KATABE KACHOCHOBA v REPUBLIC 1986 TLR 170 (CA)

KATABE KACHOCHOBA v REPUBLIC 1986 TLR 170 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Mustafa JJA, Makame JJA, Kisanga JJA

18th June, 1986.

CRIMINAL APPEAL 78 of 1985

Flynote

B Evidence - Circumstantial - Layman's view that remains found were human

remains - Evidence insufficient.

-Headnote

The appellant was convicted of murder on purely circumstantial evidence. The

appellant was employed by one Ali C Malela to gather honey in the forest. There

was evidence that in August, 1980 the appellant went with Ali Malela into the forest

to collect honey. Thereafter Ali Malela was not seen. A search which was mounted

discovered burnt remains which were thought to be those of Ali Malela. No scientific

test was carried out to establish that the remains were those D of Ali Malela. The

trial Court convicted the appellant because he was the last person to be seen with the

deceased and also that he had some of the deceased's properties.

E Held: (i) We are not prepared to accept a layman's view that the kidney and heart

and part of the skull were human remains;

(ii) the Republic had not proved that the remains found were human remains

and that they were the remains of Ali Malela.

Case Information

F Appeal allowed.

No case referred to.

[zJDz]Judgment

Mustafa, J.A. : The appellant was convicted of murder on purely circumstantial

evidence. The G appellant was employed by one Ali Malela to gather honey in a

forest. There was evidence that in August, 1980 the appellant went with Ali Malela

into the forest to collect honey.

Sometime later, in early September, 1980, the appellant was found in a nearby village

not far from the forest selling H plastic buckets of the type used by Ali Malela to

collect honey. When the appellant was found by P.W.3, a relative of Ali Malela, the

appellant was wearing the clothes belonging to Ali Malela. Ali Malela could not be

found, despite a search, and it was assumed by the relatives of Ali Malela that Ali

Malela had died or was killed. I

The appellant had told P.W.3 and others that when he left Ali

1986 TLR p171

MUSTAFA JA

A Malela, Ali Malela was going in direction of his village Kanoge.

The appellant stated that he had exchanged his old clothes with the clothes of Ali

Malela. A search was carried out in the forest, and at a spot in the opposite direction

of the village Kanoge, some bone remains were found. It was alleged that the remains

were found some 3 or 4 miles from the site of the camp where the appellant and Ali

Malela had stayed to collect honey. B

The remains consisted of some pieces of burnt bones, a heart, a kidney, a part of a

skull with some hair, and a piece of cloth allegedly belonging to Ali Malela.

Apparently the remains were part of something which was burnt. It was also testified

to by P.W.5 that on the spot there was an imprint on the ground as of a human being

of about the size of Ali C Malela.

Some pieces of the burnt bones were sent to the Government Chemist by the Police

for chemical analysis. The report from the Government Chemist stated that it could

not be determined whether the bones were human or otherwise. D Nothing else

was sent for analysis.

At the trial P.W.5 purported to produce a kidney, a heart and a part of skull with hair.

No evidence was led as to who had kept these organs for over two years and where

were they kept. In any event the trial judge concluded that they E were human

remains, and the remains of Ali Malela.

No explanation was forthcoming as to why these organs were not sent to the

Government Chemist for analysis. The facility was available, and some bones were

duly sent for that purpose. F

The judge and the assessors were satisfied that Ali Malela was dead, and that the

remains discovered in the forest were those of Ali Malela.

The circumstances implicating the appellant were: G

1. that he was last seen with Ali Malela when Ali Malela was alive.

2. that he was found with Ali Malela's clothes, and blanket.

3. that he was selling the plastic buckets of Ali Malela.

H 4. that he had told a lie, in that he said he had left Ali Malela going in the

direction of his village Kanoge, whereas Ali Malela's remains were found in the

opposite direction.

The appellant denied the charge, and said nothing in defence.

In the first place, we are not satisfied that the death of Ali Malela had been

conclusively proved. We can see no reason I why

1986 TLR p172

A the kidney and heart and part of the skull with hair were not sent to the

Government Chemist for analysis and to discover if they were human remains.

It may well be that the heart and kidney were human remains, as found by the judge.

But that evidence is not conclusive, and better and more conclusive evidence in that

respect was available and for reasons which are not clear to us, was not B produced.

We are not prepared to accept a layman's view that the kidney and heart and part of a

skull were human remains in the circumstances. And naturally we cannot therefore

conclude that those remains were without doubt those of Ali Malela, who had been

killed and burnt. Even if, for the sake of argument, the remains were human and

were those C of Ali Malela, there is still insufficient evidence to establish that the

appellant must have killed Ali Malela and burnt his corpse. The appellant might have

come across the dead body and taken off the clothes and the plastic buckets and told

lies in order to suppress discovery of what he had done. Or the appellant might have

stolen the articles. These D possibilities cannot be ruled out, and in fact are perhaps

equally consistent with the act of killing, as alleged against the appellant.

E Taking these factors into account, we are satisfied that the Republic had not

proved that the remains found were human remains, much less that they were the

remains of Ali Malela.

We allow the appeal, quash the conviction and set aside the sentence of death

imposed, and order that the appellant be released forthwith unless otherwise

detained. F

Appeal allowed

1986 TLR p172

G