Rex v Duloo and Others (Criminal Appeals Nos. 217, 218 and 219 of 1947) [1947] EACA 54 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and THACKER, J. (Kenya)

**REX, Respondent (Original Prosecutor)**

ν.

## (1) DULOO d:0 GIDAKUNGU, (2) SITA d/o MTATUI, (3) SITA d/o DIGAG1, Appellants (Original Accused)

## Criminal Appeals Nos. 217, 218 and 219 of 1947

(Appeals from decision of H. M. High Court of Tanganyika)

Criminal law—Accomplice—Murder by a "lion-man".

The first and third appellants hired from the second appellant a "lion-man" to carry out the murder of a boy. Some of the prosecution witnesses knew of the arrangement and actually saw the boy being killed. All three appellants were convicted as principals of murder.

Held $(11-11-47)$ .—(1) That the failure of the prosecution witnesses to report the plan of murder to the authorities did not constitute them accomplices as there was ample evidence that their silence was induced by fear.

(2) The fact that the second appellant hired out her "lion-man", stood on one side watching while he killed and then took him away was sufficient to constitute her guilty of murder as a principal.

Appellants absent, unrepresented.

Sir James Henry, Crown Counsel (Tanganyika) for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—These three appellants -all women-were convicted in the High Court of Tanganyika at Singida of the murder of Msafiri s/o Kinago and sentenced to death. From their conviction they appeal to this Court. They were tried together in the Court below and their appeals have been consolidated in this Court.

The prosecution case is that these three appellants, acting in concert with a common design to murder Msafiri, did murder him. Msafiri was a boy of ten to twelve years of age: his father is Kiango, who is a brother of the third appellant. According to the prosecution case it was the third appellant who was the main organizer of this horrible crime, her reasons being comparatively trivial, namely, that the little boy was rude and disobedient to her and that the boy's father did not provide clothing for her. It is a melancholy fact well within our judicial knowledge and experience that in Tanganyika murders do result from the most trivial motives so we find nothing absurd or impossible in that suggestion of the reasons for this murder.

The next and most amazing thing about the prosecution case is the method of the murder, namely, that the first and third appellants hired from the second appellant for a cash payment a creature known as a "lion-man" for the express purpose of this murder. The so-called "lion-man" has not been captured, but from the evidence it appears that he is a human being passively content to be kept for hiring and to be hired out to kill human beings, biddable and docile in the control of his "owner" and of those who hire him and unspeakably brutal in carrying out their fiendish behests. One would be inclined to regard such an arrangement as unheard of but for the fact that there have been in our list for this session a large number of cases all from this same district where the same horrifying tale is told.

We must put aside horror and amazement and consider whether the learned Judge in the Court below and the two native assessors in finding as they did in this case that the three appellants were guilty of this murder were justified by the evidence given orally before them, and now before us on the record.

Each of the appellants at the trial pleaded not guilty to the charge and each gave evidence on affirmation denying all knowledge of the murder and of the "lion-man" though the third appellant in her evidence was rather uncertain and vacillating about her denial.

The evidence is not so strong against the second appellant as against the other two. The evidence against her is that at the killing of Msafiri by the "lionman" in which the other two were actively co-operating she simply stood by and watched her "lion-man" do his foul work and so earn the hiring fee paid for his services and whenever her "lion-man" had completed his work she took him away. It is clear from the evidence that her "lion-man" was at her bidding and under her control. On the evidence we think not altogether inapt the learned Judge's description of her as being present at the murder "callously awaiting the event and with the interest of an owner watching his dog at a field trial<sup>17</sup>. The learned trial Judge and the assessors found that the part so taken by her constituted in her guilt of this murder. Having regard to the law as expressed in section 22 (b) of the Penal Code we find it impossible to say that the learned Judge and assessors were wrong in law in finding as they did that this appellant was guilty as a principal in this murder. They believed the evidence of the second prosecution witness and we cannot say that they were wrong in believing her.

As regards the other two appellants the evidence of the first and second witnesses for the prosecution if accepted was ample to justify a verdict of guilty of murder.

It is suggested for these appellants that the evidence of these two witnesses should be rejected as that of accomplices in the crime. As to that we find nothing to justify the suggestion that these witnesses were accomplices. It is true that in the early stages of the murderous plan they were asked to assist but they refused to do so. They knew that without their assistance the appellants were proceeding with their plan and they did nothing to stop it by reporting or otherwise. They knew when the murder was to be done and they went to see it and did look on from a distance. They have given evidence as to what they saw.

As to their failure to report, they were themselves under a definite threat<br>of death at the hands of the "lion-man" if they spoke of this to anyone—a truly<br>terrifying threat. We are satisfied that fear for their own lives complicity kept them silent, just as only primitive curiosity made them look on while the murder was done. Unlike the second appellant neither of these witnesses did a hand's turn to assist the murderers either by supplying the "lion-man" to commit the murder or by taking the "lion-man" away whenever the murder was completed.

We accordingly reject the argument that on the evidence the first and second prosecution witnesses were accomplices. We see no reason why the learned Judge and assessors should not have accepted their evidence if they believed it. which they did.

It is also suggested that there was insufficient proof that Msafiri was in fact killed. An eye-witness gave evidence that he was killed and "chopped into bits with a knife" before her eyes. That evidence was believed and, later, human bones of a child with the flesh cut off were found along with the cloth and belt of Msafiri—the belt having a new knife slash in it. In our opinion the evidence of death was sufficient.

For these reasons we dismiss the appeals.