19781211 TZHC Dodoma

IN THE HIGH COURT OF T.ANZAl.VIA AT DODm1A ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 22 OF 1977 . THE REPUBLIC VS: LUCAS l-1ABULA & 3 OTHERS CHARGE: Murder c/s 196 of the Penal Code. ◄ l!IJ)GM?NT The first accused, LUCAS S/0 ¥LA.BULA, the second accused,.· LINGESELA S/0 SALIBOKO, the third accused, DICKSON s/o M\i.AMBEMBA, and the fourth accused, ROBERT .S/0 SICHINGA,t stand jointly charged with murde.1, contrary to n .196 of the Penaf Code. It is alleged by th€ Director of Public Prosecutions, on behalf of the Republic, that on or about the night. of 10th/. llth September, 1974, in Mbeya Region, the four acciused persons~ together with some other pEirsons not before the court, murdered one J.AMSON S/0 LWAWI. Each accused person has. protested his innocence. The prosecution and the defence are at one that Jamson Lwawi is dead and that he met his death at Nandanga Village at the hands of men who broke into his house on the night of 10th/11th September, 1974f' and, after subjecting him to merciless physicaL violence, stole a fairly good number of articles from his shopo Like the lady and gentlemen assessors, I am satisfied that those facts have been proved to demonstration. The acts of the invaders which led to the death of the deceas.ed were not only unlawful but were also , plainly intended to cause the death of the deceased. I hold and find __ as a fact, therefore, that Jamson Lwawi was murdere.d..-.In view of that finding, the subs tan tia,l question is therefore whether any of the accused persons have been proved, beyond a reasonable doubt, to have taken part in that murder. To give a correct answer to that quest- ion, it is necessary, first,to outline the evidence which is relevant to that issue. The key witness for the prosecution was one Dorothy Mutawa. She testified that in January 1974 she became the deceased's paramour. The deceased, whose wife was one Dainesi Nachinga, had intended to get married to her. Their ., -.. -2 - ,. relationship was so strong that sometimes _, she used to accompany the deceased, who was a shopkeeper, on his trips for buying merchandise. According to Dorothy, .Dainesi Nachinga was ··aware of· this relation ship and was very bitter· about it. Narfat¥1g . the events w_hich, · according to her, took . . place on ;the fateful night, Dorothy said that on the night in qu_estion she 1?lept in the bedroom of the deceased together with her baby and the deceased. The bedroom was separated froIIl the shop by a curtain only. During the night, she was awakened by the cries of her baby. Immediately after she had . been roused from the sleep, she saw a torch-light . outside, . . at the door of the house,, She· decided t6·awaken the deceased. As she was in the process of doing so, there was a· bang on " f- • • • ~ the ·dooro The ~oor failed to resist th~· force ·~pplied against .. it; , it fell on the floor. fo_t that stage, Dorothy_ saw ... a man ente- - ring the bedroom. He was wielqing a club. , :As so.on as the man got in, he clubbed the deceased. The man ~ho was a _total stranger to Dorothy, was dressed ' in a blue shirt an-g. jacket on the uppe; part of his body and, with the exception of his. ' face., his head was covered with something that looked like a . sock. After he had ...~ been clubbed in\ . thG bedroom, the deceased ~ crawled· to the shop.. At that stage,, .ti.1.e, oan who had ciubbed the . deceased turned his energy on Dorothy. He clubbed her, first on the arm and iater on. the_ forehead. She fell down. .vlhi-lE;? she was .lying on the .floor, he club.bed her once J¥O!'e - this time --' at the rear of her head. That part of the head got punctured 1:1 while the forehe~d got i:,wollen. While violence was being " applied on Dorothy, some other men~seven or eight in number~ werestanding at the doQj:> step. The fallen door . was ·.then . .0 placed on Dorothy's legs ang \ the men at the doorstep then got . inside . the bedroom by walking . over the door. They all went to the shop,• .. including the leader of the gang. According to . Dorothy, four of the invaders, whom she could not identify, had covered their heads~in the same way the man.who had clubbed , , ' ' + • • her had covered his head. Dorothy claimed in the witness - box that one member of the gang had a big torch whxch ~ve such a ·powerful light that one could have been able to see a needle on· ' the floor. As,, members of'·the gang ··went towards the shop, they pulled'-'down the curtain. Dorothy asserted that from where she had been lying in the bedroomi she could and did see the 3 • members of tho gang beating up.the deceased in the shop. She did not say, however, in what manner and with what weapons, if any, the deceased was being assaulted in the shop. While that beating was going ori., she heard a voice from the shop, saying ,in Kinyiha: "ftutayangci.Je nkani bakutwivwa", meaning "Dont speak loudly, they will hear us .. " She claims to have recognised the voice as that of the fourth accused, Robert Sichinga. The witness asserted that she was familiar .with the fourth accused's voice, but she did not give the· court the benefit of knowing how she came to be familiar with the accused's voice. Dorothy went on to testify that!after the members of the gang had stopped assaulting the deceased, she saw ~them collecting clothing materials and clothes from the shop. They took the loot to their . car which was parked outside the house. A moment or two later the gang vanished from the scene. According to Dor?thy, the whole sad episode took between fifteen to twenty 1 minutes. She claimed that while she was lying on the floor in the bedroom she had been turning her.head from one direction to another and in 1 the process of doing so she was able to recognise three of the gangsters. These are: the second, third and fourth accused persons. She came to lmow the second accused in 1974 before tho fateful night. He was the village chairman. She also claimed to have lmown the third accused, a teacher b;,r profession, in ,1974, before the evil day. The accused was stat~_oned at the i:Jandan:ga Primary Scho'ol • .As for the fourth accused, Dorothy claimed to have lm,own him for -J about a year before Septem~)Gr 10,1974~ ~he knevl him by the· name of Kaburu. On the night in question t according to the witness, the second accused had put on 1 black jersey; the third accused wore a black coat while the fourth accused was dressed in a red shirt-• • Asked by counsel for the accused persons as to whether the third accused was dressed in a pair of long trousers or short trousers, Dorothy unswered: 11 I did not notice whether he had worn a pair of long trousers or a pair of shorts. Similarly with the other • three accused person~. I concentrated l~oking at their faces." Dorothy_admitted, however, that when the door was felled down slie got frightened, thinking that she was 'finished' • · ~ . . The gang having gone, Doro~hy approached the deceased and , ... suggested to hi:II! that they sh.ould go to .her parents' home .• 4 The deceased replied that he had no strength to carry him there. Dorothy left with her baby for her parents home, leaving the deceased alone in the shop. As it was dark in the shop, Dorothy had not been able to discover whether the deceased had been injured~ On reaching her destination, Dorothy related to .·her: parents the gruesome events of the night. The prosecution, for reasons which have not been disclosed, did not adduce evidence from Dorothy's parents. . ' Dorothy spent the rest of the night at b:er parents·• home·. She claimed that she had not returned,to·the .,«·: . . deceased's house on the night because her left hip region got s~rnllen as a result of the beating she had been subjected to. On the morning of September 11 she was ·~arrie_d _by some people to the deceased's house. Many villagers had already assembled at ' ~ 1 the houseQ On getting inside the house_, she_ saw the deceased lying on the floor. He was beyond human aid, the dark angel of death having got him fu a relentless clutch. Dorothy saw in the house a huge stone and an axe whose handle was broken. Neither article belonged to the de.ceased.· A few hours later, police officers arrived_on tho scene; After they had carried out some investigations on the scene, they ioaded the deceasedis,dead body into their motor vehicle and started off for Mbeya Government Hospital, Dorothy, among others, accompanied tho body~ On the way she saw the fourth accused cycling in the opposite direction. She pointed at him and told the police officGrs that he was one of the deceased 1 s assailants. One of the police officers tried, unsuccessfully, to stop the fourth accused.· As the motor vehi- cle came close to him, the fourth accused dropped down his bicycle and started running away. The police officers chased him but he was too fast for them. They returned to the vehicle and loaded the abandoned bicycle into it. This part of Dorothy~s evidence was amply corroborated by Harrison Lwawi, the deceased's young brotheri -Dorothy went on to claim that she was hospitalised at Vwawa for three days. She also asser- ted that on September 12,1974, she saw the first accused at the Tunduma police station~ On seeing him, she claimed, she pointed nt him and told the police that he was a member of . the party which had attacked the deceased. About a month later, she attended an identification parade tn which she picko~ out 5 the first, socond_and third accused persons as tho larcenous murderers of the deceased. The.fourth accused was then still at largo. The next witnoss for tho ·prosecution was oneEliza . Kamwola,, Sho is a resident of Vwawa. She testified that some- time in 1974 sho wont to Tunduma. Hor hostess there was one l'-'lary. While sho was there, sho became the first accused's lover. She movod to his room in which the o.ccus·ed was living with another lover. On.the following day, at about 11.00 a.ma, the accusod was visit0d by two male friends .. They spent a short time in tho ro.om and thon left.. At about 5.,.00 p.m. the accused loft the room for unlmown destination. By then the accused's other lovc1 .. had moved to a room in another house which the accused had rented for hor6 The accused did not bid Eliza far0well when ho left her room at 5.00 p.m. He returned at 6.00 on the following morning, having boon · away for the whole night,, He gave Eliza a new pair of yellowish khanga. When she asked him as to where he got the pair of khanga, the accused replied in Swahili:" Usiseme, kuna vitu vingi tulivyoficha", Eliza admitted in the witness box that she suspected thut the accused had obtained the pair of .khanga unlawfully, She reported the circumstances under which she was given tho pair of khanga to Mary only. She claimed that, as she was a stra..11.ger at Tunduma, she did not lmow even the leader of ten cells of the locality. On the following morning, at about 6,00 am, some police officers came to the room and arrested her and the accused~ They were taken to the Tunduma police station where she stayed until about 5.00 p.mo when she was released. While sho was still at the station she informed the police officers that the accused had given her a new pair of khanga. After her release. she went to collect tho paiF of khanga and surrendered it to a police officer at the station. The wife of the deceased, Dainesi Hachinga, gave 0vidence as PW3.· She testified that in his shop tho deceased used to stock ·vitonge, shirts, pairs of long trousers, cigarettes, boxes of matches, metal cooking pots, sugar and salt. Some- times she used to sell things in the shop. Dainesi was emphatic that pairs of khanga had never been stocked in the shop. She was also emphatic that she knew nothing about the: alleged relationship between the deceased and Dorothy. She 6 had not heard even rumours about the allegGd relationship. This piece of evidence was, however, in disharmony with the testimony of Harrison Lwawi, who asserted that Dorothy used to visit the-deceased even during daytime and that on one day the deceased had mentioned, in his presence and that of Dainesi, his desire to get married to Dorothyc According to Dainesi, on the night her husband was robbed of his natural life she was aslGep in a house situate less than 80 metres from the house in which the deceased was attacked to death. She was awakened by the sound of a moving motor vehicle. She got out of her house and saw a motor vehicle with an op0n rear moving towards the direction of Tunduma. She approach0d the house in which the deceas0d was supposed to bG sleepinge She saw the door to the house lying on the floor~ After having failed to contact her brother-in ...law, she went to see one Saliboko Singambi who accompanied her and went to the decea- sed's house. On s0eing the frightening scone of the door, Saliboko Singambi summoned some of the neighbours. When • the neighbours arrived, Daines entered the house. There he saw the deceased lying on the floor. 1Uthough she did not go close to him, Dainesi was sure that he was beyond recallo Daj_.nesi went on to tell the court that the second and fourth accused persons are her brothers .. She also said that she knew the third accused who used to drink pombe with the deceas·ed. As far she knew, there was no ill-feeling between the deceased and the third accused person. She also lmew no misunderstandings between her accused brothers, or either of them, and the doccased. On the contrary, according to her, the deceased used to drink pombe with the second, third and fourth accused persons. I have already referred to part of the evidence of PW4, Harrison Lwawi. Now I need only mention two·· other piE!ces of his evidence. First, according to ''th~ witness who, it is notdisputed, was the person who made the police at Tunduma aware of the killing of the deceased, to the 7 knowledge of ·nainesi, Dorothy used to spend some nights with the deceased at the latter's house. Secondly, the witness asserted that pairs of khanga were among the articles which the decen.'sed used to stock in his shop and that on the night the deceased lost his life there were some pairs of khanga.in the shop. There was no dispute in this case that, within a fortnight or so after the murder of the deceased, various new articles were found hidden at the Mpemba riverside, Katete village, a distance of about four miles from Nandanga village .. These articles, which were exhibited before this court, _included rollsof clothing material, shirts, blankets, vitenges, pairs of long trousers, yellowish pairs of khanga and bedcovers. tclh:i..le she was in the witness-box,· Dorothy identified these articles as being identical with tho arti- cles the deceased had in stock in his shop on the night of 10th/11th September 1974. Also reccvered from the river- side were cash sale receipts in the name· of the deceased. The pair of khanga which the first accused allegedly gave Eliza Kamwela was identical with the pairs of khanga reco- vered at the riverside. According to the testimony of Patnon Sichinga, the person who led Corporal Edward Mwanjs.biki (as he then was) and his team to the riverside, one of the recovered pairs of yJlanga had on it blood-like stains. This piece of evidence found support in the evidence of Insp. Edward Nwanjabiki • .Another witness for the prosecution was one John Simtam, an ox-police officer. He testified to the effect that in 1974 he was the officer-in-charge of criminal investigation nt the Tunduma police station. On September .J_l of that year a report to tho effect that one person had been killed at Nandanga villagG was received at the station. On that report being recoivod; the witness, in the company of Inspector Mwanjabiki and.some other police officers, proceeded to the village. At the village the witness saw a Renault car registration number MB 2552. The car was parked on a road, facing in the d1rection of Tunduma. He examined it and found several new articles in it - including bolts of clothing material, a pair of sandals and two piece~ of RUD.i toilet soap. 1Ul the articles were treated t < as exh.11.:-bit~. ·A fingerprint expert, one Abel fliwamakula, examined the car, too. According _to the witness., there were fingerprint impressions on.the body of , . . the car. After the examinatfon the car. was J1anded· . over to t;rn cwner, an expatriate·... John Sintam went on to tell the court .that his team recovered a clu~ _in the bush npar the place where the car was parkedo From that scene the team proceeded to the scene of the alleged killing, the house of the deceased. There the witness saw a dead body of a male african adult iying ' on the floor in a shop. There were three fresh wounds on the head of the b9dy. The witness also saw a huge stone inside the houseo Leaving Inspe Mwanjabiki behind, the witness collect"'9 ) ed the dead body and started for J.1,ibeya. The witness amply supported the story which was given by Dorothy as to what transpired on the way. The bicycle which the fourth accused had abandoned had Zambian registration numbers. According to the witness, no arrests were being made at Tunduma of persons possessing or using bicycles pearing Zambian registration numbers. The last witness for the prosecution was Insp. Edward Mwanjabiki., In 1974 he was a corporal. Part of his testimony corroborated John Sintam 1 s evidence as to what was seen at Nandanga village. Abel Nwamakula did not testify before this court, and neither John Sintam nor Insp. Mwanjabiki had any knowledge as to what came out of the fingerprint examination that was carried out on the car. Insp. Mwanjabiki further testified that at . the scene of the. alleged killing he recovered an axe with a broken handle. While still· at the scene, one Inspector Kondo interviewed Dorothy in the presence of the witness.. Acting on the strength of Dorothy's replies, the witness arrested the second accused at his house; He also arrested the third accused in his school office •. Both accused persons were arrested on a charge of murdering the deceased. Unfortunately, the prbsecution did not adduce evidence from the witness as to tho content of Dorothy's replies. -Those replies . would have been admissible under S.167 of the Evidence Act, · 1967. At the time of his arrest, the second accused was dressed'in a blue jerseyo The witness seized it as an exhibit, • and from the residence of the third.accused the witness seized the accused's black coat. 9 .;.. Inspector Mwanjabild also testified that on September 12,1974, he arrested the first accused and Eliza Kamwela. According to tho inspector, at the Tunduma police station Dorothy pointed at tho first accused and claimed that he was one of the killers of the docec1sod.•· The accused, who was at that time in custody, made no roply. Contrary to the GVidence of Eliza Kamwela, tho witness emphatically assorted that Eliza surrendered at the police station only ono piece of pair of khanga. Cross - examined by counsel for the accused persons, Inspector Mwanjabiki made two admissions. First, he did not record in his police statemont that at the Tunduma police station Dorothy identified tho first accused as ono of the killors of tho deceased. Tho second admission was that when ho visited it on September 11, 1974, the house of tho deceased had blood splashed on a fairly large area. That, in summary, is tho prosecution cnse in so fnr as the substantial issue before me is relevant; I turn now to the defence case. Each accused gavo evidence on oath. The first accused called no witnesso The second accused called three witnesses.; The third accused called only onu witness, as did the fourth accused. Tho first accusedis story, basically, was this. On the night in question, that is the night of 10th/11th September, 1974, he was at Tunduma, He spent tho night with his senior girl-friend, ·if I may so doscribo hor, one Nama Swilo. Ho did not leave Tunduma on that night.· At about 8.00 a!m. ori the following morning he visited Eliza Karnwola. The accused denied to have given a pair of khanga to Eliza. He described Eliza's testimony on that point as a fabrication. Tho accused went on to testify·that he spent the night of 11th/12th September with Eliza. At about 6.00 a.me, on September 12, six police officers, including Inspector Mwanjabiki, came to their room. They searched the room as wel_l as that of !11.r.aa Swile, but found ... · nothing of interest to thGm ... Tho police officers then arrested him and Eliza. Ho did not then lmow why h.e was being arrested,; · According to tho accused, like hims0lf, Eliza was locked up in a cell at the Tunduraa police station. Testifying on what happened at the polico station, tho accused said~2 I did see J2\11l, Dorothy, at the office of tho o.c.s. at the police station. I found her in the office conversing with several police officers. 10 She was sitting down. I was led into the office~ together with sevoral other arrestees, by a policeman~ After we had entered the. office Dorothy did not say anything. We remained in the office for about two minutes. Inspoctor Edward addrc- 3Sed Dorothy, saying: ' This one' in English. Ho was pointing his finger at mo when he said so. Dorothy did not make any replyi" The accused, who admitted to have been identified by Dorothy at an identification parade held on November 30, 1974, denied to have gone to Nandanga villago on the night Jamson Lwawi was killed. The accused described the evidence of Eliza that she had join~d him in his room two days bcdore their arrests as a fabrication. According to him, he had brought Eliza from Tunduma on September 1, 1974. Eliza was not, however, challenged on this point 1vhon she was in tho witness-boxA While admitting that he had had no quarrel with 1l~za, the accused claimed that their relationship was not a good one as Eliza was somebody else's wife.. The accused also claimed that he did not lmow any of his co-accused before his arresto The second accused I s testimony was, in summary., as follows. The decoased, Jamson Lwawi, was his brother-in-law,. There were no misunderstandings between him and the deceased. He used to drink pombe with him. He did not lmow that the deceased had an amorous relationship with Dorothy. Dorothy's father,, Keisari Mutawa, according to the accused, had become a resident of Nandanga village in October 1973. Prior to that time he was a resident of Tundwna. The accused claimed that his relationship with Keisari J!lutawa was sour • .According to the accused, it all happened this way. A few months before Jamson Lwawi met his death -t.hn n~~nr:nd, who was then a member 9 of the TANU Di visionaJ_ E:n~cuti vo CoIIlI:'.li tt.oo, rocei ved a letter from one Phillip Kachingwe 1 who was either a divisional secretary or T.AL1U chairmun for Tundwna Settlement, in which it was alleged that Keisari I\lutawa had boon evicted from Tunduma bocause of practising witchcraft. After he got the letter, he summoned a general meeting of the villagers. Tho meeting was duly held. Among those who attendod it were tho village's chairman 9 one Sizara Nbukwa 9 Keisari Mutnwa and Dorothy. The alleged Keisari's unscientific practices were discussod and, in the upshot, the mooting resolved that Keisari ·-1~:~: I lI shoulcl flit from the village. Tho resolution amounted to an Gxpulsion. According to the accused, Keisari was not happy with that decision, and the testimony of Dorothy implicating him (the accused) in tho murder of tho docuased was an attempt to avenge his role in tho proceedings which anded in an order for eviction being made against her father. Not a single question was, however, put to Dor_othy when she was in tho witness-box touching upon that issue. It is not in dispute that upto now Keisari is still a resident of Nan¢anga. As for tho events of September 10, 1974, and those of tho following day tho second accusod claimed that on the former day tho fourth accused, who is his young brother, bid him farewell saying that ho wets going to Ihanda to claim for the refund of dowry. The accused denied to have visited tho deceasod's house on the night of lOth/llth September, 1974. Ho claimed to have spent the night sleeping in his house together with his wife, one Elina Nahaonga. On tho following morning, just before sunrise, one Saliboko Singambi, another brother-in-law of ·his, brought him the news of the death of tho decensod. He accompanied Saliboko and went to the doceased's house. Thero he saw the dead body of tho deceased lying in the shop area of the house. The accused was then drossod in a jersey which later in the day was seized by Inspector Mwanjabil'"-...i. After he had seen the corpse, he went to the Tunduma police station to report about the deceased's death. The police at the station told him, however, that they had already been informed of the death. H0 then returned to the deceased's house. A little later, he left for his home to go and have lunch. After he had taken tho lunch, he started off for the deceased's house. He did not roach his destination as a free man. On the way, he was arrested by a poJ_icem.8.n. He was escorted back to his residencea There a search was conducted, but nothing wns seized from the house. Thereafter he was taken to the deceased's house and, finally, to the Tunduma police station. The accused supported the evidence of Dorothy and Harrison Lwawi that the deceased used to stock, in his shop, pairs of khanga, among other artcl0s. The accused, who claimed to bo ignorant of the identity of the author of the killing of the deceased, said that the house of the deceased was about a mile away from his own house. 12 The second accused 1 s witnesses were S.alil;>oko Singambi; Morris Sichamba and Njoronje Silmponda. Saliboko Singambi, who is marriod to the cousin of the socond and fourth accused persons, is a resident of Nandanga village. He has lived in that village - according to his evidence - since his birth. The witness·assortod that he had nevor heard of any complaints in the village against Keisari Mutawa and he lmow no ill-feelings between the second accused and Keisari Mutawa. Testifying on the events of the night Jamson Lwawi met his death, the witness sa:i,.d that Dainosi came to his house and informed him that her husband had been killed.· He went to the deceasoq's house. There he saw a broJrnn door and a stone. As ho was afraid, he did not get inside the house~ He went to the second accused's house. He told the second accusod that Jar.a.son Lwawi had been killed. He passed on that information to the accused shortly before the cocks started crowing. The accused 1 who displayed no emotion when he received the information, told the witness that as it was night tioo ho could not go to the deceased's house. Tho witness returned to the dece;,1s0d's house alone. At 7.00 a.,mo the witness saw tho accused ariving at the deceased's premises. The accused did not got inside the house; instead he went -t;;o a nearby road whore there was a motor vehicle which allegedly had been used in convoying cl~thos. From the road, the accused returned to his residence. Saliboko Singambi also ( testified that, before the death of tho deceased, ho used to see Dorothy at the doceasel's house. As to the moeting alle- .,I gedl? held at the village ~o discuss tho fo.te of Koisari Mutawa, the witness denied. any lmowlodge of it. He went on to claim that had such a rr.0eting been huld ho would have become ~ware of it .. Morris Sichamba is arothGr resident of Nandanga village. He has beeri living at that villcJ.go since 1974 after the death of Jamson Lwawi. He claimed in the witness-box that he had . never heard that Rei.sari Mutawa was a wizard. He visited the housp of the deceased after he had heard that the deceased had died. Many people had assembled at the house. He did not, however, see the seccad accused there. lfuile at the house, she did not hear Dorothy mention the names of the killers of the deceased to the assembled people. Accorq.ing to tho witness, Dorothy used to reside at tho deceased 1 s premises before tho death of tho deceased. 13 Like Morris Sichambaj the third witness for the second accused, Njoronje Sikaponda, had become a resident of Nandanga village after tho death of tho deceased, The witness testified that Dorothy used to live with the deceased. He has never heard any witchcraft complaints against Dorothy's father. On the day the deceased died, he visited his(the deceased's) home. There was a gathering of people at the premises. He did not, however, see the second accused there. Dorothy was present. He did not hear her mention the names of the killers of the deceased. According to the witness, most of tho time Dorothy was crying. I tum now to the third accused's defence. The accused is a teacher by profession. Ho claims to have been in that profession for sixteen years.. In 1974 he was stationed at the Nandanga primary School where he had been working for three years.. He lmew the deceased fror:1 whose shop he used to purchase so□e of his requirements. He also lmows both Dorothy and her father. The accused. clai □ed thnt his relations with Dorothy's lather wore strained. In August 1974, according to tho accused, Dorothy's father assaulted one Mary JViwalr..asege.. Nary IVtwakasoge is the accused is wife" He lodged acomplaint agairst Dorothy's father as a result of which thellattcr was.charged before the Tunduma Primary Court. The case had not b~en finalised at the time the accused was arrested in connoctior. with the present case .. The accused admitted that he jnows the second accused, who was, according to the accused, a T.ANU ws.rd rcpr0sentative. The accused suported thG second accused's story regarding the holding of a village mecttng at which it was allegedly resolved to evict Dorothy's father from the village. The accused claimed to have attended that 1:1eeting. The third accused's testimony as to the events of September 10 and 11, 1974 was as follows. Fron 7. 30 a.m .. - to 4.00 pem. on September 10 he was on duty at the School, after which he returned to his residence •. He did not leave his residence until about 7.30 aom. on the following morning when his wife inforned hi □ of the d8ath of the deceased •. He had spent the night sleeping in his house •. He w~s with his wife. On receiving the news about the death of the deceased,.he left for the daceased's home, accompanied by ... 14 his wife. On reaching there he saw an assembly,-of about 200 people~ He did not enter the house as there were many people at tho doorstep. From the house of the deceased he went to the school.to assign duties to pupils~ At about 11.00 a.m. his personal liberty came to art end. Ee was arrested by police officers on a charge of murdering ~he deceased. The police officers seized his two bl.aok jackets from his residence which they searched. He was later taken to the Tunduma police station. The accused claimed that he came to know tho first accused on September 12, 1974, wh0n he met him in a lock-up. Tho accused also asserted that when his wife brought him some food at tho police station she was arrested and charged with the murder of the deceased. She ,,. was released from custody on April 4, 1975. I should have pointed out, at an appropriate stage, that no question was put to Dorothy about the alleged assault by her fnther on the accused's wife. The accused called his wife as his ·witness. She gave evidence to the effect that she and her husband spent the whole night of 10th/11th September 1974, in their house. They slept on different bods but in tho same room. They did not make love on that night as she had been suckling. According to this witness; the door to their bedroom used to make big noise whenever it was opened. She claimed, there- fore, that if her husband had loft the room on the night in question she would have been awakened by the noise made by the door. She was not awakened tho whole night. The witness went on to tell tho court that her last child was born in September 1973. At first, the said that between the birth of that child c1nd tho day her husband was arrested in September 1974 her husband had hnd sexnal intercourse with her on ten different occasions, the last occasion being on September 7, 1974. Later, however, the witness retracted from that evidence and said:"Betweon September 1973 and the date on which the third accused wo.s arrested in Septomber 1974 I had had no soxnal intercourse with the third accused. I was mistaken when I said that in February 1974, March 1974, Juno 1974, July 1974, .August 1974 and on 7/9/74 I had had sexnal intercourse with the third accusod. It is a long time now I cannot remember." The witness supported her husband's story that sometime in August 1974 Keisari Mutm-m had assaulted her. .· She gave tho backgr.01.J11d,.to tho ·alleged assault. Sho claioed : that iri July -~~d,.' ,:.u~~~:ft ·197 4 . Kci_sari Mutawa h~id r,m.de o:ior~~ aclvanc'os at ho:c.' .!~f3.,$P0 wus:~·-r,1arriud:woman, she decl½ed to · ,:·surrender hc~nelf tq hirn. Appar~nt:l;y ~able to· s~llow her 11.G-gutive answer, \vith tumility 1 Koisitri Jl1utawa violently beat· her tip. ·at 'a 'i:i'o~be. shop .. ) She- sustained a wound on her forehbad which ha~ left: a ,piJ~I'l~nen·t 1.tki.rk in a form of a sctir ~ ··She<:, . '. . 1: .I-'. •. • • . informed hor husband abo'ut''the assault. The lattei , . the·: -'.: ~}··~..... ,... p~{ ·~1 .~ . .___:f~,~r mnchinGry of j1:,stice in r:iotion. · . ~ . ' · .. The witnes:s o.lso told tho court·thn.t·on Scntornbor 12,.-.. I • • •• • • •' • 1974,·. , .' she was arrest~d by the police ar).d chargeq w;it_h:-~hc murder:of thµ decoased. She was arrested at tho police . station ·. ·'-·+·j . whe:1'.'G she haq gon~ to.--gi YG htJr husband ·soD8 food. She was incarcerated. irJ,-.. Ruanda prison until ~1.1n;il 4, i -~.ho:p. her .: •·; 975, porsonai li.borty ,,ms rG_stor'c/d to: her. ; The wit~cs~ _admitt(!d .. . ; . !- . during cross-e:x:aoinat;i.Qn by the loading counsel: .·for. the ·' ;. . , . .•. . ,- . . . . . I . . •··:. ..; . ,: . ', ' _: ,-.: : . • prosecution ,t,ha t ~ihen thp .. firot an·a seco1i_d ~ccusqd pe:f1sons ,.: _ were giving 'dvide_nco: sho was iri· tho· co:u;tr·~·9m~ .-· . ·,· ''.'!T__.·, . .:The. fot2.fth accused. niso: r,aice<f f:l.. dofonco of:.ali'bi. ~- • His ·st6ry ,was as follows·" .. In -~972 'b,e wont to Chingola, . Za.robia~ ··Her ·stay~d ··thoro ··1,mtil early 11y,gust 1974 when ho· ,- .. '. roturrtod toNd°ndanga· vilJa.go. He brought with,him a Zambian re gist . 0rod . HUI!lb(/r b1cycl0, · I-Io' '. ovndc·d pp,ying -cu~,torns du~y on it . by_ crossin·g thtf bci'r-ior at ?,, placo where :there was . · no ~ust.o~s post. Ho.' o.ppL)o.iat'o·d th~t ho had. wag0d wn.r · • again·$'( :-t-hc. lnw of "th:Ls _.c~~try-: in doing so-. .,Continuing· with his sto~y . . ~ctho riccus~d- sf'.Id -~- ' that on ..SoptoI:1ber- 10,1974 1 ho. · WUS at .. Nandanga village. ' .' . ·' . -~ .. . ,it, -~.00 p.m. he left :nor a vil'lago called- Igat1b,a where ha w·ts. _son_t by,.J1is .:f'atho'r ··to· go and· .-clniro_'a. ·: -~e.fund 6:l' dowry ... ..,....... ~· / ir~m . . \ ~h~. . Hitsqn ' ·... J•'Jwashq,~bwa. Before. .. , his departure he info-rmod his o.ld.er b;rother:,. t1;.o socond ,_acc'used, that he wno le·a,r.ing for. lgarnbn •.. 'Iie did not return .to Nan.Janga ori . 'that clay.· . .-Ho. spent • . . . ... the n1ght' > ,in,. ·tho house' bf ' one· ·:sackson Hoteli. Both··tho host and tho hostess spont ~ ' \ th'i:)' 'night in the house •.. Tn'ddcd 1. -the 8.ccun"od "claimed that. · he ancl 41~kson Hoteli, who. is al'l~gq~ly J1is c~·~sin ~· shared a bed., On the morning of Sept~mber ..11·he rGuchou.·Igamba. Unfortunatoiy Hitson l-1washambwa· was· not at hotj·e; had:, · he· . reporttid1y· 1 g~tie to· Malawi.. Tho accused d.ocido'd< to :return , ' to Nandanga_. . On tho way-at Shimbuyq.-along tho Hbciya Tunduroa ., . • f .. ·. l: ; •' ·" . -.··, , 16 - highway he p·assed by a police vehicle which was being driven tm\Tarq.s the· opposite direction. He was them cycling his Zambian-registered bicycle. He did not see any sign showing that the police wanted him to stop. Suddenly, he saw the veh'icle turning . to face the direction towards which . ' ( . he was cycltng, Tl10n he heard a voice saying: "Robert, stop with your _ bicycle" i /i.S he was afraid of being arrested for having im~rtes]. his bicycle into the country without paying the due customs duti0s 9 he throw the bicycle down and took to his heeis into a bush. Form the bush he started off for Zambia. Had this incident not taken place he would have left for Zanbia on September 12, 1974 •. He went straight back to Chingola whore he stayed until February 1977e At Chingola he was a self-employed tailoro H~ wrote a letter to his father informing him of what hnd happened to him 9 but got no reply. Belioving that any charge that could have boon laid at his door in connection with the i~portation of the bicycle was then timo-barred 9 on February 27 9 1977 9 he crossed the border and reached the Tanzanian portion of Tundutlk'l. On the sarne day, how;.. ever 9 he was arrested by the police and charged with the murder of the deceased. That was tho first time he cane to hear about the death of the deceased~ The accused denied to have had any lmowledge concerning the relationship between the deceased and Dorothy. The accused adduced evidence from Lackson Hoteli. The witness I denied to know the accusedo He asserted, quite emphatically; that before stepping into the witness-box he had not seen the accused. The accused was a total stranger to him. According to the witnoss 9 the accused has never spent a night in his (tho witness') houso. That is 9 basically 9 the evidence which has boen laid before this court, in so far as the principal issue I have to decide, namely, whether tho accused persons 9 or any of them, have been proved, beyond a sane doubt 9 to have participated in the murder of Jmc.son Lwawi 9 is concerned. Before I proceed fur~her, I should like to pronounce my general impressions of some of the witnesses. I start with Dorothy Iviutawa. I found this witness to be basically an honest witness and a fairly intelligent woman. Dainesi NachiI:lga impressed me as a witness who was torn between loyalty to truth and loyalty to the interests of her brothers 17 in tho dock. She appeared to me to be prepared to· subordinate the former loyalty to the latter whenever she thought it suited the interests of her brothers. Harrison Lwawi, on the other hand, conspicuosly displayed his respect for ttuth. He gave his evidence in a.detachGd, simple but convincing manner. As for Eliza Kam1,rnla 9 I was not particularly impressed with her port. She told her story in a manner which left me with the impression that she was very anxious to leave the witness.;..box. Saliboko Singambi gave i. ;s story with a conspicuous sense of impartiality. He was convincingly calm throughout the time he was in the witness-box. The first accusod appoarod to me to have t8.ilored part of his evidence carefully. He appeared prepared to dress facts with fiction whenever he thought his interests in the case were threatened. As for the second accused, I wns hardly impressed with his demeanour. At times ho was inexplicably hesitant in answering simple and straightforward questions. The third accused lost part of his calmness during cross~examination and cle~rly felt uncomfortable during that period. He told his story with simplicity, but did not hinself display much conviction in its truthfulness. The fourth accused impressed me as a witness who did not think much of his own story. At times he was evasive and h0sitant in his answers. Maria Makasege was very theatrical in her way of giving evidence, part of which was contradictory. She exhibited such a strong desire to rescue her husband from the teeth of the law that she appeared ready to invent answers during cross- examination. Lackson Hoteli was a particularly convincing witness. He gave his evidence with a glaring conviction that he was full aware that his rolo in tho witness-box was to·assist this court in finding out the truth as to the charge preferred against the accused persons. Those are the general impressions the witnesses I have mentioned left with me as they stepped out of the witness - box. There is no scope for debate in this case that the t efftimony of Dorothy Mutaw;a is the main plank on which the accusations laid at the doors of the accused persons are rested. Indeed, in his able final address, if I may respectfully so describe it, Mr. Mtaki, the junior advocate for the Republic, conceded in unequivocal terms that the - 18 - case for the prosecution stands or crumbles with tho (Dorothy's) testimonyo With respect, I approve that concession. I have already stated my general.impression of Dorothy's performance - in the witness-box& It is unnecessary to repeat ito Leaving aside, for the moment, her identification of the four accusGd persons as being some of the rnembers of the gang which violently attacked the deceased, I accept her evidence without any hesitation. Like her brothers, the second and fourth accused persons; Dainesi Nachinga, the wj_fe of tho decoasod, _totally denied to have had any knowledge about the relationship between the deceased and Dorothy. Without tho slightest hesitationj I reject that evidenceo I am satisfied beyond a reasonable doubt that Dainesi was fuJ_l aware, before September 10, 1974, that the deceased was e □ otionally attached to Dorothy and that the deceased wanted to r1arry her (Dorothy). I base that finding mainly on the evidence of Dorothy on the point, as amply corroborated by the eviclence of the deconsed's young brotherr, Harrison Lwawir which I accept in its totality. It wili be recalled that in his testimony Harrison Lwawi said, a~ohg other things, that one day the decensed had disc- losed in his (Harrison' □) and Daincsiis presence that he intended to make Doroth;y his partner-in.marrigeo Dainesi's desperate attempt to nif;1ead this court in this case is also demonstrated by her evidence that no pairs of khanga were being stocked in the doc.eased's shop. That assertion flies in the face of the foreE;t of evidence before r.1e, including the evidence of the seccnd accused who expressly admitted that merchandise in the doceased's shop included pairs of khangao Turning now to the testimony of Dorothy that ar:1ong the members of tho gang that attacked the deceased she recognised the second, third and fourth accused persons and that the first accused. was also a □ember of that gang, I must say at the outse·:; that I approach the evidence with the cases which were cited to me by counsel on both sides well in I:'.linde I have already observed that Dorothy impressed me as basically an honest witness. But that does not necessarily mean that her identification of the accused persons, or any of them, as being some of the attackers of the deceased must be accepted as correct, for, as the Court of Appeal l9 said in Abdai1ah bin \vendo and Shen bin Mwambore v. Rogi... nao (195~) 20 E.A.C.A. 166, at p.168: "• •••., on an identification issue a witness nay be honest yet mistaken, and r2ay make erroneous assunptions particularly if he believes that what he thinks is likely to be tr..:i:,e must be true." The lady and gentlemen assessors wore unanimously of the view that the conditions and circumstances that prevailed in the house uuring the attack on Dorothy and the deceased were so difficult for correct identification that they did not believe Dorothy's evidence on the issue of identification. \vi th respect, I share thA.t view. The attack was as sudden as nny mortal being could imagine. Dorothy claimed to have identified the accused persons while she was lying down on the floor shortly after she had been clubbed thrice. During cross-examination she admitted that she was frightened when the door was felled down and the first invader got inside the house. Indeed, Dorothy said th~t she thought she was "finished". Dorothy claimed that she was enabled to identify the accused persons by the light of a ~ig torch which one of the ga.YJ.gsters had in his hand~ She asuerted thnt the flashlight was so bright that one could hnve seen a noedle on the floor. I have great difficulty in be) :".eving that a torchlight, however bri- ght, can enable a perso:1 lying on a floor to identify faces of persons who are standing or moving about. Of course if the light is directld at the faces of such persons it is possible for the persor. lying on tho floor to identify or recognise the faces. Jlut at no time during her long testi- mony did Dorothy ass0r·c that the torchlight was at times be- ing directed, deliberately or accidentally, on the faces of the invaders. Dorothy also claimed to have identified the fourth accused by his voice also when he allegedly said, in Kinyiha: "Mutayangaje nkani bakutwiwa". She claimed to have been familiar with the fourth accused porsons's voice. She did not tell the court, however, how she became familiar with tho voice of the accused, a person with whom, according to her own evidence, she was not in greeting toPms. Of course she L'ri.ght have heard the accused speaking to other people many times, but that does not ar.iount to more than speculation. 20 This court, like any other court of law, cannot make a finding on thG basis of speculation-. It can only act on proved facts. With regard to tho first accused, Dorothy claimed that the accused had covered the whole of his head ·except the face. In those 15 to 20 horrifying minutes Dorothy, if her evidence is to be believed, was. able to stamp the face of the accused on her mind. But the first accused's face bears no unusual or special features which could possibly have enabled her to be sure in her mind that the accused was one of the gangsters~ When one takes into consideration that before September 10, 1974, she had never seen the first accused one finds it even more difficult to give any weight to her evidence relating to tho identification of that accused. I am fortified in disbelieving Dorothy ,, on the issue ' " of identification by several other factors. In her testimony 9 Dorothy claimed that when she went to her parent's home she told her parents of what had happened at the decoased's house; Neither of her parents has testified before this court, If Dorothy had mentioned the secondt third and fourth accused persons to them as some of the assailants 9 would the prosecution not have adduced evidence from them or one of them? I think they would have done that. The evidence of the parents would hpve been admissible under S.166 of the ~vidence Act, 1967~ By that section, it is enacted that: " In order to corroborate the testimony of a witness, any former statement, written or oral, made by such witness relating to the sru:ne fact made either at or about the same time when the fact took place or before any outhority legally competGnt to investi- gate the fact, may be proved~" Of course the previous statement cannot be used to confirm what is contained therein; its us~ is only to demonotrate consistency and, therefore, trustworthy of the witness whose testimony is 'corroborated. The second factor relates to what happened on the morning of September 11, 1974, at the deceased "s house. According to t_he undisputed evidence before this court, 21 ' a large group of ·people had assembled at tho house. There is no· e·videnco i:ri · this case which reveals that Dorothy mentioned to anybody in that crowd any names of the deceasedis killers. If Dorothy was then sure .in her mind that three of the gangsters she had seen were the second, third and fourth accused persons, why did she not disclose that fact to the crowd or any member of that crowd? It cannot be that she feared that her life or limb would be in danger j£ she disclosed that information.. Jhe had all the p_;_·,.:·bection she needed in the world. ,If she did disclose the informa.tion to somebody in the crowd, why have the prosecution not adduced evidence from that person? This court does not know the answer to that question. Bearing those circur.as..:. tances in mind, I think it is quite reasonable to conclude that Dorothy had not told anyone in the crowd that some of the killers of the deceased were the second, third and fou- rth accused porsonsA The third factor relates to the interview of Dorothy by Senior Inspector Kiondo in the presence of Corporal Edward Mwanjabiki (as he them was)., Corporal Edward told this court that on the strength of the replies Dorothy had given during that interview, he arrested the second and third accused persons on a charge of murdering the deceased. What did Dorothy say during the interview? Did she mention the three accused persons as being among the invaders who had attacked the deceased or did she say she suspected those three accused persons as having been involved in the attack on the deceased·'? Here, again, the prosecution led no evidence which can enable this court to answer that question. Faithfully obeying the comnand of the law, I must resolve the doubt that arises on that point in favour of the accused person~, According to the evidence of Inspector Edward Mwanjabiki, which I accept, blood had splashed on a fairly large area of the deceasod's house. That being the evidence, it is not unreasonable, I think, to say that one would have expected the clothes worn by the killers at the time to have been stained with some blood. The prosecution have produced before this court a black jersey and a bl2.ck jacket which allegedly were worn by the second and third accused persons respectively on the fateful night. These clothes were seized by --22 Inspector Edward M:Wanjabiki less than twelve hours after the deceased had been killod,.yet neither of them has been proved to have had stains of blood at tho time of the soi-. zure. Of course if the two accused persons had participated in the murder of the deceased they could have washed or clear1Gd the clothes. Thero was plenty of time for that to be done.• But there is not even an iota of evidence before this court which gives this court reason to believe that the clothes had been washed or cleaned not a long time before the sara.e were seized by Inspector Edward Mwa- njabiki.· For all the reasons I have endeavoured to give,. I am compelled to agree 11i th the lady and gentlemen assessora that Dorothy's evidence on the issue of identification is unsatisfactory, and therafore, not capable of belief. The lady and_ gentlemen assessors were of the unani- mous view that the guilt of the first and third accused persons had not been proved. With respect, I entirely agr·ee. Once the evidence of Dorothy on the issue of identification is not accepted, I cannot see how the two accused persons could be held, with cortninty required in a criminal case, to have participated in the rnurdor of the deceased. The evidence of Eliza Karnwela was clearly suspicious. In his test.-.· r2ony the first accused claimed that immediately after t. 3 had been arrest Gd Eliza Kamwela I s room was searched by the policG. This evidunce was not chal- lenged by the prosecutic1 •. If the pair of khanga she was allegedly given by the first accused on the previous morning was in the room~ how could the searching party have missed it? Over and abr.ve that, Eliza Kamwela asserted that she surrendGred the whole pair of khanga to the police. This evidence was, how0ver 9 contradicted by the testimony of Inspector Edward Mwanjabiki 9 who testified that Eliza surrendered only one piece of the pair. This boing the position, I find it unsP-fe to act on Eliza Karuwela 1 s testimony- With regard to the second and fourth accused parsons, there was also unanimity in the views of the ln.dy and gentlemen assessors. The assessors found the two accused persons guilty of the murder of the deceased~ -Giving his 23 - reasons for so finding, the. first gentleman assessor said·: ."The second accused is guilty of the murder of the docoased. I say so because he did not respond to the information he received that the deceased had died.· The fourth accused is guilty of the murdor of the docoased, because he had tried to deceive this c.ourt that on tho material day he went to claim head of cattle.· He is therefore guilty of murder". The second gentleman .assessor said: "I agree entirely that i-. ..;: on the material night I·Jthe second accused). ·was at the house of the deceased.· I hold that view because the accused did not do anything when he was told ·of tho death of his bzn~ther..:.in-law. I think the second accused wafi rnoti vated, in killing the deceased, by the hatred of the idea of Dorothy becoming a co-wife of his sister~ His evidence was false. His witnesses did not support his story that Dorothy was avenging on behalf of her father who had a grudge against him. In my opinion the second accused participated in the killing of the deceased. The fourth accused consptred with his elder brother, the socond accused, and other unknown people to kill the deceasede He (the fourth accused) participated in killing the uocoased: Tho accused._.cr:laimed that he slept in the house of Lackson Hoteli on the materinl night but tho latter has 'dsniedthis. The accused ran away to Zambia because he had participated in killing the deceased and not because of his explanation about the bicycle." The lady assessor's vievts were as follows: "In my opinion the second accused is guilty of the murder of the decea[.;ed; I base that opinion on the fact that the accused did not get disturbed when he was informed of tho death of the deceased~ He was not seen at the house of the deceased - after he had been informed of the death. His explanation that he could not go there as it was night time was very abnormal~ In my opinion the second accused, together with other persons unknown 1 killed the deceasedg In my opinion the fourth accused is .guilty of the murder of the deceased. I hold that view because when the police tried to stop him he refused to stop. The policG chased him but he ran for a distance of ten miles .and the police failed to catch him: If his fear was due to the bicycle he h·.; ~:, he would have confessed to thG police offi- cer~ I do not think they would hQve taken the matter as a serious one·~ The owner of the house in which the accused 24 ... claimed to have spent the night denied to lm.ow him. The accused lied when he told the court that he had spent the night at Ihanda. The accused was on his way to escape when the police officers saw him on the road~" With great respect to the lady and gentlemen assessors., I am unable to share their reasoning and the conclusion that rGasoning leads them to. There can be'no rational controversy that the reaction of the second appellant to the news that his brother-in-law had been killed gives rise to a grave suspicion that the accused participated in the shedding of his brother-in-law's blood. The possibility that he reacted in the manner described by Saliboko Singambi because of a hatred of the deceased for his intention to force his (accused's) sister to share his(deceased's) love with Dorothy is rather remote. Equally, the fourth accused's false defence that he spent the night of 10th/11th September, 1974, in the house of Lackson Hoteli, and his conduct when the police tried, unsuccessfully, to stop him at Shimbuya give rise. to grave suspicion that the (fourth) accused played part in the rnurder of the dGceased. But suspicion, however grave it may be, is not a substitutG for proof of guilt. It is a settled law that no man aay be found of guilty of a crime on the basis of clouds of suspicion. If, after considering the evidence before it, a court of justice finds that the evidenca falls short of proving the accused's guilt, then it □ust hold that the burden placed on the shoulders of the prosecution has not been discharged, and acquit tho accused. It must come to that conclusion notwithstanding that the evidence before it gives rise to an ernomous cloud of suspicion that th.e accused perpetrated the offence with which he is charged. The proposition that however grave a suspicion may bef it cannot constitute proof guilt, was emphasised in 1\Terido's case when the e:ourt of Appeal said, at P• 170: "Suspicion, however strong, cannot supply a basis for inferring guilt when proof of guilt cannot be safely inferred beyond reasonable doubt." The conduct of·the two accused persons I have referred to does, undoubtedly, authorise one to say: "It is likely that the two accused persons were parties to the murder 25 .... of the dece',sed, "but, in my opinion, it does not w.-~rr ;,nt the st,:;.tement: 11 The two :~ccused persons were p:;rties to the murder of the dece:~sed.· "The second ::::.ccused person I s story wns certainly very tenuous but th2.t is not ;~ground for holding that the accused person p,1rticipnted in the murder of the deceased.. The fourth ,1,ccused I s defence of ::1libi wn.s, plainly, n mountain of lies. A more unso..tisfnctory nlibi was never set up in a court of law. Inn court of law, however, a finding of .guilty cnnnot be based on t~e falsity or weakness of the accused person's defence. Even the most consummate liar may be entitled at the end of his trinl to say:" Whether or not you reject my defence, I am entitled to an acquittal, because the evidence thnt has been le.id in the scale against me does not establish the accusation laid at my door beyond a sane doubtc" With unfeigned respect to the lady and gentlemen assessors, I cannot see, once the evidence of Dorothy on the vital issue of identification of the murderers is found to be not of a charr1cter commancing acceptance, how. . . it can correctly be said that the guilt of the two accused persons (or either of them) has been proved beyond conjectur~. It is true to say that heavy clouds of suspicion hang over the two accused persons 9 but that is n short distance along the road the presecution had to travel in this case. There cah be nondoubt that those who robbed Jamson Lwawi of his natural life are ns cruel as the grave. I caru1ot, however, allow any sympathy I may feel towards the deceased to sway me. It is quite possible that if this case had been competently boulted the results of the trial might have been somewhat different. For the reason·s I have endevoured to give, I find all the four accused persons not guilty of the murder of Jamson Lwawi., I acquit them and order that each one of them be released from custody forthwith unless he is otherwise lawfully incarcerated. -------··-· - Sgd. B. A. SAl'iATTA JUDGE 26 Delivered in Court this llth d:.iy of Dccenbcr, 1978, in the prosence of Nre Mtaki, counnel for the Republic -,- ,/r~::;'. _ ;:::1r and JY.a-. Tukunj oba, counsel for tho accused persons. ·B•A•. S.ANATTA . "\ ____ ···, JUDGE ORDER:- The following exhibits, naru.ely P.3 ·- P.13 inclusive, and P.17 ~ P.31 inclusive are to be returned to the hairs of the decensed. Exhibit P.15 and Exhibit 16 are to be returned to the second and third accused persons rospectively. Exhibits P.l, P.2 and 14 are to be treated as found property. In the event the D.P..P. prefers aR appeal against the acquittals of the accused persons, these orders should not be given effect to. , ../;··. ·-,_-;~,_-----.,-, :_··_-~---_,_-:_1_·t_·_-.-~\__-·--- _ * . ~· 4 ·-.:_·~1~:.l} \ ~- '- '- - '° - - { '··· . . ----l___ Sgd. B-.A. S.ANATTA JUDGE ..