JUDGMENT The Republic vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 885 OF 2024 THE REPUBLIC VERSUS ABASI ABASI MAJADINI ……...……………………………..……………….. ACCUSED JUDGMENT 26th February and 6th March, 2025. KAWISHE, J.: The accused person, Abasi Abasi Majadini, stands charged with the offence of attempt to murder contrary to the provisions of section 211(a) and 380(1) of the Penal Code (Cap. 16, R.E 2022). It is alleged by the prosecution that, on 23rd March, 2023 at Matarawe Magengeni area within Songea Municipality in Ruvuma Region, the accused person unlawfully did attempt to cause death of one Dora Reuben Kayombo. When the information on attempt to murder was read, the accused person denied to have committed the alleged offence, he pleaded not 1 guilty. In proving the charge laid against the accused person, the prosecution summoned six witnesses and tendered four documentary exhibits namely; the chain of custody, certificate and sketch map of the scene of crime which were admitted as P1, P3, P4 and P5 respectively. The prosecution also tendered one physical exhibit, a foldable knife which was admitted as exhibit P2. In defence, the accused person was the only defence witness. He tendered no exhibit. When the case was called for hearing, Ms. Hellen Chuma, learned Senior State Attorney and Mr. Madundo Mhina, learned State Attorney appeared for the Republic while the accused person enjoyed the services of Mr. Edmund Mnyawami and Lazaro Simba, the learned counsel. The first prosecution witness was the victim, one Dora Reuben Kayombo. She testified as PW1. Her testimony was that, she is living at Matarawe within Songea Municipality. That, in April, 2022 she engaged in love relationship with the accused person, Abasi Abasi Majadini. She added that, they used to visit each other in their residential homes as lovers. She testified further that sometimes she went to the accused’s home and slept as the accused did in her home as well. It was PW1’s testimony that their relationship lasted only for eleven months. She told this court that on 10th 2 March, 2023 her son who was studying in Dar es Salaam came back to Songea. That on the same date the accused came to sleep at her home but her house could not accommodate the three to sleep together in her room. As a result, her son was instructed to go to spend the night in the accused’s house at Mjimwema street. Subsequently, her son was dissatisfied with their decision. PW1 continued to testify that, she advised the accused person to find another house in which they would live without any difficulties. That, the accused person accepted the proposal. PW1 told this court that, prior to the incident, on 23rd March, 2023 she received a Short Message Service (SMS) through her phone in which the accused demanded her to send his jacket he left at PW1’s home. That she was busy with her businesses, she never sent it. That, later at around 19:30 hours, the accused sent a reminder SMS to PW1. The SMS was requiring her to send the jacket to Kagundula Grocery. She heeded to the order but she sent the jacket to the accused’s home instead of sending it to Kagundula Grocery. On the same day, at around 21:00 hours, her neighbour, Ms. Flora Nyika who was her co-tenant and her close friend asked PW1 to accompany her to Mwembechai Street to see her young sister who was sick. She agreed to the request and accompanied her. 3 PW1 told this court that, while on the way to Mwembechai they met with the accused person who was coming from where they were heading to. Then the accused person approached and greeted them. That he drew closer to PW1 and hugged her. Her friend Flora Nyika left them and parted to a distance of three metres. She was not nervous when the accused person hugged her since she clearly identified him as her lover. She added that there was enough light coming straight from Mapesa Inn Bar which was at the distance of five paces from where they met. The witness told this court that in the course of being hugged, she heard a sound “kachaa” (a click) and she noticed that something was inserted in her stomach and pulled out. She was shocked to see her intestine coming out of her stomach. She discovered that she was stabbed by the accused person in her stomach with a knife. Thereafter she saw the accused person raising up his hand holding a knife and stabbed her in her stomach for the second time. She was frightened. She shouted calling her friend Flora Nyika to help her. The accused person continued stabbing her with the knife in her sholders. When Flora Nyika came to rescue her, the accused person dropped the knife on the ground and heard him stating that “I would kill you today”. 4 PW1 testified further that, after that incident, Flora Nyika served her by tying her stomach with a scarf to stop the intestine from protruding out of her stomach while the accused person sat aside at the scene of crime smoking a cigarette. After tying her, Flora Nyika went to ask for help from the neighbours whereas PW1 remained at the scene of crime with the accused person. She heard the accused person telling her that “I was going to finish you”. Having heard those words, she stood up and went to Mapesa Inn Bar which was close to the scene of crime for assistance. She managed to go to the bar where she met Doctor Zenda who is well known to her and told him what has happened. PW1 stated after that, she became unconsciousness. That, she regained her conscious after three days. That, she realised that she was at the Intensive Care Unit (ICU) at Songea Regional Refferal Hospital. She added that, in her treatment, she undergone surgery in her stomach and she was admitted at the hospital for ten days before she was discharged and orderd to attend at the hospital regularly. While at the hospital police officers came and interrogated her to know what happeaned. In addition, she told the court that she recovered to a normal condition after six months. 5 PW1 prayed to show the scars in her body which were the result of the incident and the scars were seen in her stomach from one end to another. When she was cross examined by the defence counsel, she stated that, the accused neither helped her in paying school fees nor gave her capital to raise up her business. She also testified that, before she fell in love with the accused person, she had a love affair with Mr. Ally Seleman @ Chaplin and the accused was aware of that. PW1 testified that, her relationship with Mr. Ally Seleman @ Chaplin came into an end when she started a new relationship with the accused person. She also, told this court that she never had quarrels with the accused person in the entiry period of their relationship. PW1’s testimony was corroborated with the evidence of Flora Nyika, PW3 who told this court that she resides in a rented house at Matarawe. That, PW1 was her co-tenant and they still live in the same house up to now. She testified that, on 23rd March, 2023 at around 21:00 hours, she was informed that her young sister, one Winfrida Nyoni was sick. She requested her neighbour and a co-tenant Dora Reuben Kayombo to escort her to go and see the patient. On the way at Mapesa Inn Bar, they met the accused and greeted each other. At that time, the accused person was 6 wearing a black root (mzula) with a black jacket. She asked him ‘why are you threatening us?’ Then he responded that it was normal. The accused told them that, he was heading to PW1’s home and he went closer to PW1 and hugged her. That, PW3 gave them space, move two paces. PW3 told this court that, shortly she heard PW1 crying that she has been stabbed by a knife. She saw the accused person stabbing PW1 with a knife in her body several times. She managed to intervene and rescued PW1. That, there was a commotion between the three. She saw the intestine coming out of PW1’s stomach. That she saw the knife falling down on the ground. PW3 testified further that, though it was night time she managed to see the knife and the intestine which was protruding out of the stomach of PW1. She told this court that, she identified the accused as there was enough electricity shining directly from Mapesa Inn Bar. That the distance from the scene of crime to Mapesa Inn Bar was 8 to 9 paces. She took PW1’s scarf (mtandio) and covered her stomach to protect the intestine which was protruding out of PW1’s stomach. PW3 added that, she went to ask for assistance from neighbours. Neighbors respondend positively and went at the scene of crime. They found PW1 has moved from the scene of crime to Mapesa Inn Bar. That, she was given first aid by Doctor Zenda. 7 PW3 continued to testify that, they hired a motorcycle (boda boda) to rush PW1 to Songea Regional Referral Hospital for treatment. PW3 identified the accused person and the knife which was used by the accused in stabbing PW1. In cross examination, PW3 told this court that, the accused person and PW1 were lovers, had no quarrels. That, she did not know what made the accused to stab PW1 with a knife. She further responded that, the incident happened between the fence of Mr. Gama’s plot and Mapesa Inn Bar. That the electricity light was from Mapesa Inn Bar which was at the distance of 5 to 6 paces from the scene of crime and not 25 meters. She responded further that, she witnessed PW1 being stabbed with a knife by the accused person. G.8051 Detective Sergeant Triphon was a police officer and the exhibit keeper at Songea Central Police Station, who testified as PW2. He testified that, on 24th March, 2023 at 18:00 hours, E. Detective Sergeant Mussa handed to him an exhibit to be kept, which was a foldable knife, silver in colour with a brown coloured handle. He was told that, that knife was used in commission of an offence and its file was already filed at Central Police Songea. He added that the knife was handed between them 8 by signing a chain of custody. He prayed for the chain of cutody and the knife to be admitted to form part of his evidence in court. The defence did not object the prayer. Thus, they were admitted and marked as exhibit P1 and P2 serially. When he was cross examined, PW2 told this court that, exhibit P2 was seized on 23rd March, 2023 at around 23 hours and handed to him on 24th March, 2023. Testifying as PW4, E.8161 Detective Sergeant Mussa, a Police Officer at Songea Central Police Station working in the Investigation Department told this court that, on 23rd March, 2023 from 18:00 hours he was on patrol together with other Police Officers. He added that around 21:17 hours he was informed that at Matarawe, Magengeni area there was a person who was stabbed by a knife and the intestine came out. He went to the scene of crime with his team and found one person surrounded by people. They were informed that the person was called Abasi Abasi Majadini and was the one accused of stabbing a person with a knife. PW4 testified further that, accused was beaten by a mob and he was injured. They took him to hospital after filling a PF3 which was obtained from the Police Station. They were informed that the victim was Dora Reuben Kayombo and her relatives had rushed her to Songea Regional Referral Hospital. Upon arriving at the 9 Hospital, he found PW1 receiving treatment and she was stabbed at the stomach, the intestine came out, injured on the chest right hand and on the back-left side. PW4 told this court that, on the same night he went back to the scene of crime and managed to seize a foldable knife in the presence of the Sungusungu (militia), Mr. Athman. The knife was seen at a flowers’ fence. The certificate of seizure was admitted and marked as exhibit P3 despite the objection from the defence side that it was not signed by the occupier or owner of the premises where it was seized. This court overruled the objection as it was evidenced that it was seized on a public road. PW4 identified the chain of custody and the knife, exhibit P2. He testified further that, on 24th March, 2023 at around 08:00 hours he went at the scene of crime to draw the sketch map. That he was assisted by Athman Mussa, the Sungusungu (militia) leader of Matarawe Ward. PW4 identified the sketch map and prayed to tender it as an exhibit. It was not objected by the defence counsel, hence it was admitted and marked as exhibit P4. PW4 testified further that, when he was at the scene of crime he interrogated the accused person and he orally confessed to have 10 committed the offence. However, when he was interrogated after being discharged from the hospital he denied to have committed the offence. He identified the accused person who was at the court dock. Upon being cross examined, PW4 told this court that, the distance from Mapesa Inn Bar to the scene of crime is almost 25 metres. Upon futher cross examination, he stated that, he was ordered to go to the scene of crime on 23rd March, 2023 at around 23:30 hours and the knife, exhibit P2 was seized at around 23:30 hours. Athman Musa Msemwa testified as PW5. His testimony was to the effect that, he is a peasant and a Sungusungu leader at Matarawe Ward. He added that on 23rd March, 2023 at 21 hours he received a phone call from unknown person who informed him that, at Matarawe area near Mapesa Inn Bar there was a person who was badly stabbed. He went there and found a lady called Dora Reuben Kayombo, who was covered on her stomach with a scarf and she was bleeding. He was informed that she was stabbed on her stomach and her intestine came out and she was in a very serious condition. The relatives of the victim were informed and came to the scene of crime and then took her at Songea Region Referral Hospital. At the scene of crime he also saw tha accused person who was badly 11 beaten by the citizens (mob). He told the court that, he stopped the mob from beating the accused and informed the police officers, who took the accused. PW5 testified further that, on the same night, police officers came back to Matarawe near Mapesa Inn Bar. That he accompanied them to the scene of crime. Thereafter, they searched the scene of crime and seize a foldable knife. He was required to sign in a form and he was given a copy of that form. PW5 added that, the next morning, on 24th March, 2023 at 8:00 hours he was also requested to go to the scene of crime to assist PW4 in drawing the scene of crime sketch map in which he signed too. PW5 identified the form, the certificate of seizure, exhibit P3 and exhibits P2 and P4 accordingly. In cross examination, PW5 told this court that, he was not present when the incident happened. He also testified that, the knife had blood stains at the time it was seized. Doctor Glory Haika Peter, PW6, a Medical Doctor was among the doctors who attended PW1 on the fateful day at Songea Regional Referral Hospital. In her sworn testimony, she told this court that, on 23rd March, 2023 at 23:30 hours she was the doctor on duty at Songea Regional Referral Hospital and she attended a patient known as Dora Reuben 12 Kayombo. She testified that, Dora Reuben Kayombo was admitted as an emergency patient and she was at danger. She was severely bleeding but still conscious. The patient had an injury wounds at her stomach caused by a sharp object. She had two big injuries on her stomach and the intestine was coming out. She had other injuries on the chest, her back and the left hand. It was advised that, it was important to give her a blood transfusion and water before conducting medical surgery. That, her small intestine was injured and it was stitched. Thereafter, the patient was admitted to the Intensive Care Unit for three days under special attention before she was admitted to a normal women’s ward up to 2nd April, 2023 when she was discharged. PW6 added that, when she was admitted at the hospital, PW1 told her that, on that night she had quarrel with her husband who stabbed her with a knife. PW6 prayed to tender the PF3 she filled on the health condition of PW1 and it was admitted as exhibit P5 althought it was objected by the defence counsel. There reason being that, there was contravention of the law relating to remote hearing and electronic recording rules. This court overruled the objection as the defence counsel misconceived the requirements of the remote hearing and electronic 13 recording rules. In cross examination, PW6 responded that, Debora Reuben Kayombo’s operation was conducted by a team of specialist doctors, nurses and other assistants and when she was received at the hospital Debora was escorted by her relatives. The testimony of PW6 marked the end of prosecution case. The Republic prayed to close their case. Having marshalled the six witnesses and adducing exhibits, this court ruled out that a prima facie case was established and the accused was required to make his defence accordingly. In his sworn testimony, the accused person, Abasi Abasi Majadini, DW1, testified that, he resides in Mji Mwema Street within Songea Municipality together with his three kids. He works as a house decorator and garden designer. He testified further that, PW1 was his wife since August, 2021 after complying all customary procedures on marriage and he paid the dowry. At the time they got married, PW1 was living at Matarawe Street while he was living at Mji Mwema street within Songea Municipality. DW1 told this court that, he adviced PW1 that they must rent another house in a different street but she denied fearing to loose her money she was contributing in financial services (vikoba). For that reason, they agreed to continue living in the same rented house and they lived peacefuly. They 14 started making some developments by buying a plot of land in which he contributed TZS. 300,000.00 and they also bought iron sheets. DW1 testified that, in 2022, he faced some challenges. That it was in the morning at around 7:30 hours while he was sleeping in the bedroom and PW1 was doing cleaning, a man came and had conversation with PW1 and later that man pushed the door and entered into the bedroom where he was sleeping. That, the man started uttering abusive words. When he inquired from his wife (PW1), she told him that, was her former lover and his name is Ally Mohamed @ Champlin and he was residing at Mahenge Street within Songea Municipal. DW1 continued to testify that, Ally Mohamed lived with PW1 for more than 10 years together as wife and husband but they were not married to each other and later they separated. Following their conflict that occurred at PW1 house, he left to his house at Mji Mwema Street. Later on PW1 (his wife) informed him that his mother in law requested them to meet at Msamala where their conflict was settled and continued living together as husband and wife. In an effort to defend himself, DW1 told this cout that, on 23rd March, 2023, he left home and went into his daily activities. In the evening at around 17:30 hours he went to meet a client at Ngudula Grocery 15 located at Matarawe street which is very near to the house he used to live with his wife (PW1). That, while at Ngudula Glocery, he called his wife (PW1) through a phone to collect the money he had earned but she never complied. Later on he requested her to bring his jacket. Once again, she did not take heed. That at around 20:30 hours she replied that, she had sent the jacket to his house at Mji Mwema street. Thereafter, she was not picking his phone. Then he left Gundula Grocery heading to his home. DW1 continued to testify that, on the way home, after passing Mapesa Inn Bar, at about 23 meters from Mapesa Inn Bar, he heard a voice from a nearby flowers fence, near the dark path (vichochoro), stating that, “Dora Masodo huyu”. DW1 told this court that, his nickname is Masodo but he did not recognize the voice which mentioned his nickname. At that time, he was on the road where there was light and the voice was coming from the path which was very dark. He lit the phone’s flashlight and went closer to the place where the voice was coming. That, to his surprise, he found a man hugging and kissing his wife, PW1 Dora Reuben Kayombo. A conflict arose and they started fighting. DW1 testified further that, when PW1 tried to resolve the conflict she fell down and they were near a dump and there were grasses. They continued fighting for a long time but later the man he 16 was fighting with ran away. DW1 claimed to have identified the man to be Ally Mohamed @ Champlin and he was wearing a black coloured sweater. That, at that time PW1 was still on the ground lamenting that she was hurt. He told this court that, he asked Dora Reuben Kayombo why she always accompanied with that man. That, he moved three meters apart and started smoking cigarette while talking to her. DW1 told this court that, he was very angry. That, he stayed there with his wife for at least 10 minutes before he was hit by a heavy object on his head. When he tried to stand up, he was hit again on his head and he became unconscious and fell down. He stated that, he did not know what happened thereafter and he regained his consciousness after three days. That he found himself admitted at Songea Regional Referral hospital and he was under the police custody but later he was discharged under bail. DW1 denied to have stabbed PW1 since he has no quarrels and he did not knew what caused injuries on her since it was at night time at around 21 hours. He also denied to know exhibit P2, the knife. He added that, when PW1 was discharged their families sat to resolve their dispute and PW1 pardoned him for all what happened and he paid some amount of money for the costs she incurred. Their relation continued as usual but 17 after two months and half PW1 changed her mind. That, she never went to his home anymore and when he wanted to go to her house she did not allow him. Thereafter they had a family meeting in which it was ordered that the dowry paid by him be returned and PW1 remain free and continued with her life with Ally Mohamed @ Champlin. DW1 prayed for this court to dismiss the case against him since it is not true that he did commit the alleged offence and the case is fabricated against him. When cross examined, DW1 testified that, he never met with PW1 at Mapesa Inn Bar but he witnessed PW1 falling down on the ground when he was fighting with the man. That, he never knew what caused the injuries in the body of PW1. When he was asked on the scars on his head, he responded that, they resulted from the heavy object that hit on him. He also stated that, he was taken to hospital by police officers and they left him in the vehicle while he was unconscious. He testified further that, on the day Ally Mohamed @ Champlin, came to his wife’s bedroom they never had a fight but on the fateful day they fight since he saw him hugging kissing his wife. The defence closed its case. There were no final submissions from the parties. That gave this court an avenue to determine the matter on its merit. 18 I have carefully appraised the evidence adduced by parties. I have also accorded much time to pass throught the exhibits given by the prosecution in this case. Without much ado, it is important to state here that there is no dispute that the victim, Dora Reuben Kayombo (PW1) was severely injured. According to the PF3 of the victim (exhibit P5) along with the oral testimony given by PW1, PW3 and PW6, the injuries sustained were so severe and targeted vulnerable parts of the body. The key issue which calls for the court’s determination is whether the accused Abasi Abasi Majadini was the one who attacked the victim. It is a settled law that, in any criminal case, the prosecution is duty bound to prove not only that the offence was committed but also it was the accused person who committed it. The offence against the accused has to be proved beyond reasonable doubt. The Court of Appeal, which is the Appex Court in our jurisdiction in the case of Director of Public Prosecution vs. Ngusa Keleje @ Mtangi & Another, Criminal Appeal No. 276 of 2017, held that: “We now pose to restate the basic principle of law that the burden of proof in criminal cases lies squarely on the prosecution shoulders, the standard of which is beyond reasonable doubt.” 19 Furthermore, in Malik George Ngendakumana vs. The Republic, Criminal Appeal No. 353 of 2014, the Court of Appeal had this to state on how criminal charges are to be proved: “The principal of law is that in criminal cases the duty of the prosecution is twofold. One, to prove that the offence was committed, and two, that the accused person is the one who committed it.” From this excerpt, the prosecution is required to prove that the accused committed the offence and has to be proved beyond reasonable doubt. It is crystal clear that, the offence which the accused person stands charged with is among the serious criminal cases in our jurisdiction. Therefore, the prosecution side is duty bound to prove the charge against the accused person beyond reasonable doubt. That, there is no any other person other than the accused person who committed the offence. This is well stipulated under section 3(2)(a) of the Evidence Act (Cap. 6, R.E 2022). It reads as follows: “3 (2) A fact is said to be proved when:- (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists.” 20 Also, it is a trite law that, the accused person must not be convicted because he has a weak defence, but rather the evidence led by the prosecution connects him to the extent that there is no other hypothesis than the fact that the accused person committed the offence which he stands charged with. See the case of Anthony Kinanila and Another vs. Republic, (Criminal Appeal 83 of 2021) [2022] TZCA 356 (16 June 2022). As stated early herein above, in this case, there is no dispute that, Dora Reuben Kayombo was severely injured with multiple injuries. That the injuries were caused by a sharp object. The issue which needs a close consideration by this court is whether it was the accused person who caused the injuries sustained by Dora Reuben Kayombo, PW1. In that regard, there are direct testimonies given by PW1, the victim and that given by PW3 who were together at the time the offence was committed. Their testimonies are of the most importance in this case. According to their testimonies, on the fateful day and time, they met with the accused person near Mapesa Inn Bar. Since they knew him well, PW1 came close to him and they hugged each other and in the cause of hugging each other, the accused stabbed her with a sharp object, twice in her stomach and 21 several times in other parts of the body including in her chest. From the testimony of PW3, the sharp object was a foldable knife, exhibit P2 which she saw when she was saving the PW1. Exhibit P2 was seen and seized at the scene of crime on the same fateful date and according to the testimonies given by PW4 and PW5 the knife had blood stains. Another piece of evidence by the prosecution witness is on the fact that, on the fateful date the accused person was arrested at the scene of crime when he was surrounded and being beaten by a mob of people. This was clearly stated by PW4 who saw the accused person at the scene of crime being beaten by a mob of people and he was badly injured. The accused was arrested and sent to the hospital for treatment. On the issue of identification, the prosecution has clearly shown that, though the offence was committed during night time, there were electricity lights from Mapesa Inn Bar which enabled PW1 and PW3 to identify the accused person who was very familiar to them even before the fateful day. As stated above, in his defence, the accused has denied to have been involved in the commission of the offence. He disowned the knife and distanced himself from the offence by implicating another man whom he 22 claimed to have caught him hugging and tongue kissing his beloved one, PW1. It is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness. See Goodluck Kyando vs. Republic (2006) TLR 363. From the testimony given by the parties, in the evidence given by the prosecution, I have noticed some contradictions. The first is seen in the testimony given by PW3 and PW4 on the distance from Mapesa Inn Bar to the scene of crime. While PW3 told this court that the distance was 5 to 6 paces, PW4 testified that it was 25 metres from the scene of crime to Mapesa Inn Bar. Another contradictiction is on the time on which PW4 was ordered to make seizure at the scene of crime and the time of making the seizure. PW4 has told that, he was ordered at 23:30 hours and at the same time he seized exhibit P2 at the same time while he was ordered when he was at Songea Central Police Station which was at a distance of about 5 to 8 kilometers. 23 I am alive that, this court has the duty to address any inconsistences and contradictions found in the testimonies of witnesses. It has to find out whether they are only minor or they go to the root of the case. This position was developed by the Court of Appeal in the case of Mohamed Said Matula vs. Republic (1995) TLR 03. The Court stated that: “Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible, else the court has to decide whether the inconsistencies and cotradictions are only minor or they go to the root of the matter.” Banking on this authority, in respect to the matter at hand, in my view, I find the inconsistencies and contradictions experienced in the prosecution evidence are minor and they cannot affect the credible evidence given by the prosecution witnesses in this case. They do not go into the root of the case. I hold so because, the time lapsed may have affected the memories of the witnesses. The offence was committed in March, 2023 and now it is March, 2025 almost two years vanished. This has an impact on the memories of the witness in remembering each and everything happened and the circumstances surrounding the commission of the offence. The witnesses cannot be expected to testify word to word 24 evidence like recitals of common prayers. The issue of distance from Mapesa Inn Bar and the scene of crime, whether 25 meters or 6 paces, in my view did not affect identification and recognition of the accussed person. Also, the time PW4 was ordered and seized exhibit P2 is minor as there was no dispute about the knife or identification of the accused rather, the time of order and seizure. Thus, minor contradictions and inconsistencies are bound to happen between witnesses in a case. This was well expounded in the case of Marando Slaa Hofu and 3 Others vs. Republic, Criminal Appeal No. 246 of 2011 (unreported), where the Court of Appeal stated that: "Contradictions by any particular witness or among witnesses cannot be escaped or avoided in any particular case. However, in considering the nature, number and impact of contradictions, it must always be remembered that witnesses do not always make a blow by blow mental recording of an incidence. As such contradictions should not be evaluated without placing them in their proper context in an endeavor to determine their gravity, meaning whether or not they go to the root of the matter or rather corrode the credibility of a party's case." From the position of this authority, the contradictions on the distance from Mapesa Inn Bar did not go to the root of the case. In that, they are immaterial, they did not dent the prosecution’s case. See Mukami 25 Wankyo vs. Republic, (1990) TLR 46 and Bikolimana Odasi @ Bimelifas vs. Republic, Criminal Appeal No. 269 of 2012, CAT (Unreported). In addition, had it been that the witnesses did not identify and recognize the accused, my view would have been different. As long as the witnesses (PW1 and PW3) knew the accused before the incident and identified him at the scene of crime, their evidence is credible. Adding on the issue of contradictions, the Court of Appeal while deciding an issue of contradictions of witness evidence in the case of Kavula s/o William & Another vs. Republic (Criminal Appeal No.119 of 2020) [2021] TZCA 279 (5 July 2021) the Court stated that: “Mr. Kagashe argued that the appellants could not have been positively identified by PW1 and PW3 because their evidence is full of contradictions and inconsistencies that tainted their credibility and reliability. On our part this argument is baseless because the appellants were not strangers to the identifying witnesses. PW3 knew them since they were babies and she used to raise them. Secondly, on that very day, the fracas took about fifteen minutes. As such, PW1 and PW3 had ample time to observe the appellants who were their village mate. Thirdly, the place was illuminated with four solar bulbs of twenty watts each and in addition, there was a bright moon light. In that regard, the place had enough light for correct and proper identification of the appellants. Given the facts and the set of factors, the time spent by 26 the identifying witnesses to observe the appellants and the conditions in which the appellants were under observation we are settled in our mind that the appellants were positively identified by PW1 and PW3.” [Emphasis added]. In analogy with this authority, the difference in distance whether 6 steps or 25 meters from Mapesa Inn Bar did not affect their testimony. The fact that, PW1 and PW3 knew the accused person prior to the awful act and they greeted each other before the hugg and stabbing of PW1. Undeniably, the accused, PW1 and PW3 had a conversation before the dreadful act. This clears the doubts on identification and recognition. First, PW1 was the wife of the accused person, a testimony which was common to the prosecution and defence. DW1 in defence told this court that, their families sat and resolved the matter. That he refunded them the money used in treatment of PW1. That he reunited with PW1 until the expiry of two months and half when PW1 cut off the relationship and returned the dowry. He was cross examined that, if they had no quarrel with PW1 and that the matter was settled and if they loved each other, why PW1 testified against him in court, he replied that, “she insinuated me.” This defence did not shake the prosecution evidence. Second, PW3 is a co-tenant to PW1 and the accused. Cementing on identification and recognition of the accused, DW1 in his defence told this court that the fracas between him 27 and the other man took long time. He added that, after PW1 fell down moaning in pain, he stepped aside three steps, sat down and smoke a ciggaret until when he was hit by a heavy object on the head. DW1 agreed that PW1 and PW3 knew him before the incident. Undoubtedly, they could not mistake him on the fateful day. The fact that, the accused after the incident did not ran away, just sat at the scene of crime later received beatings from citizens only to be rescued by the sungusungu and police officers he cannot escape the blame. Binding up the accused to the commission of the crime, PW3 testified that, near Mapesa Inn Bar they met the accused and greeted each other. That he hugged PW1 and stabbed her, whereby PW3 intervene to save PW1. The fact that they knew each other, greated each other, accused responding to their question that he was heading to PW1’s home, hugged PW1, the time spent in stabbing the victim and time he spent in smoking cigarette near the deadly injured PW1, sufficed for familiar persons to identify and recognize each other. On his own evidence, DW1 told this court that, he fought the other man for a long time, and after the fracas he sat down near PW1 for ten minutes. When cross examined, he told this court he was so angry against PW1 that is why he did not bother to help 28 her in her situation. The fact that, the accused was arrested at the scene of crime, convinces me that, he was the one who committed the dangerous offence. He tried to exonerate himself by stating that he fought with the another man, his love competeter whereby PW1 in efforts to resolve the fracas fell down and was injured. I desist believing in this defence as the injuries as per exhibit P5 were caused by a sharp object. It does not augur well that she fell down on the dump and got injured from the grasses as the accused tried to put it. The injurires sustained were at the stomach stabbed twice, on the chest and at the back of PW1. According to PW1, when the accused hugged her, she heard a click sound “kachaa.” Followed by piercing of the knife to her stomach, she cried that “Abasi stabbed me.” The same testimony was given by PW3 who heard the cry that Abasi stabed PW1 and rushed for rescue. To be clear, she witnessed the stabbing of PW1. That, while PW3 fighting for the life of her friend, the knife fell down on the grass. The knife was found there by the police officers who seized the same. Although the accused denied to have owned the knife, he never objected its admission. The defence did not cross examine on the ownership of P2 rather, they labored on the make and colour of the knife, 29 P2. It is trite law that failure to cross examine a witness on important matters in the case is an admission of what is testified by the said witness. See the cases of Nyerere Nyague vs. R, Criminal Appeal No. 67 of 2010, Jaspini s/o Daniel @ Sizakwe vs. DPP, Criminal No. 519 of 2019 CAT and Damian Ruhele vs. R, Criminal Appeal No. 501 of 2007 (both unreported) were the Court stated that: “It is trite law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence." Upon denying the ownership of the knife, exhibit P2, DW1 was cross examined why he did not object its admission. He replied that, he could not object, he was sitting in court like a stone, the defence counsel represented him. His statement was to blame the learned defence counsel but in my view it is not fair. The accused should have informed the defence counsel that he was not the owner of the knife, exhibit P2. Disowning the knife in his defence is an futile process. His response came with an intention of escaping the liability through a needle’s eye which was too small for him to penetrate. To cement on that, PW3 told the court that, she knew the knife because Abasi Abasi Majadini, the accused used it at home 30 where they were co-tenants for almost a year. This means that, PW3 knew the knife prior to the fateful date. The accused’s testimony, was to the effect that, he did not stab PW1. That after the fracas with the so said another man, he sat beside PW1 at least three paces and had his smoke. That he was well until the time when he was hit by a heavy object, hence he became unconscious and regained it after three days finding himself at the hospital surrounded by police officers. When he was cross examined, the accused person told this court that, he knew it was the police officers who sent him to the the hospital. That, they did not take him out of the vehicle, it was his brother-in-law who took him from the vehicle to the hospital building for treatment. It is surprising that, the accused was unconscious and at the same time knew that the police officers left him in the vehicle at the hospital only to be assisted by his brother-in-law. The question I asked myself is, why he was hit by the heavy object as he told this court? He testified that his competitor ran away after the fracas. He was smoking his cigarette only to be hit. It is so suggesting that he was beaten due to the stabbing of PW1. This gives the impression that, the testimony of PW4 and PW5 that, he was beaten by citizens holds water. He told this court that he was hit by a 31 heavy object which injured him on his face. I am convinced that the scars on the accused’s head and face were sustained from the mob beating as was testified by PW4 and PW5 who found the accused at the scene of crime surrounded by people. DW1 defended himself that the scars on his head sustained from construction accident. Admittedly, his testimony was inconceivable and inconsistent with truth. They do not exonerate the accused person from the charges in this case. Certainly, the evidence of the prosecution shows clearly that, the accused person was the one who stabbed Dora Reuben Kayombo, PW1. Having made the findings hereinabove, the next step is whether the ingredients of an attempted murder have been proved in this case. In order to find out I will be guided by the guidelines accentuated by the Court of Appeal in the case of Enock Kipela vs. Republic (Criminal Appeal No. 150 of 1994) [1999] TZCA 39 (10 June 1999). The Court of Appeal gave the following guidelines: 1) The type and the size of the weapon if any used in the attack; 2) The amount of force applied in the assault; 3) The part or parts of the body the blow or blows were directed at or inflicted on; 32 4) The number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; 5) The kind of injuries inflicted; 6) The attacker's utterances, if any, made before, during or after the killing; and 7) The conduct of the attacker before and after the killing.” [Emphasis added]. In line with this authority, the accused used a knife, a dangerous weapon. The part of the body attacked was the stomach, chest and shoulder at the back of PW1. The number of blows, two wounds at the stomach, one at the chest and one on the shoulder at the back of PW1. Attacker utterances, according to PW1 and PW3, he was telling PW1 that, I should have killed you. The conduct of the attacker after the incident, distanced himself from PW1 and had a smoke. The evidence adduced by the prosecution witnesses show that the accused used a knife to stab PW1. The evidence illustrates the accused’s intent towards PW1. Considering the guidelines recited in the authority aforementioned, the accused’s mens rea was manifested and stabbed PW1 with the knife as testified. All these, in my view, signifies that the accused intended to cause death to the victim. In view of the foregoing, I am persuaded to believe the testimonies of the prosecution witnesses that, the accused, Abasi Abasi Majadini was 33 the one who did unlawfully attempt to cause the death of PW1, Dora Reuben Kayombo who was severely injured. It is therefore, my considered view that, the prosecution proved the case against the accused beyond reasonable doubt. In the circumstances, I find the accused, Abasi Abasi Majadini guilty of attempt to murder contrary to the provisions of section 211(a) and 380(1) of the Penal Code (supra) and he is consequently convicted for the offence he stands charged with. E. L. KAWISHE JUDGE 6/2/2025 Sentence I have considered the prosecution submission as to previous records of the accused person, their invitation to punish the accused severely and taken onboard the mitigation presented by the learned defence counsel on behalf of the accused person. Accordingly, the accused, Mr. Abasi Abasi Majadini is hereby sentenced to serve a term of seven years imprisonment from today. 34 It is so ordered. DATED and DELIVERED at SONGEA this 06th day of March, 2025. E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Madundo Mhina, State Attorney and in the presence of Mr. Edmundi Mnyawami, defence counsel and in the presence of the accused person. Right of appeal is explained. E. L. KAWISHE JUDGE 06/03/2025 Order: Upon the expiration of the time for appeal against this judgment, the authorities concerned shall dispose of the knife, exhibit P2 in accordance with the law. E. L. KAWISHE JUDGE 06/03/2025 35