19730418 TZHC Tukuyu

•w- - - - T \s.%,i4J_LIrM (.&\ IN THE HIGH COUHT OF TANZ.MTIA AT TUKUYU OHIGINAL JURISDICTION (Dodonis Registry) CRIMINAL SE-SIONS NO. 2 OF 1972 TH REYUBLIC Versus KASTOJ'TI KASATILA PAUL KASATILA T TT r ( I f j? 1\T ri .j IN U U J.J ONYIUKE, J. - The two brothers, Kaston Kesatila and Paul Kasatila, stand charged with the murder o' JUMA s/c UWJ1ThANEO. The incident took place in The night of Mondcy, the 5th April 2 1971, in LUSUNGU village in KYELA District of Mbeya Region. The facts of the case can be briefly stated:- One Knio1c, an ox-chief, died on Saturday the 3rd April, 1971, in the village of LUSUNGU. As vvas the custom emon the NYAKYUSA P.W .3, FWALAIKOTI KAGOBLE - who was brother-in-law to K4MOLA was expected to attend the funeral and mourning ceremony- with a cow and also as was customary 2 was expected to attend with ci party. -.c was to remain at the funeral for 3 days. On Monday- the 5th April, FWALAflOTI set out for the funeral cerociony' with C cow and with a party- which included men and women. The deceased was a member of his party. They arrived at the funeral around 3 p.m. and were recived br the chief-mourner, GIBSON KAMOLA, who gave tiem food and accommodated them in his own house. At about 8 p.m. F!ALALOTI end two of his party, LTJKA and. JTJNA, pro coodeci to KAMOLJ s compound to watch VIBIPI dance which was part of the funeral ceremony. They remained there till 10 p.m. when F1AL.AIKOTI and LUKA withdrew leaving JUMLv behind as he had indicated he wished to stay longer to watch the dance. JUMA was not seen a,ain. His dod body wL-s dicovered coout 50 paces from compound 3 days later, on Thursday the 3th April 2 in a grove of banana plants and sugar cane. His body had internal injuries which showed clearly , that he was killed. He must have died some day- s earlier because the abdomen was disbanded end the up:er port of tha body was covered with insects. DR. OTHMAN, 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 alpdominal cavity and a ruptured spleen. In Dr. Othmen 9 s opinion, Jumc must have been killed with a. blunt instrument like a club or an iron bar applied with considerable force. • . . . . . .7 - 2 The pros!ecution had not boon able to produce any eye witnes who saw Juna beina killed but thc.r iroduced a witnoss thou 4 star vvitness 9 one Jackson NYALE 9 who testified that at about lJ p.m. in the niaht of J.Ionday 9 the 5th April 9 Paul met him t I the VIBII knco at KAM0LAs and asked him to follow him to his house which was nearby , as he wanted to send him on an errand. Jackson 9 with some reluctance as he did not wish to cbandon the dance 9 follor.cd Paul to his house whore he met Kaston drinkin: 1 pombo in the sitting room. Paul entered one of the rooms in 1 hishouse and. cmered carryinr Jurna's dead body which he flun on the floor and calmly told Jackson that the little errand h'e had for him was the disposal ot the dead body. When Jackson shbwed shock and refused to do the job 9 Paul uiotly bolted the door nnd windows and picked up a hunreor with which he threatened to batter Jackson's head unless he consented to do the job. This stthftued. Jackson yielded and the 3 of them 9 Pciul, Kaston and rckson, carried the corpse in a sack resemblln(ç a bi basket 9 over a distance of half a mile to a spot near a shcllow stream. It was at this point that he ran away with Paul threateninp to :et him at all costs even by witchcraft if ie ever 'opened his mouth. I direètocl the assessors that if they were satisfied beyond reasonable doubt with Jabkson's evidence they could infer from the1 circumstances that the accused persons killed Juno or were privy to the killiny. Juma was known and seen to be alive 9 by at least 9 FALAfl0TI JND LUIKA ct 10 poLio on that Monday ni y tt. At 11 p.m. Jckson was celled by , Paul to his house where he produced June's corpse and asked and even compelled him 'to help in cerrrinp it C;:ci'. Considerin the interval of time and the presence of Juma's corpse in P-iil 9 s house 9 the irresistible inference was that Keaton and Paul were actin in concert and that they killed June or were privy , to the killing;. I also directdd them on the meaniny of corroboration and on the noód for corroboration unless they reerdeci Jackson's evidence as so coyant as to neya.tive any possibilitr of, fabrication oi the d. nyer that Jackson was shiftin r ' responsibility to the accused persons, The asoersors were unanimous in their opinion that Jackson's story was true and were equally unanimous inieir view that the accused parsons were cuilty. The main issue in this ca5e was whether Jackson's evidence was so coaent and watertj.kt as to exclude any reasonable doubt and to fuxnih a sure basis on which to found a conviction0 It is on thia isue that I rerctably disagree with the assessors It is not a lust matter to dusaprce with the unanimous views of the assessors especially with the assessors in this case who impressed me'as men of yreat maturity. It is only with the greatest roLactunco but with vary firm conviction that the totality of the evidence in this case left room for reasonable doubt that I have to dif[er with thorn. My main reason as I said is that JackOon's story raised reasonable doubts. I must point out that I aisi not sayin that Jackson should be dismissed ss a liar or a totally 5 untruthful witnoad. I say 9 however, that even if one sissumbs that there is some truth in his story it still lacks that co:oncyi which is rcjuired in a murder charye cnd loaves so many loos;e ends which ore bound to raise doubts. I will now proceed to list out some of the!;t: 0.0.0/3 —3- I The kuhn of Jume. a a. wicked and dark deed which from the very nature of thinps would normally be expected to be shrouded in secrecy. Why was it necessary to cell Jackson to help in the disposal of the dead body? This looks as if the accused persons wore deliberately providinp evidence aieinst themselves. Coulcint Paul end Kaston have carried Junias cbrpoe to that stream even if it took Ihere more time to do so? Jackson stated that they carried the dead bod to a stream which was about - mile from KPNOLis house. This stream is on the ripht side of the road that runs by, KPP{ALMs house. On the 8th day of pril 1971 9 thc dead body of Jume was found about 20 to 50 paces from Kemole 9 s house on the left aide of this road. This means that either Jackson was not speakinL: the truth or at least pave a wron account as to where they carried the deed body or that the dead body had been moved after it was carried to the stream. If so, why was it moved and virtuall dumped near KIMOIA's compound? aho carried it and how was it carried? All these sointe are bound to raise doubts on Jack so nvs evidence. It took Jackson a month after the arrest of the two accused persona to tell his story. Why did it take him so lon if it was the cr::est that removed the spell or fear from him? There was saiae conflict between Jacksons evidence and the medical evidence. Jackson stated that when Paul brourht out Jummvs dead body and flun.' it on the floor hc.noticeci blood staine on the cloth with which ho was covered an those blood staina a:eared in the rj ; ion of the chest. The inference was that blood sipped out from the injuries Jams received. Dr. Otlaran wos, however, positive that all the injuries were internal and that there were no external injuries or indeed any external marks of v..olence. Did Jackson really sac any blood or was ho drawin' from his imapinetion? Ti.era can be no, doubt th t the evidence in this case attaches the precast susiiicn to the accused aersons especiallj c:l, If the lavv allowed a court to convict an accused parson for his untrnths then Pui say well ro in for murder. lie lied 11 the way.. The lee however i that the prosecution must succeed on the strenpth of its case and not cci the vvoek.oss of the defence. Jacbson amy not c a thoron, hpoinp untruthful witness but his story hasv;s so many çuestions unanswered as to make it very LU'isafe to convict on his evidence alone. .,Thepreetest suspicion attached to the accused person cepeciehly Paul but suspicion however rovo ca.nnot be a substitute for proof beyond reasonable douit, • I wilL ±hcrcfore as required. by law, give the accused persons the benefit of the doubt end with sore reluctance find thai not puilty of the ciaerpe and eccordin;'hy acquit and dischar:;o bhera. Delivered at TuicLayn this 18th day of J.irril, 1973. \ C. 0. JJ. ONYIUKE JUDGE