JOSEPH s/o KAMILIANGO & 5 OTHERS v REPUBLIC 1983 TLR 186 (CA)
Court Court of Appeal of Tanzania - Dar Es Salaam
Judge Nyalali CJ, Makame JJA and Kisanga JJA
May 8, 1984
CRIMINAL APPEAL 47 OF 1982
Flynote
Evidence - Circumstantial - Mere knowledge by the accused about the background
and D circumstances of the death and subsequent discovery of the body of the
deceased - Whether sufficient circumstantial evidence to support conviction.
Criminal Law - Provocation - Defence of provocation by witchcraft - Firm belief that
the E deceased was practising witchcraft - Killing calculated with cool minds and in
full possession of their faculties.
-Headnote
The appellants were jointly charged in the High Court at Bukoba on information for
the F offence of murder contrary to section 196 of the Penal Code. They were
charged together with one Joseph Kamiliango who died before this appeal could be
heard and his appeal is thus abated by operation of law. The grounds of appeal are
based on the defence of provocation and the insufficiency of circumstantial evidence
to support the conviction. G
Held: (i) The mere knowledge about the background and circumstances of the death
of the deceased, coupled with the discovery of the dead body of the deceased did not
constitute sufficient circumstantial evidence to support a conviction of murder; H
(ii) since the appellants did not act suddenly and as their conduct clearly
showed that they had calculated their move with cool minds and in full possession of
their faculties, the defence of provocation by witchcraft cannot be availed to them. I
1983 TLR p186
NYALALI CJ
Case Information
Order accordingly. A
No case referred to.
S.R. Kahangwa for the appellants.
M.M.K. Mtaki for the respondent. B
[zJDz]Judgment
Nyalali, C.J., read the following considered judgment of the court: 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 were jointly charged in the High Court at C
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, respectively. They were charged together with one Joseph Kamiliango, who
was the first accused at the trial, and Msafiri Abdallah, who was the second accused.
The said D Msafiri Abdallah was acquitted at the trial but the said Joseph Kamiliango
was convicted together with the appellants as charged. The convicts were all
aggrieved by the convictions and hence this appeal to this court. Unfortunately, the
first accused, that is E Joseph Kamiliago died before this appeal could be heard and
his appeal is thus abated by operation of law. Initially the information filed in the
High Court included two other persons, that is, Kafukulu Rwameluka and Rubazibwa
Bacheluka, in respect of whom a Nolle Prosequi was entered by the Director of Public
Prosecution before the F commencement of the trial. They appeared as the fourth
and fifth accused persons, respectively.
The remaining appellants, that is, the third, sixth, seventh, eighth and ninth accused
persons were represented in this appeal by Mr. Kahangwa, learned advocate; whereas
the Republic was represented by Mr. Mtaki, learned State Attorney. G
It is common ground that one Martina Adolf, who was the elder sister of accused Nos.
6,7,8 and 9, was killed during the night of the 24th/25th December, 1978, in
Kazilantemwa village, Ikuza Island of Lake Victoria, within Muleba district. All the
H remaining appellants and the deceased were residents of that village. It is
undisputed that some time in December 1978 before the death of the deceased,
accused Nos. 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 appeal. The said I Joseph Kamiliango was a traditional medicineman and the
four sisters travelled back with him to Ikuza Island. They were
1983 TLR p187
NYALALI CJ
accompanied by one Msafiri Abdallah, who was the second accused at the trial, and
A who was acquitted 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 husband. The discovery was made on the 26th December,
1978, near the homestead and in the banana grove of the third and seventh accused
who B were husband and wife, respectively. In consequence of this discovery and as
a result of interrogations of the third accused by the villagers, all the accused persons
were apprehended by the villagers that same day. The dead body had a cut wound on
the back of the head. Her left breast, vagina and two fingers of her left hand were cut
off C and missing. As a result of interrogations, the first accused, whose appeal has
abated, led a group of village militia and others to the home of one Alois Fabrian,
where the first and second accused had been staying. There the missing breast, vagina
and one finger were recovered. It is further undisputed that the police were informed
and they came to D collect the accused persons and the dead body to help the police
in their investigations. Subsequently, the remains of the deceased were viewed by Dr.
Twahibu Musoke (P.W.5) on the shores of Lake Victoria on the 30th December, 1978.
Accused No.1, whose appeal has abated, together with accused No. 6,7,8 and 9 were
taken E before the Justice of the Peace P.W.4) to whom they made extrajudicial
statements concerning the death of the said Martina Adolf.
It is the prosecution's argument 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 F also believed that she had bewitched their father who was seriously ill at the
time when they decided to pay the first accused a visit. To prevent the deceased from
wiping out the entire family, the four sisters, who appeared in this appeal, sought the
assistance of G the first accused, who agreed to kill the deceased on payment of a fee
of shs 800/= out of which shs. 100/= were paid in advance and the balance was to be
paid upon accomplishment of the undertaking. It is part of the prosecution's case that
pursuant to this agreement, the first accused killed the deceased and removed the
parts of the body which were found missing. H
The defence of accused Nos. 3,6,7 8 and 9 consisted in a denial of the prosecution
case.
The first point for consideration and decision in this case is whether the accused
persons, who are the appellants in this case, participated in killing the deceased. The
learned trial judge considered I
1983 TLR p188
NYALALI CJ
the four sisters together as their defence and the evidence led by the prosecution
against A them is the same for each of them. 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 group.
In convicting the third accused the learned trial judge stated: B
The evidential position then with regard to the 3rd accused is this. He
mentioned the 1st accused as the participant in the killing and even knew where he
could be traced, the 1st accused has been proved to have indeed taken part in the
killing. Both the 1st accused the C 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 one of the
killers was a member of the drinking party at the house of the 3rd accused, then the
killing must have taken place in or near the house and the body D taken into the
shamba. That killing in or near his 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 gave at the scene for the killing of the deceased, tallied with
the E reasons given later in the extra-judicial statements by the sisters. This proved
that the 3rd accused was an insider and party to this killing which took place in or
near his house.
Mr. Kahangwa has strongly attacked the finding and views of the learned trial judge
by F submitting in effect that mere knowledge by the third accused about the
background and circumstances of the death of the deceased, are not sufficient
circumstantial evidence to support the conviction of the third accused. We
respectfully agree with the submissions made by the learned advocate. Those
circumstances can be given an G innocent explanation. Firstly, the third accused
could have acquired his detailed knowledge of the relevant facts by virtue of his being
a member of the family which believed that the deceased was bewitching them.
Secondly, the deceased could have been killed without the participation of the third
accused near the homestead after she H had left the drinking party on her way back
home. 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 extrajudicial
statement to the justice of the peace I
1983 TLR p189
NYALALI CJ
(P.W.4) which amounts to a confession to the effect that they hired the first accused
to A kill the deceased to prevent her from eliminating the whole family by
witchcraft. They paid an advance of shs. 100/= to the first accused and the balance of
shs. 700/= was to be paid after the deceased had been killed. The extra-judicial
statement made by the first accused also amounted to a confession by him which
confirmed what the four sisters B stated in their own confessions.
Further confirmation of the confession 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 the first
accused. He testified about seeing the four sisters paying the first accused a visit some
time in C December, 1978.
Mr. Kahangwa, learned advocate 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 D quite clear on the evidence that the four sisters did not act
suddenly but they deliberated upon their move at a meeting held to consider their
position. They then travelled across the lake from their island village to the mainland
where they negotiated with the first accused. The conduct of these four sisters clearly
shows that they had E calculated their move with cool minds and in full possession
of their faculties. The defence of provocation by witchcraft is thus not available to
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 part. For
F 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 entirely the appeals of
Yolanda Adolf, Kambalula Adolf, Rozaria Adolf and Steria Adolf who are accused
Nos. 6,7,8 G and 9, respectively; but we allow the appeal of Deogratius Katabazi, that
is, the third accused, by quashing his conviction, setting aside his sentence and
directing that he be released from prison forthwith unless detained therein for some
other lawful cause.
H Order accordingly.
1983 TLR p190
A
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