19781211 TZHC Dodoma 1

IN THE HIGH COURT OP TANZANIA AT DODONA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 22 OF 1977 HE REPUBLIC VS: LUCAS MA1ULA & 3 OTHERS. CHARGE: Murder c/s 196 of the Penal Code, JUDGMFNT The first accused, LUCAS 8/0 MABULA, the second accused,' LINGESELA 8/0 SALIBOKO, the third accused, DICKSON 8/0 NWANBEMBA,. and the fourth accused, ROBERT .8/0 SICHINGA, stand jointly charged with murdei, contrary to .196 of the Penal Code. It is alleged by the Director of Public Prosecutions, on behalf of the Republic, that on or about the night of lOth/. 11th September, 1974, In Mbeya Region, the fOur acus'ed persons, together with some other persons not before the court, murdered one JAMSON 8/0 LWAWI. Each accused person has protested his innocende' The prosecution and the defence are at one that Jamsoñ 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 lOth/flth September, 1974, and, after subjecting him to merciless physicaL violence, stole a fairly good number of articles from his ShOp.a Like the lady and gentlemen assessors, I am satisfied that those facts have been proved to demonstration. The ac's of the invaders which led to the death of the deceased were not only unlawful but were also plainly intended to cause the death of the deceased. I hold and find asa fact, therefore, that Jamsoniwawi was murdere,&.,In view of that finding, the substantial 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 outliriethe evidence which is relevant to that issue. The key witness for the prosecution was one Dorothy Nutawa. 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 SW .55 —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'äware ofthis relationship and was very bitter' about it. Iar±'ating the events which,'according to her, took place on ,.the fateful nigh, Dorohy said that on the night in question she slept in the bedroom of the deceased together .wi'th her baby and the deceased. The bedroom was separated from the shop by a curtain only. )iuring 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 t5'awaken the deceased. As she was in the process of doing so, there was a bang on the door0 The dor failed to resist the' force pp1ied against it; it fell on the floor. At that stae, Dorothy saw a man ent ring the bed.rooth. He was wiel4ing a club. .'As soon as the man got in, he clubbed the deceased. The man.who was a total stranger to Dorothy, was dressed in a blue shirt and jacket on the uppr 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 the bedroom, the depeased crawled to the shop.. At that stage, .ti'ie'man who had clubbed the deceased turned his energy on Dorothy. He clubbed her, first on the arm and later on the forehead. She fell down. Xhile she w'as ly'ing on the .floor, he clubbed her once more - this time at the rear of her head. That part of the head got punctured while the forehead got swollen. Whil6 violence was being applied on Dorothy, some other men-seven or eight in numbex 4 werestanding at the doo' step. The fallen door was'.then placed on Dorothy's legs and 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 he could not identify, had covered their heads.,in the same way the man,who 5 had clubbed her had covered his head. Dorothy claimed in the witness - box that one member of the gang had a big torch whi'ch gave such a powerful light that one could have been able to see a needle on' the floor. As members ofthe gangwent towards the shop, they pulled"down the curtain. Dorothy asserted that from where she had been lying in the bedroom s she could and did see the members of the gang beating up.thè 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 dxi, she heard a voice from the shop, saying in Kinyiha: "I1utayangá.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 Mith 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 thoin 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 Dorothy, the whole sad episode took between fifteen to twenty, 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'the process of doing so she was able to recognise three of the gangste's. These are: the second, third and fourth accused persons. She came to know the second accused in 1974 before the fateful night. He was the village chairman. She also Claimed to have imown the third accused, a teacher by profession, in 1974,. before the evil day.. The accused was stationed at the Nandanga Primary Schooi. As for the fourth accused, Dorothy claimed to have imown him for -J about a year before Septomer 10,1974 She knew him by th& name of Kaburu. On the night in question f according to the witness, the second accused had put on . black jersey, the third accused wore a black coat while the fourth accused was dressed in arod shirt. Askod by counsel for the accused persons as to whether the third accused was dressed in a pair of long trousers or short trousers, Dorothy answered: " I did not notice whether he had worn a pair of long trousers or a pair of shOrts. Similarly with the other three accused persons. I concentrated looking at their faces." Dorothy admitted, however, that when the door was felled down she got frightened, thinkin,g that she was 'finished'... The gang having gone, Dorothy approached the deceased and suggested to him that they shuld 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 her paren' home'. She claimed that she had not returnd'tO'the deceased's house on the night because her left hip region got swollen as a result of the beating she had been subjected to. On the morning of September 11 she was carilied,,by some people to the deceased's house. Many villagers had already assembled at the house. On getting inside the house, she saw the deceased lying on the floor. He was herond human aid, the dark angel of death having got him in a relentless clutch. Dorothy saw in the house a huge stone and an axe whose handle was broken. Neither artiôle belonged to the deceased. A few hours later, polide officers arrived on the scene. After they had carried out some investigations on the scene, they loaded the doceased'sdead body into their motor vehicle and started off for Mbeya Government HOspitaia Dorothy, among others, accompanied the bodyi On the way she saw the fourth accused cycling in the opposite dired±ion She pointed at him and told the police officers that he was one of the deceased'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 at 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 in which she picked out * S -5- the first, second and third accused persons as the larcenous murderers of the deceased. The fourth accused was then still at large. The next witness for the prosecution was oneEliza Imwola. She is a resident of Vwawa. She testified that some- time in 1974 she went to Tunduma. Her hostess there was one Mary. While she was there, she became the first accused's lover. She moved to his room in which the accused was living with another lover. On the following day, at about 11.00 a.m., the accused was visited by two male friends... They spent a short time in the roam and then left.. At about 5..00 p.m. the accused left the room for unimown destination. By then the accused's other lovci. had moved to a room in another house which the accused had rented for her4 The accused did not bid Eliza farewell when he left her room at 5.00 P.M. He returned at 6.00 on the following morning, having been away for the whole night0 He gave Eliza a new pair of yellowish khanga. When she akod him as to where he got the pair of khanga, the accused replied in Swahili:" Usisemo, kuna vitu vingi tulivyoficha. Eliza admitted in the witness - box that she suspected that the accused had obtained the pair of khanga unlawful1y She reported the circumstances under which she was given the pair of khanga to Mary only. She claimed that, as she wad a stranger at Tunduma, she did not 1iow even the leader of ten cells of the locality. On the following morning, at about 600 am, some police officers came to the room and arrested her and the accused They were taken to the Tund.uma police station where she stayed until about 5.00 p.m. when she was released. While she 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 the pair of khanga and surrendered it to a police officer at the station. The wife of the deceased, Dainesi Nachinga, gave evidce as PW3.' She testified that in his shop the deceased used to stock vitenge, shirts, pairs of leng 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 }mew nothing about the: alleged relationship between the deceased and Dorothy. She I - 6 had not heard even rumours about the alleged 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 Dorothy0 According to Dainesi, on the night her husband was robbed of his natural life she was asleep 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 open rear moving towards the direction of Tunduina. She approached the house in which the deceased was supposed to be sleeping. She saw the door to the house lying on the floor, After having failed to contact her brother-inlaw, she vent to see one Saliboko Singambi who accompanied her and went to the decea- sed's house. On seeing the frightening scone of the door, Saliboko Singambi summoned some of the neighbou±s. When the neighbours arrived, Daines entered the house. There he saw the deceased lying on the floor. Although she did not go close to him, Dainesi was sure that he was beyond 1.11 recaU Dainesi went on to tell the court that the second and fourth accused persons are her brothers. She also said that she imew the third accused who used to drink pombe with the deceased. As far she Imow, there was no ill-feeling between the deceased and the third accused person. She also imew no misunderstandings between her accused brothers, or either of them, and the dcoased. On the contrary, according to her, the deceased used to drink pombo 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 iwo: other pieces of his evidence. First, according tothe witness who, it is notdisputed, was the person who made the police at Tunduma aware of the killing of the deceased, to the I - 7- knowledge of 'Dainesi,, 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 deceased used to stock in his shop and that on the night the deceased lost his life there were some pairs of lthanga.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 Tlipemba riverside, Katete v±llage, a distance of about four miles from Nandanga villagee These articles, which were exhibited before this court, included rollsof clothing material, shirts, blankets, vitenges, pairs of long trousers, yellowish pairs of Ithanga and bedcovers. ./h±le she was in the witness-box,Dorothy identified these articles as being identical with the arti- cles the deceased had in stock in his shop on the night of lOth/llth September 1974. Also reccvered from the river- side were cash sale receipts in the name of the deceased. The pair of ithanga 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 Patson Sichinga, the person who led Corporal Edward Nwanj.biki (as he then was) and his team to the riverside, one of the recovered pairs of khanga had on it blood-like stains. This piece of evidence found support in the evidence of Insp.. Edward Nwanjabiki. 4nother 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 at the Tunduma police station. On September ll of that year a report to the effect that one person had been killed at Nandanga village was received at the station. On that report being received, 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 IB 2552. The car was parked on a road, facing in the direction of Tund.uina. He examined it and found several new articles in it - including bolts of clothing material, a pair of sandals and two piece of Rumi toilet soap. All the articles were treated I. . - 8 - . as exhiibits. A fingerprint expert, one Abel Mwamakula, examined the car, too. According to the witness,, there were fingerprint impressions on the body of the car. After the examinati'on the car was ianded' over to t. cwner, an expati'iate. John Sintam went on to tell the court .that his team recovered a club in the bush nçar the place where the car was parked0 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 tying on the floor in a shop. There were three fresh wounds on the head of the body. The witness also saw a huge stone inside the house0 Leaving Lisp. Mwanjabiki behind, the witness collect-, ed the dead body and started for Nbeya. 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 bearing Zambian registration numbers. The last witness for the pi 1 o8ocution was Lisp, JMward Nwanjabiki. In 1974 he was a corporal. Part of his testimon3 corroborated John Sintam's evidence as to what was seen at 1'Tandanga village. Abel Mwamakula did not testify before this court, and neither John Sintam nor Lisp. Mwanjabiki had any Imowledge as to what came out of the fingerprint examination that was carried out on the car. Lisp. Iwanjabiki further testified that at the scene of the alleged killing he recovered an axe with a broken handle. lhi1e 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 schobl office.. Both accused persons were arrested on a chnrge of murdering the deceased. Unfortunately, the prosecution did not adduce evidence from the witness as to the content of Dorothy's replies. Those replies would have been adiissib1e under 5.167 of the Bidence Act, 1967. At the time of his arrest, the second accused was dressedin a blue jersey. The witness seized it as an exhibit, and from the residence of the third .accused the witness seized the accused's black coat. I -9- Inspector Nwanjabiki also testified that on Septmber 12,1974, he arrested the first accused and Eliza Imwela. According to the inspector, at the Tunduma police station Dorothy pointed at the first accused and claimed that he was one of the killers of the deceased 0 The accused, who was at that time in custody, made no reply. Contrary to the evidence of liza Kamwela, the witness emphatically asserted that Eliza surrendered at the polide station only one piece of pair of khanga. Cross - examined by counsel for the accused persons, Inspector Mwanjabiki made two admi.ssions First, he dd not record in his police statement that at the Tundama police station Dorothy identified the first accused as one of the killers of the deceased. The second admission was that when he visited it on September 11, 1974, the house of the deceased had blood splashed on a fairly large area. That, in summary, is the prosecution case in so far as the substantial issue before me is relevant I turn now to the defence case. Each accused gave evidence on oath. The first accused called no witness 0 The second accused called three witnesses0 The third accused called only one witness, as did the fourth accused. The first accuseds story, basically, was this. On the night in question, that is the night of loth/llth September, 1974, he was at Tunduma. He spent the night with his senior girl—friend, if I may so describe her, one Mama Swile. He did not leave Tunduma on that night. At about 8.00 a mi on the ~l following morning he visited Eliza Kamwela. The accused denied to have given a pair of khanga to Eliza. He described Eliza's testimony on that point as a fabricatioh. The accused went on to testify that he spent the night of llth/12th September with Eliza. At about 6.00 a.m., on September 12, six police officers, including Inspector Nwanjabiki, came to their room. They searched the room as well as that of flnrna Swile, but found nothing of interest to thorn. The police officers then arrested him and Eliza. He did not then know why he was being arrested. According to the accused, 'like himself, Eliza was locked up in a cell at the Tunduma police station. Testifying on what happened at the police station, the accused said I did see 2W1, Dorothy, at the office of the 0.0.5i at the police station. I found her in the office conversing with several police officers. t t - 10 - She was sitting down, was led into the office together with several 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. Inspector Edward addrc- 3sed Dorothy, saying: ? This one' in English. He was pointing his finger at roe when he said so. Dorothy did i -rot make any rep1y" 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 village on the night Jamson Iwawi was killed. The accused described the evidence of Eliza that she had joined him in his room two days before 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 when she was in the witness-box. llhile admitting that he had had no quarrel with Lza, 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 Imow any of his co-accused before his arrest. The second accused's testimony was, in summary., as follows.. The deceased, 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 Imow that the deceased had an amorous relationship with Dorothy. Dorothy father., Keisari Fiutawa, according to the accused, had become a resident of Nandanga village in October 1973. Prior to that time he was a resident of Tundurna. The accused claimed that his relationship with Koisari I'lutawa was sour. According to the accused, it all happened this way. A few months before Jamson Lwawj met his deat} -i, t1u aeurd, who was then a member of the TANU Divisional Eecutivo Committee, received a letter from one Phillip Kachingwe, who was either a divisional, secretary or TJNU chairman for Tundurna Settlement, in which it was alleged that Keisari Nutawa had been evicted from Tundu.ma because of practising witchcraft. After he got the letter, he summoned a general meeting of the villagers. The meeting was duly held. Among those who attended it were the village's chairman, one Sizara Mbukwa, Keisari Nutawa and Dorothy. The alleged Keisari's unscientific practices were discussed and, in the upshot, the meeting resolved that Keisari should flit from the village. The resolution amounted to an expulsion. According to the accused, Keisari was not happy with that decision, and the testimony of Dorothy implicating him (the accused) in the murder of the deceased was an attempt to avenge his role in the proceedings which ended in an order for eviction being made against her father. Not a single question was, however, put to Dorothy when she was in the witness-box touching upon that issue. It is not in dispute that upto now Keisari is still a resident of Nançanga. As for the events of September 10, 1974, and those of the following day the second accused claimed that on the former day the fourth accused, who is his young brother, bid him farewell saying that he was going to Ihanda to claim for the refund of dowry. The accused denied to have visited the deceased's house on the night of loth/llth September, 1974. He claimed to have spent the night sleeping in his house together with his wife, one Elina Nahäonga. On the following morning, just before sunrise, one Saliboko Singambi, another brother-in-law of his, brought him the news of the death of the deceased. He accompanied SalibDko and went to the deceased's house d There he saw the dead body of the deceased lying in the shop area of the house. The accused was then dressed in a jersey which later in the day was seized by Inspector Mwanjabiki. 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. He then returned to the deceased's house. A little later, he left for his home to go and have lunch. After he had taken the lunch, he started off for the deceased's house. He did not reach his destination as a free man. On the way, he was arrested by a poJicerrin. He was escorted back to his residence0 There a search was conducted, but nothing was 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 ithanga, among other artcles. The accused, who claimed to be iiorant of the identity of the author of the killing of the deceased, said that the house of the decoascd was about a mile away from his own house. - 12 - The second accused's witnesses were Sa1ioko Singambi, Norris Sichamba and Njoronjo Sikaponda. Saliboko Singambi, who is married to the cousin of the second 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 assorted that he had never heard of any complaints in the village against Keisar± Mutawa and he irnow no ill-feelings between the second accused and Keisari Mutawa. Testifying on the events of the night Jamson Lwawi met his death, the witness said that Dainosi came to his house and informed him that her husband had been killed. He went to the deceased's house. There he saw a broken door and a stone. As he was afraid, he did not get inside the house He went to the second accused's house. He told the second accused that Jamson Lwawi had been killed. He passed on that information to the accused shortly before the cocks started crowing. The accused,who displayed no emotion when he received the information, told the witness that as it was night time he could not go to the deceased's house. The witness returned to the deceased's house alone. At 7.00 a0m. the witness saw the accused ariving at the deceased's premises. The accused did not got inside the house; instead he went to a nearby road whore there was a motor vehicle which allegedly had been used in conveying clGthos. From the road, the accused returned to his residence. Saliboko Singambi also testified that, before the death of the deceased, he used to see Dorothy at the doceasel's house. As to the meeting alle- godly held at the village o discuss the fate of Keisari Nutawa, the witness denied any imowlodge of it. He went on to caaim that had such a neeting been held he would have become aware of it Norris Sichamba is arothor resident of Nandanga village. He has been living at that village since 1974 after the death of Jamson Iwawi. He claimed in the witness-box that he had never heard that Kei.eari Mutawa was a wizard. He visited the hous.e 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 second accused there. While at the house, she did not hear Dorothy mention the names of the killers of the deceased to the assembled people. Accoring to the witness, Dorothy used to reside at the deceased's premises before the death of the deceased. - 13 - Like Morris Sichamba the third witness for theecond accused, Njoronje Sikaponda, had become a resident of Nàndanga village after the death of the 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 the time Dorothy was crying. I turn now to the third accused's defence. The accused is a teacher by profession. He 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 Imew the deceased from whose shop he used to purchase some of his requirements. He also mows both Dorothy and her father.. The accused claimed that his relations with Dorothy's father were strained. In August 1974, according to the accused, Dorothy's fathei' assaulted one Mary Mwakasege.. Nary Mwakasego is the accused's wife He lodged acomplaint agairst Dorothy's father as a result of which thellatter was charged before the Tunduma Primary Court. The case had not been finalised at the time the accused was arrested in.connoctioji with the present case. The accused admitted that he ows the second accused, who was, according to the accused, a TANU ward representative. The accused suported the secoid accused's story regarding the holding of a village meotThg at which it was allegedly resolved to evict Dorothy's father from the village. The accused claimed to have attended that meeting.. The third accused's testimony as to the events of September 10 and 11 9 1974 was as follows. From 7.30 a.m. to 4.00 p.m. 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 a.m. on the following morning when his wife informed him of the death of the deceased. He had spent the night sleeping in his house.. He wa.s with his wife. On receiving the news about the death of the deceased,.he left for the deceased's home, accompanied by 14 - his wife.. On reaching there he saw an assomblyof about 200 peop1e He did not enter the house as there were many people at the dborstep. From thö house of the deceased he went to the school to assign duties to pupilsi At about 11.00 a.m. his personal liberty came to an end. te was arrested by police officers on a charge of murdering the deceased. The police officers seized his two blLGk jackets from his residence which they searched. He was later taken to the Tunduma police station. The accused claimed that he came to imow the first accused on September 12, 1974, when he met him in a lock-up. The accused also asserted that when his wife brought him some food at the police station she was arrested and charged with the murder of the deceased 0 She I- 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 father 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 lOth/lith Septeraber 1974, in their house. They slept on different beds but in the same rooms 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 left the room on the night in question she would have been awakened by the noise made by the door. She was not awakened the whole night. The witness went on to tell the court that her last child was born in September 1973. At first, the said that between the birth of that child and the day her husband was arested in September 1974 her husband had had semal intercourse with her on ten different occasions, the last occasion being on September 7, 1974. Later, however, the witnss retracted from that evidence and said:"Betwoen September 1973 and the date on which the third accused was arrested in September 1974 I had had no sexnal intercourse with the third accused. I was mistaken when I said that in February 1974, Narch 1974, Juno 1974, July 1974, August 1974 and on 7/9/74 I had had se]mal intercourse with the third accused. It is a long time now I cannot remember." The witness supported her husband's story that sometime in August 1974 Keisari Mutawa had assaulted her. 15 She gave the bac1çgrpindto the alleged asau1t. She claimed that in July and ugust 1974 Koisari Iqutawa had made amorogs advances at her. s he was a married woman, she declined to .urrendoi' herself tQ him. Apparcnt]y nabId to swallow her negative answer with humility, Koisari Itlutawa violently beat her up at a pombe shop. She sustained a wound on her f ore h!oad which has loft aprmanent urk in a form of a scar. She informed her husband about the assault.: The latterut the machincry of justice in motion. The witness also told the court that'on Septe .mbor,1-2, 1974, she was arrested by the plico aid charged .wt1ho murder of thu deceased. She was arrested at the police sta < ion where she had gonp to-give her husband orie food. She was incarcerated inRupnda prison until April 4, 1975 9 -ei her personal liberty was restored to her. The witness admitted daring cross-examination by the leading counsel for the prosecutionthat when thu first alry second accused persons were giving evidence" she was in the courtroom. The forth nccused ilso raised a defence of alibi. His stOry wes a. folIbws. In 1972 be wont to Chingol Zambia H 'stayed thoru until early August 1974 when he - returrred to Nthidaga vilJage He brought witht.him a Zambiah registered Humbor bicycle He evaded paying cusboms duty on dr -lor at pL place whero:.there was no customs post. He appieoited that ho had waged war against the law of this country in doing so. Continuing with his storycthe ccusëd.sfid that on.,Septembet 10,1974, he was at Nandanga villag. t 3.00 p.m. he left for a village called Igaba whore hu ws sent byhis father to go and claim a refund o± dowry Zromono Hitson JJwashambwa. Before his departurbhQ infomod his Qifter brother, the second •.accsd, that he was leaving for . Iamba. 'Tie did not return to Naiidanga orYth± day. He spnt.. the ight .ix the house Of one Lckson Hoteli. Both:the host and the hstes's spent th night in the house.. lndOed, the accuo'od 'claimed that he and 1packson Hatch, who is allegedly his cousin, shared a bed. On the morning of September 11 he reached Igamba. Unfortunately Hit3on ilwashambwa was' not at ho; he had, • report'edl, gdfe to Malawi. The accused deci,to return to Nandanga,. On the way-at Shimbuya-aIong the KbOya Tunduma - 16 - highway he passed by a police vehicle which was being driven towards the opposite direction. He was then cycling his Zambian-rogiste'ed bicycle. He did not see any sign showing that the police wanted him to stop. Suddenly, he saw the vehicle turning to face the direction towards which he was cydling4 Then he heard a voice saying:"Robert, stop with your bicycle"i As he was afraid of being arrested for having imrtod his bicycle into the country without paying the duo customs duties, he threw the bicycle down and took to his hoel into a bush. Form the bush he started off for Zambia. Had this incident not taken place he would have left for Zambia on September 12, 1974.. He went straight back to Chingola where he stayed until February 1977. At Chingola he was a self—employed tailor0 He wrote a letter to his father informing h±m of what had happened to him, but got no reply. Believing that any charge that could have been laid at his door in connection with the importation of the bicycle was then time—barred, on February 27, 1977, he crossed the border and reached the Tanzanian portion of Tundurna. On the same day, how ever, he was arrested by the police and charged with the murder of the deceased. That was the first time he came to hear about the death of the deceased The accused denied to have had any imowledge concerning the relationship between the deceased and Dorothy. The accused adduced evidence from Lackson Hoteli. The witness denied to Imow the accused. 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 witness, the accused has never spent a night in his (the witness') house. That is, basically, the evidence which has been laid before this court, in so far as the principal issue I htve to decide, namely, whether the accused persons, or any of them, have been proved, beyond a sane doubt, to have participated in the murder of Jamson Lwawi, is concerned. Before I proceed further, I should like to pronounce my general impressions of some of the witnesses. I start with Dorothy I'Jutawa. I found this witness to be basically an honest witness and a fairly intelligent woman. Dainesi Nachiiga impressed me as a witness who was torn between loyalty to truth and loyalty to the interests of her brothers 71 - 17 - in the 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 haid, conspicuosly displayed his respect for truth. He gave his evidence in a detached, simple but convincing manner. As for Jliza Kamwela, 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. e story with a conspicuous sense of impartiality. He was convincingly calm throughout the time he was in the witness—box. The first accused appeared to me to have tailored 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 acdused, I was hardly impressed with his demeanour At times he was inexplicably hesitant in answering simple and straightforward questions. The third accused lost part of his calmness during cross—examination and clearly felt uncomfortable during that period, He told his story with simplicity, but did not himself display much conviction in its truthfulness. The fou±'th accused impressed mc as a witness who did not think much of his own story. At times he was evasive and hesitant 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 role in the witness—box was toassist 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 teatimony of Dorothy Mutawa 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 the (Dorothy's) testimony 0 With respect, I approve that concession. I have already stated my general ±mpression of Dorothy's performance - in the witness—box& It is unnecessary to repeat it0 Leaving aside, for the moment, her identification of the four accused persons as being some of the members of the gang which violently attacked the deceased, I accept her evidence without any hes±tation Like her brothers, the second and fourth accused persons, Dainesi Nachinga, the wife of the deceased, totally denIed to have had any Imowledge about the relationship between the deceased and Dorothy. Without the slightest hesitat±on I reject that evidence. I am satisfied beyond a reasonable doubt that Dainesi was full aware, before September 10 9 1974 9 that the deceased was emotionally attached to Dorothy and that the deceased wanted to marry her (Dorothy)i I 'base that finding mainly on the evidence of Dorothy on the point, as amply corroborated by the evidence of the deceased's young brother Harrison LwawL which I accept in its totality, it will be recalled that in his testimony Harrison Lwawi said, iohg other things, that one day the deceased had disc- losed in his (Harrisonto) and Dainosi's presence that he intended to make Dorothy his partnor-inmarrige 0 Dainesi's desperate attempt to niioad this court in this case is also demonstrated by her evidence that no pairs of khanga were being stocked in the deceased's shop. That assertion flies in the face of the foreEt of evidence before me, including the evidence of the soccnd accused who expressly admitted that merchandise in the deceased's shop included pairs of lthanga0 Turning now to the testimony of Dorothy that among the members of the gang that attacked the deceased she recoiised the second, third and fourth accused persons and that the first accused was also a member of that gang, I must say at the outso that I approach the evidence with the cases which were cited to me by counsel on both sides well in mind. I have already observed that Dorothy impressed me as basically an honest witness. But that does not necessarily moan 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 - 19 - said in Abdallah bin iendo and Shen bin 1'Iwambo±'e v. Rogi- nam (1953) 20 E.A.C.A. 166, at p.168: on an identification issue a witness may be honest yet mistaken, and may make erroneous assumptions particularly if he believes that what he thinks is likely to be try'e must be true." The lady and gentlemen assessors were unanimously of the view that the cbnditions and circumstances that prevailed in the house during 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. iith respect, I share that view4 The attack was as sudden as any 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 that she thought she was "finished". Dorothy claimed that she was enabled to identify the accused persons by the light of a big torch which one of the gangsters had in his hand. She asoorted that the flathlight was so bright that one could have seen a needle on the floor. I have great difficulty in boJ.eving that a torchlight, however bri- ght, can enable a perso:i lying on a floor to identify faces of persons who are standing or moving about. Of course if the light is diroctd at the faces of such persons it is possible for the persor. lying on the floor to identify or recognise the faces. ]ut at no time during her long testi- mony did Dorothy asserG 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 persons's voice. She did not tell the court, however, how she became familiar with the voice of the accused, a person with whom, according to her own evidence, she was not in greeting terms. Of course she might have heard the accused speaking to other people many times, but that does not amount to more than speculation. - 20 - This court, like any other court of law, cannot make a finding on the basis of speculation.. It can only act on proved facts. With regard to the 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 the identification of that accused. I am fortified in disbelieving Dorothy on the issue. of identification by several other factors. In her testimony, Dorothy claimed that when she went to her parent's home she told her parents of what had happened at the deceased's house. Neither of her parents has testified before this court. If Dorothy had mentioned the seconds thitd and fourth accused persons to them as some of the assailants, 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 have been admissible under 3.166 of the Evidence Act, 19676 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 same fact made either at or about the same time when the fact took place or before any outhority legally competent 'to investi- gate the fact, may be proved." Of course the previous statement cannot be used to confirm what is contained therein; its use 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 the undisputed evidence before this court, 1i a large group of eople had assembled at the housee There is no evidence in this case which reveals that Dorothy mentioned to anybody in that crowd any names of the deceased's 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 if she disclosed that information.. $he had all the pin' section she needed in the world. If she did disclose the information 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 circurns- tances in mind., 1 •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 persons. The third factor relates to the interview of Dorothy by Senior Inspector Kiondo in the presence of Corporal Edward Mwanjabiki (as he then 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 thiee 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 command of the law, I must resolve the doubt that arises on that point in favour of the accused persons p According to the evidence of Inspector Edward Mwanjabiki, which I accept, blood had splashed on a fairly large area of the deceased'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 black 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 Nwanjabiki less than twelve hours after the deceased had been killod,yotneither•of them has been proved to have had stains of blood at the time of the smi-. zure. Of course if the two accused persons had participated in the murder of the deceased they could have washed or cleaned the clothes. There was plenty of time for that to be done. But there is not even an i.ota 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 same were seized by Inspector Edward Nwa- njabiki. For all the reasons I have endeavoured to give,. I am compelled to agree with the lady and gentlemen assessora that Dorothy's evidence on the issue of identification is unsatisfactory, and therefore, 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 agree. Once the evidence of Dorothy on the issue of identification is not accepted, I cannot se.e how the two accused persons could be hold, with certainty required in a criminal case, to have participated in the murder of the deceased. The evidence of Eliza Kamwela was clearly suspicious. In his test. 3ony the first accused claimed that immediately after 1-. had been arrested Eliza Kamwela's room was searched by the police. This evidence was not chal- lenged by the prosecutica. . If the pair of khanga she was allegedly given by the i'irst accused on the p rovious morning was in the room how could the searching party have missed it? Over and abcve that, Eliza Kamwola asserted that she surrendered the whole pair of khanga to the police. This evidence was, however, contradicted by the testimony of Inspector Edward Mwan.jabiki, who testified that Eliza surrendered only one piece of the pair. This being the position, I find it unsafe to act on ElizaKamwola's testimony. With regard to the second and fourth accused persons, there was also unanimity in the views of the lady and gentlemen assessors. The assessors found the two accused persons guilty of the murder of the decoased Giving his 23 - reasons for so finding, the first gentleman assessor said: "The second accused is guilty of the murder of the deceased. 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 murder of the deceased, because he had tried to deceive this court that on the material day he went to claim head of cattle. He is therefore guilty of murder". The second gentleman assessor said:"I agree entirely that on the material night'(the 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 the death of his brther—in—law. I think the second accused was motivated, 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 torr 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 conspired with his elder brother, the second accused, and other unimown people to kill the deceased, He (the fourth accused) participated in killing the deceased; The accused.laimed that he slept in the house of Lackson Hoteli on the material night but the latter has djédthis. 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 views were as follows: " In my opinion the second accused is guilty of the murder of the deceased I base that opinion on the fact that the accused did not get disturbed when he was informed of the 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 unimown, killed the deceased, 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 police chased him but he ran for a distance of ten milos and the police failed to catch him'. If his fear was due to the bicycle he h , he would have confessed to the police offi- cer I do not think they would have taken the matter as a serious one The owner of the house in which the accused - 24 - cla1ned to have spent the night denied to know 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 reasoning leads them to. There can beno 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(deceasod's) love with Dorothy is rather • remote. Equally, the fourth accused's false defence that he spent the night of lOth/llth 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 murder of the deceased. But suspicion, however grave it may be, is not a substituts for proof of guilt. It is a settled law that no man may be found of guilty of a crime on the basis of clouds of suspicion. If, a:fer considering the evidence before it, a court of justice finds that the evidence falls short of proving the accused's guilt, then it must hold that the burden placed on the shoulders of the prosecution has not been discharged, and acquit the accused. It must come to that conclusion notwithstanding that the evidence before it gives rise to an ernornous cloud of suspicion that the accused perpetrated the offence with.which he is charged. The proposition that however grave a suspicion may be, it cannot constitute proof guilt, was emphasised in Werido's • case when the aourt 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 decesed,t?but, in my opinion, it does not warrnt the st.tement: " The two accused persons were parties to the murder of the deceased. "The second accused person's story was certainly very tonuous but that is not aground for holding that the accused person participated in the murder of the deceased. The fourth accused's defence of alibi was, plainly, a mountain of lies. A more unsatisfactory alibi was never set up in a court of law. In a court of law, however, a finding of guilty cannot be based on the falsity or wea1aess of the accused person's defence. Even the most consummate liar may be entitled at the end of his trial to say:" Whether or not you reject my defence, I am entitled to an acquittal,, because the evidence that has been laid in the scale against me does not establish the accusatioi laid at my door beyond a sane doubt." With unfeiièd r'espect 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 character commancing acceptance., how. it can correctly be said that the guilt of the two accused persons (or either of them) has been proved beyond conjecture. It is true to say that heavy 61ouds of suspicion hang over the two accused person8i but that is a short distance along the road the preseution had to travel in this case. There can be nordoubt that those who robbed Jams on Lwawi of his natural life are as cruel as the grave. I cannot, 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 reasons 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. SMIATTA JUDGE . - 26 - Delivered in Court this 11th diy of December, 1978, in the presence of hr. Mtaki, counsel for the Republic and lvii,. Tukunjoba, counsel for the accused per3ons. - ..... Sgd:. •B..... S MiATTA JUDGE ORDER:— The following exhibits, namely P.3 P.13 inclusive, and P.17 - P.31 inclusive are to be returned to the heirs of the deceased. Exhibit P.15 and Exhibit 16 are to be returned to the second and third accused persons respectively. Exhibits P.1, P.2 and 14 are to be treated as found property. In the event the D.P.P. prefers an appeal against the acquittals of the accused persons, these orders should not be given effect to. . L\ Sgd. B-.A. SAJ"IATTA JUDGE