Zilipa Makondoro

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT TARIME CRIMINAL SESSIONS CASE NO. 63 OF 2023 REFERENCE NUMBER 20230927000529643 REPUBLIC VERSUS ZILIPA MAKONDORO JUDGMENT 13th & 21th February, 2025 M. L. KOMBA, J.: On 06/11/2021 George Kaloko (victim) was injured in his head (near fore head) and was attended by Crispin Mosabi (PW2) a Medical Officer. PW2 testified that George was bleeding and after he manage to control bleeding x-ray was taken and victim was stitched on the wound. He went on testifying that victim was affected on skull and lost speech memory. As per exhibit P2 (Police Form No 3) victim had a cut wound which occurred suddenly after being cut by a sharp object on head. Specifically, doctor Page 1 of 19 indicated in Exh P2 that from the nature of the wound the object used is a sharp object, PW3 Atione Kaloko informed this court that she witnesses accused beating victim on his head by hoe which was used by Anthonia in farm. She testified that she heard sounds like people were quarreling and decided to go to farm where voices were from and found Anthonia, George Kaloko, Zilipa, Zainabu and Malamba. George was moving home direction and behind him there was Anthonia who was digging. It was her testimony that she saw accused person taking a hoe from Anthonia, turn it around and use it to beat George in his head. From that action, the victim falls down and Zilipa run away. When victim wake up it was PW3 hold him and they went home. Due to that fracas, people shouted and some villagers responded, among them is PW4 who asked George what happened and he replied that he was beaten by Zilipa. Laurent took George to police then hospital. PW3 confirmed that while at home victim was speaking, he responded to some questions. When cross examined PW3 clarified that it was blunt side of the hoe which was used to beat the victim while insisting accused did not cut the victim, she just beat him. The used hoe was left at the scene and people disperse. Page 2 of 19 About treatment she clarified that victim was discharged on 11/6/2021 but was not given referral letter. Laurent Okoth Samwel appeared as PW4 and informed this court that he responded to an alarm (yowe) from the hill and when reach there he found George bleeding from his head and there were Atieno Kaloko, Anthoni Samweli, Zainabu Samweli and other. He asked Victim what happened and he responded that he was beaten by Zilipa Makondoro. When he was asked where she (Zilipa) was, victim said she went to her home. During cross examination he clarified that he accompanied the victim from the scene to Shirati police post then to Shirati Hospital for treatment. When they reached hospital victim condition changed and was unable to talk. The doctor who attended the victim whom he did not remember his name but he saw in court corridor did not inform them (relative) the size of wound neither refer the victim to another hospital. He insisted that George was speaking when they arrive at the hospital. Further, he clarified that he arrived at the scene after he heard an alarm and did not witnessed people fighting neither heard of abusive language. Page 3 of 19 Yohana Wilson Owigo (PW5) is hamlet chairman in which Bukama village is found. He testified that on material date he received a phone call from accused complaining of the problem at her compound (katika mji wake) on the same date he received a call from village chairman Laurent who informed PW5 that Zilipa has beaten George and was taken to hospital and was unconscious. Following information PW5 decided to call people militia (mgambo) at his home. He informed this court that Zilipa was the first to arrive at house of PW5 and was arrested by Mgambo who surrendered her to police. Witness continues to testify that on 09/11/2021 police found him at home and accompany them to the scene of crime, while at the scene he informed this court that people said hoe used by Zilipa was taken by mama Zainabu. So, police went to Zainabu, they took hoe and they signed 'a book'. He confirmed that he was not at the scene when the crime took place and that he was just informed by the chairman that it was accused who beaten the victim. When cross examined, he confirms that he did not mention mobile numbers used by accused to call him even those used by village chairman. He went on confirming he don't know why accused is not speaking as he is Page 4 of 19 not a doctor. Hoe was found in Zainabu house while confirming that accused also report the matter to him but insisted that it was accused who injured victim and is his duty to decide who did wrong to people in the community. When was asked to confirm it was accused he failed to do as he insisted he was informed by village chairman. While lead by State Attorney he testified his duty is to arrest a person involved in crime. Another prosecution witness was H. 316 D/Cpl Masunga (PW6) who testified that on 06/11/2021 he received victim at Shirati Police who was accompanied by Laurent, went there for PF3. Before attending him, he asked what was wrong and he replied he was injured by Zilipa. He said, he ordered police with force number H 772 PC Pascal to record victim statement and PF3 was issued. Further it was his assertion that on 09/11/2021 while at CRO he received a police, A/ Insp Raphael holding a hoe which was exhibit in file with reference Shirati/IR/1144/2021. Handing over of the hoe was done in Occurrence Book (OB), PF 57 where both Masunga and Raphael signed. The said exhibit according to this witness was handled to Sgt Edward around 17:00 hrs, who was exhibit keeper and the same occurrence book was used. Page 5 of 19 During cross examination he confirmed he record statement while at police and he believe his statement was true. He differentiates OB with chain of custody as two different documents and confirmed that in his statement he recorded about chain of custody alone. PW6 agree his statement to be used as exhibit and was admitted as Exhibit DI. Sketch map of the scene was drawn by PF 21507 Raphael Lyimo (PW7) who was assisted by PW3 on 09/11/2021 which was admitted as exhibit P3. At the scene he explained that they interrogate some people as there was many people while drawing the map and it was accused who gave police a hoe which is said to be used to assault victim, the hoe was taken from the house of Zainabu and certificate of seizure Exhibit P4 was prepared in the presence of Village chairman Yohana Wilson Owigo and was handled to CRO in charge Masunga. When cross examined this witness insisted that it was accused while in police who promised to gave police a hoe used in crime and they took her to the scene. He further testified that in his statement he records that he was informed by Atieno that hoe is at the house Zainabu. However, he insisted that the hoe was not left at the scene. When further cross examined about the hoe and who gave it to police he said accused and Page 6 of 19 Zainabu are the same person even though each had her house. He confirmed in this crime only one person was arrested although he did not know accused was involved. About late visiting of the scene, he said the distance from the scene and Shirati police is approximately to be between 11 and 15 kilometer but they visited the scene on 09/11/2021 without explanation why they visited on that date. The crime was investigated by D/Cpl Sara of Shirati Police (PW8) who informed this court that her investigation was based on grievous body harm which was suspected to be done by accused in this case and the victim was George who was in Hospital. It was 07/11/2021 when she assumes her duties and started by reading a file. On 09/11/2021 she was among those visited the scene of crime where some witnesses were interrogated. They conduct search and were managed to got a hoe which was given by accused from the house of Zainabu. Then she visited victim at the hospital who was in ICU and was unconscious and unable to speak. She informed this court that they (police) delayed in visiting the scene because accused was not corroborating. However, in her investigation she noted that Zilipa attempted to kill victim as she hit on his head. Page 7 of 19 Explaining cause of crime PW8 testified that on the material date, victim was cutting tree and accused faced victim asking why he was cutting trees in her farm. It is when Zilipa took hoe which was used by Anthony Samwel and cut victim. When given a hoe, this witness shows the blunt side of the hoe and informed this court that it was that side used by accused to beat the victim who had a wound in his head. She concluded her testimony by informing this court that last time he saw victim was unable to talk. When cross examined, she informed this court that she investigates on attempt to murder since 07/11/2021 when she was given file and interrogation was on attempt to murder though she admitted exhibits P3 and P4 show the office was grievous body harm. She went on testifying that she did nothing when noted that the offence was attempt to murder. To her, ingredients of the offence of attempt to murder is when victim fail to recover. About the incidence she informed this court that on the fateful day there were few people at the farm, like 10 people, she said victim was cutting trees however she said he had no machete. Same to accused that she had nothing when confront George while cutting tree. Page 8 of 19 In further cross examination she informed this court that she is not a doctor so she cannot confirm why the victim was unable to speak and don't know sign language. About visiting the scene, she informed this court that they went to the scene so as to know the truth, to collect exhibit (s) and see the area where ugomvi arose. PW8 confirmed that police did not visit the scene on time and on 09/11/2021 there was no hoe at the scene. Prosecution paraded the victim George Kaloko who did not respond to questions put forward to him. Upon considering the prosecution testimony, this court found the accused has a case to answer and was given time to defend on the charge fronted to her. She was the only defence witness who under oath. Accused informed this court that she was informed that George was cutting tree that why she go to the farm and find George cutting trees, when she asked why he was cutting trees, accused said George abused accused said she shall. Victim started to chase accused with machete, while running accused fall down while shouting. She went on informing this court that when accused was near her, he raise up his hand with machete, accused stood up fast and hold victims hand Page 9 of 19 which had machete and started fighting, they both fall down accused said she managed to escape and started running while shouting. Victim was running after her. Her alarm was responded by Zainabu who had a hoe and beat the victim on his head. She testified further that when she reached her home she phoned hamlet chairman (PW5) so that she can inform him what happened at the form but he did not give her time to explain why she phoned him. Accused was told to go to chairman's home and she obeyed. Upon arrival and in friction of minutes she saw people militia (mgambo) who informed her she was taken to police on account that she beaten George. When she was in lock up she was not taken to anywhere till when she appear in court. She insisted to know the victim who is her neighbour without any challenges. When cross examined by State Attorney this witness clarified that victim is her neighbour he is doing form activities as normal and she know him since he was born. She further clarified that she never said about certification though she confirms to hear PW3 who mentioned her as the one who injure George. She confesses she has no proof of reporting the matter to police that victim assaulted her and he cut her trees. She further clarified the distance between accused and Zainabu when George was chasing her Page 10 of 19 (accused) was like 4 footsteps so she saw what Zainabu did. Accused further testified that she went to hamlet chairman so that she can report what happened at shamba but did not inform chairman anything, instead they took her to office then to police. She confirmed they fight with victim she had quarrels with Zainabu that is why she run away from village and that George was injured on head and witnessed when was beaten. I have accorded a deserving attention the evidence adduced by parties. Without much ado, it is imperative to note that there is no dispute that there is person who was injured. Victim is called George. The only issue which prosecution need to prove is that there was an attempt to kill George and it was accused who did that. In the penal code the offence reads; 211. Any person who- (a) attempts unlawfully to cause the death of another; or is guilty of an offence and is liable to imprisonment for life. To begin with, it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 read together with section 3 (2) (a) of the Evidence Act [Cap 6 RE 2019]. Page 11 of 19 The evidence by prosecution must not leave a shadow of any reasonable doubt that the person charged indeed committed the crime in the manner stated in the information. By doing so, prosecution has to prove accused wanted to kill victim. It is trite law that the accused person must not be convicted because he has forward a weak defence, but rather the evidence led by the prosecution incriminates him to the extent that there is no other hypothesis than the fact that the accused person committed the offence which he stands charged. (See Anthony Kinanila and Another vs Republic, (Criminal Appeal 83 of 2021) [2022] TZCA 356 (16 June 2022). From the testimony one can say prosecution case is built by one witness who saw while victim was assaulted. This was PW3 who informed this court that she heard sounds like people quarrel each other. She decided to go where the sound was coming. She informed this court that she found George Kaloko, Zilipa (accused), Zainabu, Antonia and Malamba. George going home and behind George there was Antonia who was digging. While there she testified that she saw accused taking hoe (exhibit 1) form Antonia and beat George on head. She clarified that accused turned the hoe before she attacks George. There after George fall down and accused Page 12 of 19 run away. In few minutes George wake up and she hold him and went home. It was this eye witness testimony that hoe was left at the scene when she took victim and by that time accused was not there as she run away. PW2 took victim to police then to hospital and while in court PW2 testified that it was him who took victim from the scene to police then hospital. Who actually took the victim from the scene is not confirmed between the two as PW2 clearly said he hear an alarm and he responded and found George was injured. By that time George was talking and he mentioned accused as the one who assaulted him. Victim managed to mention accused to the first person after assault and the testimony collaborates what was testified by PW3. Before the conclusion of who assaulted victim let us consider other testimony. Where was the hoe found which was said to injure the victim. PW3 informed this court that hoe was left at the scene when she took victim. Accused was not at the scene by that time. PW 5 testified that while visited the scene of crime on 09/6/2021 for the purpose a drawing a map people gathered there informed them that hoe used in attack was in the house of Page 13 of 19 Zainabu Samweli, PW 7 who draw map informed this court that accused gave them a hoe which was inside the house of Zainabu. Accused was in custody since her arrest on 06/11/2021 and she left hoe at the scene. However, exhibit P4 show exhibit 1 was taken from Zainabu and Zainabu signed. How is it possible that accused know where the hoe was by 09/11/2021 and manage to gave it to police who tender it as exhibit Pl. Whom to believe among PW7 and PW5 who said people said where the hoe is. It is position of this court that hoe was found with Zainabu and she signed exhibit P4. The same was used by Antonia (Zainabu son) while digging. In her defence accused testified that it was Zainabu who assault victim when she (accused) was fighting with victim. It has to be remembered that duty of the accused is to create doubts in prosecution case. See Abas Matatala vs Republic, Criminal Appeal No. 331 of 2008 CAT. If the hoe was with Anthonia a son of Zainabu and was found in possession of Zainabu, it is not clearly elaborated by prosecution witnesses how exhibit Pl moved to accused for her to give PW7 on 09/11/2021 while it was established by prosecution that accused left hoe at the scene and even victim left hoe at the scene. Page 14 of 19 Was the assault cause any effect to the victim is next for deliberation. At the hospital victim was attended by PW 2 who informed this court that victim was semi-conscious as his ability to understand was 8 over 15 as per medical assessment. He had wound on his head and gave him treatment and was admitted. Exhibit P2 was admitted which was PF3. In his testimony PW2 informed this court that victim had a cut wound of one (1) cm deep and the same was written in his report. By the time of discharge victim was unable to talk and he recommended follow-up. PW2 explained in court that before treatment they took head x-ray so that they may know extent of the damage but the x ray image was not tendered to help this court to access extent of damage caused by the assault sustained. Further within five days victim was not able to talk but PW2 discharged him from hospital without referral to higher level of hospital for further treatment, this was confirmed by PW2 during cross examination; and PW3 and PW4 who are relative of the victim that they were not given any referral letter. According to PW 3, PW4 and PW6 victim was conscious and able to speak when was taken to police and up to hospital, however, he was discharged without full recovery as he was not able to talk and was not referred to any higher hospital for further treatment. Can it be said victim got proper Page 15 of 19 treatment of wound sustained? How is it possible for PW2 to discharge a patient who did not recover without referring him to further treatment. Am of the firm finding that victim was poorly attended. That being not enough, this court was denied right to access x-ray image technical opinion which would assist in arriving to its finding on the extent of internal damage if at all was sustained as testified by PW2 and was denied the right to know the size of wound sustained by the victim. PW2 said the wound was 1cm deep and the same was found in exhibit P2 the question is what was the width of wound sustained by the victim. 1 cm deep may be caused by any object not necessary exhibit Pl. It is doubtful if that 1cm wound would threaten life of a person without further technical explanation bearing on mind that there was no x-ray image tendered. This does not reflect what was said by PW2 that it was dangerous harm which when not interfered victim could die. I find prosecution was supposed to testify on the width of the wound and extent of injury found in skull through x-ray. Further, PW2 testimony in court and exhibit P2 suggest the victim had cut wound. That means the object was one of sharp edge as exhibit P2 suggested. However, PW3 an eye witness informed this court that part of Page 16 of 19 hoe used in assault was the blunt and that was collaborated by PW8 who was investigator of the crime that a person who assaulted victim used blunt side. I find contradiction on prosecution side on nature of wound and weapon used. Under normal circumstances a blunt object, in the case at hand, a blunt side of a hoe cannot cause a wound necessary to be termed a cut wound from sharp object. And further, exhibit P2 revealed that an object used to harm victim was a sharp object in several part of it while PW 3 and PW8 testified it was a blunt object. Another contradiction is found of the condition of the victim. PW8 testified that on 09/11/2021 she visited victim while was in hospital. She found him in Intensive Care Unit (ICU) while unconscious and elaborated that in a room where there is intensive care. However, PW2 testified that victim was in his sense though not full conscious and was admitted for five days. He did not explain that victim was in ICU. The center issue in this case is the wound resulted from injury sustained by victim if was of that nature to threaten life? How big the wound was and how the skull was affected was not testified by prosecution witness leave alone that less attention given to the accused while undertreatment for not referring him to higher level hospital for further treatment if it was true Page 17 of 19 that he failed to gain his ability to talk. That denied service would clear up if ability to talk has any connection with a wound sustained by a victim. The Court of Appeal of Tanzania in the case of Mohamed Haruna@ Mtupeni & Another vs Republic, Criminal Appeal No. 25 of 2007 (unreported) held that; "Of course in cases of this nature, the burden ofproof is always on die prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." In other words, the prosecution evidence must be so convincing that no reasonable person would ever question the accused's guilt. See cases of Mohamed Said Matula vs Republic [1995] TLR. 3, Anatory Mutafungwa vs Republic, Criminal Appeal No. 267 of 2010 (unreported) and Festo Komba vs Republic, Criminal Appeal No. 77 of 2015, the Court of Appeal of Tanzania (both unreported). All being said and done, I found the prosecution failed to prove that it was accused person paraded in this court who injured victim and further failed to prove the assault sustained was intended to cause death to the victim. I Page 18 of 19 therefore find the accused person, ZILIPA MAKONDORO not guilty and I hereby acquit her of the offence of attempt to murder contrary to section 211(a) of the Penal Code [CAP 16 R.E 2022]. It is so ordered. Dated at MUSOMA this 21st Day of February, 2025. Right of appeal explained. Uk' M. L. KOMBA Judge 21st February, 2025 Page 19 of 19