19730418 TZHC Tukuyu

IN THEJ HIGI-I CJRT OF TANZANIA AT TUKUYU ORIGINAL JURISDICTION (Dodoma Rodistry) CRIMINAL sE;:SI0NS CASE NO. 2 02 1972 Ti-iI' REPUBLIC H!SH COtIkfl Versus 10 SEP 1973 KiST0JTI KASATI 4'\t PAUL KASATILA J U D G Lii E N T ONYIUKE, J. — The two brothers, Keston Kesatile end Paul Kesati1O' stand chrr'ecl with the murder o:' JUMA s/o iwAANEO. The ay, the 5th April, 1971, incident took place in -die niht of Mond in LUSUNGU vi11ae in KYELA District of ieya Roion0 The facts of the case can be briefly stated:- One Kamoic, an ox-chief, died on Saturday the 3rd April, 1971, in the villaie of LUSULTGU. As vvas the custom anOfl: the NYAKYUSA, P.W .3, FWALAIKOTI KAGOBiLE - who was brother-in-law to KAMOLI\ - was expected to attend the funeral end mournin cerbmony- with a cow and also as was customary, was expected to ttend with a perty. .c was to remain at the funeral for 3 days. On Monday the 5th April, FW.ALAflOTI sot out for the fnnercl ceremony with 1 cow and with a party which included men end women, the deceased was a member of his party. They arrived at the funeral around 3 p.nt . end were received by , the chief-mourner, GIBSON KAMOLA, who rave tbem food and accommodated them in'his own house. At about 3 p.m. FALAflOTI end two of his party, LUMA and JUNIJ\, proceeded to KAMOL10s compound to watch VIBIPI dance which was part of the funeral ceremony. They remained there till 10 p.m. when F77ALAIKOTI and LUKA withdrew lccvinC JULIA behind as he had indicated he wished to stay lon';er to watch the dance. JULIA was not seen aain. Hi dead body , WO.S dicovered about 50 paces from KALIOLA's compound 3 days later on Thursdar the 0th April, in a grove of banana plants and su;ar cane. His body had internal injuries which showed clearly that he was killed. He must hnvo died some days earlie.r because the abdomen was disbanded endthe upper pert of the bdy was covered with insects. DR. OTHLIAN, who performed the autospy, observed bruises on both fore-arms and a. simple fracture of the right 3rd to 5th ribs, plenty of. blood in the abdominal cavity and a ruptured spleen. In Dr. opinion, June must have been killed with a blunt instrument like a club or on iron bar applied with considerable force. c C I I • • - 2- The prosecution hod not boon able to produce any eye witno's who sow Juno bein killodbut they , produced o witness their star witnoss one Jackson NY1;LE 9 who tostified that at about 11 p.m. in the nir:ht of Uonday', the 5th IpriL Paul met him t the VIBII d'nco at KM10Lis and asked him to follow him to his house which was nearby as he wanted to send him on an errand. Jackson with some reluctance as he did not Wish to abandon the dance, followed Paul to his house where he met Kaston drinkini: pombo in the sittin room. Paul entered one of the rooms in hishouse and cuer(ed corryinr: Juno's dead body which he flurra on the floor and calmlr told Jackson that the little errand he had for him was the disposal ol the dead body'. When Jackson showed shock and refused to do the job, Paul quietly bolted the door and windows and picked up a hammer with which he threatened to batter Jackson's head unless he consented to do the job'. Ths subdued Jackson y'iolded and the 3 of them., Paul, Kaston and 'Hckson9 carried the corpse in a sack roscmblin( a bi basket 9 over a distance of half a mile to a spot near a shallow stream. It was at this 'point that he ran away' with Pa-ui threatenin; to :ot him at all costs even by witchcraft if he ever 'opened his mouth 9 . I directed the assessors that if thoLT were satisfiod beyond reasonable doubt with Jabkson's evidence they could infer from the circumstances that the accused persons killed June or were privy to the killing.;. Juno was known and seen to be alive, b at least 9 FWAL!fl0TI JND LUKJ at 10 p.m. on that Monday ni'tht. At 11 p.m. Jackson was called by Paul to his house where he produced Juno's corpse and asked and even compelled him to help in ccrryin; it a.-ay. Considcrin the interval of time and the Presence of Juno's corpse in Pri'hOUSC, the irresistible inference was that Kaston and Pcul oro cctini in concert and that they killed Juno or were privy to the killing. also directed thou on the meanin 1a of corroboration and on the nod for corroboration unless they reorded Jackson's evidence as so cor:ont as to noctive any possibility of fabrication or the d- n(cer that Jackson was shifting responsibility to the accused parsons. The asijoasors wore unanimous in their opinion that Jackson 9 story' was true and were equallr 'unanimous in -their view that the c:ccusad parsons were t:uilty'. The main issue in this case was whether Jackson's evidence was so co(,ent and water—ti:'th as to exclude any reasonable doubt and to furnish a sure basis on which to found a conviction It is on thi issue th5t I re. retably disagree with the assessors It is not a lir:ht matter- to disaiaree with the unsnimou:s views of the assessors especially with the assessors in this case who impressed me as men of {reat maturity'. It is only with the {reatest reluctance but with very firm conviction tht the totality of the evidence in this case left room for reasonable doubt that I have to dif:[or with then'. My - main reason as I said is tht Jackson's story raisec, reasonablô doubts. I must point out that I am not sayin; that Jackson should be dismissed as a liar or a totally untruthful vvitncs. I say, however, that even if one asswes that there is some truth in his story it still lockE that co:'oncy which is required in a murder cha.re nd lovos so many loose ends which are oo'und to raise doubts. I will now proceed to list out some of the..: . . . . -.. - S. ...-..- -3— I The kuhn:. of June was C. wicked nd dark deed which from the very nature of thin:s would normafljr be expetd to be shrouded in secrecy. Why was it necessary to call Jackson to help in the disposal of the deed body? This looks as if the accused persons were deliberately providing evidence ainst themselves. Paul and Keaton have carried Juma 9 s corpse to that stream even if it took ben more time to do so? Jackson stated that they carried the deed body , to a stream which was about - mile from KPNOLis house. This stream is on the ri;ht side of the road that runs by K41,1 1 AtMs house. On the 8th day of April, 1971, thc dead body of June was found about 20 to 50 paces from Kamola 9 s house on the left side of this road. This means that either Jackson was not spoakinL. the truth or at least r:ave a wron:' account as to where they carriod the dead body or that the deed body had been moved after itwas carried to the streari. If so, why was it moved and virtually ai dumped near K.AMOLMs cora:o.und? ho co:ried it and how was it carried? All these iointa are bound to raise doubts on Jac]isons evidence. It took J-ckson a month after the arrest of' the two accused aersons to tell his story0 Why did. it take him so lon if it was th r::est that removed the spell or fear from him? There was sei.e conflict betvvocn Jackson's cvidenceEu'ld the medical evidence. Jackson stted -that when Paul brouht out dead body end flun it on the floor ha noticed blood stains on the cloth with which he was covered i -nC. those blood sts:ns ci peered in the re ion of the des -c. The inference was that blood sipped out from the injuries June. rcceiod. Dr0 Othmcn vvas howevor, positive that all the injuries were internal and that there were no external injuries or indeed any cxtarnal marks of violence. Did Jackson really see any blood or was ho drawin: from his imagination? There can be no doubt th: t the evidence in this case attaches the gravest susi - icion to the accused aersona especially Paul. If the law allowed a court to convict an accused Person for his untruths then Paul may well :O in for murder. He lied 11 the way. The lav however is that the prosecution must succeed on the stren -ah- of its case and not on the vvaak ass of the defence. Jachson may not be a thorou h (: 01i untruthful witness 1uthis story leaves so many questions unanswered as to make it very unsafe to convict on his evidence alone. The greatest sLthpicion attached to the accused person especially Paul but suspicion however grave cannot be substitute for proof beyond reasonable doubt, I wiLL therdforo, as required by law, give the accused persons the benefit of the doubt en -'. with caine reluctance find thai not ruilty of the char: - a end aceordin:ly acquit and discharge them. Delivered at TukLlyu this 18th dy of kril, 1973. 01,TYIUK1I JUDGE