[1946] EACA 48

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and SIR JOHN GRAY, C. J. (Zanzibar)

> REX, Respondent (Original Prosecutor) v.

## (1) MASABO s/o MWENDABANTU, (2) CHIZA d/o KULIZE, Appellants (Original Accused Nos. 1 and 2)

Criminal Appeals Nos. 222 and 223 of 1946

(Appeal from the decision of H. M. High Court of Tanganyika)

Criminal Law—Murder—Common design—Proof.

M. and C. were convicted of the murder of C.'s husband. It was proved that C. was in love with M., that she left her husband and lived with $\dot{M}$ , and that a month before the murder after her husband had badly assaulted her, she said she would find some medicine to kill him. There was also the evidence of B. another wife of the deceased that two days before the murder she heard M. and C. say that they would kill the deceased and then they would be able to get married and that she witnessed the killing of her husband by M. during the night.

B., however, never informed anybody of the threat to kill her husband and generally her evidence was unreliable and uncorroborated.

M. and C. appealed. $M$

Held $(4-11-46)$ .--(1) That assuming that it was M. who committed the murder the evidence did not establish beyond reasonable doubt that C. had formed a common design with M. to kill her husband.

(2) That on the evidence of B. it was unsafe to find that M. murdered the deceased. Appeal allowed.

Cases referred to: Rex v. Abdul s/o Jivraj 3 T. T. L. R. 71; Rex v. Edith<br>Jessie Thompson 17 Cr. A. R. 71.

Appellants absent, unrepresented.

Anjaria, Advocate (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The two accused Masabo s/o Mwendabantu and Chiza d/o Kulize were convicted of the murder of Buhwikiri s/o Gwezi and sentenced to death by the Magistrate, Tabora (Mr. Hamlyn), sitting in the exercise of extended jurisdiction. The sentence in each case was confirmed by the High Court. They have appealed to this Court. It is convenient to consider the case of Chiza first. It was not suggested that she took any physical part in the killing or that she was present thereat. The case against her was that she was a conspirator with Masabo in bringing about the murder. It was proved that the two accused were lovers, the woman Chiza who was the deceased's senior wife having left him for Masabo a month or so before the murder. The principal evidence against her is that of the deceased's junior wife Bugera and her evidence requires a very close examination. At page 7 of the record she said that "whenever Buhwikiri went on journeys selling his tobacco Masaba used to come to visit Chiza, sometimes in the day and sometimes in the evening. He would on these occasions have sexual intercourse with Chiza. I myself observed this, but I did not tell my husband this because he was a hottempered man. Both accused told me that if I informed Buhwikiri of this they would kill me, and would not kill him at all. The reason why they said this was that two days before my husband's death I had heard Chiza and Masabo say that they would kill my husband and then they would be able to get married. I heard this when I had gone over to Masabo's house to visit Chiza there." The witness did not inform anybody of this threat to kill Bubwikiri In this connexion we refer to the case of *Rex v. Abdul Rasul s/o Jivrai* 3 T. T. L. R. 71, a decision of this Court where the following passage occurs: "It has however been laid down in judgments in Indian cases that where a witness admits that he was cognizant of the crime to which he testifies and took no means to prevent the commission of the offence his evidence should be regarded as no better than that of an accomplice. Such a ruling must rest upon the view that where in the circumstances described a man is quiescent and takes no steps to communicate his knowledge with a view to preventing the commission of the projected crime, he must be taken to be in sympathy with the criminals and so to be a man upon whose evidence a Court should only act after the closest scrutiny". Bugera said that she loved her husband, yet she took no steps to warn him or anyone else of his impending death. True it is that she said the accused had threatened her with death if she revealed the intrigue existing between them. On this conflicting state of her feelings we will say no more than that her failure to inform anyone must serve to detract from the weight of her evidence. When we come to examine the curious circumstances in which she says she became aware of the murder and her behaviour at the time and immediately afterwards, the necessity for a severe scrutiny of her evidence becomes more apparent. We shall further criticize her evidence when considering the case against Masabo, Before examining those circumstances we will refer to the evidence of the witness Bagaye which was relied on by the Crown. It is at page 19 and reads "In the house (Buhwikiri's) I found Chiza and Bugera. Chiza and I talked together. Chiza told me that day her husband had bitten her on the nose. She told me that she proposed to find some medicine to kill him". Here the words which Chiza is alleged to have uttered to Bagaye do not indicate that she had formed a common design with Masabo or anybody else to kill her husband. To us they appear to be no more than the petulant words uttered on the spur of the moment by a woman who had recently been badly assaulted by her husband and in view of the fact that the deceased was not killed till one month later, and this in an entirely different manner to that which Chiza is said to have proposed, no weight should be attached to them.

The Magistrate in his judgment put the case against Chiza as follows "What is there then on the record which involves the female prisoner? I find it proved that she was in love with the man Masabo, that she left her husband and lived at the material time with her lover, that a month before the murder she had expressed to a neighbour that she herself proposed to find some medicine to kill her husband, that she was actually cohabiting with Masabo at the time of the murder which her husband committed with his own hand. Any one of these facts might be mere coincidence. But, where coincidence is piled upon coincidence, the effect must be not the mere arithmetic sum of the total of such coincidences but something in the nature of a geometrical progression, I must therefore conclude that the female prisoner was actively concerned in the affair, in every bit as much as the first accused". We are unable to agree that the coincidences referred to whether taken singly, cumulatively, or progressively, establish beyond reasonable doubt that Chiza aided, abetted, counselled or procured her husband's death. The coincidences at the most can only give rise to suspicion.

It is interesting to observe the nature of the evidence which was considered sufficient to fix the prisoner with guilt in the case of *Rex v. Edith Jessie Thompson*, 17 Cr. A. R. 71 at 72: "It is enough for the present purpose to say they could be justified (the use of certain letters) on the ground that by means of them, the prosecution sought to show that continuously over a long period, beginning months before and culminating at the time immediately antecedent to the commission of the crime, Mrs. Thompson was with every sort of ingenuity, by precept and by example actual or simulated, endeavouring to incite Bywaters to the commission of the crime. The letters went on to the last day, and her letter on the day of the crime contained what the jury might well regard as a calculated incitement to kill her husband that night." It was held in the case that there was evidence of a common design to murder and that the community of purpose extended up to the time of the commission of the felony. The evidence in the present case fails to establish a case of murder agianst the woman Chiza and she must be acquitted, her conviction and sentence being quashed. It has already been ordered accordingly on this appeal.

We shall now consider the case against Masabo. The case against him also rests on the evidence of the witness Bugera to which we have already referred in considering the case against Chiza. Besides the failure of this witness to report what she said she had seen and heard in the deceased's hut on the night he was murdered there are other features of her evidence which fall to be considered. She said "During the night I was awakened by someone spitting on my eyes. I immediately opened my eyes and sat up in bed. I found the door was open and I saw a man whom I recognized as the first accused Masabo, near the cooking place and quite close to my bed. I recognized him immediately... Masabo saw me sitting up in bed and said 'give no alarm or I will come back and kill you. The Government will find two corpses instead of one'. I therefore remained where I was, quiet. Masabo then went off".

It strikes us as a strange proceeding that the murder (for it is to be inferred that the murder had by then taken place) should by his curious procedure in awakening the woman have advertised his presence and then warned the witness to give no alarm. Having perpetrated the murder without detection one would<br>expect him to make off. She next said "After Masabo had gone I heard my husband cry out 'Mother 1 die'. At dawn I got up and found my husband's body was lying near the door of our house. I did not examine it carefully". One would think that on her husband calling out she would have gone to him, to ascertain if she could help him in any way. She next said "I then went off to my father-in-law Kanuma and told him 'Let us go to see what we women have caused to happen ................................... The headman said that it was obvious that I had done this deed. I denied this and said that Masabo had done this because he wanted to marry Chiza. I said this immediately and the headman agreed that 'my theory' was possibly correct" This evidence as to her having reported immediately that Masabo had committed the murder she later contradicted in saying "I first followed the instructions which Masabo had given me to tell Kanuma to come with me to my house and reconcile me with my husband who had driven me out" and then she continued "But I told them I had seen Masabo when they said I was the murderer. I insisted on going to the Kakonko Court". Kanuma gave evidence in contradiction of her having made an immediate report "I remember the day when I found Buhwikiri's dead body. On that day Bugera came to me at about 8 a.m. I was alone when she arrived-still sleeping. On her arrival she told me that her husband had wanted to beat her and that she had run away and slept outside. I told her to go home and that I would follow her and warn her husband to behave in future". This evidence contradicts her evidence that she had denounced Masabo as the murderer immediately. Kanuma's evidence is definite that she did not report to him what she said she had seen and as for her telling a false story because she was afraid of Masabo, Kanuma said "Bugera

often used to visit my house. I regard her as my daughter-in-law and she must be afraid of me and respect me. She would not be afraid of others in my presence. I would protect her". Kibogo the headman said "I inquired of Bugera as to who had killed Buhwikiri. She remained silent. I arranged to take the body to Kakonko and Bugera, Matumba and I went to Kakonko Court. Kakonko Court is three hours' walk from Buhwikiri's house . . . We took Bugera to the Court before Kikamba. There she was questioned, for I informed Kikamba that she had not explained the matter. On being asked by Kikamba, Bugera was first accused by Kikamba of being the murderer. The messenger came and pushed Bugera and struck her twice with a stick. Bugera then said 'Don't strike me; it is Masabo who did it". We have set out the foregoing extracts from the evidence for on them we base our view that it is not safe to convict on Bugera's testimony. Another strange feature of the case is that the murder is said to have been effected with the deceased's knife. Bugera said that she noticed it in Masabo's hand on the night of the murder and that she had seen it earlier the same day at supper time, a few hours before the murder "near Chiza's bed in our house". It seems to us to be a curious proceeding for a person contemplating murder to set off at night unarmed, trusting his luck to find a suitable weapon in the house of his victim. The young boy Matabazi who gave evidence implicating both accused was considered unreliable by the Magistrate who said that "he completely went to pieces under cross-examination". It is however legitimate in the interests of the defence to refer to his having said that Bugera had told him what to say and had brought the knife with her and "told me to say that this was the knife with which Buhwikiri was killed". It is also very significant that Matabazi did not produce this knife until two months after the murder had been committed. On the whole case and even though we make allowance for the evidence of Kabeka that two months before the murder Masabo said to him "I will kill a man soon", we do not consider it safe to allow the conviction of Masabo to stand. We set aside the conviction and sentence in his case and acquit him.