19851108 TZHC Iringa

• •.. i Tii .iI}i U[JRT oF T.NNL T IRLA URL;iU CA6h iO 32 UP 19€1 :'The Rpublic 1. GUti 1LJ3OK.t 2., ihUi\J) iI.uLLL J LT LJ G k .6 N !TEiGA, J. The two accused persons are standing charged with the offence of murder c/s 196 of the ienal code. it has been alleged that on 24th iuust, 1979, at mithiight, the two acused murdered Juliva 8/0 Iibeye1a. Joth accused persons denied the charge In order to establish the charge, prosec.tion called in five witnesses. 6rief1y their evidence is as wider. - 4k1dadi s/o haang!.11a (/.i) told the court that he was a. employee of the dec c ased~ worhing in the deeasedts oar called Seneti bar e in kakambako. J ie recalled that on 24/8/79 at about 12.30 .a.rn.. he ecorted, the deceased home after the closure of the said Seneti bar. On 'thø way home they were attacked uy four persons including the two accused. He rexuenberd to have clearly seemi the to accused persAns with the aid of moonliit and also he used to ace tie two accused befoë for they always used to drink beer in Seneti bar ahere he was working. According to hIir, the two. aosed attacked the deceased heas their two friends who have ..aboondsd, attaoed hLii. Hi s attackra later released him /nls .varin him not to toll any bo&y about the incident and if he ii3. eo he ou1d be killed. They further told hini that they were going to.1ç1li the deceased. Likidadi then rail away from the scene after being released by his assailants and when he was ten paces away from the scene he heard the deceased crying:- iiwasanyila ixrianIta nImekukosea niniJ . n.eaning "L.wasanyila you are killing me what wrong have I done aiaiist you.' having heard that, he ran strait home to his.\4fe-who gave him food to eat but he failed to eat because of fear. The next ror:iii as he was going for work, he met a certain lady on the iay -ohe,. in'orr,ed 1-iiiii that his employer i he deceased was killed by thugs the previdus night. On receipt of this information, he eut straight to Lakaibako iolice station to prove if really the deceased was dead. here, he was arrested by a certain police officer who p at 1iiia under poice custdy. 0 -2 He was interroated by this police officer and before him he admit -ted to have escorted the deceased hsrao the previous ni;ht but that he left ' him safely on the way , he denied -to hwe had any knowleclrje about the persons who. niurciered the deceased. 10 was ti:cn scat to Njomhe remand prison where he stayed up to October 1979 boin one of the suspects who murdered the dcceaseci When he was in romand prison he found out that all those including the twc accur;cd who murdered the deceased were in prison, thus, he volunteered to Lpeek the truth about the death of the deceased whereby 0 polico officcr went to cjonibo remand prison to We his statement, he further 'told the cbii't that he did not report the matter earlier to anyone because of fear of his life. not1ier witness. who ave evicii.ce-yas Tiiss Joyce thiyalapi (P.W,2) who told the court that she was an a.:'loyee of the deceased employed as a bar—maid in the deceased's Senoti br 0 She recalled that in the moraine of 24th dar of Auiut, 1979 as she was goin to report on duty, she was informed tho;t her employer the deceased was killed the previous ni;ht. She went to the Police Station to view the dead body of the deceased. She denied to have had any know1ed.e of' the people who killed her employer, Inspocbor Shabauii Oman (r;7.3) wlu,t2.C. one who interrogated. IIikidai (P.N.l) on 24/8/79 and subsequont]y, he was the one who took ikiadi's statement at remand pnison ccordin to him, when he first interro -;atcd Mikidadi at the police at at ion on24/8/79, hikidadi admitted before iiui to have escorted the deceased the. revious ni.)xt but he claimed to have left him safely on the wciy before the deceased reached his home, i'akidadi denied before hi to have had any knowledo of the persons who murdered the deceased. Inspector Shabani (P.W.3) further depo sodthat on 30/9/79 he :Ot a call from i-jombe prison to the effect that there was a remand prisoner o wanted to have his statement be taken and on 2/10/79 to went to hjoobe prison where he met Iükidadi and took clon his statement which ut.atomcnt incriminated the two accused with the present chare. Dr. Leo Nyerembe (P.W.4) wa the one who performed post mortem examination on the dead body of the deceased. The dead body was id.enti- tied to him by hr. Ernest hbeyela (P1.5) the deceased's brother as being that of Julius s/o Ibeyela. Accord.in to Dr. Leo, the deceased died because of loss of blood froe the head for the he -ad had multiple bruises presumably c:iused by a blunt object. His report had been tendered as hxhibit, P1. 0 - All the two accused denied to have murdered the deceased. There is no doubt that Julius s/o Lbeyela is dead for. the evidence of A. Leo (i,J,4) and his irother £rnest 1be3rela (P.i.5) says so. There is no doubt thft Julius Loeyela met a violent death for the deoctor's evidence: proves that the deceasd met a violent death. The only question to answer is who killed thd deceased! The only evidence available is that of kdjddadi aho claims to be present when the deceased was attacked. This witness admits that on the fateful night, he escorted the d?,ceased home and on the way, he together with the deceased were attacked by the two'accused together Viith their two othe± friends who emerged irom a nearby unfinished house 4 He also admits thaL as he was released by his atackers, he was told by them that they were going to kill the deceased but they warned him not, to tell anybody about the incident; for if he did so, he.too was going to be killed. Indeed, after being released, leikidadi ne4er told any body. that Julius his employer was being attacke,d by thügs I directed thy assessors that in law when a witness a&nits that he was cognisant of the offence as to which he has testified and took no stopsto communicate his knowledge with a view to preventing the cOmmission of 'h,e projected'óffence, his evidene should be regarded as nobetterthan that of an accomplice. He must ordinarily be taken to be in sympathy with the criminals aid so to be a' witness on whose evidence a coirt should act only after the closest "\ scrutiny, but he is not neccessarily an accomplice. Indeed his evidence needs corroboatiO'i. Li the instant cdse, Liikidadi alter being informed by his attackershthat they were Joing to kill the deceased and after he was released by thern,Lnever took any step to raise an alarm to alert neighbours to coMe and rescue the deOeasud6 Instead, he went home and he never even informed his wife about what he saw when he escorted the deceased. The next morning when he was at the 1:011cc Jtation, on being interrogated by P.4.3 a 1'olice Inspectol he told lies to the effect that he safely left the deceased on the way. iekept quiet about the incident till 2/10/79 when he' was in remand prison then he volunteered to give inlormation leading to the death of the deceased. One can only think that TWikdadi volunteered to give information in order to gain his release frm remand custody. He is therefore not a credible witness worthy of belief and his evidence should be regarded as no better than that of an accomplice and since it lacks corroboration it should be disregarded. - 4 - I accordinly hold the same oI:iniun a-s that hell unanimously by the to gentic-ion aessors that proseantion has failed to prove its case beyond reasonable doubt and proceed to find both the accused not guilty of the offence charged•. andI acquit them forthwith and they are to he released from custody unless they are held there for any other lawful cause. C.G, ITLa'GA, JWJC 8 / 1 1/79. Delivud in open court th1 8th d a '-Y7 of 1bvurber 9 1979 in the ' presence of the to.nt1omon assessors; lr hapinga - Stat Attorney, and hr. iLwakasungala - learned coirnsel f or both accused. N C. JUD 8/11/79. Assessors are thanked and discharged. -. c.c - JJiGE 8/11/85. a