19880627 TZHC Dar es Salaam2

4 4,, IN TUE COURT 0j3 1 APPEAL OP TANZM] IA AT DAR ES SALAM: CORAIY,[ NUSTAFA 9 JA i\iPdCfE 9 J0A And OIAR,_JAO) CRITILAL APP)IIJJ NO 133 OF 1 987 ALIIAJI 3AIDI Versus TUE REPUBLIC PONDINT (Appeal from the conviction of the High Court of Tanzania at Mtwara) (KyandoJo) dated the 1 3th day of Octobcr, 1987 in Criminal Sessions Case 1-1 0013 of 1987 JUDGr:INT OF TUE COURT OLAR JA Appellant Aihaji Sai1i was charged with and donvicted- of murder along with three other persons who were minors The minors were detained at the Presidents pleasure and t1er have chosen not to appeal The appellant is appealing from his conviction The prosecution evidence is that on 9686 P.,N01 ilassani Selemani a resident of Rwelu Village in htwara District returned to his house from weeding in his shamba to find it was broken into and some of his clothes stolen0 On 14686 information was received by him that PDWO2 Selemani Yusa Saluni and Eamisi Kisu later the deceased q were the thieves of his clothes0 Militiamen ofthe village who were - later charged with the murder of Iia;aisi Kisu 2 were detailed to go and look for the two culprits.- They went to the house of Seleriian Musa and arrested and tied him and took him to the house of ilamisi 11 isu0 Ilamisi IC4S.0 was arrested somewhere ou:;side his house and was brought to his house and P OW O 3 deceased wife Somoye alum saw deceased being beaten with a big stick by the appellant and then burnt 0, V —2- in a fire that was irepared specially for the suspected thieves outside Sonioyes house0 Deceased sufere& burns on his body, he was then taken to the .hairman of C O C OM O On the way according to P,W.2, the beatings by four militiaLien increased and another fire was prepared with palm leaves and deceased had his private parts burnt. Deceased collapsed and the militiamen still did not desist fron attacking him. Deceased died before the party could reach the house of C.C.N. Chairian. P 0 W,3 husbandt s omoye was contacted and informed of her death and she went L and sat all night on the road near deceased body. The postmortem examination report shows the cause of death as due to multiple injuries, fracture of base sluill, vault and burns. The appellant in his defence agreed that he with the other three militiamen arrested P,W.2 and the deceased, and that he was beaten on the head with a stick. The deceased was not beaten by himself but by - the other militiamen, lie also agreed that the deceased was burnt by a fire that was outside the deceased house0 Deceased had crossed that fire in an attempt to escapQ arrest and the fire burnt him. On the way to the office of the Chairman of C O C O M, a crowd of people met them and started beatiiig the two suspected t]ñeves. e could not prevent it as he and his colleagues were over powered. There was a fire in the bush which they had found burning and in order to force the deceased to show him where the stolen clothes were hidden they scared him with that fire and the deceased threw himself in it. We have considered the evidence of both, sides and we have no doubt that the deceased was attached by the militiamen including the appellant, in a brual manner, ieroly to force the deceased and his fellow suspect to athnit having stolen the clothes of P.W,1. r -3- shortly. after his arrest the deceased was killed by those who arrested him0 We find the conviction of appellant for this ;;rnrder is justified and we accordingly dismiss the appeal0 DATED at DItR E;3 SALA this 27th day of June, 1983 A. i.itJSTA:A JUSTICE OF APPELL t w M. .1_I 0 JTJTICj, OF.APPEAL A. k A. OtAR JUSTICE OF APPE/L I certify that this is a true copy of the original0 (J6 1I kSOFFE) S]IOR DEPUTY REGISTRAR