Mnzavas, Kisanga and Ramadhani, JJ.A.: The three appellants Jackson Mwakatoka, Briton Mwakalasya and B Anthony Madawa were jointly charged with, and convicted of, the murder of one, Amos Sanga c/s 196 of the Penal Code and sentenced to death by the High Court, (Mtenga, J.)
Dissatisfied with the finding and sentence of the lower Court they have appealed to this Court. Arguing for the first C and third appellants (Jackson Mwakatoka and Anthony Madawa) Mr. Tukunjoba, learned Counsel, attacked the finding of the High court on the ground that the two witnesses, PW. 1 and PW.2, who testified that it was the accused who attacked and killed the deceased, could have been mistaken in their identity of the appellants because D they were standing about 20 paces from where the deceased was being assaulted. It was the learned counsel's submission that there was doubt regarding identification of the appellants as the ones who attacked the deceased on the material night and that this doubt should have been resolved in favour of the appellants.
E As for the doctrine of common intention relied upon by the learned trial Judge in convicting the appellants Mr. Tunkunjoba submitted that the learned judge "did not give a thorough analysis of the evidence". The Court was asked to find the appellants not guilty of the offence of murder and allow the appeal. Mr. Bateyunga, learned F Counsel for the second appellant, Briton Mwakalasya, argued that the two witnesses could not have properly identified the appellant as among the people who attacked the deceased as, it was argued, there was only dim moon light on the material night. It was also submitted that the two eye witnesses were hiding in a jungle of trees and, as such they could not properly see what was happening leave alone identifying the appellants as the people G who attacked the deceased.
The learned Counsel also submitted that although there were electric lights in the neighbourhood the first electric light was 58 paces from the scene of crime, the second electric light was 59 paces away and third was 47 paces H from the scene of crime.
Mr. Bateyunga further argued that the two eye witnesses (PW. 1 and PW.2), could have mistakenly identified the appellants as the people who belaboured the deceased on the material night.
I In support of the convictions Mr. Nduguru, learned State Attorney, argued that the two witnesses properly identified the appellants because there were electric lights. It was also submitted that the two witnesses
MNZAVAS JJA, KISANGA JJA and RAMADHANI JJA
knew the second and third appellants before the incident and that because of this the question of mistaken identity A of the second and third appellants by the witness was safely discounted by the High Court. Mr. Ndunguru further argued that the third accused confessed to a justice of the peace, (PW.5), that he attacked the deceased with a stone.
As to the doctrine of common intention it was submitted that the evidence of PW. 1. and PW.2 and the fact that the B appellants took to their heels when they saw villagers coming to the scene proved that the accused had formed a common intention to kill the deceased. The learned state Attorney submitted that the appeal has no merit and asked the Court to dismiss it in its entirety. C
In convicting the appellants the learned trial Judge said inter alia:
I observed very carefully these two witnesses i.e. PW.1 and PW.2 and I have come to the conclusion that they are D witnesses of truth. These two witnesses managed to see the three accused very clearly attacking the deceased for on that day it was a moonlight day and also at the scene there was an electric lamp. The three accused attacked the deceased jointly. The three accused therefore fall within the ambit of the principle of common intention as provided E under section 23 of the Penal Code.
Dealing with the extra judicial statement of the third accused the learned trial Judge said inter alia: F
The third accused tries to say that when he gave his statement a Police Officer was present with a gun. I do not believe this story for if it was so then his advocate could have raised this point when Mr. Kajeri, (PW.5), was giving evidence. The G third accused also denied having told the justice of the peace that he hit the deceased with a stone on the head for self-defence. With that I told the two assessors that a denied confession differs from a retracted confession and it does not require to be corroborated. If at all corroboration is required then there is enough of it from the evidence of PW. 1 and PW.2. H
The learned Judge rejected appellants' defence of alibi and convicted the appellant with the offence of murder and imposed the mandatory death sentence.
After having considered and evaluated the evidence and having tested the conclusions of the trial Court drawn from I the demeanour of
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A the witnesses against the whole of the evidence in this case we are of the view that the learned trial Judge erred in his assessment of the credibility of the two witnesses, PW.1 and PW.2. The evidence of Emmanuel Ukara, PW. 1, which evidence was accepted by the lower court as credible differed in material particulars from his preview B statement to the Police (exhibit D1).
In his evidence he testified that on 12/8/86 at about 10.30 p.m. the appellants visited his club, attacked him and robbed him of his shs. 1400/=. He testified that having robbed him they left the club and followed the road to Chunya.
C The witness said that after the robbery he went home where he was told that his landlord, the deceased, had followed them at the club after he (the deceased) had been informed by one, Ally about the fracas at the club.
D It was his evidence that he, accompanied by Ally and Richard, PW.2, followed the deceased. At the bus stand they saw the third appellant jumping in jubilation that he had already done his duty. He told the Court that all the appellants were there and that the third appellant was armed with an iron bar and a knife. In cross examination he said he saw the accused attacking the deceased.
E Apparently this witnesses's evidence is diametrically opposed to his statement to the Police on 13/8/86 (exhibit D1), in which he said that when he was attacked by the appellants he raised an alarm and that when the deceased came to his rescue the appellants attacked him with a knife.
F In the same breath the witness again gave a different statement to the Police on 5/l0/86. He told the Police that it was when he was returning home from the club after he had been robbed of his money that he met the second and third appellants. The third appellant is said to have announced that he had finished his job. He says in his statement G that he saw the deceased lying on the ground and that the three appellants were standing near the deceased. He however said he did not see the appellants attacking the deceased.
Like PW. 1, Richard Sanga, (PW.2), also contradicted himself in his evidence. In his examination in chief he H testified that after the fight at the club he proceeded home and told his father, the deceased, what had happened at the club but on being cross-examined by the learned defence Counsel he said that it was one, Ally who reported to the deceased what had happened. In Court he testified that he was standing six paces away from where the third I appellant was attacking the deceased but when cross-examined by the learned defence counsel he admitted having said in his statement to the Police that he was about 20
MNZAVAS JJA, KISANGA JJA and RAMADHANI JJA
paces from the scene of crime. He also said he was hiding in the jungle of trees when he saw the third appellant A armed with a knife and an iron bar.
It was incumbent on the trial Judge to have dealt with the conflict of the evidence and as to whether it was sage to convict the appellants on the evidence of PW.1 and PW. 2; this the learned Judge did not do. We are also at a loss B as to why only PW. 1 and PW.2 testified regarding the alleged attack of the deceased by appellants. Given that the incident took place in a populated area, and that many villagers came to the scene, one would have expected other villagers to give evidence regarding the incident. PW. 1 was the deceased's tenant and a business partner of C PW.2 who is deceased's son. Taking into account this lead to agree with Mr. Bateyunga's argument that PW. 1 and PW.2 had every reason to embellish their stories. It is also not irrelevant to mention that although PW. 1 and PW.2 told the trial Court that there was an electric lamp only 6 paces from the scene of crime when the trial court visited D the scene it was found that one electric lamp was 58 paces from the scene of crime, another one was 59 paces from the scene of crime and the third electric lamp was 47 paces away. These facts tended to discredit the two witnesses all the more.
The Republic argued that although only the first appellant did not assault the deceased he stood passively while the E deceased was being attacked and that he ran away with the second and third appellants when villagers came to the scene. This behaviour, it was argued, made the first appellant guilty of the offence of murder under the doctrine of common intention as defined in section 23 of the Penal Code. The Eastern Africa Court of Appeal dealt with a F similar situation in the case of R. v. Komen where it was held inter alia that:
. . . Mere presence of the accused at a killing, he not having raised any objection thereto is not enough to justify his G conviction for murder.
As for the second appellant his conviction was wholly based on the evidence of PW. 1 and PW.2 whose demeanour impressed the learned trial Judge that they were truthful witnesses. As we have already mentioned H above first and second appellants left much to be desired. Dealing with the question of demeanour of a witness it was held in the case of Byamungu s/o Rusiliba v R. [1951] 18 EACA. 233 that:
An impression as to demeanour of a witness ought not to be I
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A adopted without testing it against the whole of the evidence of the witness in question.
Had the learned Judge tested the demeanour of PW. 1 and PW.2 against the whole of their evidence he would no B doubt have found that their testimony was far from being credible.
Coming to the third appellant the evidence against him was on different footing when compared to the evidence against the first and second appellants. There was his extra judicial statement to the justice of the peace (PW.5). In C his statement (exhibit P. l) he assaulted the deceased on the head with a stone but in his defence in Court he repudiated his confession and said that he never told the justice of the peace that he had attacked the deceased with a stone in self defence.
He argued that he gave his statements to the justice of the peace in the presence of an armed Police Officer and that D the statement was not read back to him. He however admitted signing the statement.
In dealing with their appellant's repudiated confession the learned Judge said inter alia:
a denied confession differs from a retracted confession as it does not require to be corroborated... the leading authority E for this preposition is the case of R v. Fabiano Kinene and Two Others [1941] 8 EACA 96. If at all corroboration is required then there is enough of it from the evidence of PW. 1 and PW.2 .
F With respect to the learned trial Judge it was a clear misdirection for him to say that a repudiated confession "does not require to be corroborated". That may have been the law in 1941 when the case in R v Fabiano was decided; but the position has since changed. In the case of Tuwamoi v Uganda [1967] EA at page 91 the Court G said inter alia:
.... We would summarize the position thus a trial Court should accept any confession which has been retracted or H repudiated with caution, and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true...corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after considering all the material points and surround circumstances that the I confession cannot but be true.
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This decision was quoted and followed by this very Court in the recent case in Ali Salehe Msutu v R. [1980] TLR A 1 in which the court held that "a repudiated confession, though as a matter of law may support a conviction, generally requires as a matter of prudence corroboration as is normally the case where a confession is retracted".
Apart from the misdirection in law we are however in agreement with the learned Judge when he says in his B judgment....
coming now to the extra judicial statement of the third accused; the third accused tries to say that when he made the statement a Police Officer was present with a gun. I do not believe this story for if it was so then his advocate could have C raised this point when Mr. Kajeri (PW.5) was giving evidence....
On the totality of the evidence we are of the considered view that the third appellant' s confession to the justice of D the peace could not but be true. His denial was clearly an afterthought.
The extra judicial statement shows that there must have been a fight between the deceased and the third appellant who showed to the justice of the peace a scar on his forehead which he alleged was a result of a wound the E deceased had inflicted on him before he (third appellant), attacked the deceased on the head with a stone. When death occurs as a result of a fight as it was in this case, unless there are very exceptional circumstances the person who causes death is guilty of manslaughter and not murder. F
In conclusion we find that due to the paucity of evidence regarding identification of the first and second appellants as shown above the learned trial Judge erred in convicting them with the offence of murder. We allow the appeal in respect of the first and second appellants and we order that they be released from custody forthwith unless they are G otherwise lawfully held in connection with another matter.
As for the third appellant we, for the reasons stated above, find that he is only guilty of the lesser offence of manslaughter c/s 195 of the Penal Code. Consequently we quash his conviction for murder and substitute therefore conviction for manslaughter. H
Taking into account that he has been in custody since August, 1986 we are of the opinion that a sentence of 5 years imprisonment will meet the justice of the case. He is so sentenced.
Order accordingly. I
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