Ramadhani and Mnzavas, JJ.A. and Mapigano, Ag. J.A.: Richard Matangule, F Appellant 1 is the father of Elia Richard, Appellant 2. The two have been convicted of the murder of a tender girl of twelve years called Mwajuma Maiko. The post-mortem report, which was admitted without dispute, showed that the deceased was defiled; the hymen was ruptured and there was evidence of ejaculation, and the body was burnt G by hot water to the extent of 75%.
The prosecution procured three witnesses but Dorika d/o Berege (PW.1) was the one on whose evidence the conviction was secured. As for Tatu d/o Mashumbu (PW.2), a girl of ten years, the learned trial judge (Mwalusanya, J.) told the assessors thus: "... H her evidence does not implicate any of the accused with the offence". In his judgment also Mwalusanya, J. wrote: "... she denied to have had witnessed the two accused taking the deceased into the room". So her evidence was not at all taken into account. Likewise, the testimony of Kenneth s/o Hembelo (PW.3) was held not to implicate I the appellants in any way. All that PW.3 deposed was that sometime
RAMADHANI JJA, MNZAVAS JJA, MAPIGANO AG. JA
on the fateful day he saw four girls including PW.1 and PW.2 going in a certain A direction while Appellant 1 was behind them.
PW.1 stated that in the morning of Sunday 24/5/1987 she, together with PW.2, the deceased and a fourth girl, were playing at the house of Appellant, 1, her paternal uncle, the younger brother of her father. Then she was called inside the house by Appellant B 1 and there she found two other men besides her cousin, Appellant 2. However, PW.1 was just dismissed and she went out. Then the Appellants went outside and Appellant 1 told the deceased to get into the house. As the deceased did so, Appellant 2 blindfolded her with a red handkerchief and both appellants escorted her inside. The Appellant 1 C came outside, leaving Appellant 2, the deceased and the other two men inside, and ordered PW.1 and the other girls to go to play at their grandmother's. PW.1 never again saw the deceased alive.
The Appellants were represented in this appeal, as they were at the trial, by Mr. D Mbezi, learned Counsel. He had two grounds of appeal.
In the first ground Mr. Mbezi argued that the conviction was wrong as it was founded on the unreliable evidence of PW.1. In the first place Mr. Mbezi submitted that PW.1 E was a self-confessed liar. When cross-examined, Mr. Mbezi pointed out, PW.1 replied "I did not see any other person inside". However, Mr. Mbezi proceeded, upon re-examination PW.1 said "Inside the room I saw three persons seated including 2nd accused. I was lying when I answered defence Counsel the contrary". In the second F place, Mr. Mbezi submitted, the demeanour of PW.1 in Court portrayed her to be a witness not worthy of belief. Mr. Mbezi said that the learned trial judge vividly described her demeanour in his judgment thus: "... PW.1 when testifying looked worried and hesitant and was always looking down". Yet despite of that, Mr. Mbezi continued, G the learned trial judge rationalized her demeanour and held PW.1 to be a witness of truth. In the third place, Mr. Mbezi contended, the evidence of PW.1 was contradicted by that of the other two prosecution witnesses. The learned Counsel pointed out that PW.1 claimed to have been with PW.2 at the Appellants' premises yet on H cross-examination PW.2 differed from PW.1. Mr. Mbezi wondered how that could have been if both witnesses were together at the material time. Then Mr. Mbezi also pointed out that whereas PW.1 had said that Appellant I ordered them to go to play at their grandmother's after the deceased had got inside, PW.3 testified that PW.2 had I gone to his home crying and that PW.3 did not say that
PW.1 was with PW.2 at the time. Lastly, Mr. Mbezi in impeaching the credibility of A PW.1, questioned her delay to report the matter while the body of the deceased was seen the following morning.
In the second ground, which was in the alternative to the first, Mr. Mbezi argued that the learned trial judge erred when he found Appellant 1 a principal offender. Mr. Mbezi B said that according to PW.1 all that Appellant I did was to ask the deceased to get into the house after which he left thereby disassociating himself.
On behalf of the respondent/Republic was Mr. Nyabili, learned State Attorney. He submitted that the conviction founded on the evidence of PW.1 alone was sound and C added that there was no need of corroboration since PW.1 was not a child of tender years. Mr. Nyabili submitted that the inconsistencies were more apparent then real. He pointed out that according to Esteri Matangule (DW.1), the wife of Appellant 1 and the mother of Appellant 2, PW.1 had gone twice to the house of the Appellants. Mr. D Nyabili said that PW.1 first went there in the morning and it was then that she saw Appellant 2 and the other two men. The learned State Attorney said that PW.1 went again in the noon when Appellant 2 and his colleagues were not there. Mr. Nyabili submitted that the question which PW.2 was asked was ambiguous and hence her E reply appeared contradictory.
As for the demeanour of PW.1, Mr. Nyabili reiterated what the learned trial judge had said: she was torn between telling the truth and testifying against her uncle and cousin.
On the second alternative ground Mr. Nyabili submitted that if PW.1 is believed then F the actions of Appellant 1 spoke for themselves. Mr. Nyabili stated that the leading of a blindfolded deceased into the house and the chasing away of the girls afterwards, brought Appellant 1 squarely under the preview of Section 22(b) of the Penal Code. G
We must say at the outset that the case was very poorly presented at the trial. The sequence of the events was not clearly brought out. We agree with Mr. Nyabili, for instance, that PW.1 went to the house of the Appellants twice; at the first time both Appellants as well as the other two persons were around and at the second time H there was only Appellant 1 whom she served lunch. DW.1 supported PW.1 on that. Admittedly there are some contradictions in the testimonies of the two, that is PW.1 and DW.1, with which we shall deal soon. Secondly, we have noted that the times given, I as is to be expected from villagers, were estimates and to a great extent added to the confusion.
RAMADHANI JJA, MNZAVAS JJA, MAPIGANO AG. JA
That notwithstanding, we are satisfied that PW.1 is credible. First, this is because the A learned trial judge found her to be so and he is the better judge of that basing on the demeanour. The shyness and the fidgeting exhibited by PW.1 in Court was to be expected of a village adolescent girl speaking in public. It would seem that she had not even been to school. This is in addition to the reason the learned trial judge gave that B PW.1 was between the devil and the deep blue sea. Secondly, we have found PW.1 reliable on the totality of all the evidence before the Court. PW.1 has said that she had gone to the house of Appellant 1 and she was supported by Appellant 1 himself and DW.1. Then PW.1 said that she cooked food for and served it to Appellant 1. Here C DW.1 stated that PW.1 did not cook but only served food to Appellant 1. However DW.1 and PW.1 are agreed that PW.1 served food to Appellant 1. In the third place, PW.1 said that Appellant 2 had two visitors that fateful morning. Appellant 2 himself admitted that and so did Appellant 1 though DW.1 mentioned one visitor. But how D would PW.1 have known of these visitors or even a visitor is she had not actually been there in the morning. Finally, there is the fact that Appellant 2 was left at home with his two colleagues. This is what PW.1 had said and she was supported by Appellant 1 and Appellant 2 though he claimed that the other visitor had left before his father. E
Thus in the main we are satisfied that PW.1 told the truth and the gist of her testimony was that the Appellants were the last known persons to have been with the deceased. This fact, without any doubt, casts a very good suspicion on them. But this in itself is F not conclusive proof that the Appellants killed the deceased.
However, there are other factors too. First, we have never been able to know why the Appellants blindfolded the deceased as they led her inside. Then there is another question: why Appellant 1 chased away the other girls. Here there is the evidence of PW.3 who saw the girls going with Appellant 1 behind them ensuring, as it were, that G they were really gone. Lastly, the Appellants had to give an explanation of when and how they parted with the deceased. On the contrary they gave deliberate lies. Appellant 2 was categoric that he never saw PW.1 or the deceased and the other girls that day. H Appellant 1, on the other hand, prevaricated. In examination-in-chief Appellant 1 said "When I went to church I did not leave her [PW.1] behind". Answering the first assessor Appellant 1 said "When I went to church I left the deceased, Dorica and Tatu at my home". Yet upon re-examination Appellant 1 replied "When going to church I I left them (deceased, Dorika and Tatu) playing at their homes and
not at my home. I said at their homes and not mine". A
Now, these deliberate lies and the refusal to give an explanation corroborate the case for the prosecution that they are responsible for the death of the deceased.
As for the alternative ground of appeal we are of the firm view that it has no merit at B all. Appellant 1 escorted the poor girl inside the house, then chased away her playmates and conveniently made himself scarce. He cannot have dissociated himself with what he had helped to facilitate.
We must confess that this situation of a father and a son being privy to a sexual assault C on a girl aged twelve years has exercised our minds considerably. However, that goes to motive which is not essential in a criminal conviction. However, ritual practices cannot be ruled out especially considering the question of picking and choosing the victim which preferred a much younger girl than PW.1. The story of the defence that this was all a D frame-up because Appellant 1 was suspected of continuing illicit relationship with the mother of the deceased is bogus. Father and son were very bedfellows for such a plot.
E Appeal dismissed.
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