19760819 TZHC Tabora

00 67 _c14 IN THE'HIGH COURT OF TANZANIA AT SINGIDA CRIMINAL APPEAL NO. 80 OF 1976 ORIGINAL JURISDICTION (D0D0MA REGISTRY) CRIMINAL SESSIONS CASE NO. 1 8OF 1976 THE REPUBLIC VERSUS ILANGO KIMWII IVJAGINA KINWII LINGULA A M]BAYU 10 MICtJNGU SINDA MANDE LIMtJ CHARGE: Murder c/s 196 of the Penal Code. 1. J"UD G MEN T - CHIPETA AG.J. The five accused persons in this case, Ilaro s/o Kimwii Magma s/o Kimwii, Lingula s/o Ambayu, Mcungu s/o Sinda, and Mande s/o Linxu, to whom I will hereinafter refer as the 1st, 2nd, 3rd, 4th and 5th accused, respectively, are jointly charged with the offence of murder contrary to section 196 20 of the Penal Ccxle. 0 The prosecution has alleged that the five accused persons jointly and together murdered one Kimwii slo Ifande on or bout 21st March, 1975 at Ngo'ngompoko village, in the district and region of Singida. All the accused persons pleaded "not guilty" to the charge. The evidence of the prosecution is that the deceased, Kimwii s/o Ifande, was married to three wives, one of whom is Mtii d/o Maloda (Pw2) with whom he was living in a homestead which is separate from the homsteads of his 30 other wives arfi their children. The deceased had a total of 12 sons and 8 daughters with his three wives. The 1st and 2nd accused persons are sons of the deceased born of the wives of the deceased other than'Mti (PW2). It is in the evidence of the prosecution that the dece ased and the 1st accused were not in good terms because the deceased often chided the 1st accused for being a reputedV thief. One day, the 1st and 2nd accused persons went to the deceased and abused him and his wife I± (Pw.2). The dece- ased then referred the ma•tter to the elders who reconciled 40 them. But according to Mti. (PW2) the 1st accused stopped visiting the deceased from the day they were reconciled, and according to Mukiya s/o Mumwi (P1,76) who was one of the elders who reconciled the t .. a a 68 — deceased with the let and 2nd accused persons, the 1st accused, who at the time had a case of theft against him at Mtinko primary court, threatened to beat up the deceased severely when he came back from the court. At. that time, one Munyawi another son of the deceased, also had a case of theft against him in the same court. The 1st accused was acquitted, but Munyawi was imprisoned and was further orderded to pay compensation of shs. 580/—. 10 A few days before his death, the deceased sold some of his cattle in order to find money to go and pay the compensation on behalf of his son Munyawi$ome two days before he died, the deceased sold some of his head of cattle. On the day he died, the deceased went to the court and paid the compensation. This was on 20th March, 1.975. On the same day, at about 5 p.m. or 6 p.m. the five accused persons assembled at the house of the first accused person. Here it is pertthent to point out that the 3rd 20 accused is a neighbour of 1st and 2nd accused persons. The fourth accused is a brother in law of the 1 st and 2nd accused persons. The 5th accused is not a neighbour 6f the first three accused persons, nor is he related to them. His village is about 10 miles from that of the 1st and 2nd accused persons. While they were in an ttli mu I that is, a house r for men, they were seen by Zainabu d/o Iimwii (Pw.4), who is a sister of the 1st and 2nd accused persons, and by Saidi do Kimwii, a young brother of the let and 2nd accused persons. According to Saidi (Pw.5) who spent the night in that same house (thIimuhI) where the five accused 30 persons had assembled by the time he went to bed late that evening the five accused persons were still talking in that same house. Saidi knew all the accused ersons before, except the 5th accused whom he said he had seen for the first time that evening. According to Zainahu (Pw.4) she knew allthe accused persons, including the 5th accused whom she said she had seen on an earlier occasion at their village when the 5bh 40 accused went there and bought sugar—cane from the decasêd.. a 69 Meanwhile that same night, the deceased and his son, Tumbo s/o Kimwii, (Pw.3) who is aged about 12 years slept in a n Idimu" of his homestead, which is about a mile from the homestead of the 1stand 2nd accused persons. The wife of the deceased (Pw.2) slept in another house of the deceased's homestead. According to the evidence of Tumbo (Pw. 3), late that night, while to and the deceased were sleeping on one bed he was aroused from sleep after someone cut his leg. When he woke up, someone, whom he le.ter identified 10 to be the 2nd accused, flashed him with a torch, caught his hand and made him sit on the floor near to where 2nd accused was standing. The 2nd accused told Tumbo that if he raised an alarm he too would be killed. Tumbo went on to t1d he court that he sat near the 2nd accused facing their bed. length wise, and the 2nd accused directed the torch towards the bed where the deceased was. Then Tunbo saw four other people three of whom he identified as 1st, 3rd and 4th accusedi These three accused persons were slashing the deceased with bill- 20 hooks. Although the deceased raised an alarm, no one carte in answer the alarm. Meanwhile, the 5th man whom Tumbo could then not identify went out of the house 4 Meanwhile Mti Maloda (Pw.2) was aroused by cries coming from the house of the deceased. When she woke up, she heard someone in her house saying "Try to get out, and you too will die". The man was standing near her door, but as it was A. too dark in the room she could not idertiiy the man. So she stooped on her bed. When they had killed the deceased, the 1st, 2nd, 3rd 30 and 4th acused persons went out of the deceased's house taking Tubo (Pw.3) with them. Then they entered the house of Nti Maloda (Pw.2),AB they entered, the 2nd accused again lit the torch. It was then that Tunbo saw the face - ofth man whom they found in Mti's house as they entered. The 5th accused then threw Tumbo onto his mother's bed and ordered both of them to cover themselves up, obviously in a bid to prevent the two witnesses from observing their intruders. The two witnesses then covered themselves up. According to Mti (Pw.2) one of the intruders stood near the door leading out into a room where goats are kept. - 70 - This Derson stood facing the bed where the witnesses were '. Two of the tntruders stood near her bed, one stood somewhere between her bed and store in which she kept millet. The store or that part of the house which serves as a store, was behind her back. Someone or some people entered the store and started taking away their millet. When they had done that, they asked Pw.2 where the deceased had kept the money which he realized from the sale of his cattle. 7hen Pw.2 told the that there was no money, the intruders searched all over 10 the place but found no money. • While they were in Pw,'s house, and as Pw.2 lay 0-1 in bed, she peeped throughorner of her hod shoot (the witness demonstrated in covVt how she did this) and in the • torch light she.idaitified the rnaii near the door to be the 1st accused. She, however, could not identify the rest of the intruders because they were not within her view. When the intruders failed to find any money, they took clothes from a box of Pw.2 and used those clothes for taking the millet. When they decided to go, they left 20 2 othoir colleagues behind to watch over Pw.2 and Pw.3 lost they should raise an alarm before the intruders went very far. At each movement of the witnesses in the bed, those two intruders would knock at the wall just to remind the witnesses that they were still around. Just before day break the reraining two intruders left. Then Pw.2 went out to the deceased's house where she saw him lying under a bed. She also noticed that the deceased 1Iad injuries. She then went out and raised an alarm. Peopl.e 30 ame and saw that the deceased had been killed. A report was sent to Police, and police came to the scene that same morning. The let, 2nd , and 3rd accused persons were arrsted that same morning. 4th accused was arrested the nex morning. Police seized the clothes of the 1st 2nd 3rd and 4th accused persons as they appeared to have blood stains. The dead body of the deceased was then taken to 5 ingida Goveiment hospital where, after it was duly identified by Mukia s/o Mnwii (Pw6) and Nti d/o Maloda 40 (Pw.2) in the presence of a police officer, to be the dead body of Kirawli Ifande - 71 - Dr. Sowoki (Pw.1) conducted a post mortey tra examination on the body. As a result of the exarainati.on, the doctor observed that the deceased had a cut wound on the right lower limb 1"x+"+**" with compound fracture of the tibia, a cut wound on the lower right tibia, a cut wound on the left leg, with a fracture of the tibia and fibulla, a cut wound on the left imee joint, a cut wound on the left arm near the left shoulder, a cut wound on the left upper lip including the left side of the skull, acut wound on 10 the left side of the face including.the left ear and left eye with fracture of the skull, and there was subdural haeriorrhage on the left hemisphere of the brain. From these injuries, the doctor / that death of the deceased was due to haer -torrhagic shock. Subsequently, Pw, 3 'dentified the fifth accused at a police identification parade as the person he found in his mother's houe that fateful night when he was taken there by 1t, 2nd, 3rd and 4th accused persons and 4th PcvL f and 5 identified the 5th accused person at that same 20 identification parade as one of the people who assehbled at the 1st accused's house on the eve of the death of the deceased. Laboratory tests showed that the 1st accused's blood group is '0' while that of the deceased is group 'B' Among the clothes seized from the 1st accused was a bed sheet (Prosecttion Exh.A) which the G-ovornaent Chemist examined and found it to contain human blood of group 'B' At this point, I should pose to rerark that according to the evidence of Tunbo during the night of the incident, 30 let accused was wearing a dark pair of long trousers and overed himself with a bed sheet ithich had green and white patches. Turibo identified Iosecution Exh.A as the bed h sheet which the 1st accused was wearing that night. I ill have occasion to refer to this bed sheet later in this v',cent. Suffice it to say here that Pw.3 did not identify the shirt which the 1st accused was wearing because according to Pw.3, the 1st accused wrappdhimself with a bed sheet which came down to his knees. While on the point of the dress of the 1st accused, 40 it is pertinent to refer to the evidence of Saidi Kjmwii (Pw.5). As with Pw.3,. Saidi is aged 12 years, •and therefore a child of tender years. 72 - Having satisfied myself, after due inquiry, that these witnesses were capable of apprediating the nature and value of an oath, I received the testiriony of Pw. 3 and Pw.5 on oath. According to Saidi (Pw.5) on the eve of the death of the deceased, the 1st accused was wearing a green shirt; a darkish pair of long trousers, and he covered himself with a bed sheet with green and white squares. This witness identified the shirt and trousers which the 1st accused was wearing and he also identified the bed sheet which is Prosecution Exh.A. 10 Again, if I may digress, the 1st accused person had admitted in his defence that those clothes are the ones he was wearing when ho was arrested by police on the morning of 21st March, 1975. Each of the accused person6 has given a defence of alibi. In his sworn statement, the first accused told this cot't that on 20th March, 1975 he was at his house throughout. In the evening the second accused came to his house to 20 light a cigarette and left shortly aftorthat. As the 2nd accused left, the 3rd accused came there todornand his shs. 2/— which the 1st accused had borrowed. When the 1st accused told the 3rd accused that he did not have 'ny money, the third accused also left. The 1st accused added that the 4th and 5th accused persons never came to his house that night, and that he never knew the 5th accused before. The 1st accused went on t4 say that after the 3rd accused left, he (the first accused) never left his house throughout that night. Just before sunrise the following morning, he received 30 a report that the deceased had been murdered, and he wont to see the deceased's dead body. 1ilehe and othors were looking for footprints of the culprits, which they could not find as it had rained during the night, he was arrested by police. On the prosecutiont s allegation that he and the deceased were in bad terris, the first accused said that after they were reconciled by the elders, his relationship with the deceased was good. He added that he knew that the deceased had gone to court to pay the compensation that day because 40 the deceased had told him about it that evening. In his sworn statement, the 2nd accused told this Court that on 20th March, 1075 he spent the whole day in his shamba which is a. few yards from the 1st accused's hQuse. 73 - Just before su.nset he loft his shamba and went to 1st accused's house to light his cigarette. After that he went straight to his house, and never went out again that night0 Next morning he was told of the death of the deceased. He was arrested at the scone while he and other people were trying to trace foot prints of the culprits. The second accused added that after he and the 1st accused were reconciled with the deceased by the elders their relationship with the deceased was good. But he charged 10 that Pw.2 still harboured ilJL-'feoling towards 1st and 2nd accused persons because she was not satisfied with the way the matter was reconciled. F±nally, the second accused said that he and 1st accused were arrested because a man by the name of Maloda (a father of Pvr.2) told the police that he suspected the sons of the deceased. In his sworn statement, the 3rd accused said tI'at on 20th March, 1975, he was at his house. In the evening he went to the 1st accused's house to demand his shs 2/- which 20 the 1st accused had borrowed. When 1st accused told him he had no money, the 3rd accused left immediately for his house which he said is a mile away from 1st accused's house, and he never went out again that night. Finally, the 3rd accused said that he never know 5th accused before they met in prison. In his sworn statement, the 4th accused said that on 20th March 1975 he remained at his house throughout and did not go to the 1st accused's house. Asked why Tumbo should (e against them,, the 1st, 2nd, 3rd 30 and 4th accused persons said that it was because he was taught by his mother (w.2). In his sworn statement, the 5th accused said that his village is some 10 miles fron Ng'ongompoko village and that he has never b-een to that village. He not only denied having gone to the house of the 1st accused on 20th March, 1975# but also denied having known any of his co-accused before. The 5th accused went on to say tiat while he was in lice custody police brought a girl and two boys and showed 40 them the 5th accused whom they said was the person who had murdered their father. Some days later he (5th accused) and one Mande s/o Mande were asked by police to take part in an identification parade whore the 5th accused was identified by those three youngsters. 11 - 74 - In his finalsubmission, Mr. Mbezi, counsel for tho defence, conceded from the outset that it was not in dispute that one Kimwii s/a Igande is dead, and that he died a violent death. He also conceded that from the circumstances in which the deceased met his death as-revealed by the evidence, malice aforethow:;ht could be inferred. What was in dispute was as to who caused the death of the deceased. - Dealing with the evidence of Pw.3, learned counsel submitted that since the 2nd accused is mid to have 10 been the torch bearer and was poi ing the torch towards the deceased, -then Pw.3 could not have identified the tor@h bearer. Learned counsel also questioned why this witness should have identified the 4th accused only from his voice. In his submission, such identification is inadequate because if there was enough light to identify all the other accused persons, including 5th accused whom he had never seen before, by face, why should ho not have identified the-4th accused by face? Secondly, learned counsel submitted that since the 20 attack was sudden, Pw.3 must have been subjected to terror and fear and so could have been mistaken as to who the assaillents were. Still dealing with Pw.3's evidence, learnod.counsei submitted that although Pw. 3 gave evidence on oath, he is a child of tender years, and as such his evidence requires corroboration as a matter of praotice though not as a • matter of law, and that in the absence of corroboration the court yould have to warn itself and the gentleoen assessors the danger of basing a conv:Lctjon on such testimony. 3() Learned counsel added that even -if the evidence of Fw.2 were to be accepted, it would afford corroboration of • Pw.3 1 s evidence only as against the let accused and not the other accused persons. Dealing with the evidence of Pw.2 learned counsel submitted that 1w.2 could not have identified the first accused because the torch bearer was between the 1st accused and those who were taking millet from the store and the- torch light was directed towards the store. Secondly, learned counsel submitted that since this witnes • • 40 Imew all the accused persons, except 5th accused, before, there was no reason why she should not have identified them by their voices. - 75 - Dealing with the evidence of Iw.2 and Pw.3 generally 9 he wondered why these two witnesses did not report to. 10 cell leader or to the 100 cell leader when people gathered there in answer to the alarm. On the evidence that the accused persons gathered at 1st accused's house on the eve of the death of the deceased, learned counsel submitted that even if the cotwt were to find as a fact that the 5 accused persons gathered atthc 1st accused's house, it was not a necessary inference that from there they went to the house of the 10 deceased and murdered him since there was no eviienco that there had never been such a gathering before. Finally, learned counsel submitted that the deceased's blood on the bed sheet of the 1st accused might have COQO there while the 1st cused was examirg the body of the deceased. Mr. Mchora, learned state attorney for the Republic, submitted that the conditions for a positive identificatici of the assaillants by Pw.3 were favourable because there was bright torch light and aso taking into cr.nsideration 20 the position in which ?w.3 sat, the fact that he imow four of the five aOcused Personz, before, and the fact that the assaillants must have been in 4;h deceased's room for a fairly long time. Dealing with the evidence of 2w.2, learned state attorney submitted that taking into consideration the fact that there was.the same strong torch light, the position of the witness, as she lay on the bed in relation to the let accused, as she demonstrated in court, and the fact that the assailants must have been in her house for a 30 long time, conditions werefavourable for positiro identification of the 1st accused by 1 w.2 On the question whether the accused persons gathered at the 1st accused persons's house on the eve of the death of the deceased, learned state attorney submitted that Pw,4 and Pw.5 had no reason to lie against the accused persons. He then submitted that if the court should find as a fact that the five accused persons did gather at let accused's house until so late in the night, then, bearing in mind the evidence of Pw.2 and Pw03, it is reasonable. to infer 40 that the accused persons moved from the 1st accused's house that niit end went and murdered the deceased. - 76 - Dcalig with the presence of hunan blood of the same group as deceased's on the bed sheet of the 1st accused, arnod state attorney drew the attention of the court to the evidence of the 1st accused which was to the effect that his clothes were not suoare& with the blood of the deceased. This evidence, he subraittod,'4ndicated the evidence 1"w.3, After my sunmin:c up to the gentLemen assessors they were not unanimous in their opinions. The first. gentleman assessor accetod the eviThnce of Pw,2, Pw.3, Pw.4 and Pw.5 on which he concluded that all 10 the accused persons were guilty of murder. The second gentleman assessor,. however, was of a • different opinion In his opinion, the accounts of Pw.2 and Pw.3 could not be true because the torch was lighting very farka time when Pw3 was sitting at the feet of someone. On the evidence of Pw.5, the second gentleman assessor said that he could not accept the evidence of this witness because thewitness did not explain how the sheep was slaughtered, and that he did not identify the accused persons when they came. He also rejected the evidence of rw.4 ends 20 said that Pw. 4 must have been shown the 5th accused by the police as the person who had murdered their father. On the evidence of blood on 1st accused's bed O('r1cL shoot, the 2nd gentleman assessor ie that the blood might have got to 1st accused's bed shoot when the 1st accused went to view the dead body. The 2nd gentLeman assessor added that these are the children of the decoaso, and so their blood and that of the deceased is the same. The 2nd gentlemen assessor, therefore, found all the accused not guilty of the chge. 30 V Like the firb 'tlomen aesessor, the 3rd gentleman assessor accepted the evidence of Pw.2, Pw.3 atid Pw.5. On the presence of blood on 1st accused's bed V shoot the 3rd gentleman assessor said that the 1st accused ld not have got that blood onto his bed sheet when he went to see the deceased's dead body because the first accused just looked at the deceased and went out. The 3rd gentleman assessor concluded by saying that ho found. all the accused persons guilty of murder. As conceded by counsel, it is not in dispute that 40 a person by the, name of Kimwil s/o Ifande is dead, and that he died a violent death. 0t7 -T tZOctfl UO qmoo etj, oqtce.x Pu -C qJIOOO ST ssouqpt et. ;o JVUOU14SO9 Ot.fl. oiTn3p OtI ;o4TCIS UT PeTJSTqLS TTT.S ST 9,,xnoO ot 'xeXnp ITq 30 JTOSq.T DuTuaUA PUiI &tIOI1p.SO t{OflS 2hrçzopçsuoo Atnp xOqjo 'e.IOLJA q-na 'SuolaT9,seq. qons uo ostq o. 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PeT[TT Ot{t.t OSO TO q.itcE Ot[Or tb 1OtflO.XOJt OOTTtiL.TJ Ort 1 00.Xt sooutsuno.rço OSOIfl EIO.I poq sq 1.10 SSOTOOUOJOP AtT eq O1T UOSJOct DUO Ut'L{Or o.iou Sq WTu OrV pj0t0,t sti pOSt000p °'Or Or[Or XO1O iTitnbo ST OrT ç'tj ;o oouepçO OL(Or UOJ u0cft01 CL.fl3tjS t{OrT!. post000p OL{0, 1.10 SOT..mctrc TTOrI' POOrOTIJUT P0 Su@ 0 @P 01.Or 'J° SOrutTITtSSt Ot0,. t'qq JtD[O ST OrT 'IO t OoP OtlOr JO OOuOPTAO OTTOr to.z - 78 - As was stated in the case of II Purchi (1942), 9 E.A.C.A. 58, dorborative eviJence is independent testimony which affects the accuscd by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that a crime has been committed but also that it is the accused who committed it. The court wt on at ixe 61, "It is of course not necessary to have confirmation of all the circumstances of 10 the crime. Corroboration of some material particular tending to implicto the accused is enough and whilst the nattu'o of the corroboration will necessarily vary according to the particular circumstances of the offence charged.., it is, sufficient if it is merely circumstanUal evidence of his connection with the crime.Corroboration may also be found in the conduct of the accused." There is one other important question of law. The 20 prosecution's case here depends to a large extent on the evidence of identification of I'w.2 and 1w.3. Apart from the 1st accused, the evidence of identification with regard to the accused persons is that of Pw.3. He is the only witness who claims to have soon and identified 2nd, 3rd, 4th and 5th accused persons. It is trite law that a fact may be proved by the testimony of a single witness; but this rule does not lessen the need for testing with t1e greatest care the evidence of a single witness respecting identification 30 especially when it is known that the conditions favouring a 2.3rrect identification were difficult. In such circumstances what is needed is other evicionce,direct or circumstantial, pointing to guilt, from which a trial court can reasonably conclude that thevidenco of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error (Abdgllah bin Wendo and Another vReinan,. 20. E.A.C.A. 166, 168) . . I will now proceed to consider the evidence. To 40 take the evidence of 1w.3 first, this witness insisted that he identified all the accused persons.. - 79 - The first question to be answered is whether Pw.3 is a witness of truth. The second question is whether .crgtances were fa ourblef or. a pitivo identification, and finally whether there is some oter evidence, direct or •rcuustant'.l, which points to the guilt of the accused jersons. There has been no suggestion from any of the accused persons that Pw. 3 has any grudge against any of them. He is a young boy aged twelve years, I however, received his testimony on oath after I was fully satisfied, 10 after due inquiry, that he was possessed of sufficient intelligence and understood the value and meaning of an oath and the duty of telling the truth. I have heard and observed the witness as he gave evidence. He impressed me as being very consistent and inhesitating even under fierce cross—examination. Like the let and 3rd gentlemen assessors, I find Pw.3 a very truthful witness with no spite against any of the accused persons and I accept his evidence +4 Now, were the conditions favourable for a positive 20 identification? According to rw.3 1 the torch oxciudod enough light in that. room which hada 2].Ele bed. Three of the culprits were dirotly infront of him where the torch light was concentrated as they assaulted the deceased. He knew four of the five accused persons before, two of whoa are his brothers. From the nature of the injuries it is clear that the incident did not hap:eri in a flash The culprits must have been in that house for a fairly- longtime. All this time Pw.3 was not covering his face. Then, of course, there is the graphic description by 30 Pw.3 as to what happened. Like let and 3rd genthlemen assessors I. am satisfied that the conditions favoured a positive and correct identification of the culprits by Pw- . 3. In spite of nay findings that ?w.3 is a truthful witness and that conditions favoured correct identification, I have had to consider whether there is some otherevidence which tends to corroborate the evidence of Pw.3. I have found such corroboration as will be evident later in this judgment. 40 Befr'e I deal with what evidence corroborates the evidence of Pw.3, I will first consider the evidence of 1w.2, 1'1,7.4,Pv -.5 and that regarding the presence of group "B" blood on the bed sheet of the 1st accused. 80 - In resct of the evidence of Pw.2, I have heard and observed this wi -tness as she gave evidence. She in no a way exaggerated her story, as she well could have done if she were vindictive against the accused persons. I accept this witness as a witness of truth. Were the circuastancos favourable for positive identification of the 1st accused by Pw.2? I have tedcen into consideration the fact that t1ior was the same bright torch light. The culprits must have been her room ±' or a considerable time as they collected millet and searched 10 everywhere in search of money. Olearly, therefore, it would be naive to suggest that the torch liht was all the time directed towards the store where the millet was. I am satisfied that Pw2 saw and recognized the 1st accused. .1 will pose here to say that the evidence of which I have accepted, corroborates materially the evidence of Pw.3 vis a vis the 1st accused. With regard to the evidence of Pw.4 and Pw.5 I note that these witnesses have no grudge against any of the 20 accused.persons. Pw.4 is a sister of 1st and 2nd accused persons, and Pw.5 who is a child of tender years but whose evidence I received on oath after I was satisfied that he apeciated the meaning and value of an oath., is a younger brother oftthe 1st and 2nd accused persons. No reasons have been suggested as to why these witnesses would wish to frame the accused persons. Having heard and seen the witnesses as they gave evidence, I am satisfied that they are truthful witnesses. Nor can there be any question of unfavourability of conditions for 30 positive identification. by these two witnesses as to who gathered at the 1st accuseds house that evening. I am accordingly satisfied and find as a fact that the five accused persons assembled at the 1st accused's house on the eve of the rnu'der of the deceased, and were • there for a long time. The next question I have to consider is whether that gathering was innocent or accidental as sug;ested by defence. The 5th accused person cones from a village about ton miles away from the 1st and 2nd accused person's village 40 and is in no way related to the other accused persons, The 4th accused's village is a mile or 14- miles from 1st and 2nd accused village. There is no explanation from any of the accused persons, however unreasonable, nor did one. suggest itself, as to why these two accused persons should have been at the let accused's house until so late that night. a — 81 — That is not all. Each of the accused persons has.completely denied that there was such a gathering. If, then, the gathering of the accused persons was innocent or coincidental one wonders why the accused rersons should be so anxious to deny that there was such a gathering in the face of such incontrovertible evidence. In my considered opinion, the gathering of the accused persons at the 1st accused's house that evening was neither innocent nor accidental. In myview, and having regard to the evidence of Pw.2, Pw.3, and the presence of humen 10 blood on the bed sheet of theist accused, to which I will revert later in this judgment, the evidence of the gathering of the accused persons circumstontially tends to (2 r e. * - the accused persons with the murder of the deceased. Since Pw.2 and Pw. 3 never know of the accused persons gathering, this evidence circumstantially conoborates the evidence of Pw.2 and Pw.3. Then there is the evidence of Pw. 3 as to what te accused ersons were wearing. The bed sheet of the 1st accused which Pw.3 vividly described was the sane bed sheet 20 the 1st accused was wearing on the eve of the murder of the deceased, Both Pw,3 and Pw.5 have identified it in court (prosecution exhibit A) The lothes the 2nd accusdd was wea±ing have been identified by both Pw.3 and Pq5 This evidence lends credence to and corroborates Pw.3's evidence of identification of tho culprits. Before I leave the evidence of 2w,2 and I'w.3 I should deal with the allegation of some of the accused persons that Pw.3 had been taught by her mother (Pw.2). That suggest ion is ridioioua From the vivid description by 30 Pw. 3 of the incident and what the accused parsons were wearing, which has been corroborated by the evidence of Pw.5 and the clot1 s produced in court as exhibit I find it inconceivable that Pw.3 could have been tutored. As I have pointed out earlier, if Pw.2 was that rnaliant, she could herself easily have claimed that she identified all the accused persons. There was nothing to stop her saying so. Finally, let me deal with the presence of himan blood on the bed sheet of the 1st accused. This hum'.n blood 40 is of group B. The deceased's blood was also group B, The blood of the 1st accused is group 0. It has been suggested that the 1st accused's bed sheet might possibly have touched the deceased's blodd when the 1st accused went to view the dead body. 82 - I will eartainly concede that there is such a possibility. Afterall, the catoories of possibilities are never closed. But is it a reasonable possibility? • , I am clearlt of the view that such a possibility is far too remote to be reasonable. There is no evidence to suggest it. Indeed, the evidence is to the contrary. On this point the 1st accused himself categorically said, "I saw the body covered. I did not sraear myself with his blood. I just saw the body." and he insisted that it was not htan blood but the blood 10 of a sheep. - Here again, ther-fore, we have evidence circumstantially C- en r cJz tending to e. the 1st accused with the commision of the crime- and so corroborative of the evidence of Pw.2 and Pw.3,. With regard to the alibis of the accused persons, I have carefully considered each one of them in the light of the rest of the evidence on record. I am satisfied that each one of them is a concocted story. None of the alibis raises any doubt in my mind. I have, 20 therefore, rejected each of them as imreasonble. After carefully considering the entire evidence and all the circumstances, I respectfully disagree with the-j findings and opinions of the second gentleman assessor, L.. but I resictfully concur with the findinrs and opinions of the 1st and 3rd gentlemen assessors. I accordingly hold that the prosecution has proved its case beyond reasonable doubt against each of the accused persons who, fr I am satisfied, jointly and together, murdered the deceasd Kimwii s/o Ifande. I, therefore, find each of the accused 30 • persons guilty of murder as harged, and I duly convict each of them forth B'.D. Thipeta Ag. J udge. • 19/8/76 Coram: As before All accused persons present. Judgement delivered in open 2-ourt this 19th day of August, 1976. B.. ieta Ag. Judge. 40 • Mr. Mchora: I have nothing to say, my Lord. - Mr.Mbezi: My Lord, as the hands of the court are tied, I will not say anything. " - 83 - 1st accused: I have nothing to say. 2nd acc: I have nothing to say. 3rd accused: I am all alone. I have 7 children. That is all. 5_th Accused: I am all alone at my home. I have 6 young children. That is all. Sentence: You, Ilango s/o Kithwii Magma s/o Kimwii, Lingu1a s/o Ambayu, Nkungu s/o Sinda, and Mande s/o Limu, have all been found guilty and. onvicted of the very serious 10 offence of murder for which the law provides but one punishment, and that is death. I accordingly sentence each oe of you to death, and each one of you shall suffer death by hanging. May od help you. B.. DYipea Ag. Judge. 19/8/76. Right of appeal to EACA expne4 to all accused persons. B.D.Ohipet 20 Ag. Judge. Gentlemen assessors thank4. ard .discharged. B. .0hi4Deta Ag. Judge. 19/8/76