19830421 TZHC Tabora

IN THE HIGH COTTILT OF TANZAIA

AT TAEO - ORIGINAL JURISDICTION (Taocra Peistiy) CRflrINAL SESSIONS CACE O 12 OF 1979 The Republic versus" (i) ISILLO I LE TLS.JA (2) ZOjLJISI OGE- ITurdcr c/ 196 of the Penal Code JUGNT .. .. ')• ..... ... .... ' :. . TTTTwfl , T • . J • , . - The to accused persono Siloi'& /o: anja and Lazaro s/o a1so, tan Ciiit1j cro ita the offence of nurder c/s 196 of the Penal Code. . ., . The prooecution hhc allof c-I that en or about the 9th day of, Septeaber, 1977, in Shinyana Roion, the two accused persons jointly and to(ether Lthderad one Kalwa I/o Mbinda. The accused persons deniec the ohard ..":i.......,• . ...... . ... .. .... .'... .. . •.• .: •. ..... • , The proscution',s evidencie ro: a total of eight witne- sses is a follows tc- Ieccased Kuflva I/o Iinda, was a res- ident of 1hungu1a villade in Uaha aDietrict. Living in the sae hcase ac- the d000abcd werL. ir c ronaaughters, naioly, vary PaJc (p /,l)and Reina Paulo (P w 2). Her son, Paulo Lwala (P.w.3) had his own hodse about 50 paces away fron the doceasedts hose. - Sonetiioe in or about 1967, the deceased' and her relative, .onoGunadi'Lujula, had a dispute ovr iiTheritice Sometino in dumdus:t 1977, he first accused went to P.W.3's hcaio- and requested P1J.3, who was then a cell leader there, t J afluca h 1 lct in the via-. But as the first aocsed had no identity ar.dP.'7.3 ;turnCd .'dbv the fi.t.,:a.ccsed s eaest.,

the.dirst accused left-. Abot a - week later, the firti accused _,,ain went to -P.,d3 hand reheed his recue.st..±onia ieflot"aylng that he had been referred. tc, P. 7,7. 3 by (-ur_acti, a relative of P. again t ixrned du tne first accucds reucst. On .orabe'at 8th S e1e.1977, that is, the eve of the deceasodts death, the soend accused Lazaro Halisi, called at P;T1.3' s home arid., as ked fcr a alaco to sleep. But as the sec- ond accod had, no idemtiy card., 2.W.3 refused to give him a pjace t OL ocec then left. r et i 8ta t 9t SLptcher, 1977, at about L. 00 a , te aeo L.f me a ii in tviliage caught fire and and. an clara v:as raisod ho J3coaood/her grandchildren went out and diii P'3. -P..i73, however, told the women to go back 'to bed end 10 end ct:r non proceeded to Patunat s house. The coeaso Pr 1 n 1' 2 ±Lo lf WenuGa into the huse to slf ut f 2eii asleep, and before P.W. 3 had rctuTI.o, T' I 2 hor feot-stepa of people walkind rox.ri the ii sc Ifter that, the door was hit and it flov,, cpn The ecnsed thc'1 askcd, I J 'Vho are thoso? SL. ilao peolo ntsid.e aiisWereI it is ourselves., C The dece25ed insisted, r \ ' hoa re ycu9 Jest thon, shot ru:1 ut. Apparently in confusion, the. d .ece-ised stood up nake -d ard went to the door just as two band- -1 } its walked into the hc,use. Without fu.rtherado, one of the two bandits cut the 1cuctscJ on the Iice with a panga. The

doceaseo. t en c r i o cut to hor rand.children that she was dying arm thet ou1d ivu her clothes. As she went iOj near the room in wnc: P T 1 was, toe two bandits, one of who: iat torch, pullled her iy and pashQ-d her against a wall. Teen they pullocL her uicsiae There one of the bandits picked u1i a etone and nit the ccco:soe at it on the leg, where upon ehe f1l n. The t nm uiCLit picked up a pestle frcn ncartj one pornded the occcascdshcad with it. Ieanhil., oarimg for 11lr life, 1 Elpped out and went tc hire herself. P J 2 nd ctao cinlron then started to raise . • r T:: r 4: • -)Et :l • a1ai, •n j) Qrj-n );:c? en tt; alaTLi, .-i:. 3 - ! to the house. ç1 )9- ho us c -3tt b t 1C tii i1ePit ' the .ioi:o i i_ ea ted J S C Ui- . 3f1(A k;1 eatter. Stations and —1:E r j- .. , . •. . . . i r f j j -Lo n3 lTb pJc v isi'bd to cci, tat Li.. : u osjL' ç1 (1 At ke cnc the cio oqt-pri± ,people winch lea frcL soç tc 'Ce tij rct 'i ie rton of Guna- cr)ç IL 40 dvi1l hwtla' j 1llate. The c.cl rf Ioct-pri its, h' cvor,' cuiz c-nl t tred o' ashort distance r nht t2cr s if the sets of IL rL .. fopt -pr1 nr j.'ii nta, vo aecby ipai of shoes or boo- £t 0; tW1thliI:3c ruiifl L; aQrosc • .0 0 0;F t 00•1_ • 0.0•0• 0•• 7hon a:cu 1 tc dlic.. if tioro vsanyone he suspected, P 3 said ti - t he suspented 'is rol'tirc Giadi of Ngogwe viii- g& bocaiso the sail Gudi afl the deeascd d a dispute

over 1_ LIJ.eritancc .fl 1967 Aoin cm th t itin, Svb - Insrect3rHwakabage (P.w.4) nd. bv.o other pIicu of±'icers; n, whou ws çrporal Abdui- • H• ,t hussoin (2 1v.5), irccccc/t Ia:wo vi11ac. On arrival at : Nowa vl1o, the polico officrs ont to th ward office anatock to ward secretary, cne Ta"eo (T v.6) to lead them . / tc the hcas&o-f thc supect Gunadi r ) On arriv1 't isct 30 a.n., they foildGuad; 1ith cix othr pop1o, whom was the iSt 4 w csed, u rinki4n pobc 9 Then one f t'h throc. ipc officurs, who had a gun, told those people nct, t ovo. -P V1.i. thcr told then that each one of thou w' uli he searched whorc he w Jtst then, the 1st accused started trcithli andvotin profuscly. P.W.4 then searched two ieopld,bt n'thin was found on then. On sQarcinnL tho first accs.d inhis right trcuserts - 0 poqkot was found a small tin ttl thih'•as half-full of gun- pcwdor. 'icn 2. 4 askc3a. thL let accsec4. v1r't the sun-powder was4 for, the 1st 'ccLscd i2not answt - On f,urthur search, in tne left pcckct Cr th e 1ot ouseds trcusrs was found a : p]_oce of cloth which ha b1oc stains In thc saue pocket was fcun c tiry 'ath stri rcLn tho On Opefl1flg It ws fia t CCtii : o11cts an iiatdhes. P ?4 then sIc:i the 1t ccsoi horo he had coi frori. Tho 1 s t "ccu.sc seld tivi, ho c frc: thv1 va llaCe.L w16, 1 .- ' 11 - hcwvoc, rcfuta. th 1t accuscs c1i. PI.4 next asked ..-. '. .- : . : •.. - S. - •• •

. 0 • • - . . . : - Gun:di 'bcut Thc Lt ccs Guri id that hc did not ..- -.. . ;-• . .: . : . : --• • . - .... ... .. :• knc. -t.tic Jz ir tit t 1st ccaso hd jt±st come thcro 'L rL bo T1n nc L)f n i tt cup c.iic Tatata, said that the 1st ocse ws a lir, tie 1st acqued had cone frn Nzeo o'ac ±t hO('frAttL har OCi'i the 1t accused that r Lrn1n c in ff01 h co 31ta311, which was about 50 paces aw frc Gadis hoe I si uld - c mt oat th thc said Matata, whon prcsoutin itc tc call as thoir tñesdd ±St JCLi0 h ho. dd:. . On hc -trmn -t tota LC sid J 4, i'.W., P w.6,Guna- EU1C 'lst cooJ rccoc tc that hcas i ëhy fcid hc fo .., Bitanali ne Ro Kul P. 8); Acordmngo . .: ................ - . . . ..........- ¼.t' pf4 - 7,5, TiO .tcld thethit:th 1t dcüsd ariahis Lwho hJ ast loft, h c'oo tcr'at 5.00 a.n at rorning an thot silo h: sho tho thot c u to 1eep. ut I' J 8 't1 io c.rL tot i lot ccusc was the guest o T f Gu di9i thit 1t ccusd hd 1c t .tdi'-s ho.. Shc oed//the only person \qho slopt in that house vas Iatata, ws thoir uost anLYthat tho sid peaed. he - . -. . . . . .- ..-.. - (_, ...... A.. wa oiiphatic. tbit no --other.ios± s1et..iui tht ...... p 1J • 4 an thc rcst tno onto-rc' tao house and started sea- chan it La tao a a:mn n the al1 was a blue shirt wiich nad blcoJ stamns. Under bc ,as found fair of rub- br bct hmch also had b1od staio, nd the sole of those - boots w..-rt iLaLir tc the

foot- -- rmnts observed at the ho.se of. tho Jecosei i In thc sauc room, bricd unor hop of cobsof maize . .. .,•..- .: ..:, was found a hcoo—m.c un an2 a thi: ir - h ru used. for fill- in un—podcr in fl oi c :as Under tnat same heap was - found a ba6 in v:hich there wr two rphes, one of which was functioni0 According to r.W.4 and .7.6, when they cane o.ut .pf that house., P.8 handed to P..7.4 apanga which she said had been entrusted to horb.y the ls accused's conpaion. But according t. 73it. is the plico officrs thens- elves who f, an the pnga in the h: use in which they.,found the gu4..ami. otho articles. B.imp1icatic'n P.W.8.deriied having hand oc'L the p5 - na, to I 7..4 P.W.4 then c ed::1m1 the articles and resCd thbo the Jst accused aad Gibadi. .• On arrivul at Kabana rolico Stotion, just as they were djsonbark±n from the mtcr vcbc1e, the grandchilen of , the doccascd innodiate1r ppinted to the let accusdi. and sàid This one was one of then • '. and they also tOld taat the sc.pOn. bandit *ãs at the bus stnd Sc' I "oir with thc to the bus stand where they, :. intod. cut tue 2nd aqcsod to hin The nd accused was then arrosted .• On the sane aj iat ie on 99.77 1 o post-mortem exam- nation as con o.cto' a tho lc'dy of the doccasec1. The doctor who conducted the examination hborvod that the deceased had nultiplecut wounds on the head and a compound fracture of the sku.11 The

doctor t :pincd that the death of the deceased was due to the multiple cut wounds cn the head and compound fracture of the skull.. Subc-quent1y, the 1310cc of cloth fcund on the person of the 1st accused, the boots and a sarpI f tho ased's - blood were sent to the- Government Chcmist 9 Dar es Salaan for examination. On exam±iaation, the piece of cloth was found to • . contiri group human blood. The- deceased's blood was also found to be group O''O Th'o hoots were. f.ounu to contain human blooa, but its go 4 p could notbe identified. unadi, who was chargod. jointly with the two accused per- •. . chs, later passed away. S.. In his sworn statement in his doence, the 1st accused. said — 6 - that he was born and brec. at Tmnk village in Nzega District. On 8.9 77, he 1efi fcr- Khaa to a c and loo±c for honey, and he aent t Cbai1u vU1ac hero h senL the night at Gwna- dies h3vso a rai vh: h Ice a LaJi married from the 1st accscJts Vii3C Ut C)flifl On 9 9.77, he went about 1oo1:n for hcn3 anc in course of doing so he raet P w 8Ho, 1 or fa1oo. tc ot aay honey and so re- turnol t Guii s ianso wiaeie aL. aa so four other people starto crintil?,g c. e 3I1LYuLJ aftr tat, two police off- icers arvod tacro a tolo thou, I Hanas aa one of the poicc cfficers pointed a gun at te lot accscd Thc 1st 'ccusc gent on to say he that beaausc/ha. nec cfor anon a un r a police officer, he startc trc lin

Thon they scarc±iod him, but nothing as fund on hind Tc 1st acc also dencd having gone to Bitanzalito 11 o ita nn, scarce He and Gumaai than arrstod On arrival at the pcico station, the 1st accused wont on. -uhc olico oificois int him cut to P i.1, P.W.2 and P 1 saylnf that tno 1st accusu s their man who had. Içilled th6 doceascu anf that thai ust identify him. On : lO10 78, thosc witnesses agaln saw IUL in court during a prelimina anquir ha n:re gain 11 pointed him out to them The 1st accused concluled by ssying that he did not know, the 2nd accuoJ till they were jointly charged, and denied killang tlac. docoeed In his sworn sttcuent, the 2nd accused' said that he was horn and bred at one village in Tzf a District. On or abcut 8 9 77, ho loft fo r Kabaa 'n fo.t fOr the purpose of lookin for a jo 1 He arrovc at Mhengula village at about 5 00 p.., and os ho vris uird he went to a ten—cell leader, wha hapenod to ha F 3 an askdc or a place to sleep. BL.t P.V 3 toic. him hcre 1ee :I o1acc for him to sloop Sc ho grococce to Ianaa tcn there he slept at the • bus stano. Next any ho traoa to lok or a job but could. not -7- n one As he had only Shs0 17/= he docided to return to his hore Sc nextdaJ 1fo wont to the bus stand to catch bus and there he vias rrestcJ 'r a police Qfficer. At the pclice stat on, a police cfficcr said to those present there, "L okat thisuan Ho has killed

soL1oone. Lik0•thE st accused, the 2nd accused also denied killing the dooc-isec. L aLth2 thafl ho c.id nct ka w the 1st accused t beforo they c:e cnar:eu t tins Juctufe, I S - uld J .C,411 ut that in the course of the t'ial to first sLoscr could xi... L be available and his where&uts \C2O not knoin0 So the triel had to proceed • tc the orLd.'.j.tj1 the aid of thc romainin, lady. assessor. As I tel the lady assessor inay sui.mi -i-up, on the evidence on record, thrc ±9 xie dispute that woman by the name of ]wi hi:da that she died aviolent death; • • and that the ki11in ihth ci:'cunstancos aounted to nurer. What is ioi sericusl in dioputo is as..tswhc.ui.deed the dcc easod •• • .• - The prccohtion here relied c.n hqtd±ct.'d circums- tantial eviCencu.. Tlitn rccarc' tc earcct evidence, there was the evidence of F.W 1 n di , I' 2 whc claimed to have identified both ac'cused porsns th - t flihtG • Itis well stt1ed that evidehq of.-identifiation often caLses 5Oxe decree of uneacinoss, c.nd cc before basing a con- _vition on eviöence f idcmtficati ii, such ev1e-nce must be ' wrbertight It is, t...ac..refrc 3 usuall advpab1e to carefully weiph such evi.once and - S loo1 for corroborative cvidc.nce so as to r.çmove any doubt that to witness(s) may have iac.e a Lastakc, partic4arly where the áumcs fvoujia borrCct idt1fjcatjon were dlffi- ( utrLt in th prLsont csc tLc circiast.xces

fouring a corre- t itificstin by th t\o yen ir1s cr0 undoubtedly dfjdu1t Thoj wcrc dfic because thL incident occurred -. •, •, ......... - • i•- r • • - . at niht in poor kur bi' lihL. the culprits fired a gun andthus f ri_ht'c-nt- 6 the twC much that as P W.l said, ,-". ••.4c , - - . , - '" ... ':4•, ., . . : I: I o tthey 'OrQd tiat 1 )) I tr- WO .- tLIU o_oLiIwq -O -1 u • - '- . ri- j3r- ) ) -c\Tj - r . F);cyitc _ 4 i 1 r •.'3 v oi.r- J- 1LjI 0 OJ .ie2hoz'ç± i( T1 \n: JOJOi3 ' J1)i)JV C[ / r\ 311 2[ is ) J j1TJ )({ Goth I±C c c1jj0 )c two witnesses 11 )fi cj I i —s1 It1fOr aCCas persons. Al't o i T- attr4yhcn tto Wëen the sbti: jJ I VflCCtCs to ' ' '1 r] —3CO ll - O1iO Off9ers went to j J) dirW 1 CfflC th± .Ld'i I' yItJ5 ti: Jaw, 1iino w v9 a dscr1pt1on of tp1t c r fJosJUO) :i- ) Jj j _ - Icè - I was ony aQrthey had seen CIL frJ p1 J r L r j 3 1J; jjJ J (J J rest tt said he was t I 4I 711 3- £cea, I Conducted. I -.;•;'L' . : I•3 .O1Tc'sanCos, t1Qrefore, I respect to the d " 'ady assescr in this vory diffict trial, Iia of the view that CV1CCflC LfP / 1flL fL2 cumct be said to have I WtcrtiCht 0 I - f : T çq tnt bho I- CSoCuipn!s C1rcustantia1 evidence. that fr cr?un antialJvidce to form a r'J Jd ft,r a ccnvc t iust . incapable of ap1anation other asona1e hypthcss tantjae ui1t of the a uedp To ut i II dirforonui, th c1rcunstani I evidence st- irresistibly int tc th3ba1t f tho

aaued. II It is n ot ch at I — c71r cce rais I SUpicipn against i LY 3 1_LJM the1accusa;rnhC v1Onc :1t fr n unkecIin :n the I e 1dence resa OQbC, thc Pr ecic's/stht foot-prints frH1tho scno ont a t10 wee rnreco 1wl1a is the dir- - ectc - ?VyC \ifla - q I hero th 1st csed was arrested the next or_nc( thesc fotrints we not traced to anh- ore ncar Grad 1 s h'usc - - - Then there iS tho V1cOnCC of P.W4 and P WG6 wch I acct to I tra±iuj 2 th - b IthO 1s 4cc1sea was fQfld in POsoion fI er; lflCri1Iting artic1essuch a a handkerch J ief which had stain of h an blood and a in"Corit-aining gun- 1 1 - - .1 -- - -,- -- po wder,swol1 as pellets of a hone-made gun.But there the lncriiflatl\n cnde. F ' 1- and P h 6 tricc to prolong the chaj of incininatiri 1irJs by saying that Iatht: o1d then that the lot accus had spent the niht in the hcse of Bitanzali, where the gun CLtS mae a ± ana wore funC. Unhappily, Matata has nct ien ovluenoo. Clearly, therefore, the evidence of P 77.4 nc F. w. 6 ust now be censdered to be worthless hearsa _,vidlence. P I 4Ts ovidence. that p w.8 nad told hire that the 1st accused and his colleague had cone. at 5.0.0 a.u. and had slept in that. house has been ref by no lesser a witness than P718 herself - the owner of that house. On the condrary P.78 appears to implicate Ikatata. In other wrds there is nc evidence to connect the gun; pangaandbcots . .ith the let

accused The evieneof P.W.8 is that the 1st accused slept in Gumadi's house. P.w.8 was not treated as a hostile witness. It must, therefOre; follow that she was being aut by the prosecution as a witness of truth a There ic yet another reaJrness in the prosecution's circumstmatia. ohe.i.a Iaiin established by documentary ev- idence that the 1st accused was found. in p.ossession of a piece of cloth which had human blood in group "0 11 which was the deceasodts blood orowe, they failed to produce evidence of the 1st accusodts blood droup so asto eliminate thepossibility that the blood en the piece of cloth was that of the 1st acc- used himself And it is common Iaowlodge that group "0" is one of the conmonost of blood groups The Government Chemists report therefore, rensins: inconclusive. Since none of the incriminating facts complete a chain against of the two accused persons, all that one can say with smme degree of confidence is that the circumstantial - 10 evidence raises grave suspicin particularly vis—a—vis the st accused. But uoDe suspici.., per se, and however grave, oimot forn the basis cf a convicticn iAa crininal trial. Pr thoso res us, aa 1 with gre3t respect to the lady assessor, I e' of thc view tht the pr s o c Lit ic n has failed to prove its case beyon rocscnabie dqubt,oainst any of the accus.A 1 ersns. The accuso ersc'as, in rr view, nust be gilT- en the benefit of

do ut I acçordinli find both the accused persons not guilty of nurc' er, and I accordingly ..hereby duly acquit thou forthwith They shall be relascd from custody forthwith unless othe . wfully detained.. B.D.0. I,TA ... TTDtT1 tjUJLT.J1 Deliverd in cpen CLt L Shinyang this 21st day of April, 1983. . I. B.D.CHIETA . ............................, JUDGE - JI Lady assesscr thed and dischar - ed.. B B IPiJTJ. 21/4/i83 . ... .. .... ........... ......