19830122 TZHC Tabora

• L. IN THE HiGH COURT OF TANZANIA .3 ..t' .f • I AT Ti\BORA ORIGINjL JtJRISD.ICrflON. (Tabora Registry)...., cRfl IAL SESSIONS CASE N0 l2 OF 1982 / 1HE REPUBLIC versus 1 ISSA ADALLAH : r 2. NASSORO ANENCi 3 S I I:ELI A3Di LLA 4 RUBEN hNYPSFI • 5 LAZARO NDCGO,.. ERNEST r'jLUJcILA (iCTADI SALW.0 .,. SETH AK!tBGGE 9.. LYSON 1' S K1SPKA , ALLY NOR EDI 11. HM'ISIMOHMJED ChARGEt Murder c/s 196 of the Penal Code. r U D G1E NT CHiPETi, J.. : ' The elèveñ accu:sed: persons. ifl..thi$C.€se,.flame1y, jssa Abdallah, who inw a retired 4olice Su..-Ispector and the first accused in this case, JDriver Ccrporal Nassoro ?anetio, th ecand accused, Detective Co -pora1 Samwel Abdallah (jrd accused) retective Corporal R u b e n Inyash1 dscd) .. Eetect,iye onstab1e. Lazaro Ndogo (5th accused), Police Constable Ernest Nwaluki1a..(6t.h acepsed), Police Constable dotadiSalumu (7th accused) .5 Police Constable Seth wakaba,é (8th accused), Police Constable Lyson iwasakasakáwakiebé1a -1 (9th accused) and Militiamen p.lIy!ohamed ancl •Hamisi Mohamed (10th and 11th accused, respectively.), stand... jointly charge:d with the offence of murder c/s 196 of the Penal Code. . .. The pp'- 1a •:Jd that on or about 24th. July i 1980, at KitangiIi vi11ae, ithin Shiñyanga . -. Region the eleven accised person. did jointly and together iiurder one Mboje sb 1asanj. Each of the accused persons denied the charge. The prosetionYs evidence from a total of fifteen witnesses, is as follows. . . . . . /2 . On or about 21st July, 19(, the Regional Crime Officer, Shinyanga, received inf.orra.t..on that tiere were sore bandits who were rying to buy a firearn. .:11e gaily from the Tanzania People's Dei.ene Iorces at bh:nyanga. The Regional Crime Oificer accorc..in:l.y detailed [ssistant Superintendent John Ndaro (p.w.9) to m1ce the necessary arrangements so that, the said banditS could be arrested. To this end, p.W.9,..assisted bySub-Inspetor Issa Abdallah (the 1st accuscd).ah.d.abut:eeven other police officers laid a trap by .ich.they*djtSwere to be ambushed at the place of ieid.ovous... . At about 9.30 p.m.ñ 23rdJu1y190, P':J.9, assisted by the 1st accused, led the tarn f police officers to an area calledTbiñamath, on he outskirts of Shinyanga township. 61 -ri.vaLa±.t.hace arranged to be the meeting place oetween the banditS and the police aEent who ias supposedly o sell thE 1e4r to the bandi ts, P..9 took up their positions and took cover in the grass. ........ At about midnight, the band.s arrived,z..apparent.ly led b.ythë pol-i.ce a.glent.. •As*.:s ;n'as..tk, f had paSed'haids , thep.oLic.e team pouflced ont,he ncUt.. and mai ëki to 1 arDe set' one..o ..... t:hrn,. .bu.t ... he, oth-r. two. escapékT'° "h&'jrs'on •w 'w:s: arr sted ia.s oiic,boje asanja, .. he ;.d:eeeased iri'1thi case...,, Ithe course t h e amhu' 'oie"polic'e o'fficer lost a maazinc. The decas'ed ias then taken tdS'hiriyanga Pôlice Station and was locked up in the Polic lóck-up. At that time the deceased was in'ood'helt'h. . .qn,.the.mornin ,,g of 2'ttn July, 1980, the dcceased was still in'gopdhealth,. .', . .. . .,. . At about :3'.O''p.th. thatsame : :da'y,,the.eoven ... accused persons, led by the 1st accused, .tQqkth ; deceafz'p h.c lk-u.for t h e purpose of going to search thç,açcusedshouse aKitangi1i village in connection with the circumstances surrounding his arrest the previous night .1 ' ) ' : • ' •. .,. I - 3 . At the time he was being taken out from tI.e police lock-up that afteroo, tie deceased as in appc rent good health. ' . .. The ac'ôu'sed Persons then ie,ft, in a,, landro'rer with the deceased to K1tangil., village on tre outski-'ts of hinyahgá township. Jhat occurred at the described by f ou IC, r uio n i tneu'S ;e1y;. hary hi.ja 'P.o1.1), who sas the wife of the deceased Kija Tungu (pW.2), a s'istcr bI' 'thd deceae'd, K ilic liakwz6ya (t•.w .3) ihws a hoibour of .the .dceas.d, and 5mwel qkuba (p.N .4), another-.nih'hou: 01 t :; qa0d . - according to hary Shij .i) the- ácud persons,. led by the 1st accu'ed,'rrivedtheé.iith' the deceased. at about 4.30 .rn. The decea a'hadnoshirt'tri, but he' was otherwise in good health. Oñarrival thérEi, the accüsed'peonS 'órde'd thdécëased. to-lie do"n on his back'outsidethe house. Some of the.accused persons.: then went into the house and conducted a. search. ;fter the sarch, shèsawthe.7th accused,Got.adi Slum, kick thedeceased and hit himwith a.sticJ. . On thr leaving the place for Ibinzatrat..i this witness added 1 ;he istac csed bunged' Iaryts' head agains.t that 01 . the deceased. This witness named no other accused as having . assa..it Cd the deceased • The ridencb Of :ij' rri?: ±.sthat..or arrival there, the accused pesos ordered tub deceased'to lie down on his bacic, 'nd bhn' 'he d'eceasd hàd done :so 1 sonffi oV;the acUsed• persons started kicking hm.and beating him with....a stick .ccordin.g..tothjsitness, those' who first: assaulted the decase.d were the 1st accused andtho'th. accused0 . . . • p..2 wet on to say .tht while: sonë o f' 'the accused p rching the hbbse, sOme' of those - ' who emaii'idbut-ide continued to. kick the-deceased and beat him- with :stielc,s, and she., identified thosp. p.0p10 as being the ..4th ac.çsed ;Rub(fl, . Inyashi, and the. 7th accusd.,..GQtadi,Sa]umu,, - PO.2 named no other accused . . persons as having assaulted the deceased.- . 4- Phe evidence of Sathwel Nkuba.:(k..1sJ.4) was that on seeing the team 01 police officers oing to the deceased's h6usej he too wetit there to see what was happenig his arrival at the dceasCd' housc he siw the decaso lying on his bdck outsido the house. tie thcn scw three of the accused persons assauitin,g the decased 1r kicking him and beating hit with a stick as h lay on ti o ground. The witness identified those who ere kicking t deceased as the 7tii àccc;sec, Gotndi S1uru and the 10th %ccused, Ally T.ohämed, and the one u ro asaaultd to docased with a stck as '.,)einL,, t - 11th accused, hamisi iohamed, This wi.tness added that t e driver of the laidrover, whom he identified as the second accused, 'Nsso'o.MaflnQ,, did not-go to the deceased's house butrenajned where the landroveras parked. noth.er one who is said.y p.w.4 to have stood some distance f'óm the scene was the 3rd accused Samwel Abdallah. The evidence .of:..;Ku.diliwa 1akwaya (P..3).wasnot re.ly that of an. eyewitness. Hi s in th ture 0 2 cii- ct1r S a! e . • H , e j c cc tS t ut he was at his house,-he saw a team of police fficers going to the house of the deceased it' the thceased. lIter, some time he heard woien cry1nr at te ceased's ous, but he was appaent1v too scared to co here to investigate. :.... -- Pt about 5.JC k m., aoe of the acc sed persons. among whotr were the )st accused, Issa bcaildL, the 2ndacused .Nasoi , t:1 - • Sçth Mwakabae,-returne . , to the police 'station-with the,deceased. This tiite te deceasd was in a verr ha stat.. He was swaying 1ra•o -s-ide to side and could nO; walk on his own; he had to be supported and led into th' police station b the lstaccrsed and another person. - 'He -was, tnen received into the i.iolice stition y P C. Issa and Corporal. Mathias.. . . . . .. ..: - All the uitnesses ''-10 s tie dtceased at that time noticed tht the decased w a s very iii. The deceasd s t'en (;ikyen food to eat, but after eating a little, 'r 'ror-'itted or the - - 4 1 food oozed out of is nostrils So n. taken to nospital by Inspector agabo (P. 10) and P.C. Issa (p.W.11) where he was aditted. On .,dri'ssiouj-i .hospita, the deceased waE attended to and exained by Dr. John Kweba (p.w.12). Accordinr to Dr.- Keba, on dmission to hospita , the deceased was n cortos st.te and so it is di fict.Jt to:..,obtain theIr?dica1 hiory .1 to patient. Le, however, gave his prelil; inar- , c Qw ' .e:-i.•i. :no.i..s He then took a sarpie of the pti.eri.t 's blood br suar and the results con. ir[.0c that the deceased was süf ring' fron. hypOlyèaen.iA for the te'sts riowed 't.hat"he had 35 mil]Igrams'pé'r 100 illiitrës'Ox ....lod as with the noriral' r 'of per- 0O; millilitres.. of blood. . .. .. . ...f.., The deceased died on trc rorning of 5th uly, i0, aid six hours alter the de th or the deccased, 'r. Kweba condMcted a post-mortem exariution on the body ' of the deceased In the course of that ex c.r int ion, the doctor observed rinor bruises on the hock of the deceased, but these were so rincr that tley We e not such as would have requirod treattent. He SctW no other external t.arks of violence.- - On opening 'up: the hody,. the docto,r. obse:ved, that there was a rupt:ure 'in the, .scc-ndin, aor:t..a zinc that .., there had been haer.orrhage into the peritoriuri and the thorax. He acc.rdin ly. found the causes of the death of the . , and haemo- S peritoneum due to ruptured aneurysm cf aorfa, and (2) ' hypog.lycaenla'. ' - .. . ...., ,.. . . .. ... .. .. In his evidence in this court, the doctor described types of aneurysr- ond various causes of such ruptures. He said tt they could be caused by exxaution, or any ctivity or eeicise wl'ich incre-%se the systoric pressure, such as oeatiu i'ich ctuss a skeletal S fracture. Even falling down, he said, could cause such a repture. So too would a corrpression'of features U surrounding the heart. ........ ...' .. .'. . .. .. . :,,. In thi -'. '--' ' -- a - - ed the position of the rupture 1 the ae of the deceased (he ias between 30 and 40 years of abe), and the fact tl']at the deceased •n. T .16. 6 - had so other bodily...injury which could have been associated with the rupture of tie L)r. hweba foroed t he fim' view that the aneurysm in this case was p•ossihly due to infectior. He accord.ir.1y opined that the death of the deceased was c',c, in his oun ors, 'nturaI ceuse". On t e sam., e dy and te f ollowi nLt day e1ace identification pdr - Ic . s eie Co 'duct€ d j s - :i st 0 nt S.uperintendent of Police Juma Zayumba k P -11 .1 3 6 t C 111. most of the accused persons were identified by t.W]- and P.W.2. irlv in -nu r' , 1982, t accssec per s on s i.rere arrested and charged -with, this o;fence. Each of the accused persons 'gav'e'.bis deerce in gin unworn stter ent Exce t 101 irre1evnt jnd Si perflous details, the accused' persbis' gave te sa ory.in a1tost- every material detail. The following is the stry. the accused persons told the-court: The deceased ws arrested during th niht of 3rc Ju1y 1980, -'nO was t n taken to police Station. On 2 1itb July, 1580 at about 3.00 the first accused assembled all his co-accused ?ersons at the police station and oid tk -je . ,mt. ti at they tre going to Ininzurata wh for a micazire which K.as ost te previous, in the cours i.of the ambush that led to the arrest of,tho deceased, .nd that .Z'ron there the caid rocc C' to the oise of t deceased to o and conduct a searcin. The tear th€n too the decead frr, t-he 1oc) -up nd let t for oinzat ta in a 1endrover pt the' icene of tne.amb'si they looked for t he miSsin. magazi:e, put t,ey eu1d not find it. From there they rec€eded to Lithni1i village,. On arrival at the vi 1 Ia:e , two of the accused persons, namely., the second accused, 'Nasoro haneno ,- an t n e 8t1h. accused, Seth, r.'rriined. on the read attending to ttie ..iandtoyer of which they were the drivers. The rest of the..accused persons'proceeded to the deceased's house where they found to wor;en, one of w'iorz was the wife of the decaased . On arrival there, the 1st accised jntroduc iself to the two women that: he - i police officer and that they •0000 tanted fo se'rch the :pjs I or a firearm. Th wife of the deceased allowe'd-,them to do so. ' ..•'. As there ws no i. cdi leader to 'itnS. té e'rch the 1st aècused d'ecide1 : to USC the 11th acsed 'Hamisi IvAohmed, who is d iomcr ol the People's i1itia, as a witness to the' sarch Then the 1st, ½th', r-, t'h and 11th accused'persofls n:te - d the :'' use hnd conducted the search, but 10' 'rjn r , crein. I ins iile, the r( st of the accused persons a nd . the decead' ref ain,e.d; outside the ouse. While at th'e'- - dec.:aSe,d.s hOUSe, te 1st a:use.d., askea the wife of the d(-, ce.%secl about so1 e clothcs wnic'i were hnin on a w ife of tLd dtcL.ed said tt the clothes )ein -d to one CharlE-s Ap3rent1y, , the dec ased had ru.ned to eop1e,nre1y, Churlos and Richard, to have been in' At l.ie t c ol "is arrst, tit 1 , and he voluntered to take t h e party to Kizuvihe ,re., those peoplelived. - So the atc' r €rS. 'he decoised afid his iife left for Ki,umbi vi.a Ibizarata. At Ibinza'ataC .0 .M.. office, they drojpe.d.:he wipe of .e deceasd' the 7th and lCth :acc.sod persons so as to heve enouh in the landrover, to accommodate t'hes'uspects, the'.,, wer .e gcin to look for. ile tnere tp cJce 1scd cor Th e ad a feadcche and aed his .qlic to iv t.irr roney f buy . medicine. His ife,: .tow,ever, said that' s'Yd 'hd rio .money. The docasd then said tht he' was thi'rs'€.' So he -was taken to a water tap wheie he drank some 'wat'r'.• The party. then left for Kiz.umbi. When they were within si . rct of oi. scs 'here tne deceased said his ci1eaues cofuId -he found, t h e deceased sjartedvoniittirg wtr The.la,ndrover then stopped. vJhen.the ' '-- - ka,d the Opceb.Lsed . if he had eaten, the deceased said that he,h.d..not,e a te n since he was arrested. So the first 'used ordered the 3rd, th and Eth ac'cused persons to, proceed 'to 'izun'b1 to look for the su>pec. nd the rest took the, a'coedin the 1androrcr back to the police St tion. '3 Noxt day or so, ech of the accsed persons learnt with grief t t the deceased hd'died in hospitJ. ' In sort wuat tie acc sed persons were stying is that none of t icr assa lt eci the deceased in any wy and that the deceas€d sirply 1e1 ill As I told.. the gentieren Assessors,' t..here is •'io dispute that a cian by the name of boja hasanja 5 is dead. and that he died in hospital while in police custody. It is also not in dispute that fron 'the time,hc- was arrested on the night ot jrd July, 19C, to atout 3.0C p n. on 2tth July, ltr tue dece.,.sed s in good health but t1'itt wi en e as re t ur n€ d to the po ice station by , sore of the accsd persons, some to hours later, he was ill arid a dying'an. It. is equafly not in dispute that thcàcóusd:persons did o to tce decased's house it1 t:é deceased for the purpoe ó ' searching the deceased's house., 1tIhat is seriously in thspute is oihether,,t accused persons r any of tcn assaulted, the deceased', and if so whether that ault as th cuse of or Contributed to, the th of t' t. decscd. After my Sr k-up to the tfre entlern. asessors, tiey gave me sl'arji]v divided opinions an(t 1erning. The first entleiran assessor eel-eyed the eye-wt1es3es to be truthful and so iound as i. t ,ct th t sone of the accused persons did &ssault toe deceased -t the deceased's iiouse. He rejected the doctor's evidence as to the cause of death and found s a fact' that the death of the deceased 'was as i 'result oIl the assault on 'iri by 96file of the accnsedperSons The fjrst;entleman assessor then conôluded, and 1 q:ot him:- "In iry opinion,tioose o were nirea by the witnesses at hiving ass Jtcd the :deceae'd.'are:uiJty of irurder. Th e who were'. nOt are, not iuiity. 1 leave it to t'e coit The secor ,e tleran assessor t oh different vle'u. He accepted the docior's evidence t t the oecesed ws ill. So he found as a tact that the dCcit of the - deceased, was accide:ntai .110 acc.ordily IV'iSed t a t all the accused' persons: be. .acc 1 uittecU . The third €i'tlecran issessor, on t € t er dflQ :)elieved the eviderice of 1, nd..so .'ioni, s a tact that soe;• of: the, aC sed.persons did assault tnc deceased. But he. was of J.3he v,i.w th:t .s te leader of thc group it was' thelt • ac's who was resptnsibie., 1pclitiseeve if the :ot:herS .Ni,ht 1ve ass:.nitd the decesed. they were si'iply Io1lo%1" oro - t irc ' -'It]e tn sessor accordinl.y ,advi; ed.f:,t the lstacc.sedhe,conicted of the offence 01 rcu'1 s c ,aro ad t tb< rest of the accLsed peisons be cquittc0 I think it s,loical. t: , st..rt.;tstbeqestion whether the accused persons or any of 'therr,ass'ltod the deceased a t - h -s Uf' op 'ho mftrnoo of 2'th July, ..... ........ . . To ansier t,'.is quetion, it is necess,ry ;e: critically exa; ,ne the evidence c namely'; P.W.3, fld . P,.T.Lt. Thee cin 'b.'nb' 1ob cont.radictions"iri' thë"eTidence'OfP0'.i, P.'2.':'rid..P,e'T.4. TheSr differed on such at deceased, at wht point i.ntirre. and :i;ti what 'apn. It is' on hi'b aut'crity t t, heroi t'ne'jes testify to iiic) 'ovents ihich't1ey i..nessed' they are liable to dis'reeon trivi.a.1 , details; ..fo.r:,t:e,i,r powers of o'bserva't.joa, expression and tiemory àre:xie.ver the sa'.e ' Sc .euin ti•5crepancies' are e.'si.Ly. possible., If there are ao such discr epancies in trivin.1 details., that, is usually an indicat.on tt,he witnessus have re,-Learsed the stor.y or cqr.Fiitte.d it tr .uerflory $uch discrepancies., therefore, aie qften a shop: of truth rather than: of f'lseheod But where t:'e discrepancies - are on substantj 1 er's ic cn"ot c ,J,JJ 'e ± snored on the gru,nd of dc'. ect of rneNcr' or o''servation, a court will usually be in accet ' n such evidence. In.t"hei instant t1nC3,,ci0nt occurred in broad dy!ih,t. The m.'erit, clearly, were yery 0Vin&. The witnesses .ust, hae been cyr el9., ; and 0 O/lC Ai the accused persons were t' ueirselves quite a crowd All itnesses are sirr1e, uns :opbjst.i,c ated peasants th e three w from WOtL it woui..d be unreasonable in the circumstances to expeCt preci ion of epresion nd observation. Hav.rg s e e n andobsbrvud Ph .1,,, p...2 and pw.4 as' they c;ave evidence, and even allowing for, the fact that p.w.l and p.h.2 rcay have an axe to grind, with the accused persons, I atin no doubt ,atal1 that.they were substantiallyru thf1 witnesses..: If P..Wl and , P.u.2 had their on iuterests to ',erve, the sar'e cannot be said of P.W. 11 whom I" regard t:c' he an.., independent witness. . . .. The evidence of .U.l, p.J.2 and P.W. 4. is inferentially su,.ported S ty t't o P.l.3 ro whose evidence it is re son to lnLLr sone assault of sore kind was coritted on sor"eoneat the deceased's house. ., . . . In conclus.on, I ait s ..tis'fiod an• so :ind as a' fact that sone oi the acc6sod per,sons did asault the deceased at nis: 'u'o.us'e, ut cr, the evidence it is not possible to S c4 th ny ac c. r of c€ rtinty as to which of these accused, persons assa:1tee the dedEised. I will have oëcsi on to return. to s est ion later in this jud:'.rent , -mt at this juncture let we tuxi to te even rore r.:o en t us quus t: c .: did iat asau1t cane, or contr.:,. .,ute to, toe t,.. cf t ceceased? To put it . ... .. . . cause of te aeath 6 -C the deceased?. Taat is .the all - irportant question in this To be Ic to anvtr that question, anu u.s I told the gent1een asse ors, 'it is necessary t i c exar'ine very carefully the e.irehce of the exp?rt 7itness - t, j r. Kweba, as well en te evidence of. those, witnesses who saw the deceased before and after nis death, and other surrounding ircur;s'Lunces . First to the doctor's evidence. As I told the gentlenlen assessors, the opinion of an expert does not bind a court (;f lw. ' P court oi law may reject the opinion of an expert if it. finds good reasons for "."/ll. doing sO. But experts, acing versed in. their respective yields, must be treated aith pr::pir respect and their Op1riOrlS gi von due weight, part .cir1y. he e ,.sch opiaions are ba.ked uphy solid scientific exariniton and findins and by other proven taflgi )le facts It js for this re -,o-i tL Ihave o tn t .ar bi l it - ror me to treat in cx urt Oth ont i pt or to dibrd an expert 'S opinion without so!d reasons HavinE mde toose observations, let re now turn to Dr. Kweba'b ev'dc icc Dr oba i uflcUtJOncDlf a highly cj lified ian Y i se:erai ietter.safl er. - his nrne cAfld has had consder Cit ejyprience jn r'e(llcal practice. He is the person QW : attendeQ and e ari'ied the deceased on ahriss . fyn in ospital Qs , prylilinary umagnosis tmt the doc as d -idS Uft Lr1a 1 ' c ci i, nich he evyntuamly jAlWas the seconoary cac of deathl was confirmed by sugar tests The :su,r tests cevealed that thi sl'gar oo- t tnt in t. oeceused s s low is 35 hillk,ams, per lU( riJliJirs of b'ood as oppose.d to thd acce:ta.1e nc:rcai of, d. _120 miiiigra;s per IOC mimlilitres of aicod. .. : In arrivins at his oj mm n that. Qq e uys w -uicm t'e, ilted into Faerot O jj( n e .u..rito '1eur Wish - c save s t c prir ry chu . se of dEtt) IJ S cue to natrJ causes, The doctoi Wd"tanpiAnvo coisiderLon the polti oo of t e ruptue, tnu agt hf , t a deceased 1 we fact ti t this r-it C onmset, S and the \rtrv irporta'-it foct tAnt h ooserved or isternal injury'Vd'Q,q;ywqY Omna l deccased vtich '10 exterra could bp,issociated with ther i c aorta. In other uords, the doctor's oinion was act a naked sweeping opinion. It cas an o.inion b...cked wiM, medical tests and proven facts'. In cy vie, 'such experts opiamon rrat nct heaightly. brshec a8ide. Let so now trn to the other evidence on this point. The evidene of Supor.ii-ltendent Kipacima P.').7) on this acmnt is also sishilihart. He exai med the dead )0d3r of tb.4eceased in-top OWAY , A)1 ne observed were smil ;brujses oh the hack hnd ieat side of the neck. P.0 • Issa and Cor.cral at'Nas olso just t 'u:ht that . .... -. 12 t1ne dece5ed n ill They did t t t ii pre nor dirP.h.7, that the deceased hd been severely assaulted. 111 these fct.s ,o tü suport Dr. Kweha.'s evidence ttat the deceased had no intr reasonably be associated th te rupture otthe aOxta Te view of that e'riIiance, 1 .1. lad. it dilj.icult to reconcile the evidence of fh i , p.p . and p . k t na -b t:.e dece.sed r v ;C tL tiC1'S i evCreij :icked. In rLy viw , it is wite possible tht he ere- T1tr1CS5ES ea crated t' ar account,s reta.- d i -I, Jj r:er in r1cI the dccc u o as iteci I in t iat 1J as very douetdul that. the assault on the decesed ........................................... es a us o jc ie e. . vicous t 0 e c- In the result, beariag in .:end the opto' s ev:Lcl.ence and the evidence oi, witnesses eno the deceased saor.tly, before and aftr his deut,.., I. Cwnot say with any certaiiit tnatthe deth 01 the deceased. :wtS othe.i tnfn a a.tural one. On the evidenc, taken at its hiheat all tbt One can say is t at s a i, in vwld8 Ci ct that the,i- e was foul play, but a cau'tioU;3n. would incin to ards the doct or 'S O1fl1Ofl that the deceased'8 death w a s due to nflturai causes In short an - icr pureoses of the c arge o Turder aj i - 't the accuscd prsons, I am of the considered view t ,at the .rosecution b s failed to est hL.sh, ith ry ot certajnt,, coat the det ol the cescd di e to a IU,eS oth tlan n.turai causes as oined h Dr. Kweba. Tht being so, it rnust follow, as d a y follows nihht, that the charge of murder is not raintiflabl. r. Shaidi further sub,itted taut even if this court were to rind tha.t the charge of nurder is not rnintainable-, hic.h I aO find, •ths coert sould at least find the accused pe'sons uilty 01 .sssnultinh the deceased. At this point, I saould return: tory earlier finding t::..Et Sorr:e of tne accased, not all, assaultea the deceased. On the evidence on record, it is quits clear that toe second accused, Nnssoro haneno, and the 8th accused, Seth Mwakabage, h.d noth.nt. to do hth the uss alt on the deceased. As for the remaiai.ng accued persons, and as I have already observd, it is very difficult on the ./13. 4 - 13 evidence to say with any resqnab1e certairJ-y wh:Lch of them actually saaulted t.;e duceaed., - I respectfully aree with the 1earne state attorney that ordinarily, all t?oae ace. sed pe:sons who gmtually assaulted the deceased and all those who did not assault aim, but were present at the time of the assault but did nothin to dosuade others fror; assau1tn h:rr or dissociate ti-:ernseLivos rom .tbe cts of assaulti g the deceased would all be deemed to have assaulted ;he deceased- in view of tLe prov1Siou of SC.ti0n 22:01 e.:en, Code. But there is evidence 01 p!.2 that oe' ó tfie accused peraaps, nd we do- not know which one o:' them, did shout to those wh. were assaulting the deceased not to assault hi because he was ill. Since we were not told who was the person whoade that reriari of desuading and disassociation, and since we do not linow whch particular accused actually assaulted the deceaied, it would be very unsafe to convict any of to accused persons of the offence of assault. On the basis of the foregoing, and inareorent with the second gentleman assessOr, but with unfeigned respect to the other two gont1eaen assessors, I hold that the prosecution has failed to prove its cse beyond reasonable doubt against any of the accused persons I therefore, find each of the accused persons not guilty, and I duly acquit each of t-em forthwith. They shall S forthwith he released from custody unless further detained in some other lawful connection. L7 :3. D. CHIPETA JUDGE ..Delivered in open court at Shinyanga this 22nd day of January, 1983- Y T/3OR/ B. D.L'. u. r' i '1' - .L.i1-.. 22nd January, 1 9 8 3- JUDGE - Rights of appeal explained, anc the lentlemen assessors have been thanked aria discharged. - L'7 -° Eo ChIPETj JUD(E Nr. Nussa for Pepublic. Mr. flutabingwa for Defence. $