.

We will take the case of the second and fifth appellants first because, if the evidence of the fourth and fifth prosecution witnesses can be accepted, they were present at the killing and took an active part in it. Thus the witness Akana (P. W. 4) stated: "I saw the killing. Muti (No. 2) and Njoka (No. 5) held her (the deceased) and the 'lion man' tore her to bits". The witness Mlima $(P. W. 5)$ said in effect the same thing. The difficulty that arises with regard to this evidence is that on their own evidence both witnesses were privy to the crime and took some part in its preparation. The learned trial Judge has indeed held them to be accomplices, but he has believed their evidence and we think that there was other evidence both of a direct and of a circumstantial character which link these two appellants with the crime and made it possible for the learned Judge to come to the conclusion which he did. The deceased had a small daughter of four who disappeared shortly after the killing. According to the father (P. W. 1) she was wearing twenty one cent pieces round her neck and bangles on each hand. This necklace was subsequently found by the police in a receptacle in the house of the fifth appellant and identified by P. W. 1. Another witness (P. W. 7) saw the child in the house of the fifth appellant in charge of his wife. According to the witness Dahwa, who was believed by the learned Judge, two days after the killing she saw the little child among the grain bins in the compound of the house where the second appellant lived. The second appellant's house was a mile from the place where the deceased was killed and the fifth appellant's house was three miles from the second appellant's. There was also evidence from P. W. 7, who the Judge describes as a respectable witness, that when the search for the missing child was on the fifth appellant threatened him with bodily harm if he dared to report the matter to the chief.

The above evidence directly corroborates these portions of the evidence of P. W. 4 and P. W. 5 which deal with the whereabouts of the child after the crime and we think that the abduction of the child points inevitably to the conclusion that these two appellants took a major part in its commission. We sustain, therefore, the convictions entered against the second and fifth appellants.

We will now deal with the cases of the third and fourth appellants on which we have come to a different conclusion. Learned counsel for Crown has conceded that the case against them is a very weak one. It consists of uncorroborated statements made by the two prosecution witnesses P. W. 4 and P. W. 5, but even if these statements be accepted they establish only that these two appellants were in the party that fetched the "lion man" and that they were spectators at the killing. Without more positive evidence of participation we think it would be unsafe to sustain their convictions. They are both women and insofar as they knew what was going on they may have been actuated by motives of fear or curiosity. Certainly their participation was no greater than that of the fourth and fifth prosecution witnesses.

Lastly we come to the case of the first appellant. On the evidence of the two women Akana and Mlima (P. W. 4 and P. W. 5), Mundulu was the "lion man" keeper who allowed the second appellant and others to take her away from his house to the scene of the killing after receiving a payment of 30 shillings.

It is a common feature of these fantastic and disgusting cases that the "lion man", who is the actual killer in every case, appears to be kept under control by a keeper who is sometimes a man and sometimes a woman, but who is invariably paid a sum of money before releasing the "lion man" for the work in hand. This Court has come to the conclusion after anxious consideration of every circumstance in these unprecedented cases that where there is evidence from which the inference is inescapable that a keeper released a "lion man" for money received and handed him over to another with the knowledge that the hirer intended that the "lion man" should proceed to a spot and there kill a person, such keeper is a principal offender to the crime of murder under either or both section 22 $(b)$ or section 22 $(d)$ of the Tanganyika Penal Code. The evidence, however, must be clear and unmistakable and if derived from an accomplice be corroborated on some material particulars. In the present case in respect of the first appellant the inference rests only on the uncorroborated evidence of two witnesses whom the learned Judge rightly held to be accomplices. This appellant in his evidence and in his statement in the lower court denied that he had had anything to do with the business and stated that any admission made by him to the native authority had been extracted by force. No such admission was proved against him at his trial. In the absence of any evidence, either direct or circumstantial, tending to corroborate the accomplices we feel that the conviction of this appellant cannot be sustained. For the reasons we have given we therefore quash the convictions of the first, third and fourth appellants and set aside the sentences of death passed on them. We dismiss the appeals of the second and fifth appellants.

Ē.