MAGENDO PAUL AND ANOTHER v REPUBLIC 1993 TLR 220 (CA)

 MAGENDO PAUL AND ANOTHER v REPUBLIC 1993 TLR 220 (CA)

Court Court of Appeal of Tanzania - Dodoma

Judge Omar JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 99 OF 1993 F

25 October, 1993

(From the conviction and sentence of the High Court of Tanzania at Singida, Maina,

J.) G

Flynote

Evidence - Strong circumstantial evidence - Only remote possibility left in favour of

an accused - Whether sufficient proof of charge established. H

-Headnote

The appellants were jointly convicted of murder and sentenced to death. Their

conviction was based on circumstantial evidence. The appellants together with

another person (who was also accused but died in remand prison) were village

militiamen who were ordered by the village secretary to guard the I deceased who

had been locked in a cell on allegations of

1993 TLR p221

A rape. Later the deceased was found hanging by the neck from a piece of cloth. At

their trial in the High Court, both appellants denied killing the deceased and

contended that the deceased must have committed suicide by hanging himself. The

prosecution relied on the evidence of the doctor who conducted the post mortem. His

report, which was not disputed by the defence, showed that the B cause of death was

`peripheral circulatory failure caused by bleeding and severe pain after perforation of

the eye by a sharp weapon'. The doctor dismissed the suggestion that the deceased

had hanged himself because he had no marks around the neck and there was no

congestion of the lungs to indicate death by hanging.

Held: (i) The circumstantial evidence irresistably pointed to the appellants as the

people who C perforated the deceased's eyes; in doing so they clearly intended, at

the very least, to cause him grievous harm;

(ii) If the evidence is so strong against an accused as to leave only a remote

possibility in his favour, which can easily be dismissed, the case is proved beyond

reasonable doubt.

Case Information

D Appeal allowed.

Case referred to:

1. Miller v. Minister of Pensions [1947] 2 All ER 372.

Mbezi, for the appellants.

E Mwambe, for the Republic.

[zJDz]Judgment

Mnzavas, J.A., read the following considered judgment of the court:

The two appellants, Magendo Paul and Shabani Benjamin, were jointly charged with

and convicted of F murder contrary to s 196 of the Penal Code by the High Court,

(Maina J), and sentenced to death. Dissatisfied with the findings and the sentence

imposed they have appealed to this Court.

The following facts were narrated to the Trial Court:

The appellants were villagers at Sasile Village in Manyeni district and were

militiamen in the area. On G 1 July 1990 their village secretary, PW2, ordered them

to arrest their fellow villager, one, Bakari s/o Leonard, who was alleged to have raped

a woman in the village. They obediently complied and duly arrested the said Bakari

s/o Leonard and brought him to the village secretary (PW2), who locked him in the

village lock-up. According to the evidence of the village secretary after Bakari was

locked up he H told the appellants, and one, Charles Mjelwa, who was also a

militiaman (and was one of the accused but met his death in remand prison) to send

Bakari to the Ward Secretary on the following day - 2 July 1990. The village secretary

then left for his house leaving the appellants and Charles I guarding the deceased.

1993 TLR p221

MNZAVAS JA

Later while he was in his house the first appellant, Magendo Paul, and one, Robert

Noha, came and A asked to go to the lock-up and see what had happened. He

accompanied them to the lock-up and on arrival asked the first appellant who was in

possession of the key to unlock the lock-up. He did so and on entering the cell he

found Bakari hanging by the neck from a piece of cloth tied to a beam of the ceiling.

He was already dead. Apparently the cloth used in hanging the deceased was his own

B jacket.

The matter was reported to the police and the investigation culminated in the arrest

and arraignment of the two appellants and one, Charles Mjelwa, who, as already

mentioned above died while in C remand.

In their defence before the High Court both appellants denied killing the deceased

and argued that the deceased must have committed suicide by hanging himself.

Before us Mr Mbezi, learned Defence Counsel, submitted that `the learned Trial

Judge erred in D disbelieving that the deceased had actually hanged himself'. When

the Court posed the question as to who could have perforated the deceased's eyes if

the deceased had actually hanged himself. Mr Mbezi argued that after the deceased

had hanged himself the dead body fell on the ground and that E the perforation of

both eyes may have been caused by sharp objects on the ground. It was further argued

that relatives of the woman the deceased was alleged to have raped may have been so

angered as to resort to perforating the deceased's eyes after he had hanged himself. F

In the second ground of appeal the learned Defence Counsel submitted that the Trial

Judge was wrong in his finding that it were the appellants who killed the deceased as,

it was argued, it was clear from the evidence which one of the appellants held the key

to the lock-up. G

It was the learned Counsel's submission that any of the militiamen who guarded the

deceased could have committed the offence but that it was not clear who, between

them, committed the offence. It was argued that this being the position this Court

should allow the appeal and acquit the appellants. H

In rebuttal Mr Mwambe, learned State Attorney, supported the conviction and argued

that the prosecution relied on the evidence of the doctor, PW1, as to the cause of

deceased's death. It was submitted that the contents of the post mortem report as to

the cause of death was not disputed by the defence. In support of his argument we

were referred to page six of the proceedings. I

1993 TLR p222

MNZAVAS JA

A As for the the argument that the appellants were wrongly convicted or murder

because there was no evidence as to who among them held the key to the lock-up the

learned State Attorney submitted that the appellants were convicted of murder on

circumstantial evidence which was that from 3.30 pm to 4 pm or thereabout, when

the deceased met his death he was locked in the village lock-up and B guarded by

the appellants and their deceased co-accused, Charles. That was evidence that they

were custodians of the key to the lock-up. It was not disputed that at the time the

deceased was put in lock-up his eyes were normal. And last but not least, the deceased

was alone in the lock-up.

C On the argument by the defence that relatives of the woman alleged to have been

raped by the deceased may have perforated deceased's eyes, Mr Mwambe countered

that this could not have been possible and referred the Court to the defence of the

first appellant in the High Court on page 17 D of the proceedings in which he said

inter alia:

`. . . I knew the woman who alleged that she was raped. I saw her relatives at

the scene. I also saw relatives of the E deceased. Those people were saying that we

who had arrested the deceased had killed him.'

This being the evidence of the first appellant the argument by the learned Defence

Counsel that relatives of the woman the deceased was alleged to have raped may have

perforated the deceased's eyes in anger, thereby causing his death, had no leg to stand

on.

F The contents of the post mortem report - exh P1 regarding the cause of death

which were not disputed by the defence in `the memorandum of matters not in

dispute' were that the cause of death was due to `peripheral circulatory failure caused

by bleeding and severe pain after perforation of the eyes by a sharp weapon'.

G Elaborating on the post mortem report the doctor, (PW1), said in his evidence

inter alia:

`. . . In my opinion there was no evidence that the deceased had died from

hanging - what I found around H deceased's neck was a piece of his shirt. That piece

of cloth was just placed around the neck to fake hanging. There was no bruise around

the neck. If the deceased had hanged himself, there could have been a mark around

his neck. . . . The lungs were normal. There was no congestion of the lungs to indicate

death by hanging.'

I Taking into account the evidence of the village secretary, (PW2),

1993 TLR p223

MNZAVAS JA

that he had ordered the appellants to guard the deceased who had been locked in the

cell; his A evidence that he had left the keys to the lock-up with the appellants and

that they guarded the deceased from the time he was put in lock-up up to the time he

met his death; and the doctor's evidence that the cause of death was due to

perforation of the deceased's eyes which led to peripheral circulatory failure as a

result of neurologic shock we are far from being persuaded by the B learned Defence

Counsel's argument that someone other that the appellants may have perforated the

deceased's eyes and thereby caused his death.

We agree with Mr Mbezi's submission that anything is possible but on the facts of this

case the C argument that the appellant's both eyes may have been perforated by

sharp instruments on the floor after the body had fallen to the ground is, to say the

least far-fetched and untenable.

As it was held by Lord Denning in Millier v Minister of Pensions (1): `The law would

fail to protect the D community if it admitted fanciful possibilities to deflect the

Court of Justices. If the evidence is so strong against a man as to leave only a remote

possibility in his favour which can be dismissed with the sentence "of course it is

possible but not in the least probable", the case is proved beyond E reasonable

doubt.'

In the present case the circumstantial evidence irresistibly pointed to the appellants as

the people who perforated the deceased's eyes. In doing so they clearly intended, at

the very least, to cause him grievous harm. Their defence that the deceased had

hanged himself was a clumsy attempt to F extricate themselves from their criminal

acts.

We are satisfied in our own minds that on the evidence the learned Trial Judge was

right in convicting the appellants of the offence of murder as charged. We agree with

that the learned State G Attorney that the appeal has no merit and we accordingly

order that it be dismissed in its entirety.

1993 TLR p224

A