Mnzavas, J.A., read the following considered judgment of the court:
The two appellants, Magendo Paul and Shabani Benjamin, were jointly charged with and convicted of F murder contrary to s 196 of the Penal Code by the High Court, (Maina J), and sentenced to death. Dissatisfied with the findings and the sentence imposed they have appealed to this Court.
The following facts were narrated to the Trial Court:
The appellants were villagers at Sasile Village in Manyeni district and were militiamen in the area. On G 1 July 1990 their village secretary, PW2, ordered them to arrest their fellow villager, one, Bakari s/o Leonard, who was alleged to have raped a woman in the village. They obediently complied and duly arrested the said Bakari s/o Leonard and brought him to the village secretary (PW2), who locked him in the village lock-up. According to the evidence of the village secretary after Bakari was locked up he H told the appellants, and one, Charles Mjelwa, who was also a militiaman (and was one of the accused but met his death in remand prison) to send Bakari to the Ward Secretary on the following day - 2 July 1990. The village secretary then left for his house leaving the appellants and Charles I guarding the deceased.
Later while he was in his house the first appellant, Magendo Paul, and one, Robert Noha, came and A asked to go to the lock-up and see what had happened. He accompanied them to the lock-up and on arrival asked the first appellant who was in possession of the key to unlock the lock-up. He did so and on entering the cell he found Bakari hanging by the neck from a piece of cloth tied to a beam of the ceiling. He was already dead. Apparently the cloth used in hanging the deceased was his own B jacket.
The matter was reported to the police and the investigation culminated in the arrest and arraignment of the two appellants and one, Charles Mjelwa, who, as already mentioned above died while in C remand.
In their defence before the High Court both appellants denied killing the deceased and argued that the deceased must have committed suicide by hanging himself.
Before us Mr Mbezi, learned Defence Counsel, submitted that `the learned Trial Judge erred in D disbelieving that the deceased had actually hanged himself'. When the Court posed the question as to who could have perforated the deceased's eyes if the deceased had actually hanged himself. Mr Mbezi argued that after the deceased had hanged himself the dead body fell on the ground and that E the perforation of both eyes may have been caused by sharp objects on the ground. It was further argued that relatives of the woman the deceased was alleged to have raped may have been so angered as to resort to perforating the deceased's eyes after he had hanged himself. F
In the second ground of appeal the learned Defence Counsel submitted that the Trial Judge was wrong in his finding that it were the appellants who killed the deceased as, it was argued, it was clear from the evidence which one of the appellants held the key to the lock-up. G
It was the learned Counsel's submission that any of the militiamen who guarded the deceased could have committed the offence but that it was not clear who, between them, committed the offence. It was argued that this being the position this Court should allow the appeal and acquit the appellants. H
In rebuttal Mr Mwambe, learned State Attorney, supported the conviction and argued that the prosecution relied on the evidence of the doctor, PW1, as to the cause of deceased's death. It was submitted that the contents of the post mortem report as to the cause of death was not disputed by the defence. In support of his argument we were referred to page six of the proceedings. I
A As for the the argument that the appellants were wrongly convicted or murder because there was no evidence as to who among them held the key to the lock-up the learned State Attorney submitted that the appellants were convicted of murder on circumstantial evidence which was that from 3.30 pm to 4 pm or thereabout, when the deceased met his death he was locked in the village lock-up and B guarded by the appellants and their deceased co-accused, Charles. That was evidence that they were custodians of the key to the lock-up. It was not disputed that at the time the deceased was put in lock-up his eyes were normal. And last but not least, the deceased was alone in the lock-up.
C On the argument by the defence that relatives of the woman alleged to have been raped by the deceased may have perforated deceased's eyes, Mr Mwambe countered that this could not have been possible and referred the Court to the defence of the first appellant in the High Court on page 17 D of the proceedings in which he said inter alia:
`. . . I knew the woman who alleged that she was raped. I saw her relatives at the scene. I also saw relatives of the E deceased. Those people were saying that we who had arrested the deceased had killed him.'
This being the evidence of the first appellant the argument by the learned Defence Counsel that relatives of the woman the deceased was alleged to have raped may have perforated the deceased's eyes in anger, thereby causing his death, had no leg to stand on.
F The contents of the post mortem report - exh P1 regarding the cause of death which were not disputed by the defence in `the memorandum of matters not in dispute' were that the cause of death was due to `peripheral circulatory failure caused by bleeding and severe pain after perforation of the eyes by a sharp weapon'.
G Elaborating on the post mortem report the doctor, (PW1), said in his evidence inter alia:
`. . . In my opinion there was no evidence that the deceased had died from hanging - what I found around H deceased's neck was a piece of his shirt. That piece of cloth was just placed around the neck to fake hanging. There was no bruise around the neck. If the deceased had hanged himself, there could have been a mark around his neck. . . . The lungs were normal. There was no congestion of the lungs to indicate death by hanging.'
I Taking into account the evidence of the village secretary, (PW2),
that he had ordered the appellants to guard the deceased who had been locked in the cell; his A evidence that he had left the keys to the lock-up with the appellants and that they guarded the deceased from the time he was put in lock-up up to the time he met his death; and the doctor's evidence that the cause of death was due to perforation of the deceased's eyes which led to peripheral circulatory failure as a result of neurologic shock we are far from being persuaded by the B learned Defence Counsel's argument that someone other that the appellants may have perforated the deceased's eyes and thereby caused his death.
We agree with Mr Mbezi's submission that anything is possible but on the facts of this case the C argument that the appellant's both eyes may have been perforated by sharp instruments on the floor after the body had fallen to the ground is, to say the least far-fetched and untenable.
As it was held by Lord Denning in Millier v Minister of Pensions (1): `The law would fail to protect the D community if it admitted fanciful possibilities to deflect the Court of Justices. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond E reasonable doubt.'
In the present case the circumstantial evidence irresistibly pointed to the appellants as the people who perforated the deceased's eyes. In doing so they clearly intended, at the very least, to cause him grievous harm. Their defence that the deceased had hanged himself was a clumsy attempt to F extricate themselves from their criminal acts.
We are satisfied in our own minds that on the evidence the learned Trial Judge was right in convicting the appellants of the offence of murder as charged. We agree with that the learned State G Attorney that the appeal has no merit and we accordingly order that it be dismissed in its entirety.