final Judgment OMEGA TARIMO tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB – REGISTRY OF MOSHI AT MOSHI CRIMINAL SESSIONS CASE NO. 27 OF 2023 THE REPUBLIC VERSUS OMEGA TRAFUMO TARIMO JUDGMENT 22nd October & 11thNovember, 2024 A.P.KILIMI, J.: The accused person namely, Omega Trafumo Tarimo stand before this court charged with the offence of Attempt Murder contrary to section 211(b) of the Penal Code Cap 16 R.E. 2019. “The Penal code” The particulars of this charge as stated by the prosecution were to the effect that, on 5th day of January,2023 at Wari Sinde Village within Hai District in Kilimanjaro region, the accused did unlawfully attempt to cause the death of one GODLISEN DOMINIC TARIMO. The accused person pleaded not guilty to the above charged offence. 1 The accused person denial caused the prosecution to prove him wrong, being led by Mr. Diaz Makule and Frenk Wambura both learned State Attorneys paraded 8 witnesses namely; Judith Kileo (PW1) a Medical Doctor from Machame Hospital who attended the victim; Godlisen Dominic Tarimo (PW2) a victim; Dominic Trafumo Tarimo (PW3) victim’s father; MG. 321452 John Semu (PW4) a people militia; Werasimbo Shileryo Mafue (PW5) a neighbour attended the scene; Emmanuel Samwel Mushi (PW6) hamlet chairman; WP. 9428 D/ CPL Elizabeth (PW7) and E.8232 Sgt. Gaston (PW8) Police officers of Bomang’ombe, Police Station. The prosecution also tendered two exhibits to wit Police form no.3 admitted as (PE1); PF 16 exhibits register admitted as (PE2); Machete labelled as BNG/IR/70/2023 admitted as (PE3) and handing over certificate dated 5/1/2023 between WP CPL. Elizabeth and SGT. Gasto admitted as (PE.4). Before I proceed with the merit of this matter, I find apposite to narrate a brief factual account gathered from above eight prosecution witnesses and four exhibits above; two days before the date of incident the accused person was alleged to graze his cattle into the farm of the victim’s father, later on 5/1/2023, the victim (PW2), went to the accused’s home and 2 found him grazing cattle. When he arrived, he asked him why he hasn’t cultivated the farm of his father, suddenly the accused took a stick and hit him on his head, he fell down and the accused person took a machete from his waist and cut the victim on the left and right side of the head, then when he wanted to cut his head, he punched the machete with his right hand thus cut he his palm instead of his head, then victim lost conscious. When he regained conscious ,the victim found himself at Machame Lutheran Hospital and realised his wrist was already amputated. After the incident, the hamlet chairperson (PW6) was notified and attended the incident, having seen the condition PW2 was in, he ordered for the victim to be rushed to Machame hospital where he was received and attended by medical practitioner (PW1). Being at the said Hospital, he received a call from the accused person informing him of the act he had done to the victim and told him that he was at Kisiki Health center. PW6 then ordered a people militia (PW4) to go there and arrest the accused person, PW4 executed the said ordered and arrested the accused person holding a machete and later was sent to Bomang’ombe Police Station. 3 In his defence, the accused person was represented by the legal aid of Patricia Eric learned advocate, and they had four witnesses namely; Trafumo Omega Tarimo (DW2), Bashiri Bakari (DW3), Rausen Jofrye Nkya (DW4) and Jerome Jerad Mushi (DW5), also these witnesses tendered a letter directed to the hospital from Advocate dated 9/10/202 and its reply letter from the Hospital dated 5/01/2023 which were admitted collectively as DE1. And also tendered photos showing the accused palm being wounded which were collectively admitted as DE2. From a total of five witnesses and two documentary exhibits above, the defence had a different version of the incident thus established the following facts; the accused person was alleged to have fed his cattle into the farm of the victim’s father, the meeting was convened headed by locality chairman and agreed the accused should cultivate the said land as a compensation for the alleged destruction. On 5/1/2023 at noon, while he was around his home grazing his cattle, he was called by the victim and responded that he was around. He then saw the victim entering the backyard and break his refrigerator and the mirror placed on the washing place. Then the victim followed him and insulted him by uttering abusive language. He decided not to do anything but the victim 4 followed him and took his machete which was in scabbard and attacked him. The accused used a stick he possessed to punch the said machete which was aimed at his neck. Since the victim was persistent the accused punched the said machete which cut his left hand then the machete dropped down, they both struggled to hold it, the accused person succeeded to grab it and then being in shock he used it to cut the victim on different parts of the body which by then, he could not understand due to spur of moment fight he faced. He then realised and saw the victim was down bleeding. Having released how dangerous the incident had turned out, he threw down the said machete and moved on the road calling for people to help the victim, he also saw DW3 a school watchman also calling for help, then he headed to Kisiki health center. On the way he met the victim’s father whom he informed about the incident and told him to rush to help the victim. He also phoned the hamlet chairman (PW6) informing him about the incident and also informed him where he was at the moment. He then received treatment on the injuries he sustained at Kisiki Health Center, after that people militia (PW4) who was waiting outside arrested him. The accused person then directed where the said machete was, then PW4 went with 5 another man and took it. Thereafter he was taken to Bomang’ombe police station where he was remanded. After hearing the two sides of this case, the learned counsel who represented the accused person Ms. Patricia Erick, prayed to file written submission. I ordered the prosecution side to do the same. Both counsels filed their submissions as ordered and I applaud all for lucid research they have done and I will refer to them in the due course of this judgment whenever necessary. At the outset, this being a criminal matter I am mindful it is settled law that the burden of proof in criminal cases lies with the prosecution and the burden does not shift, moreover the standard of proof to establish the charged offence is beyond reasonable doubt. Therefore, for a case to be taken to have been proved beyond reasonable doubt, the prosecution evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. (See: Magendo Paul and Another vs Republic [1993] T.L.R 219; Jafari Juma vs Republic, Criminal Appeal No. 252 of 2019 and Ahmad Omari vs Republic, Criminal Appeal No. 154 of 2005 (both unreported), to mention few. 6 According to the evidence above, it is pertinent to point out that, it is not in dispute that it was the accused person who cut the victim until his palm/wrist which remained hanging after the said cut, was removed by PW1 a medical practitioner who testified in this court and tendered exhibit PE1 to that effect. However, the accused person does not dispute that he used a machete to cut the victim (PW2), but he claimed that the said cut happened accidentally in the course of their fight wherein he was also cut by the victim. the prosecution has maintained that the said cut was intentional and in fact aimed to kill the victim that is why the accused person was charged with this offence. In the circumstances, I find convenient to direct myself on the point for determination to be whether the accused person by the above featured act of cutting the victim amount to attempt murder. According to section 211(a) and (b) of the Penal Code Cap.16 R.E.2022 reads as follows: "Any person who- (a) attempts unlawfully to cause the death of another, is guilty of an offence and is liable to imprisonment for life." 7 (b) w ith intent unlaw fully to cause the death of another, does any act or omits to do any act which it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life, is guilty of an offence and is liable to imprisonment for life. However, it a settled stance that section 211 (a) is not a standalone provision in so far as all the ingredients of attempted murder are concerned. The word "attempt" which is mentioned under section 211 (a) is defined under section 380 of the Penal Code. This means, in the scope of the ingredients of the offence of attempted murder, sections 211 (a) and 380 must be read together. These were observations of the court in Samweli Jackson Saabai Mngawi Others vs Republic (Criminal Appeal 138 of 2020) 2022 TZCA 338 (TANZLII) when referred its earlier case of Bonifas Fidelis Abel vs Republic (Criminal Appeal No 301 of 2014) 2015 TZCA 307 (TANZLII). In Bonifas Fidelis Abel vs Republic (supra) at page 13 the court observed that; “It seems to us that four essential ingredients of attempted murder can be discerned from section 211 (a) read together with section 380. 8 Firstly, proof of intention to commit the main offence of murder. Secondly, evidence to prove how the appellant begun to employ the means to execute his intention. Thirdly, evidence that proves overt acts which manifests the appellant's intention. Fourthly, evidence proving an intervening event, which interrupted the appellant from fulfilling his main offence, to such extent if there was no such interruption, the main offence of murder would surely have been committed. From the perspectives of the provisions of sections 211 (a) and 380 (1), the intention to com m it the offence is essential, and w e m ay dare say the m ost im portant ingredient of an offence of attem pted m urder.” [ Emphasis added] (See also, Sophia Idd Salum Another vs Republic (Criminal Appeal No 332 of 2020) 2024 TZCA 600 (TANZLII). However, in this matter at hand, the accused person is charged for the offence of attempt murder under the provision of section 211(b) of the Penal code only, as quoted above, in my interpretation this provision raises the following issues in order for the offence to be proved; first, whether the 9 accused person did form intention to cause the death of PW2; second, whether the accused person did an act or omitted to do any act which was his duty to do so, and third, whether said act or omission was of such a nature as to be likely to endanger the life of PW2. Now having found and settled as the facts above depicted that it was the accused person who cut the victim, the question which follows is as per first ingredient is whether the accused person form an intention to do so? In my view answering of this ingredient must be decided based on unique set of circumstances as to the facts surrounding the dispute in question. As alluded hereinabove, in every criminal trial, it is the duty of the prosecution to prove the charge beyond reasonable doubt and the duty never shifts to the defence. It was therefore the duty of the prosecution to prove every aspect of its case beyond doubt and the appellant's defence was only to raise doubt on that evidence. (See Courts decision in Richard Otieno @ Gullo vs Republic, (Criminal Appeal No. 367 of 2018) [2021] TZCA 120 (TANZLII); George Mwanyingili vs Republic Criminal Appeal No. 335 of 2016 and Mohamed Haji AM vs Republic Criminal Appeal No. 225 of 2018 (both unreported). 10 Under circumstances of this case, there are two versions of evidence. The first version is the evidence of prosecution witness who is the victim himself (PW2) and the second version is the evidence mounted by the accused person. When their fracas started, they were only two and later PW2 was severely wounded. Now since each pull on his own side, the only solution in my view, is to analyse their evidence adduced in relation to their witnesses, on which I can weigh their credibility and ascertain the facts which can prove the ingredients stated above. I have considered the prosecution evidence, first; as rightly submitted by the defence counsel, the prosecution did not establish that the accused person had premeditated to kill PW2, this is because no any single piece of evidence adduced by the prosecution to that effect; second, the accused person did not dispute to cut PW2, but he has admitted that he did cut the victim in the course of a fight, therefore in my opinion he is endeavouring to prove that he had no intention, therefore it was in the course of the said fight he happened to cut PW2. 11 Because the prosecution was silent on the alleged fight, it is now my duty to test whether the said fight has been established by evidence that it existed or not. In prosecution, the victim PW2 testified as follows; “On 5/1/2023, I left my home and went to my uncle’s house. The accused is my uncle baba mdogo). Upon reaching there, I found him on his home grazing his cattle. I asked him why he hasn’t cultivated the farm of my father, because banana plaints were destructed by his cattle. To my amaze after asking him that, he suddenly took a stick and hit me on my head, I fell down and when I wanted to stand up he took out the machete from his waist and cut me on the left and right side of the head, then when he wanted to cut my head on second time,, I punched the machete with my right hand thus it cut my palm instead of my head. I then I lost conscious and I was sent to Machame Hospital. When I regained my conscious at the Hospital, I found out that my palm/ wrist was already amputated. The accused also cut me on the left leg, that is all.” 12 Whereas in the accused defence, the accused person on his viva voce testified before me as follows; “I decided to go back to my house/ home as I cannot fight with my child. He followed me and when I was nearly sat down, I saw the accused taking out his machete from his waist in its scabbard (alah) and started to attack me. I had a stick which I was holding, I used that stick to prevent his machete not to directly harm me but that stick (a Bamboo stick) was about to break, I shouted for help as the machete was directly aiming at my neck. I prevented his machete with my palm and punched it with my left hand. It cut me here, he cut my left hand.I punched his machete/sime with my left hand and I was also hurt in my right hand, after I punched him with my left hand the machete fallen down. Then we both wrestled to take it from where it was, luckily, I was able to grab it. What happened after that I don’t really know as everything went black, I saw darkness, I did not know what I was doing, I was in shock, by then I was also bleeding, I then used the said machete and cut Godlisen the (victim). I did cut him, but I can’t remember where I cut him because my mind was not in the right state as I lost focus on what was happening. Everything happened so fast, thus I didn’t recall which part 13 of his body I cut. After that the victim fell down and what I said was, my God, this child shall not die in here.” Nonetheless, the said fracas when started and before the last cut which is undisputed, the same was witnessed by a watchman from a near school, this is DW3 who is a watchman of the school which is very close to the house of the accused person. In his testimony in this court said as follows; “I then heard Ndeyanka (victim) uttering abusive language to his uncle and telling him that ‘kum am ako nataka nikuone leo’, then I saw him tak ing his m achete from his w aist, I w as standing at m y school, it is about 4 paces. Ndeyanga started to threaten his uncle using a m achete w hile his uncle defended him self w ith a stick he w as holding. then the accused punched the m achete from the victim ’s hand w here the accused w as cut on his palm . When I saw that machete, I left them there and went on the road to raise an alarm, people attended, they found Ndeyanka already laying down, when I returned, I did not see the accused person, when I look on the fence plants, I saw there was a machete, I decided to cover it by 14 using grasses so that it will not be taken by anybody.” [ Emphasis is mine] I had an ample time to assess the demeanour of this witness (DW3), in my view the witness did not shake, he was consistent and coherent throughout his testimony, thus, from the above evidence extracted from this watchman who is an eye witness, I am settled that, first he heard the insults from the victim and second, he saw the victim taking his machete and cut the accused person. Therefore, having considered the above version of evidence, I have the following observation; first, according to the evidence of DW3 who is a witness worth of belief as alluded above, in my view corroborated the evidence above of the accused person. Second, the documentary evidence admitted collectively as exhibit DE1, which shows that the accused person was injured in his Lefthand’s palm and treated at Kisiki Health Center. Therefore, the facts that its admission was not objected, coupled with the fact that questions put in cross examination by the prosecution did not discredit its authenticity. I am settled with no iota of doubt that the above 15 collectively are enough to prove that the accused person engaged in fighting with the PW2 and also the accused himself sustained injury on his hand caused by the said fight. Having ascertained that the accused person was also injured, to my view the same suffice and I see no need to labour on photos of the said injury tendered by DW2 and marked as exhibit DE2. Third, is the conduct of the accused person, he did not run away, but he called for help of the victim when he met victim’s father (PW3) and phoned the hamlet chairman to come and rescue the situation of the victim whom he informed the said hamlet chairman that was in bad condition, thus he should rush to send him to the hospital. From the above endeavoured, I am not in agreement with the prosecution submission that in this case the accused person had a knowledge that his conduct would results into killing because the parts he aimed in that attack were very dangerous to show that he had a pure intention to death though he did not succeed to kill PW2. I also don’t agree with the prosecution on their submission that because the accused does not dispute cutting the victim on different parts of his body and considering the fact that the accused person applied unnecessary force towards the victim of crime this implies 16 that he had intention to kill the victim (PW2) but his intention was not successful. I am saying this because, as I stated hereinabove, this matter has its peculiar facts. The reasons and analysis of evidence advanced above, make me to a satisfaction that what happened to both PW2 and the accused person were due to the fight between them. Therefore, the above coupled with the facts that no any strong evidence from the prosecution that the accused developed any intention to kill or cause grievous harm to PW2, and the above explained conduct of the accused person after he realised that he had severely injured PW2, upon which he struggled to find help to the victim, and reporting the incident to PW3 and hamlet chairman PW6, in my considered view I hesitate to believe that accused person intended to kill the deceased. I think if the accused had the said intention, he could have not acted as he did. For instance, in his testimony the accused person testified that; “I then threw the said machete down and moved, I went on the road. I met with one woman, I told her to go and call our elder sister Mama Kimboyi so as to bring the car to take 17 Godlisen to the hospital because we had a fight and we have cut each other and Godlisen may die. I was aiming to Kisiki health centre as I was also cut and bleeding. I was shouting for help. The school watchman whom my house is nearby (as we are neighbours) was also shouting for help. On my way to the hospital, I met my brother who is the father of victim. I told him that Godlisen has followed me to my house and we have cut each other, thus he should hurry there and sent him to Hospital.” The above echoed statement of the accused person was not disputed and indeed was corroborated by D3 a watchman of the nearby school and PW6 hamlet chairman who appeared in this court and acknowledged that he received a call from the accused person informing the incident, actually the accused even told him where he was, the fact which caused PW6 to send a local militia to arrest him. Another evidence of contest which was stated in the defence counsel submission is who owned the machete. Despite the fact that who owned the said machete or who was found in possession of it does not remove the fact that the accused used the same to cut PW2 as he admitted, but for purpose 18 of credibility I find it relevant to ascertain on it; first the prosecution evidence was that the accused person was arrested at the gate of Kisiki health center, whereas the defence said the same was found after being hidden by a watchman D3 as depicted above. I have considered the evidence in support, PW4 said that at the time of arrest the accused was near the gate of Kisiki Health center in the presence of bodaboda (riders), however no one was brought to testify to that effect, in my view under the circumstance any of them was material witness to support since he was arrested in their presence. however, no reasons were stated by the prosecution for not doing so. In that regard the above casts doubt on the possibility that the accused person was arrested with the said machete. Aziz Abdalla vs Republic, [1991] T.L.R. 71, Wambura Marwa Wambura vs Republic, Criminal Appeal No. 115 of 2019 and Priva Constantine @ Shirima vs Republic, Criminal Appeal No. 437 of 2020 (both unreported) to mention the few. Nevertheless, the learned State Attorneys strenuously submitted in their final submission that, the amount of force used by the accused person as he said that he was defending himself was extremely high and 19 unreasonable force as stated under section 18B (1) of the Penal Code [Cap. 16 R.E 2022]. He insisted that the law is very clear under section 18B (2) of the said Act that "A person shall be criminally liable for any offence, resulting from excessive force used in self-defence. Thus, insisted that since the accused person does not dispute that he cut of the victim the same implies that he had intention to kill him but his intention was not successful. I concede, it is true accused person cut PW2, but in my interpretation of above stated provisions, its import and tenure cannot be used under the facts of this matter to infer that accused had intention to kill PW2 because he was fighting back. Therefore, I agree he may be liable for any offence for using excessive force as per section 18B (2) above, but not having intention to kill PW2 as charged in the premises. In her submission the counsel for the defence, maintained that to establish that there was reasonable force in self-defence, the court has to establish whether the accused use of the machete against PW2 was reasonable in that circumstances. She prompted this court to consider practically more on question of fact than of law and referred the persuasive 20 authority in the case of Sello Lucas Sello and the State, Case No. A19/2023 High Court of South Africa, Free State Division, Bloemfontein. She further advanced that her client was reasonable because as defence have established that; first, that DW1 used PW2’s sword only after his stick worn out against PW2’s attack with his sword. Second, the nature of the response, using the same weapon that PW2 initially wielded, was a reasonable response to the attack under the circumstances. Third, by virtue of section 18C(1)(a) of the Penal Code, the Accused acted in good faith and with an honest belief based on reasonable grounds that his act was necessary for the preservation of his own life. If the accused had not defended himself, PW2 would have killed him. And fourth, the accused is a 67 years old man and the PW2 is a 34 years young strong man. Thus, as he testified when attacked sustained panic which caused him to employ all his strength to defend himself as it was evidenced in (Exh. D1) that his blood pressure and sugar levels were abnormal due to the said incident. I have considered their rival submissions above, though the cited case is persuasive, in my view the facts of the said case differ with this case at hand, in that case the accused was charged with the offence of murder, the 21 evidence revealed that he stabbed the deceased in his neck with the multi- tool. The court was of the view he did not act in the circumstances like the reasonable person in the same circumstances would have. It accepted that in the heat of the moment, he did not intend to kill the deceased but rather that he was negligent. In the circumstances the court proceeded to convict him of culpable homicide instead of murder. For the foregoing the cited case cannot fit in the circumstances. Lastly the prosecution in submission referred section 200(a) of the Penal code [Cap 16 R.E 2022] and stated how Malice aforethought is established and then equated with the accused person had a knowledge that his acts would results into killing because the parts he directed his attack were very dangerous to show that he had a pure intention to death though he did not succeed to kill PW2, and then concluded that by so doing the accused attempted to kill PW2. With respect, in my opinion malice aforethought cannot be used to gauge the intention of the accused person for the offence charged under the facts of this matter, because the facts above prove there was fracas which erupted to the fight, thus the same cannot be established even if unfortunately, death could have happened. (See Israel Misezero @ Miriani v. Republic, Criminal Appeal No. 117 of 22 2006; Zuberi Abdallah vs Republic, Criminal Appeal No. 144 of 1991 and James Kabole vs Republic, Criminal Appeal No.435 "B" of 201, to mention few). On the same deduction, the circumstances stated above in this matter does not direct with certainty that there was intention on part of accused person as envisaged under section 211 (b) of the penal code. Having observed as above, I am of considered view that the defence side has succeeded its duty of raising reasonable doubt which is apparent. In Bathromeo Vicent vs Director of Public Prosecutions Criminal Appeal No. 521 of 2019 [2024] TZCA 186 (TANZLII), at pages 10-11, the Court of Appeal stated that: “It is well settled that in criminal trials, the duty of the accused is to raise doubts on the prosecution case. In the circumstances of this case, we are convinced that the defence case put holes in the prosecution case against the appellant.” Having deliberated and found as above, I am constrained to hold that the prosecution did not prove that the accused person did form intention to cause the death to the victim (PW2). Thus, since the crucial ingredient of this offence is intention and is not proved, consequently the offence of 23 attempted murder charged becomes nugatory against the accused person. Subsequently, I find that the offence of attempted murder was not proved. Thus, I therefore proceed to find the accused person not guilty for the offence of attempted murder. Next, having decided that the prosecution did not prove this offence, as alluded above on the force used by the accused person to cut the victim, now let me look whether the accused may be guilty for other offence which was not charged against him. In our jurisdiction the law providing alternative verdict for the charge of attempt murder is very specific, section 300 of the Criminal Procedure Act Cap. 20 R.E.2022 states: “300. -(1) Where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it. (2) Where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the m inor 24 offence although he w as not charged w ith it. (3) For the purpose of this section, the offences specified in section 222 of the P enal Code shall, w here a person is charged w ith the offence of attem pted m urder under section 211 thereof, be deem ed to be m inor offence.” [ Emphasis supplied] And whereas the said specified offences in section 222 of the Penal code are acts intended to cause grievous harm or prevent arrest, all these offences need the prove of intention in order to enter conviction to a person charged. For easy of reference let me reproduce the said provision creating minor offences as alternative verdict of the offence charged to the accused person. “222. Any person who, w ith intent to m aim , disfigure or disable any person or to do som e grievous harm to any person or to resist or prevent the lawful arrest or detention of any person: - 25 (a) unlawfully wounds or does any grievous harm to any person by any means whatsoever; (b) unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife or other dangerous or offensive weapon; (c) unlawfully causes any explosive substance to explode; (d) sends or delivers any explosive substance or other dangerous or noxious thing to any person; (e) causes any substance or thing referred to in paragraph (d) to be taken or received by any person; (f) puts any corrosive fluid or any destructive or explosive substance in any place; or (g) unlawfully casts or throws any fluid or substance referred to in paragraph (f) at or upon any person, or otherwise applies any such fluid or substance to that person of any person, (h) unlawfully casts or throws any fluid or substance referred to in paragraph (f) at or upon any person, or otherwise applies any such fluid or substance to that person of any person, is guilty of an offence, and liable to imprisonment for life. [ Emphasis supplied] 26 Therefore, as depicted hereinabove, in this case the prosecution has failed to prove that the accused did form intention to cause the death of the victim (PW2), however I have considered the remaining evidence to gauge whether the accused person had intention to maim, disfigure or cause grievous harm to the accused person. In my view under the circumstances of fight between the two as proved above, no such intention was established by the prosecution side. Therefore, for the foregoing, no any of the above specified offences can be alternative verdict to the offence charged, this is because also the same require proof of intention as a crucial ingredient which as I have ascertained hereinabove no prosecution evidence established to prove them. Therefore, this being the trial court or a court of first instant remain in dealing with the offence charged and its alternative verdict offences as shown above. Otherwise, I think the prosecution ought to have charged the accused person with other expected offences if any in alternative fresh from the beginning. Had it been an appeal, the situation could have been different, this is because the matter at appellate level depends on the jurisdiction and the 27 supervisory role envisaged by the law, therefore at appellate level the court may vary the decision, confirm or reverse the decision of lower court as it deems fit. (See the decision of the Court of Appeal in Deogratius Deemay Gurtu vs Republic (Criminal Appeal No 553 of 2016) [2018] TZCA 419 (TANZLII) at page 16. In the upshot, on account of what I have discussed hereinabove, I am settled that the prosecution has failed to prove the charge against the accused person beyond reasonable doubt. Consequently, I hereby find him not guilty for the offence of attempt murder charged and I proceed to acquit him for this offence charged forthwith. It so ordered. DATED at MOSHI this 11th day of November, 2024 X JUDGE Signed by: A. P. KILIMI 28 Court: - Judgment delivered today on 11th day of November, 2024 in the presence of Mr. Frenk Daudi Wambura, State Attorney whereas in defence side, in the presence of Ms. Patricia Erick learned advocate and accused person also present. Sgd; A. P. KILIMI JUDGE 11/11/2024 Court; Right of Appeal explained Sgd; A. P. KILIMI JUDGE 11/11/2024 29