JUDGEMENT MASUDI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION NO. 9132 OF 2024 REF. NO. 202408152000023155 REPUBLIC VERSUS MASUDI SADIKI SALIMU@KAZIMOTO@MKALI ...............................ACCUSED JUDGMENT 11th & 21st March 2025. KIREKIANO, J; The accused person, namely Masudi Sadiki Salimu @Kazimoto @ Mkali, stands charged before this Court with one offence of attempted murder contrary to Section 211(a) of the Penal Code Cap 16 [RE 2022]. It is alleged that on 31st May 2023 at Chanungu- Vikindu area, Mkuranga District in Costal Region, the accused person unlawfully attempted to cause death of one Abdul Said @ Abdul Said Mohamed. The accused person pleaded not guilty to the charge. Briefly stated, the facts leading to the accused person's arrest and trial are as follows; On the momentous date of 31/05/2023, the victim and his colleagues thought they could make some earning by doing casual labour of moving 1 bricks at a hardware situate at Vikindu. It is the prosecution case that the accused, also arrived at the hardware. There was some discussion with the victim on the work to be done. The accused was not amused with the work done by the victim but finally obtained another work to carry pebbles. He was paid and left. It is the prosecution's case that the accused came back to the site armed with a knife and, after insulting the victim stabbed him with a knife at his back and at the neck. This attack did put the life of the victim at the brink of fading away. There is wisdom from the old maxim that a stitch in time saves nine; the victim's life was served by first aid at Vicent Health Centre, and more treatment was done at Mkuranga District Hospital and later at Muhimbili National Hospital. The accused line of defence is denial he also said he was not at the scene. The summary of evidence here under will tell more. The prosecution case was conducted by Mr Baraka Mgaya, SSA assisted by Miss Asifiwe Mzava, learned state attorney, while Mr Mohamed Tibanyendera, learned advocate, defended the accused. The prosecution, in bid to prove the charge paraded five witnesses: PW1 Abdul Said Mohamed, PW2 Shaban Athuman Mtanga, PW3 Dr. Enes Maingu Obadia Ernest, PW4 G.2306 DC Matias, PW5 G.7298D.CPL 2 Emmanuel. Two exhibits were tendered. On the party of the defence, was by the accused himself. The victim opened the prosecution case as PW1 Abdul Said Mohamed. He said that on 31/05/2023, while in Vikundi, he was tasked to carry 300 bricks at TZS 30,000. Before starting the work, the accused arrived but was not interested in the assignment. PW1 obtained another company. Later, the accused wanted to join them in the work, but his friends did not allow him. After the work the accused went home, changed his attire, and came back to the hardware. In the meantime, PW1 went to the tap to wash his hands. It was testimony of PW1 that, the accused arrived and approached him, and started insulting him in vulgar abuse, he assaulted him, and he felt that before PW1 could defend himself, the accused picked up a knife from his trousers and attempted to stab him in the eyes. PW1 said he attempted to run, but the accused grabbed him and stabbed him at the back and at the left side of the neck, causing him to bleed profusely. He held the neck by hand and started running to the hardware. The accused kept following him, but Shabani PW2, came to the rescue intervened and chased the accused together with other civilians. He said he was taken to the police and the hospital, but he lost consciousness, only to find himself at Mkuranga Hospital. 3 Shaban Athuman Mtanga (PW2) works at his father’s hardware at Vikindu confirmed that on 31/05/2023, PW1 arrived and asked for work, he agreed to work but said he needed a company. Later on, the accused came and said he was not ready to carry the bricks, the victim PW1 called his colleagues and they arrived. Later, the accused arrived at the site and asked for work to move pebbles which he got. After the job was completed, he gave Tshs. 30,000 to PW1, and the accused was paid Tsh 6000. Shortly he saw the accused chasing PW1 while armed with a knife. In the meantime, the victim was bleeding at his neck. He chased and arrested the accused, but he released him on the demand of the accused's relatives who he did not mention. PW2 further told this Court that the accused threw the knife away when he was running and the same was not recovered. This witness said he knew the accused as they usually played football together and commonly asked for work at the hardware. Enes Maingu Obadia (PW3) assistant medical officer at Mkuranga District Hospital said on 31/05/2023, he received (PW1) from St. Vicent Health Centre. According to him, the patient had lost consciousness and was bleeding at the left side of the neck. In his examination of the patient, he saw a wound at the neck which was still bleeding. Since the patient was showing signs of running out of blood, management was done to 4 contain the bleeding including stitching the jugular vein attached to the Carotid Artery with the function of blood circulation from the heart to the upper side of the body (head). After doing this, he referred the patient to Muhimbili National Hospital for further treatment. He said that the wound at the back was managed at St. Vicent Health Centre. He managed the wound at the neck which was about two to three centimetres, but was life-threatening if the bleeding could not be contained because it affected the jugular vein attached to the Carotid Artery with the function of blood circulation from the heart to the upper side of the body. He prepared his report and filed it in PF3 which was admitted as Exhibit P1. In his opinion, the wound was caused by a sharp object because the same involved the cut wound at the back of the body and the neck. PW4 G.2306 DC Mathias told this Court that on 2/06/2023 he was assigned to arrest the accused. He was led by his informer to the house where the accused was hiding at Kimanzichana. When he reached at the area the accused opened the door, PW4 introduced himself and assured him that the arrest was lawful. He told him that he was under arrest for the offence of attempted murder the offence which occurred on 31/05/2023. Upon introduction, he was certain that he was the one. 5 E7298 DCPL Emmanuel (PW5) was the investigator of this case. PW5, on 31/05/2023, while at the station, he was assigned to investigate the case of attempted murder. The victim of Abdul Mohamed, the accused, was indicated as Masudi Sadiki. He said that by then, the victim was at St. Vicent, and he was out of consciousness. He needed to get preliminary information but the doctor told him that he was out of speech. He also learnt from the victim’s brother that the Masudi had absconded from the area. PW5 reached the scene of the crime on 1/06/2023. He found that there was hardware and met Shabani (PW2) who knew about the scene and the incident. The sketch map was admitted as Exhibit P2. He said he learnt from PW2 that there was an initial attempt to arrest the accused but absconded and that the accused threw a knife but the same could not be traced. PW5 informed this Court that the suspect was arrested on 2/6/2023. When the victim was stabilised, this witness visited him at Muhimbili National Hospital on 8/6/2023, the victim (PW1) told him that he knew the assailant well since he was his schoolmate, they played together and they were neighbours. 6 He gathered the PF3 of PW1 as treated at Mkuranga according to him the Doctors at Muhimbili Hospital told him that the report of the management of the wound was already prepared at Mkuranga Hospital. When cross-examined on why he did not conduct an identification parade, he said the victim knew the assailant well; he even mentioned his name. PW1 told him that they were neighbours and were schoolmates at Secondary school. The incident occurred during the day that time, and the accused was arrested before he absconded. On his part, the accused defended himself as Masudi Sadiki Salum (DW1). He said that on 31/05/2023, he was at Mkamba Nzapala, Mkuranga. He had been there since 29/05/2023 working in Pawpaw farms. According to him, his friend Moshi Said Mohamed (now deceased) told him there was casual work to do, so on 31.05.2023, he was still there. DW1 said he was arrested on 3/06/2023 at Nzapala by two police officers, Paschal, and another whose name he did not recall, but none testified in court. He disputed the prosecution's evidence that he was carrying pebbles. He also disputed that Shabani (PW2) arrested him at the scene. He said that he was not at the scene on the material date. 7 DW1 stated that he had seen Shaban and Abdul previously, but they were not his schoolmates. He further denied knowing Mzee Lwambo and asserted that he had never encountered the alleged knife. DW1 indicated that he did not hear any witness describing the knife, and even the doctor did not specify the sharp object. According to DW1, it was his word against that of the victim, as no witness saw him stabbing the victim. That being both sides evidence this court considered whether, the information is proved in the required standard. Before analysis of the evidence on record, I wish to appreciate the written submission made by the counsels for the parties. It is noted that the same was with short notice. I have read them and will reflect on the same as I approach the legal issues involved in this case. It is the law that the burden of proving the information lies on the prosecution. In Republic vs Zilipa Makondoro (Criminal Session 63 of 2023) [2025] TZHC 394 (21 February 2025) and Mohamed Haruna@ Mtupeni & Another vs Republic, Criminal Appeal No. 25 of 2007 (unreported) it was held that; "Of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an 8 accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." I also note, as rightly submitted by Mr Tibanyendera that the standard in proving the information is beyond reasonable doubt, to borrow the words of my Sister Komba J, Republic vs Zilipa Makondoro (Criminal Session 63 of 2023) [2025] TZHC 394 (21 February 2025), The prosecution evidence must be so convincing that no reasonable person would ever question the accused's guilt.” Now, the information of attempted murder is, in other words, the offence of murder, which falls short of execution. The Court of Appeal in interpreting section 211 of the Penal Code [Cap 16 R.E.2022] in the case of Bonifas Fidelis @ Abel Vs. Republic [2015] TLR 156 elucidated the four ingredients of the offence of attempted murder that can be discerned from Section 211(a) of the Penal Code [Cap 16 R.E. 20222] thus; 1. Firstly, proof of intention to commit the main offence of murder. 2. Secondly, evidence to prove how the appellant began to employ the means to execute his intention. 3. Evidence that overt acts which manifest the appellant's intention. 9 4. Fourthly, evidence proving an intervening event, which interrupted the appellant from fulfilling his main offence, to such an extent that if there were no such interruption, the main offence would surely have been committed." Now, according to the evidence by PW1 Abdul, testified that on the material date, after the accused had done his work, he left the site and returned to the area. This time, he came back to him, insulted him, and attacked him with his fist, and then stabbed him at his back and the neck. When the victim managed to run from the attacker, he said the accused still chased him while his neck was bleeding. I note that identification of the attacker is disputed, I shall address the same. At this stage I have considered the attacker's intention in this. To commit the offence of murder, there must be malice aforethought. Malice can be established by several factors, including the type of weapon used and the part of the body targeted. In Elias Paul V. R, Criminal Appeal No. 7 Of 2004, the court of appeal said, "Malice may also be inferred from the nature of the weapon used and the part or parts of the body where the harm is inflicted. In this case, a stone was used and was hit on the head, chest and abdomen, which are vulnerable parts of a human body" 10 In this case, the victim said he was stabbed with a knife in his neck. It was noted that the knife was not tendered as an exhibit. The prosecution witnesses, PW2 and the investigator, PW5, said the said knife could not be traced from the scene. The accused pressed on the whereabouts of the knife and its description. I note that the prosecution explained the knife was thrown away and could not be traced. As such, under section 61 of the Tanzania Evidence Act Cap 6, all facts, except the contents of documents, may be proved by oral evidence. In the Shedrack Kuhaha vs Republic (Criminal Appeal No. 139 of 2015) [2015] TZCA 166 (5 June 2015), the court of appeal was faced with a similar situation where the axe alleged to have been used to assault the victim in a case of attempted murder was not tendered. The court of appeal at page 8 held; It is true that the axe and the matrimonial proceedings were not as exhibits. The position of the law is that, even if those articles were not produced in court, that factor affects only the weight and not the admissibility of oral evidence regarding the existence of these articles. Their non- production does not obliterate the fact that under section 61 of the Evidence Act (Cap. 6 - R.E. 2002) all facts except the contents of a document may be proved by oral evidence 11 In this case, I have considered the evidence of the victim; the incident occurred during the day, and he suffered a cut wound on his neck and severe bleeding. As such, the doctor who examined the victim (PW3) said the victim had a cut wound affecting the jugular vein attached to the carotid artery. Considering all this evidence, I am convinced without a doubt that the victim was stabbed with an offensive weapon. I see no reason to doubt that PW1 and PW2 identified the weapon as a knife. Again, on another aspect, to establish malice, I have considered the extent of harm sustained and the part of the body injured. In Enock Kipela vs Republic (Criminal Appeal No. 150 of 1994) [1999] TZCA 39 (10 June 1999), the court of appeal stated that in most cases, an attacker would not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) The type and 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; (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, 12 during or after the killing; and (7) the conduct of the attacker before and after the killing. (Emphasis supplied) As I have alluded to above, in this case, I considered that the weapon used was offensive, the part of the body was vulnerable, and the size of injury sustained. This is gathered from the evidence of the doctor (PW3) who examined the victim and said, Upon my examination, I saw a wound in the neck, but it was still bleeding. Since he was showing signs that he was running out of blood. I did management to arrest the bleeding, including stitching the jugular vein attached with the carotid artery, with the function of blood circulation from the heart to the upper side of the body. In this case, I consider that the doctor at Mkuranga PW3 who prepared the PF3 after managing the wound, as indicated above, was competent to provide an opinion on the wound. The defence's submission that he merely filled out the PF3 and prepared the referral is not supported by the evidence on record. On the conduct of the attacker, there is also evidence from PW1 and PW2 that the accused, having stabbed the victim, kept on chasing him while he was armed with a knife until intercepted by PW2. I assessed that the neck was the vulnerable part of the body, and the cutting of the blood vein and 13 artery was deadly. In the case of Daimon s/o Malekela @ Maunganya vs Republic (Criminal Appeal No. 205 of 2005) [2010] TZCA 178 (8 November 2010) The wounds were inflicted in both eyes, left ear cutting through the jugular vein, left arm, right side of the back and neck. In our considered opinion, these injuries were so serious that any reasonable person in the position of anyone, who inflicted them, must have realized that they would probably cause death. (Emphasis supplied) In this case, the stabbing of the victim by an offensive weapon, to the extent demonstrated by Doctor PW3 in and the PF3 (Exhibit P1), was a grave and clear manifestation to cause death or, to say the least, to cause grievous harm. The second element is, evidence to prove how the accused began to employ the means to execute his intention. Before addressing this, I have noted the accused defence that he was not at the scene and as such not identified at the scene. With that note I wish to start with identification of the victim attacker. From the prosecution side, there is evidence by PW1 Abdul (the victim) and PW2 Shaban. These witnesses and the accused knew each other, the fact is not fully disputed 14 by the accused. The accused said, “It is true. I saw Shaban and Abdul but did not go to school together When cross-examined, PW2 said he did not see the accused stabbing the victim. However, he confirmed to have seen the accused at the site and later saw him chasing the victim while he was bleeding in the neck. I consider these facts cementing PW1 evidence that he was stabbed by the accused. Having believed, PW2, why then would someone chase a person while bleeding at his neck if he was not the assailant himself? I have also considered the defense that no identification parade was conducted. It is noted that an identification parade doesn't automatically exclude witness testimony; it is up to the court to consider the circumstances of the case, including the witness's ability to identify the suspect. Under section 60 (1) of the CPA, an investigative officer may hold an identification parade to ascertain whether a witness can identify a person suspected of the commission of an offence. In this case, there was evidence that the accused was known and identified, and even the name was mentioned. For the sake of argument, the offence occurred in broad daylight. I thus agree with the prosecution's submission that there was no need for an identification parade. 15 There is a defence argument that the prosecution failed to procure the attendance of material witnesses. According to Mr Tibanyendera, the witnesses, Hassan, Hamisi, and Yusufu, were present at the workplace and participated in chasing the accused before he was arrested by PW2 (if that were true) were not called so was Mzee Rwambo and his wife, who used Khanga as first aid to take the victim to Vikindu Police and later to St. Vicent health centre. I have considered the decision in Festo Komba vs Republic (Criminal Appeal No. 77 of 2015) [2015] TZCA 826 (1 September 2015), cited by Mr Tibanyendera, regarding the effect of failing to call a material witness. In the cited case, the court found that there was a failure to procure a witness, who would have provided independent evidence regarding the recovery of properties. This case did not lay a rule that all witnesses at the scene should be summoned. This would have been in derogation of Section 143 of the Tanzania Evidence Act, Cap. 6, RE [2022], which states that no particular number of witnesses is required to prove a specific fact. A material witness, therefore, is any person who is in a better position to explain some missing links in the case. See Ahamad Salum Hassan @ Chinga vs Republic (Criminal Appeal No. 386 of 2021) [2023] 16 TZCA 44 (22 February 2023). In this case, PW1 and PW2 were at the scene and testified on what happened and how they identified the victim assailant. I find the evidence on identification to be credible. On the part of the accused's defence, I am aware that the accused denied committing the offence and stated that he was not at the crime scene. I also note that the accused disputed the arrest in the manner stated by the prosecution witness. To buttress this point, Mr. Tibanyendera cited Peter Masanja Makansi v. The Republic, Criminal Appeal No. 327 of 2007, Court of Appeal of Tanzania at Mwanza (Unreported), which considered the evidence as wanting on arrest because others who assisted in arresting the appellant did not testify. I have considered the cited case. Admittedly, in this case, the other officers who assisted Pw4 G 2306 DC Matias in arresting the accused did not testify. With respect, the cited case of Peter Masanja Makansi is distinguishable from this case for the following reasons. The case involved unlawful possession, which was at the core of the charge. In the case at hand, the only issue was whether the said PW4 arrested the accused. This fact was buried on 2.10.2024 during the preliminary hearing, where the accused admitted that he was arrested and taken to the police station. 17 As such, I also have considered the accused's defence of alibi. As indicated above, he denied being at the scene of the crime on the material date, 31.5. 2023. Admittedly, the accused did not file and serve the defence side notice of this defence. It is as such the law that where notice is not filed under section 194 (1) of the Criminal Procedure Act, Cap 20 [RE 2022], the accused had the opportunity under section 194 (6) of the Act to salvage the defence by furnishing the prosecution with the particulars of the alibi at any time before the case for the prosecution was closed. This was not done as such. The republic was of the view that if at all the 1st accused wanted to rely on the defence of alibi, he ought to have called the owner of the farm to testify on his side to boost up his defense thus, the court should not accord any weight to the defense On his part Mr Tibanyendera pointed that the defence gives the benefit to accused if not discredited he cited Director of Public Prosecutions vs Juma Sabas Mtemi (Criminal Appeal 44 of 2021) [2021] TZHC 9070 (23 November 2021) the High Court of Tanzania held at Morogoro held at page 13: 18 “Further to that, the unhealthy state of the prosecution evidence is aggravated by the fact the respondent raised the defence of alibi and the same was not discredited by the prosecution. In this state of affairs, I find it apt to bring up the law as it stands on this defence as was concisely articulated in Charles Samson V Republic [1990] TLR 39: - thus; “(i) The court is not exempt from the requirement to take into account the defence for alibi, where such defence has not been disclosed by the accused person before the prosecution closes its case. (ii) Where such disclosure is not made, the court though taking cognizance of such defence, may, in its discretion accord no weight of any kind to the defence.” Considering that no notice nor particulars were furnished to the defense, it thus remains within the discretion of this court to accord weights to the defence or otherwise. Now, the accused, in his defense, stated that on 31.5.2023 he was at another village at Mzapala Mkamba, working at the papaw farm with his friend Moshi. Considering this evidence, I note that every witness deserves credence; However, I see that the defence did not doubt the strong evidence by the prosecution on identification, as evidenced by PW1 and 19 PW2. As such it did not convince me that as a matter of coincidence the person who were allegedly with the accused on the alleged date are dead or there where about is unknown. To that end, notwithstanding how this defence of alibi was posed, based on the foregoing, I am not persuaded that this defense holds any weight and is hereby rejected. Based on what I have deliberated above I am satisfied that the accused was the victim’s assailant and was well identified The second element of the offence is how the accused person employed the means to execute their intention. In this case, PW1, the victims are aye witnesses. The witness told this court thus; He grabbed me and insulted me, Msenge, Kumamako; he then assaulted me by fist, and when I fell down before I could defend myself, he picked a knife from his trousers which he changed shortly and attempted to stab me in my eyes. I attempted to run from him he grabbed me and stabbed me at the back left side of the neck. I held my neck and started running to the hardware. He followed me but Shaban intervened and chased Masodi I have also considered the argument that the prosecution's case was flawed due to contradictions. The counsel for the accused pointed out the issue of 20 the victims' clothes, whether they were wet with blood, arguing that the evidence of the doctor's PW3 was in contradiction with that of PW5, the investigator. On the other hand, he pointed out that May 31, 2023, was not a Friday, as testified by PW1 and PW2. It was Wednesday, and the middle of the week had arrived. I have considered the above; in the first place, the issue of clothes was explained by PW5, who stated that while at St. Vincent, the victim had changed his attire. As such, on the issue of whether May 31, 2023, was Friday or otherwise. I did not consider the same material as long as the witnesses maintained that the offence occurred on May 31, 2023, as stated in the information. Dickson Elia Nsamba Shapwata another VS Republic, Criminal Appeal No. 92 o f2007, CAT and Mohamed Said Matula V Republic; 1995 TLR 3 CAT, considered. At this stage, I see no doubt that the accused did stab the victim as explained; I find that the act of stabbing the victim in the back and again at the neck despite being avoided by the victim. In the manner explained in the above evidence exhibited how the accused intended to execute his intention to harm the victim. The third element is also demonstrated in the above facts, as such: it is on record that the accused, having left the site, came back and had a 21 knife in his attire, stabbed and kept following him before the victim ran to PW2. I have again considered why he chased the victim while injured in his neck. The last aspect considered was evidence proving an intervening event, which interrupted the accused from fulfilling the main offence, to such an extent that if there was no such interruption, the main offence of murder would surely have been committed. It is on record that the victim PW1 was bleeding profusely, He had been managed at a health centre. When at Mkuranga District Hospital, PW3 said, Upon my examination, I saw a wound at the neck but it was still bleeding. Since he was showing signs that he was running out of blood. I did management to arrest the bleeding, including stitching the jugular vein attached with the carotid artery, with the function of blood circulation from the heart to the brain. He also said that the wound at the neck was about two to three centimetres, it was life threatening if the bleeding could not be contained. It is based on this evidence I find that, had there been no such intervention to rush the victim to the hospital, the murder could have been complete. With that in mind, I find that the four ingredients in this case have been collectively 22 established. In the end, this court is satisfied that the prosecution has proved the charge to the required standard. The accused, if found guilty as charged and accordingly convicted of the offence of attempted murder, contrary to Section 211(a) of the Penal Code, Cap 16 [RE 2022]. A J KIREKIANO JUDGE 21.3.2025 COURT: Judgment delivered in the presence of Miss Amina Macha, Learned State Attorney for the Republic and in the presence of the accused and his defence counsel, Mr. Mohamed Tibanyendera, Learned Advocate, A J KIREKIANO JUDGE 21.3.2025 23