PROTAS JOHN KITOGOLE AND ANOTHER v REPUBLIC 1992 TLR 51 (CA)

 

PROTAS JOHN KITOGOLE AND ANOTHER v REPUBLIC 1992 TLR 51 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Makame JJA, Kisanga JJA, Omar, JJA

April 21, 1992 G

May 28, 1992

Flynote

Evidence - Circumstantial - Whether and when may ground a conviction. H

-Headnote

The appellants were charged with and convicted of murder by the High Court. The

case against both accused/appellants was based wholly on circumstantial evidence.

The pieces of circumstantial evidence tending to implicate the second appellant were:

(i) I after the two deceased watchmen had been fatally wounded he was found

1992 TLR p52

MAKAME JJA, KISANGA JJA, OMAR JJA

at the home he was staying with a big fresh cut wound which was bleeding; (ii) A

trail A of blood was traced from there right up to the carpentry workshop where the

murders were committed. The appellants explanation that the cutwound was inflicted

on him by bandits who had invaded the home was not backed up by any evidence;

(iii) on the fateful night some 14 carpentry planes were stolen from the workshop,

and six days B later the appellant told PW5, a relative, that he had carpentry planes

for sale but cautioned him not to disclose this to anyone because theft of carpentry

planes had taken place at Tosamaganga; (iv) just about six days prior to the

commission of the murders, C the same workshop had been broken into and a

welding machine (electric motor) was stolen from there but was later found

abandoned only about nine meters away. In the dead of that same night the appellant

had approached PW4 and asked him for a motor-vehicle to transport a motor from

the workshop. Sensing that the said motor D was stolen PW4 refused to oblige.

As for the first appellant there were the following pieces of circumstantial evidence:

(i) the appellant's companionship with his co-appellant (ii) the appellant's girl friend

said that five to six days following the murders she visited the appellant's home where

she E noticed the appellant with a big cut wound on his lower arm; the wound was

not fresh. He threatened to kill her if she told people about the wound. She went on

to say that the appellant used to put on T-shirts but that after the murders he used to

put on long-sleeved shirt and a big coat; (iii) the appellant claimed that he sustained

the cut F wound when he was trying to commit adultery with someone's wife.

However there was no evidence to that effect.

The Court of Appeal considered whether or not the pieces of circumstantial evidence

could ground a conviction in respect of each appellant. G

Held: (i) The fact that only shortly after the murders were committed, the second

appellant was found with a big cut wound and that a trail of blood was traced from

where he was found to the scene of the murders were incriminating circumstances H

which lead to the only reasonable inference that the appellant took part in the

murders. And the fact that the second appellant gave a false account of how he

sustained the injury goes to strengthen this view;

(ii) although the evidence against the second appellant was a great deal

stronger I than that against the first appellant we are fully satisfied that the

circumstantial evidence against the first appellant

1992 TLR p53

MAKAME JJA, KISANGA JJA, OMAR JJA

was enough to lead to the irresistible conclusion that he was one of the killers; A

(Kisanga, J.A., dissenting);

(iii) (per Kisanga, J.A.) The fact that the first appellant had sustained a cut

wound on a certain day which wound according to the prosecution he was hiding

cannot justify drawing the only reasonable inference that the first appellant sustained

that wound B during the commission of the murders at the workshop on the night in

question. That fact can be explained on another reasonable hypothesis, namely, that

the injury could have been sustained elsewhere and the appellant would have reason

to conceal it in order to avoid detection; C

(iv) (per Kisanga, J.A.) The fact that the appellant has not given a true account

of how he sustained the cut wound would be relevant only if there was evidence

which implicates him sufficiently with the offences charged;

(v) (per Kisanga, J.A.) To Attach any importance to the appellant's giving a

false D account of how he sustained the injury and to his subsequent attempt to

conceal the injury, and then to proceed to convict him would, in the circumstances of

this case amount to basing conviction on the weakness of the defence rather than on

the strength of the prosecution case; E

(vi) (per Kisanga J.A.) Each of the inculpatory facts or set of inculpatory facts,

adduced against the first appellant, considered singly does not justify the drawing of

the inference that the first appellant committed the murders in question. Likewise

when considered together they could not justify the drawing of such inference for the

simple F reason that it is not possible to add nothing to nothing and get something.

Case Information

Appeal dismissed. G

Mwangole, for the appellants.

[zJDz]Judgment

Makame, Kisanga and Omar, JJ.A: These two appellants were sentenced to suffer

death after being found guilty of murdering two night watchmen, employees of

Tosamaganga Mission in Iringa District on 14th September, 1983. Chua, J., and all H

the three assessors sitting with him were satisfied that the two appellants were the

ones who violently killed the deceased persons in the course of a theft. Both

appellants were themselves found to be bearing serious cut wounds at the time they

were arrested. I

1992 TLR p54

Mr. Mwangole, learned advocate, argued the appellants' appeal before us. He A

complained that his clients were convicted merely because of the wounds they had,

that their explanations as to how they each got injured should have been believed,

and that there was no evidence that the appellants took part in breaking into the

Mission Workshop the deceased persons were guarding. On the other hand, Mrs.

Makuru, B learned State Attorney for the respondent Republic, supported the High

Court decision, urging that the evidence adduced was enough to sustain both

convictions.

The evidence relied on was completely circumstantial. We are able to say at the

outset that it was clearly good enough and reliable evidence. We respectfully think

that the C learned trial judge arrived at a reasonable conclusion.

The evidence was that the two appellants were constant companions. A paramour of

the appellant Kitogele, P.W.9 Isabela Luwungo, testifies to this. She was supported D

by P.W.2 Dr. Elius Mwakalobo, the other appellant's sister's husband.

During the material night P.W.2 was called to Tosamaganga Hospital where he was

working as a doctor, to go and help fellow doctors attend the two watchmen who had

been badly wounded. At that time his brother-in-law, the appellant Nzalalila, who

had E come out of prison that year, was staying with P.W.3 Leokadia Nzalalila,

heard her brother, the second appellant, cry out that he had been hurt by bandits. An

inspection of the premises later the same night did not convince the several people

there that the second appellant had really got the injuries at the premises. The second

appellant's F story that the bandits had escaped.

There was another piece of evidence the learned trial judge mentioned both in his

summing-up to the assessors and in his resume of the evidence in the course of his

judgment but which he did not express an opinion on. We have in mind the

testimony G of P.W.4 Alfonce Kimotuo according to which very late at night on

8/9/83 the second appellant and another person who took great pains to hide his

identity went to his house wanting to hire his Pick-up. The second appellant said he

wanted to go to Cheraheni to collect a motor from there. P.W.4 suspected that the

item would be stolen property, H so he refused. Two days later P.W.4 reported the

incident to P.W.6, the brother it will be remembered, and P.W.6 told him that a huge

welding machine, called an electric motor by some people, had been stolen on 8th

September, 1983, that is the same night I the second appellant asked for transport

from P.W.4, but that it had been carried a distance of about nine metres only, to

Ruaha

1992 TLR p55

MAKAME JJA, KISANGA JJA, OMAR JJA

Bridge, and abandoned there. Incidentally we learn from P.W.2's evidence that the A

place the murders were committed is also called Cheraheni and from the testimony of

P.W.6 we realize that the 'motor' and the planes were stolen from one and the same

workshop, the scene of the two murders.

It is our view that the trial court should have felt entitled to, and we do, take the B

foregoing as one additional circumstance as far as the second appellant was

concerned. It showed not only the second appellant's propensity but established that

he had been at the same scene of crime, at night, six days previously, only that his

efforts had been frustrated by his failure to secure transport. C

We are fully satisfied that from the various circumstances it was eminently proper to

come to the conclusion that the second appellant must have been one of the persons

who went to steal from the workshop at Tosamaganga Mission and maliciously killed

the two watchmen in the process. His conviction was sound and we accordingly

dismiss D his appeal.

Mr. Mwangole before us pursued the line taken by his other client at the trial as to

how he got injured that is the Kihesa adultery story. He submitted that the first

appellant got injured some ten days after the killings so his wounds had nothing to do

with the E alleged offences. Learned Counsel further urged that in any event, even if

the first appellant told lies about how he got injured, that does not mean that he was

one of the killers.

We have seriously considered the evidence against the first appellant Protas Kitogele.

We wish to say, in all candour, that the evidence against his co-accused was a great F

deal stronger than that against him. We hasten to add, however, that we do not at all

intend, by making that observation, to mean that the evidence against Kitogele was

weak, or that it was not strong enough to ground a conviction. We are, on the

contrary, fully satisfied that the circumstantial evidence against him was enough to

lead to the G irresistible conclusion that he was one of the killers. There was first the

evidence of constant companionship with the second appellant. There was also the

testimony of the first appellant's own lover that at the funeral, which was on the

morrow of the killings, H she saw the first appellant wearing a long-sleeved shirt

and coat for the first time. There was also the evidence by the same witness that four

days later when she visited the first appellant at his house and he inadvertently

revealed that he had a bandage on his arm he told the witness on being asked by her,

that he had been burnt by a kerosene cooker. I Then he changed his story and said

he had been cut with a

1992 TLR p56

MAKAME JJA, KISANGA JJA, OMAR JJA

knife by someone with whom he had quarrelled. The appellant added that he had A

turned down advice that he should go to a Government Hospital for treatment and

that he had decided to treat himself at home. The appellant also threatened to kill the

woman if she even disclosed that he had a large wound. During the investigation, and

at the trial, this appellant must have appreciated the dire consequences that might

befall him if B proved to have been involved in the crimes. We have first asked

ourselves: would a person so seriously cut, with two wounds infact - one on the left

shoulder and the one seen by P.W.9 on the right arm, have stayed from hospital

treatment merely because C he had been surprised preparing to commit adultery

with someone's wife? Faced now with a possible murder case, would he have declined

to show Sgt. Kasian, P.W.1, the investigating officer, the location of the house he had

intended to fornicate in, and had got so severely injured? He would have at least tried

to lead P.W.1 to the house as D the incident imaginary in our view, had taken place

at about 4.30 in the afternoon. Also it cannot be true that the first appellant got

injured on 25th September, 1983, that is a good ten days after the killings. P.W.9 was

clear that she discovered only four days after the funeral that the first appellant had a

cut wound which already was not fresh E then. That would be 19th or 20th

September. We are unable to entertain what would be fanciful doubt about the first

appellant's guilt. We are satisfied that he too was justly convicted.

F Appeal dismissed.

[zJDz]Judgment

Kisanga, J.A: I have had the advantage of reading in draft the judgment of Makame

and Omar, JJ.A. upholding the conviction of both appellants for murder and the G

sentence of death passed by the High Court (Chua, J.). The facts of the case are

sufficiently apparent from that judgment and I need not repeat them here.

I agree that the case against both appellants was pased wholly on circumstantial

evidence. I also agree that such circumstantial evidence as adduced against the H

appellant Wilbert Nzalaliza was sufficient to ground his conviction. The pieces of

circumstantial evidence tending to implicate him and the inferences to be drawn

from them are as follows. After the two deceased watchmen had been fatally

wounded, this appellant was found at the home of P.W.2, where he was staying, with

a big fresh cut I wound which was bleeding, and a trail of blood was traced from

there right up to the

1992 TLR p57

MAKAME JJA, KISANGA JJA, OMAR JJA

carpentry workshop at Tosamaganga Mission where the murders were committed. A

The appellant's explanation that the cut wound was inflicted on him by bandits who

had invaded the home of P.W.2, his host and brother-in-law, was obviously bogus

because there was no evidence of any breaking or entry by strangers into the room

where the appellant claims he was attacked or into any part of P.W.2's premises. Thus

the fact B that only shortly after the murders were committed, the appellant was

found with a big cut wound, that a trail of blood was traced from where he was found

to the scene of the murders were incriminating circumstances which lead to the only

reasonable inference that the appellant took part in the murders. And the fact that the

appellant gave a false C ground of how he sustained the injury goes to strengthen

this view.

On the fateful night some fourteen carpentry planes were stolen from the workshop,

and about six days later the appellant told P.W.5, a relative, that he had carpentry

planes for sale but cautioned him not to disclose this to anyone because a theft of

carpentry planes D had taken place at Tosamaganga. The only reasonable conclusion

to be drawn here is that the appellant must have taken part in stealing the planes

from the workshop and in murdering the two watchmen in the process; and his

caution to P.W.5 was necessarily E calculated to protect him from detection.

Again just about six days prior to the commission of the murders, the same workshop

had been broken into and a welding machine, also known as an electric motor, was

stolen from there but was later found abandoned only about nine metres away. The F

appellant was connected with the theft because in the dead of that same night he had

approached P.W.4 and asked him for a motor vehicle to transport a motor from the

workshop, but sensing that the said motor was stolen he (P.W.4) refused to oblige.

Once again the only reasonable inference to be drawn here is that the appellant went

G to the workshop again to carry out theft which he had attempted unsuccessfully on

the previous occasion and that in the process he committed the murders.

The various conclusions of inferences drawn from the inculpatory facts point

irresistibly to the appellant as being a participant in the criminal activity which

resulted in the H murder of the two watchmen in the workshop at Tosamaganga

Mission on the fateful night. The appellant's conviction, therefore, was amply

justified.

Turning now to the appellant Protas John Kitogele, however, I find myself unable to

I agree with the majority judgment. My view

1992 TLR p58

MAKAME JJA, KISANGA JJA, OMAR JJA

is that the facts do not meet the test for convicting on circumstantial evidence as was

A laid down by the Court of Appeal for Eastern Africa in the case of R. v Kipkering

arap Koske and Another (1949) 16 E.A.C.A. 135, and followed by this Court in a

number of subsequent decisions. Briefly stated the test is that in order to justify the

inference of guilt, the inculpatory facts must be incompatible with the innocence of

the accused, B and incapable of explanation upon any other reasonable hypothesis

than that of his guilt. The burden of proving facts which justify the drawing of the

inference from the facts to the exclusion of any reasonable hypothesis of innocence is

on the prosecution and it never shifts. C

The pieces of circumstantial evidence adduced as tending to implicate this appellant

are as follows: First, there was the evidence of the appellant's companionship with his

co-appellant Wilbert whose conviction we have upheld. The evidence on this appeal

was given by two witnesses. The appellant's own girl friend (P.W.9) who at the D

material time was doing the work of selling pombe said:

The two accused used to walk together and come to the pombe shop together.

They appeared to be friends because they were always together. E

This is supported by P.W.2 who said:

I have known the first accused (present appellant) for a very short period ... I

came to know F the first accused in drinking places. At first the first accused used to

come alone. Nearer the dates when the events occurred the two accused used to come

to the drinking places together.

The first question to determine is this: Are the witnesses saying that both appellants

G were always together when they went to the pombe shop or are they saying that

they were together at all times? It seems plain to me that neither witness could

meaningfully be saying that the appellants were together at all times, for the simple

reason that the witnesses themselves were not with the appellants at all times. For

instance when H P.W.9 was at the pombe shop selling pombe she would not know

what company the appellant was keeping before his coming to the pombe shop. What

is more, the appellant Wilbert whose case we have already deal with, used to frequent

the home I of P.W.2 and, indeed on the night of the murders the appellant was

spending the night there. But it is significant that neither P.W.2

1992 TLR p59

MAKAME JJA, KISANGA JJA, OMAR JJA

nor P.W.3, his wife, suggested that they saw the appellant Protas at their home. In A

other words, if both appellants were together at all times P.W.2 and his wife P.W.3

would have seen them together during the frequent visits by the appellant Wilbert at

their home, and they would have said so. But on the contrary P.W.2 merely testified

that he saw both appellants together at pombe shops, while P.W.3, his wife, makes no

B mention at all of the appellant Protas.

On the evidence, therefore, all one can confidently say is that both appellants used to

go to the pombe shop or pombe shops together, and the question is whether that fact

was sufficient from which to draw the inference that Protas must have also

accompanied C his co-appellant Wilbert to the workshop on the fateful night and

there, together with Wilbert committed the murders. For my part, I could not answer

that question in the affirmative. For one thing, there was no evidence whatsoever that

both appellants were seen together anywhere, let alone at the scene of crime, on the

day of the incident. D Further-more when P.W.2 parted with the appellant Wilbert

on the material night and the latter went to sleep in P.W.2's back house, Wilbert was

alone and not accompanied by the appellant Protas.

Thus on the evidence there were times when both appellants were not together. Both

E appellants were not seen together anywhere on the day of the murders. On the

other hand in the evening of the night of the incident, the appellant Wilbert was

alone at the home of P.W.2 until bed time. In the face of such evidence I could not

reasonably conclude that some how the appellant Protas must have accompanied

Wilbert to the F scene of crime that night. To my mind such conclusion would

merely amount to speculation. The fact of Protas's companionship with Wilbert to

pombe shops is capable of an innocent explanation in that Protas may have kept such

company only when going to drinking places but not during criminal ventures by his

companion. G

The next set of facts tending to implicate the appellant Protas with the murders was

also given by P.W.9, his girl friend. She said in effect that five to six days following

the murders, she visited the appellant's home where she noticed the appellant with a

big H cut wound on his lower arm; the wound was not fresh. After giving on

inconsistent account of how he had sustained the wound, the appellant then

threatened to kill her is she told people about the wound. She went on to say that

before the murders, the appellant used to put on T-shirts but that after the murders

he used to put on long I sleeved shirt and a big coat which, according to the

prosecution,

1992 TLR p60

MAKAME JJA, KISANGA JJA, OMAR JJA

was designed to hide the wound. At the trial the appellant claimed that he sustained

A the cut wound at Kihesa in Iringa town when he was trying to commit adultery

with someone's wife.

I find that the appellant sustained a cut wound on his lower arm, and I am prepared

to find further that he has not given a true account of how he sustained that wound.

The B question that follows is: What nexus is there between his cut wound and the

murders in the workshop at Tosamaganga Mission? Is there material to warrant the

inference that the appellant must have sustained the injury in the course of

committing the theft and murders at the workshop? I could find no justification for

drawing any such inference C myself. In the first place on the evidence it is not

established when the appellant sustained the wound. When P.W.9 noticed it five or

six days after the murders, the wound was not fresh. But can one conclude that it was

necessarily inflicted on the day of the murders and at the workshop? Relying on the

evidence of P.w.9 the D prosecution takes the view that after the murders were

committed, the appellant used to put on long sleeved shirt and a big coat in order to

conceal his injury. But there is no evidence that P.W.9 used to see the appellant every

day. Nor does P.W.9 say when she saw the appellant last before the murders were

committed. In the absence of any E such evidence it is impossible to know when the

appellant began to put on that kind of attire. He might have started putting it on one

day or two days, when P.W.9 might not have seen him, before the commission of the

murders, in which case if he was hiding a cut wound it would be a cut wound

sustained elsewhere, and unconnected with the F incident at the workshop. But

even assuming that the appellant started putting on this type of attire on the day

following the murders, that would not be sufficient from which to conclude that he

was trying to hide an injury which he had sustained during the incident at the

workshop. For he could have sustained the cut wound elsewhere in the G

commission of some other wrong, and it would be in his interest to hide it, and even

to threaten P.W.9's life against the disclosure of it, in order to avoid detection. In

other words, the fact that the appellant had sustained a cut wound on a certain day

which H wound according to the prosecution he was hiding cannot justify drawing

the only reasonable inference that the appellant sustained that wound during the

commission of the murders at the workshop on the night in question. As has just been

demonstrated, that fact can be explained on another reasonable hypothesis, namely,

that the injury could have been sustained I

1992 TLR p61

MAKAME JJA, KISANGA JJA, OMAR JJA

elsewhere and the appellant would have reason to conceal it in order to avoid A

detection.

The fact that the appellant has not given a true account of how he sustained the cut

wound would be relevant only if there was evidence which implicates the appellant

sufficiently with the offenses charged. In the case of Fyaralal M. Rassan and B

Another v R. [1960] E.A. 854 the Court of Appeal for Eastern Africa, dealing with a

similar situation, said:

It is quite plain that false statements made by an accused person do not have

substantive inculpatory effect and cannot be used as a make-weight to support other

material, C unless the other material would be sufficient independently to sustain a

verdict against the accused.

In the instant case the fact that the appellant had sustained a cut wound and that he

D tried to hide it by dressing differently and by uttering threats to P.W.9 against

disclosure of it does not necessarily connect him with the murders at the workshop

because, as demonstrated earlier these facts can be explained. On another reasonable

hypothesis; the appellant could have sustained the injury in the course of committing

some other E wrong and it would be injury his interest to try to hide it in order to

avoid being detected. Quite clearly the facts which do not necessary connect the

appellant with the offenses charged could not be relied upon to sustain his conviction

for those offenses. Consequently in terms of Bassan's case above cited the appellant's

false account of F how he sustained the cut wound could not be used to support

what may only be described as a weak prosecution case. To attach any importance to

the appellant's giving a false account of how he sustained the injury and to his

subsequent attempt to conceal the injure, and then to proceed to convict him would,

in the circumstances of G this case, amount to basing conviction on the weakness of

the defence rather than on the strength of the prosecution case.

In the last analysis my view is that each of the inculpatory facts or set of inculpatory

facts adduced against the appellant Protas, considered singly does not justify the

drawing H of the inference that the appellant committed the murders in question.

Likewise when considered together they could not justify the drawing of such

inference for the simple reason that it is not possible to add nothing to nothing and

get something. In other words I the inculpatory facts, whether taken individually or

collectively, do not point irresistibly

1992 TLR p62

to the appellant as a participant in the offenses charged. A

It is for these reasons I concur that the appeal by Wilbert has no merit and should be

dismissed but would have allowed the appeal by Protas.

B Order accordingly.

C