Mbua and Gukwi v. R. Crim. App. 154-E.A.C.A-71; 8/2/72; Judgment of the court of Appeal, Law, J. A.

 

Mbua and Gukwi v. R. Crim. App. 154-E.A.C.A-71; 8/2/72; Judgment of the court of Appeal, Law, J. A.

The appellants were convicted of the murder of a woman called Changa, a suspected witch, by the High Court of Tanzania sitting at Dodoma. In convicting the first appellant, Mbua, the learned trial judge relied mainly on a confession allegedly made by Mbua to his mother, Yundu. Yundu was called as a witness by the prosecution and denied that Mbua had said anything to her about Changa’s death. In order to discredit her, she was shown a statement made by her to a police officer in which she had said that “any son told me that yes he did the killing.” Yundu denied having said any such thing to the police

Officer. The case against the second appellant, Gukwi, was based on the evidence of Chief Seuge and one another witness. Gukwi told Chief Seuge “let us go to lake Kindai and I will show you where the body is.” He led Chief Seuge to the lake, and pointed out a place where he said the body had been thrown. At that place was found Changa’s submerged body, tied to tree under water.

            Held: “(Yundu’s) statement (to the police) was admissible to discredit her evidence given at the trial, but its contents could not be imported into the trial and used as substantive evidence to be take into consideration in deciding whether or not Mbua was guilty. In relying on the contents of this statement convict Mbua, the learned trial judge was, with respect, clearly in error. (Irere alias Sheingo s/o Nawiga v. R. VIII E.A.C.A 61). The question to be decided is whether, after eliminating the contents of Yundu’s statement, there remains sufficient evidence to support Mbua’s conviction. There was evidence that, shortly before Changa’s death, Mbua snatched a bill-hook from one Kilongo, saying he needed it to dig up plants to use for medicine. This bill-hook was subsequently found buried outside Mbua’s house in a dismantled condition. When Changa’s body was found, two deep incised wounds wee apparent on her head. These circumstances undoubtedly raise suspicion that Mbua was implicated in the murder of Changa, but in our opinion they are insufficient evidence to justify Mbua’s conviction for that murder. We accordingly allow his appeal, quash the conviction for murder and set aside the sentence of death passed on him, and order that he set aside the sentence of death passed on him, and order that he be released from custody unless detained on some other charge.” (2) “(The) evidence (against Gukwi) clearly implicates Gukwi as having participated in disposing of Changa’s body. Whether it justifies his conviction for murder depends on whether or not Changa was still alive when her body was tied under water. This question was not considered in the court below, and in our view it would not be safe on the evidence available to allow Gukwi’s conviction for murder to stand. He is however clearly guilty of the offence of being an accessory after the fact to murder, contrary to section 213 as read with section 387 of the Penal Code. We accordingly allow his appeal to this extent: the conviction for murder and the sentence of death passed on him are respectively quashed and set aside, and there will be substituted a conviction  for being an accessory after the fact to murder, contrary to section 213 of the Penal Code, and a sentence of three(3) years imprisonment.”