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L - •- 71- IllI 1ftE HIGH GOUT &F' bZ!llIA i:T JIUG IDA ORI GIIIAL J[J:.I:LJ)ICTION (DoDoL RGi RY) CRILINAL SEtSIO. 3 OdD 127 OF 1977 The R:F:ublic ye rs is Salun 0 .Lhungu s/a AiD raha:Ttan and 12 0 ro Chp,re: Hurder c/s 196 of ibe Foai code. J U 1) G DNT 10 CHIPIIA J The six accused persons in this caci, Salme D Ahun:u Sb 'brahaiani, L -thunani s/a Ntun(u, do, ;hid © Sinico /o L1ui, Juraa s/o N onyi 5 Abclallah s/o Muna, and iwr'rd s/o Juan, stand jflI]tl c1arred with the eofc.nco f ;urdcr c/s 196 of ide Penal Code. The prcuecuti. n al1eo tT. t on cr .but 2nd 1)oceaber, 1 976, in Sifl da i in, the id accused :2rsc'ns jointly and tnci.ior nurdered one Gijidia 5/0 G-itihada. Jill the accused persons pleaded not uiliy ic the charo. The ovid enc o aiduc ed y ree cution is that durina the n 1 db night ci I st to 2nd Dcc enbcr, 1916 at Npipiti villao, Sin: ida 20 district, a cattle kraal TLcnpini: to the thid accusd wee broken in and sce e svon hed cl csDd i ci len thcrefroe'. Thai sauc nihi hc third eOCUCJcL roicod an alarlo and eevral nenbers of thc villaJe rospon:.. ed to the. alara .aod path •r ci a: tb. 2rd accused' s house. They tried to follow hof-nnrks lr ca u distance but later 5b 5 :2dcnod thc; task rs it was at ni(ht. Thoy spe- nt the nichi at the third nccieci's huse, and -n the morn up some 76 cftheri s it cut in e: : Ci;. nd id.. cattle and tie ihiavcs. .nonp- ooarch cnrtv unre th. cia, ccus d persons 30 Th eeara. rarty fell:nred h of-marks :1 tie cat.le handela 501 DWID. ro in 11Lilu distric wh.•.ri tic:y lost irac cii ci hicl-markei. The search perty iben sprc:d cui. Fihcrily ai:t - r, the i arch party saw fair of tic ideA' cattle audi three penile of the }inrnlDaip tribe. On EDiuiud iii: - c,rch party, tho Bar bnistart.ed ruiri away with the cattle,' and tb n, search party pursued then. Eventually hc nrbairs abandoned the cattle and continued tO run away. At this point the search party split into two preups. One prcup cent inuod to pursue the Bare1nips, while tho e ecendr:rcup ran after the cattle. ..Th latter proup nnn: -trpedi to c onirol the cattle and remained wi ih the cnt le. 40 JJlOiDp those who continued to chase he Barabaips re the 1 st, 2nd and 5th accused persoa, and po cibly the 4th noons-P too. Among thee. who reaain'ed with the c:DUO were the 3rd and 6th accused persons. ?ii..i., PP.3, PP.4, end P 7 5. *. Later the group tint hnd :r:ued the Barabaifçs retuTncidwith of the Barabaips, now deceec- ci. The deceaa:d had in. on ten and was bl- dinr :rc'fu .ily frc: the he d. Th 5 Di accused is : . - 1-1 v bras co. di u Pc., 1st and 2nd coat . .- ton up the eaeased. Nany poolo were shwt. tint they nuet enat 50 up the clecenoDdi, but PP.1 nod P .4 desuadeci tilOdi and shildod the deciesed. :ven so tie rd accused reanaped to otrifi: the -72- deceased with a s aich. The entire jrcup then 1 4 the coascd ;o:T rd cir vi11ee. On th_ way th.. cea ad died. Jr to who in that grii toh part in 0seaultiii tha d givcn by Pt.1 ib is necessary to refer to the varieu accou,ts P7.4, and P1/.5. .ccordiXI( to PW.l h; ha. been in the (roup that w ut after 1u 4 h c- t1 L t'r he 1 lcok for a r L u ii; gone in pursuit of the Barabigs. lie ot th. group cing 1C.Ck. The grup we 1 ading the oceaeecJ. who had boon 10 beaten up and was hleci.ng fren th hecTi, and his whole body was sokcd with blood. The doccsd wns naked, except for a cloth which was tied reand his wait and held fron behind by one Nussa Haiisi. .ccordinr, to PW.1 , the 1st accus.d, enOfl others, said, "we heat hin up" and 0 ddE' that they had used sticks. On arrival with the doceaod at the p1ce wbre the grcu withì the cattle was, people wanted to eeat up the deöoased again, and the third accus 4 is said to have raised h.is stick to 20 strike the deceased but was .audod by PW.1 . People were beaten up the shouting and others were hoastig that they had deceased. icc ording to PV! .3, he ro: iained in the grup that had tiC cattle and whn the other groue broug:ht the deceased, he o the first, second anti f-ifth eccus :d p.:cscns and cn lusoa in that group. PX1.3 then asked th fifth accused why thePi1.3 dceaod an had so nany injuries, aud the 5th accused braggingly ye they had to use sono account of what had hap ao4. He told PW .3 that en to tell ingenuity to apprehend th decasec1. The 5th accused went PW.3 that he shot the deceased with an arrow in the :e buttocks , at rkih 30 and the doceaced then started shc:oGlng arr'ws at th instance the 1 st accused tkreat.ned to shcot the deco so4 n.h a gun. Ther;upon the deceased sat den, picked up s'm:lC (:raos and hold the prass in his hand ever his oad. This act is known in the area as a sign of sun.. ander. The 5th accused wont on tc. tall PW.3 that th reupofl the second accused hit the e.c;ceas:/. twice on the head with a stick, Nussa hit the decensod tw±ce on :1i bak, and then they ce.uTht h ii. Accordiri to tn when the deceased was :rnuht to 5 1Tjfl.GS5, '-n-aG tho4 the group with the cattle nc one assaulted the decoas .:(.,tht they group that ha br:urht the deceased there wee braging hat. a aulea i;nc deceased. L.ccordinr to haulidi Is:ngo (PW4) , while he with the group thri; had the ctle he heard a whistle in the direction in which the ]3arabai hI rone. Then he end so ether p.op1e ran in that direction. ...ft r a distancewho of - of a aile they was red with 1D1Cod ard was net the group leading the d.cavd bleeding fran the head. is the grup approached then P4.4 hoard PW.l P/.1 tel]- the group net to continue as a' iting the deceased, and PW.4 hinelf assisted Pii.1 in protectind the deceased fron lsing50 assaulted further by people who were anxious to subject the gecasecl sed to further violence. Even so, cone people nanagecl stc,thily to assa lt the deceased, one ::.f such people being: one iCas:Ln J Haui si who struck the deceased on his p,vato Iarts by a s;rt of ground-to-air swing of his tck. When they joiuci the grcu with the cat le, nany peo:.lo, one ir sticks GO s r:L. : the O dlan u as the third e.ccus:d, raised th deceased and the third accus ni actually truck'qthe deceased on the ribs. -73- PW.5' s version Of the incident is that when the çrouo 'r0u(ht the deceased to whre the drcup with the cat lo was, he heard the 5th accusod bra(dinc, that he and the soofld accUS3L had beaten up tho d ;ceased. it that tiac, PW.5 was only about 7 to 8 jces away frn oho 5th accued. The people wantad tO .:a uP the dcc .;aed a.ain but wore dusuaded by PW .1 The other evidenco as to who o,s'aulted QQ docoo::od is to ho found in extra judicial otaterients of five of the dccue.d persona. Thooc are the axira Judic:Lal soa; oints 01 1st, 2nd, 3rd, 4th and 6th accused D.rsons. But, as will soon ho apparent 10 tht of tho 3rd accus.d dcoo: not contain an r facts as to who assau - fled tho doccased and how. It is portin)nt to point out hero that the Justico Of tho Peace (Pw6) who rcerdOd all the atra judicial sthtenonts testified that betre she rocoodod thnse sthtorints she was satisfied that each of the accused noosons wao froc raent, that none of then had been throatonwa or induced to naito his stateos nt, and that each of thoeostnteaonts was volun:il,r nade. In his extra judicial 5GO:iit (pr socution JO xh. B) the lat accus:d said that the cieccaeed was niruinO aray, and on s . eiI:Ld that it wmld be difficult to catch up with him the 1 t accused fired a sht, appal ently in thc eir, to causo hir to step. The deceased ran a short distonc ë and then stopped . ThC deceased then started shooting a:COOWCJ W. his ursuers, but later ran out of arrows and his pursuors, includinC the let ccusd ht:eself, surrcunded the deceased. Then I asi]id Mohned cautht the deceased Thereupon the 2md accused strack the dscc sed on the head and he (the 1st accused) also hit - the deceased with stick. hoThe 1t accused does not 1cwever, saw on what part of the body hit the 30 deceased. Iiter hilocini ac deceaed was 1st accused wen; aa saG prevented people fron under a tre to rest. The chairrean then .rc further assaultina the decee.e.wI. From there the went to he Eroup nith t he catile u On i e roy one ) hni lsaanlin1u (not called a s a witners) ceruck the aecaesct on the hack. The first acousd and a few others enon renc ahead to drank waor, and shortly after that theIr rare tola that the decc:ro rd wee In his extra ju.ical statereont (prosecu:a:.on Jfrh.C) Ike the second accusod sid tOOt they, includind l'hLLlSUlf dr Sod baigs and cauüht up ri th onO of thyn who then started sh tierl, Pui nod arrows at then. The 1st accused then fired his m aa. the dcod .ither Barahi;S stop ed. The first accused the: hit the with his h ed or he hit kin on the head. Then ILashid Moha ad hit the dec 'ed in the vaiot, a: d ho (the 2nd acoused) hit the c ccc sc with 0 stick on tho Voludors, anB I dallsn Nuran ( ' e 5 h accused) )j±t the deceasrd on tb..: hack, while the t>a 3rd accus (i y lcft for the ht ul - decepund acer the MrinvrS. Aft,, th e c group of peop1e who had the caasle, aria trion they startea for their village. He wont aheaC to and drink 1T5.GOI' leovin7 the oe'rare res uifl rig. 50 Later ho was told th.t the docoasod \:as dead. P11.1 then sent hin and one liohan ed to ç'o ard reort th clatter to Mtinkc police Station. Like the 1st accused tho 2nd accusd did not oxpreerly retracted or ropialiotod his extra judicial st,aten011t. In his extra judicial s:;atenent, (prosecution Lx}..A), the 3rd accused said that wi - a: the .harabigs, ran away, the cearch party t(I' shcc- includin6 hjnsclr, rsr r LIC Len c ce seC Won sta tinr; poisoned arrows at thop Than he (tho 3rd accused) ran towaras the cKi le whilo his c olleanues surrnuadud Einduccased. fter a dun shot was fird they arree ted the dsceaeod. Then they -uwoir l.;i broug t Ma deceased as they wore assauL:.ht hire. they f or the village, and on the way the deceasd died. The 60 third accused denied h a vinr aseaulted the decoacod, and dial not nouns the people who assaulted hia. In his extra juftiail s....tjnent, the 4th accused said that he Ii -74— co:rlJi11 ca le, had oriiiiallY been in the r.u1 h r p rS°fl to fo±1OT t c 'Gh/ tho jD,W but the 1' ers snt 1ir and. Jtor a :w paCS, er he suspec(1 i:iVJ3 bad L;onC f - s T11C had b;fl sov:cJY - au1t. thc othr roup briniflC .000 C '. and Th 4Il accusgd hn pokec i;ne dccrSd iith the and 1 v7 r VLlJ- s J;. y and h(n they s,rd cr :L they assault on he dcoa?'I ccninuod. The 4th accuSed to1- hü OO p h TJ o;hor ;In ' nt ahead, and dccoasd was dead. acc1.sd said- he 10 In his ocra at3flOit the 6;h crp jdicia1 t1i't ran a:r the ct;ic, but lat r the e1drS rnt with the the TarabaiS. On 1.is arrival ti.re, told hin - ; O crc for - ..fl ap :chcric.ed n& pec1e wer& Assaaultin'!-; he to flCL the d.c:;d h: hit the deceaSed on he hack, but him. H then threw a stick to ocea sod! s body th€ otiCk lodcd. was not srr€ on at part o: the d wGTC and then t'ey Then they took the deceasod to w.ro the catleother popJG wont ahad vill:O. On tho way he and was dead. started for their deCaSOd to drink itor, nd lat r he was told tat ho ::vS n unsrn statement in his de Ech of the accus..d personS or!1 defsnCe. 20 them caJlecT no witnOSS in his defeflce and each f O1Oi ne 1 sI; accused s dd all the In nis uneworn s;aem3i1 events describ d by the account 01 thcthey accused persons, o:.ve pi1it found the four t'len proseCUti0fl witnesses up to the re the 1 st accused 1ead of cattle and the three iarabai5o From th th proSOcUt111 wjh1es3eS company with ac,:nLlt diven by one :erSOflS part accused, he saw the suopectod thioIes aa fired Accordii to the 1st 3 o the 1st accus' d of tho: st ,rted 5:;o(tifl, arrOw S at them. 5C1J 0 .10 is to stop the deceased. The people a ot i the air the d•a d On arrival at the scone thu 1 t aec surrcui od loddi1 fro; the head, bui; he (the 1 st 30 accused saw the deceased the Cece.;ood. Then they took hi:: h?k. accused ) did not as ault ho 1 st aecus cd On the :ay to the vil1a0 the dec as:;d died. P'J .6 ant did did adr1:t }mvin made t1 ' raiui.C- net expresslY retract or repudi: ;;e it. However, frew th contOfliS of his uneworn staten nt it is cloar that ho impli.1Y retracts it. acCUSJ :ir :.e -? In niS unsworfl s -Gotoi1cn, ;hc 2nd started sh tit •1CS othr Baralaids had run ea'ay, the deceas:d at th en g op plc then surrounded the deceased. Then they took hr to where the cattle :erc, and th:n. l:ft for tbi and vil]nde. later he woo i.ortied ato dinJ wator, sedond accused) went acCl.SCd, tho 2nd aced a that the dco:;d ad di d. L:he t'•: it s ThC G e r'lCl SÔ1U ed t 'v clar from his i or repudiate Q. Ilowevor, it is ressJ.y retract uilsworfl stateeflt that h ir;liocllY retracts it. In his unswcrfl stotonerOb, the 3 rd accus':d sajc. til t) after they r baigs lo aa h trC i1 ur tc ion he: f c ho locot cattle with : e:r peonle. They waited whore he he ran after the '10 0 13 G chae cs t) e we, ed laand then they left for th. ir v±llae wiob. the 50 with the dccc 11 de1:ie h viii lte o e c e C' i him and deceo • On grut i 0 betwOcfl the deceased. He c1reci ttat there 1iao ajabu Kitiku PW.5, but he did nt elaborate. Gaat 110 waS 111 In his unsworn sGaerlon, one 4h acoue:d sale he grcup iL r o c 1 1M Y1 n . . .1 -75- 41 rp1Q 4th accuod ;?diiii;od hvi;i n'clo tho &xra judicial at ho i::roE;s1y totrRcod i;. Ho said that ho tucld t1.0 jUStiCE3 of t11 Y'C(J th t o okd 'clic dec.sd with . stick Only bec,u tho p1ic.) tortu: d hii, but h did nct S. in u,nnor tho police trturz hin. Ho was, hoTvcr, craphic netrr touchcd tho docer - sI. In his unsworn the. 5th rccus also d'nio. ascY'ullJe h (I3cG CL isrJ.d t h rrn cft r 'iic ' t f :Lés, but thn,t he cave up chsc r that Barabi when hc h-r. (UX1 shot to hs ri:'.t . Ho ticn iort in t dirocicm n1 s.w a i grcu: of poc1s sstuitin cccsed, but he did nc.t u ' c He went on to sy that froi: hcro they went to the group which 1id the cat;lo n.d ;hon they i :t hc:ir vallaLre. On tho w .. y tho deceased Iid. H chrtric-d t.ct P 7 .3 joinin the vi11ae b --- cuse he was an ndcsirle chractr. Ho also charged that PW.5 was lyifl because in 1976 they had cuarrled ovr a cp,l. Finally h ch.ared that PW.4 was also 1yin ecuoo they nad civarrela cvr a cia- rette 1içhter. In his unsworn st.terent tho 6th accused denied h v im;; assaulted the deceased. He said that he w-s in the rup that roi after the 20 cattle, and lat r the rcup that ran. after the Barabaic,s Lr udlit the deceased. On the way hcr the d°ceased died. The 6th accue cl added at he made the extra judicial statemnt ocuee police trtured nim by rein' him to h id h:,avy stones in his hands and th t; they told him to tell the justice .. thO )eaCO tht he threw a st±clt at the deco sod, and Then thy would rolaso him. V1. At this point let mi new '•o back and deal with thoThnce reardin thc nature of injuries doccawod sustained aiid th C. mFJe Of his death. Th doctor wh: aconductod the pcstuertema examim .t:.n on the body of ho deceased :L'und two la ceraf-d scalp wounds en tife frontal reion with obvious fractures of the skul. He alsu noted that thore was antonortem ble din(; from both the nose and oars, and thero were several contusions on ia scalp ana onc 1 o0. y. ?h skull had two fracturos of tho fr e:;al bone with brain laceration and a lo; go 112 ota The left temporal bone was '-Jsc fractured. The doctor °R at the cause of d2r.th of the dec: od w:s corcjral haenoruhage and shock followin the fractue of the skull. Adter my suain: up to the three entlenen aSSOCnOrS, 'o first gentleman as ecsc'r f'nd as fact that all the sixaccused 40 ersons assaulted the deco;sd, but in his cnincn they did not intend, to kill him. He wont on to hold th.-t since the deceased boha- od. in a violent manner and because the accused persons "eoe anaoyed as a result of the theft of their property and 'the long joirne, all the accused per3-s wre only guilty of asaiult. The second gentlemen assessor also found s a fact hat all the accused psons assaulted the deceased. He ddod, however, that the deceased died thrmi:h h:Ls own fault in tbat' he used arrows in ji ettomipt to kill his pursuers, and fat the owners of the property were entitled to be annoyed. The second gentlemen 50 assessor, then find all the accused persons gulty of raans&aughter. The 't' ir(i gentlemen asseemor agreed with the reasoning the second gentlemen assessor and found all the accused iereo:5 ; iilty of manslghter. - As conceded by the dofonc,thore can be no doubt thot oman by the name of Gijugia G-itihada is dead,, nd that ho died a viJ-ont death The ':uostion to be resolved, h;refcre, is whether it i t. s accused prs ns or any o f thon who killed the decosed, and if so, ti ether the killing in the ciromstaoc os amounted to murder, nanslapghtor any other offence, or no offence at all. 60 In deciding thes ..'att-re it is necessary to roc-"lvs the quostion whotb r the accus ma sns or any of then assa.l•tod the decoao ed. -76- So anslTer that q'ueciticn I riut c:nsidor the credibility of tho prosocuti on 7i -'Gn s C-os, the tra judicial stat oments of the five accused crsons as well as th.i.r uneworn s.om.nts. To start with, I will o.d:css my y::d to the cvi:ience o PW.1 PW.3, PW.4 1 and Pf.5. The learned dcfarc e counsel sub:;ittod thai; these witnoses ourht not to be bolivod because none of' them gave any first aid to the d.ccoasod., and that they had resolved to sa:f that no particular person 1ea; ho deceosod i_s indicative t of -the fact -that t)"es'e ;itnes s oh part in asaaultin( the deceasd and. so wrc accomplices I cannot, th re.spoc, accept aie SU(O- stion that PW,1 took part in asoauitinC the deceased, or that the 10 failure by these four witnOSs:s - to render first aid discredits their testimony. There is abundanG avid cc to cheoi.Foc Ir. PJ.1 and PW.4 were some of the few :o.:le who tried, to d esuade o:.h-:rs from further assaulting the decesed. PW.4' s credibility also cae under ait".ck by I'r. Mbezi. It was submitted. that from i;h evidence of PW .1 and PW .5, and from PW.4' s own evidence, PW.4 must have participated in as...ault:Lug the deceaeod, igain, with r•opoct, I cannot ::.ccopt tha". I beli- eve P\J.4 wnen he says that no used hs bow "o trudge the deceas That is nuu hee- an thiLrp. a asuli. Having' seen and hard thus'. witnesses as they ;.vo evide:.ce, - and ing carefully cons:Ld aed the a usati.ns of the 5th accus';d against PW.3, P1.4, and PW.5, I n.m satisfid, aS re the gentlemen assessors, that those wiiuiess ;s w trthful and that they . in no way nalignat against any of i.ie accusc' presons. The ncx; cju.s on, bhref'oru, is whether what they told the court is a true accou.t of what Oach one of them eaii and heard at the scone. Lftor carefully ca.sidring the accounts given by these witnesses and the accounts giaien by some of the accused e:snns in their extra jidicial S"*t"1-t1 ch accounts substantia.ly tally3O with the evidence of the witnoeses, I an fully satisfi..cI tet witnesses told the court substantially what they saw a:.ic]. h ard. at the scone. I, thorsf'ero, find aa fact that P 1J.1 heard the 1st accused say that they boat up the docoased that the c'cfoo'sien iDy the 5th accused to Fi..3 was in fact :oade by the 5th accused; that P'1.5 also hee,rd the 5th accusedt s cenfession; and tho; PI.1 and PW.4 saw the 3rd accused try to strih the deceased. Now, who of hse accus d persons did in fac assaalt t h e deceased? That qu tion must be answred on the basis of -the 40 evidence of P'i.1 PW.3, PW.4, Fcf.5, and the confessien of the accuse persois. Heving accepted the four witnssses 5st iOi4 and that they correctly described that they saw and. heard, 1 must now consider the confessions of the 1st 2nd, 4th, 5th, and 6th accused persons. Before I consdier those confessions, I will turn my the law as to the value of e. confession as a basis of r a cc viction. It is statutory law that a conviction can be foundod on the li of a confessicn. However, e a rat:or of common sense and dudicial prudence, before a cnviction can tie had on a onf c-scion alone, a court must be fully sairLsfiod that it is true. It must, tin reforo conider the circumstances in which the confession was mate, particulary whore it has b an ei.th.r repudiated or otro.c,d. as is the c:,ee were in the nerds of the court of' Jppeal for ..a.. t africa in Tuwanci versus Uganda (1967) B.L. 84, at pace 88. a tr al court should accept any confession which has been retroctod 11 or repudiated or both retracted and repudiotod with caution, and must before founding a convictioui on such a confession be fully satisfied in all circrmstances of the case that the 60 confession is true. The norm etand:'rd. is roouired in n,ll cases end usually , court will only act upon tho confession if corroborated in some mat :rial partthcular by independent evidence accepi;cd by the - a '. -; -'•-- ' _- - - 4. 0.ct on 13 ut corrobo roiofl is not noccsrJ;,ry in law nd the court nay a con±esSiOn alone if it is fully s tisfiod after crnsidorin all ce5SiOfl the taterial POifltS O,fld surroui2ifl( circurSta:COS t1ct the ,O Ui, be tru.c, ..1 L .1.. Now, t the vofossi ns T1 c;":ofoss in c the 1 t accus d is very clear. H doscr10 tho evcnts in iia detail nd s . .... cf tb.0 events he desciee w: to ti. id to by the prosecution WI , .. SCS. It is in evideoc th. -i :; st accus icI at iwlith the grou 'aiat u;ht th pursued the Barbais and that h was in tI.i".t 3r'.UP thot hr the docca.'d wh' by ;hon had n badly asnaultod, and tho wounds 10 appeared t h'e bean inflicted by :.:ticks P. f',ct which the 1st acusod expr;;ly mentions in his e:Ycra J:(:Ldal str.t',n:.nt0 f PW .6. ]f-: in no dc at all that Prom the . id sac this ccnfession wae v'un artLy ado:.iy fcur days al the incident On a full c:nsid :rati. a of The circuastancu, and cnsid,:rinr.: th'H; the confession cf the cEn;C fld aCCUS d lends cr-donce to 1st accusod s a :.a.'ion, I an fully L. ........aod that the 1st accused's confess? n is Like tho st ement cf th 1 a cc I the confession of the second accused is dctaiLed, in foe'; nr'l eatailed ths tho; . 'f the 20 ulo ro• so far as c•o nay that ho o..O it 1 s; accus n fac with a touch of prido i .. r;a the c;ridsnco of PW6, I an satisfied the this co'fessic'n wos v'luniarily :aale0 The ovidence of PW3 nd th. 1st accus d's cTnfension ' - 'nd cncdnco to the cecnd accused's confesoi'na ar. thoncfo s. fn.11w satisfied that the second accuse- d's confession is '1;ru. The e:tra "'' '.:;cncnt f the 4th a',cuscd nay or ua not be true. it , a .; ci an on th vidnc3 wh'ther the 4th accus'.d reiained in the r"up with ti calo or was in the (;r'up pursu- ed the deceasod, .tnd even ii I. ware te acc3p 4 1- h accused'S of st''ry 30 The that poked tc doccasd wi',;h d ad a stich, in view noT n 'w o - ree with br fact ' Mbezi -bb.at his intetic'n :Ii{f1... . t; hive boon no mars than t.' trud'.e him fl - in the na: o na:ner t.:ot PW L did,. Tht 'beinr s , I an a persuaeci G}5 such 1 r'.:.c".pptJc"n reached The d .roe of parGciPatiC'iI so as 'GO infer ccta'efl an'aow;i a on his The c 'nfnesion c:f 5 1,1 - ccu'd was detailed, effuCivO, and made with mLro than n, t uch . f boastfulness. He grophically described to InL 5 te way y chasod the deceased, how tiIC 40 in surrender, and h.'w e deceased oxhautd his. a.a oe (the 5th acc sad) and ties s co:u accus'd assaulted the 2c'.a',eed. evid ene cf Fl 5 which c, rrborates t:' '.a. Fl ° 3 Th:.n the ro is On ill S P in ta It hns h'.jon suby'.ittod ].0 Hr. Mbezi 'that in view of the in. cor' eat fact 'Lha the 5th :".cmuse'd shot the doce'.sed with an arrow that su:;sts tbat thr. 5th ,occi'.oed' s confessicfl t is not thue0 I an not p::rc.ua"iod ;b. 't ':hat incor €:ct facto:' alone foosion. truthfulness of the C seriously affocte the subo"o'ntial That could hr',ve boon a mor :ac;oro;i0n by the' 5th accrsod o:o a ad landed staken belief by hin ih':L ':ieo ar" w ho sht at the deco-OS home, that 15; 1I thO )UttocieS ' tOtS doceaced, On a full oncI caroful c'u sid'Grati n of the 5th accused' s c°nfes sion , therefore, I am fully ,tifid tie",t th: ConfeSSiOn was voluntarily n.ade end is in'uo Th c..nfessin of the 6t1'. accus 'd is lkewiso a description of events t.h't led t' the arr'st of tho deceased, He categorically says that no found people bcaii.ng up the do c ased, but and he ho is not sure himself let go asiie''ta hit 'h:,: dc ccd on what yart of the hady it 'aaiod But what is cnfuSiiIg here is 60 that PW.1 is positive th -I loft"Lhe 6th accused with the grcU:: tnE t re 3 ifl , ' 1 1 5 a: I fl I Then they v c umaed it h he deceased the 6th accused was till in the group tient remained with -78- 1 with the cat*le. In all the circuns eec, therefore, I an of the view th - t the 6 1Gh aused' s confession may or nay 'not be true. I have further carefully considered the accused perscms' unsworn stat:;rnents. Jach Cl Ghem tricd c; make this court bOlieve t.aat h was an innocont witnees 10 the brutal assault of deceased. On the evidence b- foreno, I an left in no doubt that each of th:;so unswcrn stato- nts wos not truthful as far as the inci dent of the ass ult on the docsed is co I an satisfied that each of them said and heard far more than twhat he said. I the refore reject the unsworn statements as unreasonable and ridiculous attemmts to hide the truth. 10 I will now turn to the question of confessions of some of the accussdd persons which implicate co-accused persons. The 1st accused's confession implicates the 2nd and 5th accused persons; that of the 2nd accused implicates the 1FJt and 5th accused psmsos; anC that of the 5 1- 11 accus d plicates the 2nd accused. The law is that confessions which implic ate c o-aacused cannot, standing alone, form a bas for a conviction. 3nch a conxession can. only be used c lend assurance to other evidence against the co-accused, evidence which only falls shtby a 0 very narow m margin of the samdard t of proof necessary for a conviction. In this case thore is al.tdy s ;ron{; evidence W. the 1st 2nd, •nd 5th accused persons took part in assaulting the dece.sed The o'ecsicns of those accus d persons which implicate their cc'-adcusecl lend assurance to the evidence against then. I will nrw turn to the evicJe:c e agaenst the 3rd accused. The 3rd accused never conessed to h: - Ve as saulted the deceased. However, from the evidence of PW.1 and PW.4 it is clear that the 3rd accused either a: enpted to assault or actually assaulted 30 the deceased. Lending credjnc to this evidence is the confession of the 2nd accused, On the evidence therefore, I an fully satisfied that at some stage of the incident the 3rd accused also assaulted the deceased with a stick. On the evidence as a whole, therefore, I an satisfied beyond reason.ble dcuht that anong the people who assaulted the doceased wre the 1st, 2nd, 3rd, and 5th accused p rsons. The next question is: who f these accused persons delive red the fatal blow? On the evidence it is not nossible to Say ex- ctly which of then delivered the fatal blow. fhat is clear is that the deceased died from. the cumulative s±tect of the assault on hi The learned state Attorney submitt'd that the accussd parsons had a common intenti on, and the defence has argued to the contrary But be'ore I deal with this ml rtan 1; and conlex question, let no deal with SO:i2 other matt rs raised by the defence. The. detenco has invited the curt to hld that the accusct persons were provok-d. Now provccaticn is a statutory defence. hen prevocaion is raised as a defence to a charge ef 4 murder, it must be shown that the prvocation act was a wrcn ,\il 50 act or an insult, that the pcvocative act was of such a gravity as would deprive a reasonable nan of his power of self control; that the killing or the assault was done in the heat of Pa: SiCfl and that the means of retaliation adopted was proportionate to the degree of provocation comittad. I- - o....__ . -79- In the instant cse, it is true tbt the deceased was reasonhbly believed to hve stolen cattle, mid it is also true that he shot arrows at his purFJurs. But of r th.t ho ;t dcitr nd signified his surren.er . The as,sauit on hin did not start wthitil they had cau(ht hin. Can it in those circuustaflCes, ho said that the accused pe:sons wre )rovoked ãflC. that they used reta- liatory measures which were prorti0nate to the der:re of what ever wrongful act the deceasid c :onitted? I do not think so. If there was any wroniul all, i dd flOG jut. ly CUCJi brutal assault on the deceased wh was by then r.arned and had 10 sur.:endered. I an satisfid U °..i;rC was no 1(>vocatiofl and that -those of the accused .rc osn who assaultd ne dec:ascd did so in P. namer of naied aroscr3iCn and o rat1.Ly thi1i brutal instincts. Couldthey, possibly have cted in self-defence? ]That too cannot be. They assaulted the deceased when ho was un,rned . and had surronerod, indeed, af:or thoy had apprehended hita. I now revert to thc quea:i..Cn of connou intention. Jmc I told the rrentlenen assessors, coieon intention is said to 20 hon two or nore fporsoml arc c to ros cut an unlawfu-1 pur Os.. in conjunótion with one anoth :•.r and in the prc.oecuticfl of such unlawful iurpose and. offence is ca itted which was a prohablo ccnsequ.nce of that unlawful purpose. But to contituto such a connon int'ntio:r it ±5 not flocesOary that th re should have hesn any coucertod a reenent betwe n thC a:ussd prior to the attaCk on the victia. Their coron iitsntion iy be inferred from their pie ice, L,helr actions one the onission of any ci hcn to dsscci ate himself from the attack cm th victin and it is necessary ry that each of the acaisod know :;h::t his acts would probably cause 30 urievous harm. If the cunuletivo :ffct of the boating' carried out by the different aecuceed was such as would piobably result in d.c :th or grievous hams oyid. all the aocus:d had associa ted themselves with the assault, each accused is responsih]-e for all the acts of the oth:rs done in the furtherance of their con on purpose It was so h:ld in the case of Tahulayon.ka Kirya anC,other versus Republic (10 EJCA 51) in whi.ch the facts are alast :fl all fours with the ca;ie. In that case the thcts were 40 that the decased, e. suspodted thief, was discovered sittinc near the door of a hut at ni:ht. Imn alarm was sounded dod and. sovrEi to boloheur persons cane rushing -to the spot and at once pr000 the unfortunate deceosed with fists, f.:.'t and. such w.;apOfls they could lay their hands on. Ti. results was death from nultile injuries. The accused wore convicted of rrarder and their app .a]s wore disnissod. As I have said, the facts in ths: ce.se are aiost on all fours with the f:cts .n his case. Jl'1 the accused who ook cmrt in tl ViCi'u5 L'? uili of th 1 ".cc 11( ViciOUS 1) deceased Gijigi cihada with its t i'rible cons.cpsonCos it is rca- 0 sonable to h must be taken. to mve had i.owlodgo that grievous harm at 1 ?ant wr;s a rchablo consequences. It was submit ed by Mr. Hbo•i that the hapnoning e1cl be taken to hvo h :n three di:ferent and. distinct occur flCeS, so t}mt those who ni(:ht have assaulted the d.;CCe.Oed as he was hang led, to the group th the cattle or when they joined th t group can not be said to h...ye had Cyieu intcn:;ion withTh.ose who as aulted the deceased at the tine of his ar 1:jth groat respect, I do not agree from the :vidence it is demonstrably clear that the whole thing was a single transaction. In any case, as wee held by the court of Apeal for Da:.t.rn Africa in Rex versus 60 Okute and Another (8 EACA 78 ) at page 80: where several p.rsc::as to:ther beat anot1mr, then thonght each nay hav; a dif1,r;nt rc. son, and hcuh e me nay - ----- '- - - - - 4. ..