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
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
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
G
