ANTHONY JOSEPH KATEGELE final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT BARIADI CRIMINAL SESSION NO. 27788 OF 2024 REPUBLIC VERSUS ANTHONY JOSEPH KATEGELE JUDGMENT 26th March & 8th April 2025. Massam, J. The accused person, one Anthony Joseph Katelege stand charged with the offence of attempt Murder contrary to section 211 (a) and 380 of the Penal Code [Cap. 16 R.E 2022]. The information was read over and explained to the accused person, he pleaded not guilty to the information. It was alleged that on 14th day of November, 2022 at Kidabu village within Maswa District in Simiyu Region, the accused person unlawful attempted to cause death one LIMBI D/O SAMBUSA. The brief facts leading to this case are that on 14.11.2022 at Kidabu village in Maswa District when the victim was with her family taking their dinner, the accused person entered into the house, and started to assault the victim by cutting her fingers, neck band and ear all of them from the left 1 side. It was alleged that when the incident was happening, victim's husband, and daughter was around, they started to cry for help and by hearing that, the accused person run away. Then the incidence was reported to the police station who took the victim to the police station and she was given PF3 for treatment. At the hospital, after examination it shows that the victim had some bruises in her body. On 18.11.2022, the accused person surrender himself to the police station where he was interrogated, and later on he was arraigned before the court. In proving the guilt of the accused person beyond reasonable doubt, the Republic called a total of four (4) witness witnesses and tendered one (1) exhibits, while the defence testified with 2 witnesses’ including the accused person with no exhibits. In the main, the body of evidence by the prosecution presents a case by taking the evidence from PW1, testified that on 14/7/2022 at evening hours while at home with her family, over sudden accused person Anthony Joseph Kategele came and entered in their house and started to cut her with bush knife and accused person cut her two fingers on her chick, neck band and on ear, all of them are on left side. When she was testifying, the victim (PW1) said that when she was attacked by the victim she was with her husband and a daughter. She was able to identify him through the solar which had enough light. Sh 2 e added that the incident took almost three minutes and she fell down and her family took her to Malya hospital for treatment. However, on the next day she was referred to Bugando hospital. PW2, Daudi Matulanya (The victim’s husband) testified that he is living at Kidabu village with his family. On 14/7/2022 at night hours while he was at home his wife was attacked by Anthony Joseph Kategele (the accused herein) and he cut her by using a bush knife on her neck, and two fingers on the left side. He said the accused person was wearing a sweater and hut with grey colour and he recognized him because there was a solar light which had enough light. He stated further that he knew the accused person as he is the son of the person whom they marry in the same family, and the incident took three minutes. Thereafter, PW2 called people who helped to take PW1 to the hospital as he was in bad condition at that time. It was Mr. Mashauri Igonzela who took her to the hospital and on the next day she was taken to Bugando hospital. He said that the accused person was suspecting the victim as a witch who was bewitching his children. On 15/7/2022, his statement was recorded at Shishiu police station. PW3, a medical doctor and with experience of 6 years, testified that on 14/7/2022 at 8:30pm he was at his work place, he received a patient one Limi Sambusa and before he started to attend her, he opened her a file on 3 line where he filled their quick assessment and then attended one Limi Sambusa who had some wounds on her neck, head, ear, chest and her two fingers were discharging a lot of blood. The said wound at her neck had 4 centimetres and he started stitching those wounds in different parts of the body. He added that on next day ie.15/7/2022 he referred her to Bugando Hospital for further check-up, after the said patient recovered she came back to their hospital with PF3 and he filled it on 27/9/2022, the same was tendered and admitted as exhibit P1. D/CPL Boniface testified as PW4. His testimony is to the effect that on 14/7/2023, at 9:00pm, while at work he received a file MSIR667/2022 with the offence of grievous harm for investigation. PW4 went on stating that he went with OC-CID to the scene at Kidabu village in Maswa District, they inspected the scene and proceed with other investigation. PW4 added that they did not find Limi Sambusa (the victim) as she was taken to the hospital and her husband told them that the condition of the said victim was not good and she was referred to the Bugando hospital. He interrogated Metrida D/O Leonard who told them that on 14/7/2022 at 8:00pm, when preparing themselves for dinner with her parents, over sudden accused person entered and started to cut her mother with a sharp object and she identified him because of the solar light which was strong. 4 Also PW4 interrogated PW1 and PW2 who said that, they identified Anthony because of the light and PW1 continues to say that on 14/7/2022 at 8:00 pm when she was with her family, Anthony came and started to cut her to the different parts of the body. The accused person went himself to the police station on 18/11/2022 and PW4 took his statement at 6:00pm and finished up at 7:00pm. He stated further that accused person denied to have commit the said offence and said that at 9:00pm he got information from his brother one Clement that the victim (Limi Sambusa) was attacked and assaulted by using a sharp object. Accused person narrated that on next day 15/7/2022 he travelled to Mwanza to attend his brother who was sick, and he returned to Shishiu on November, 2022. On 17/11/2022 he was informed that policemen are looking for him and on 18/11/2022, he reported to the police station. PW4 said that after investigation, he realised that the accused person was the one who committed that offence because he was afraid to be arrested and decided to travel to Mwanza. Moreover, PW4 said that it was not normal that Anthony got information that his relative was attacked but he did not visit her but choose to go to Mwanza, he told him that on 14/7/2022 the accused person was at Kidabu and at 4:00pm he returned to his home Shishiu. 5 Having heard the evidence of 4 (four) witnesses and scrutiny the exhibit brought, this court is satisfied that the prosecution case has been sufficiently made to require accused person to enter his defence in respect to section 293 (2) (a) and (b) of Criminal Procedure Act and he chooses to give a sworn defence with two witnesses without exhibit. In defending himself, DW1 categorically denied to have committed the alleged offence. His testimony is to the effect that on 14/7/2022 evening hours, he was at Shishiu centre with his friends, one Nditi James and Saimon Masalu. Then at 9:45pm while going at home with his friend one Nditi he was informed by Clement Joseph that Joseph Kategele was arrested for the offence of causing bodily injury to one Limi Sambusa. Following that information DW1 said that on the next day he went to the police station to bail out his father but he did not succeed. After that he travelled to Mwanza on 22/7/2022 to attend my sick brother. DW1 went on stating that upon arrival from Mwanza on 15/11/2022 he was informed that policemen are looking him and decided to report to police station on 17/11/2022, where he was told that he was alleged to cause grievous harm to the victim (PW1). He said that he knew Limi Sambusa she was a wife of his uncle one Elikana Kategele, but the husband who came with Limi is unknown, nevertheless their testimonies are all lies and he could not commit offence without closing himself because the victim knew him. 6 He added that he does not believe in witchcraft and had two children Goodluck and Greyson and all of them are alive. Finally, he said he did not escape to Mwanza, he went there after one week and prayed this court to consider his evidence. DW2, Nditi James testified that on 14/7/2022 at evening hours he was at Shishiu Centre with Anthony (the accused). At 9:00 pm they started to go home and on the way he received a call from his relative who informed him that, his father was arrested for the reasons that he caused grievous harm to his mother. He said DW1 did not commit the offence as he was with him on the material date. After the closure of the defence case, the learned advocate for the accused person one Mr. Geni Dudu prayed to file the final submission. Similarly, Miss Vaileth Mushumbusi SS/A said that they will also file the same. In their final submission, Ms Vaileth Mushumbusi SS/A said that the prosecution did what it takes to discharge its duty of proving the case beyond reasonable doubt. He referred this court to the case of Paschal Yoya @ Maganga vs. The Republic, Crim. App. No. 248 of 2017 at pg. 16- 17 which quoted the case of Mohamed Haruna @ Tupeni & Another v The Republic. Crim. App. No.25 of 2007. Ms. Mushumbusi submitted that they proved the case through four (4) witnesses whereby PW1- Limi Sambusa testified that while at home with her 7 family suddenly Anthony Joseph Kategele entered in the house and started injuring the victim by using a machete on her two fingers i.e left thumb and index which were completely amputated. The evidence of PW1 is direct and strictly which can be used to prove the issue at hand as it is provided under Section 62 (1) (a), (b) of the Evidence Act, [Cap. 6 RE. 2022]. This evidence was corroborated with the evidence PW2. She added that the incident took place at night and thus a matter of identification must be ruled out. She said that visual identification is the weakest kind of evidence and most unreliable unless all possibility of mistaken identity are eliminated. This stand was celebrated in the case of Waziri Amani v. Republic [1980] TLR 252 where the court went further and entails that: "although no hard and fast rule can be laid down as to the manner a court should determine question of disputed identity, but it seem clear that it could not be said to have resolved the issues unless there is shown on the record a careful and surrounding circumstance of the crime being tried. We would expect to find on record questions such as following posed and resolved. i. The time which the witness had the accused under observation ii. The distance at which he observed him, 8 iii. The condition in which such offence occurred, iv. Whether it was day or night, v. Whether there was good or poor lighting at the scene, vi. Whether the witness knew or had seen the accused before or not. Ms. Mushumbusi argued PW1 identified the accused as she knew him since his childhood, also the distance during the incident was was one step and there was solar light. She referred this court to the case of Abdallah Rajabu Waziri vs Republic, Crim. App. No. 116 of 2004 at page 10 CAT of Tanzania at Tanga whereby the Court was of the view that: "In our view under the circumstance of the case where PW1 knew the appellant prior to the event, and in a single roomed house, light from the matchbox stick was sufficient for proper identification. and that his evidence on identification was free from possibility of mistaken identity’’ Remarkably, in the case of Hassan Juma Kanenyera and Others v. Republic [1992] TLR 100 the court held that: "it is a rule of practice that corroboration is required of evidence of a single witness of identification of an accused made under unfavorable conditions’’ 9 Yet again, Ms. Mushumbusi said that the case at hand the conditions were made favorable by the light from brightest solar lamp and other factors as we have stated above. More to that, the evidence of PW1 was fully corroborated by the evidence of PW2, PW3, PW4 as well as exhibit P1, in this circumstance conditions for identification is favourable. She supported her argument by the case of Anuary Nangu and Another v. Republic, Crim. App. No. 109 of 2006 Court of Appeal of Tanzania at Dodoma pg. 6. Regarding the issue of whether the evidence adduced by the prosecution witnesses are credible, reliable and sufficient to warrant conviction. Ms. Mushumbusi said that the evidence of PW1 was not shaken at all. Therefore, her evidence is trustworthy. This is being supported by the case of Goodluck Kyando Vs. Republic, TLR [2006] pg. 363 Court of Appeal of Tanzania at Mbeya whereby it was held that: "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. She added that PW 1 is credible reliable and sufficient to warrant conviction of the accused at hand. See the case of Ogawa Butunga & Another vs Republic, Crim. App. No. 121 of 2005, Court of Appeal of Tanzania at Mwanza at pg 14 — 15. 10 Ms. Mushumbusi submitted further that that there were some discrepancies in the testimonies due to human factor and lapse of time since the event occurred almost three (3) years until the day of their appearance in this Honourable Court. Nevertheless, the discrepancies did not go to the root of their evidence and as it was the position of the Court of Appeal of Tanzania in the case of Maramo Slaa Hofu and 3 Others v. Republic Crim. App. No. 246 of 2011 (Unreported) whereby the Court of Appeal cited the case of FAUSTINE MATTLE PHIL-IPO V. R Crim App. No. 8 of 2023 (Unreported) at page 5 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 the 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 endeavour 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. " 11 She prayed that the slight inconsistences not to be taken on board to defeat justice in such a matter when there is eye witnesses who testified in court. Notably, Ms. Mushumbusi said that as a matter of principle, a party who fails to cross-examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said. It is the evidence of PW1 that the accused injured her because she used to bewitch his sister. That evidence was not challenged at all by the accused. When the accused was given opportunity to cross-examined PW1, the record shows that he had no objection. In the case of Damian Ruhele v. Republic, Crim. App. No. 501 of 2007 Court of Appeal of Tanzania (Unreported) the court held 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. Also, Ms. Mushumbusi said that in law, a conviction cannot be based on the accused person's lies, but if material, such lies may be taken into account in determining whether the alleged guilty of the accused has been proved as pointed out. She supported her argument by citing the case of Twaha Elias Mwandugu v. Republic [2000] TLR 277. 12 Moreover, Ms. Mushumbusi invited this court to mark the accused person's lies in the proceedings. For instance; during the Cross examination by the prosecution side; he refused to have been identified by PW1 and PW2 while testified to court to that they identified him during the commission of the offence. Surprisingly, he confessed to know them very well. Another lie is when he was being interrogated at the Police Station he said that he left Shishiu on 15/07/2022 at around 06.00 hrs heading to Mwanza and came back on 13/11/2022 but during his defence in court he said that he went to Mwanza one week later i.e. after the incidence had occurred. Nevertheless the accused failed to bring the supporting document to prove that he travelled to Mwanza to take care for his brother who was sick. Also, but also even his brother who was being taken care by the accused was not among his defence witnesses. Again, Ms. Mushumbusi said that the accused tried to raise the defense of alibi. He brought one NDITI JAMES to support his allegations whose statement shows that on 14/07/2022 they were together with him at Shishiu centre but each of them was being separated by the type of the game they were playing and that he didn't know the people surrounded the 13 Accused. Finally, she said that the prosecution evidence is sufficient enough to prove the case beyond reasonable doubt. Mr. Dudu on behalf of the accused person submitted that in criminal trial the burden of proof always is on the shoulder of the prosecution and proof has to be beyond reasonable doubt. See the case Mohamed Said Matela vs. Republic (1995) TLR No. 3. He also referred this court to the case of John Makolebela and two Others vs. Republic, [2002] TLR 296, where the court held that a person is not guilty of criminal offences because his defence is not believed; rather, a person is found guilty and convicted of criminal offence because of the strength of the prosecution evidence against him which establishes his guilt beyond reasonable doubt. Apparently, Mr. Dudu stated that it is well settled that evidence of recognition is considered to be more reliable than identification of stranger. Besides, the court of appeal has occasionally warned that such evidence should not be taken wholesome and acted on for an obvious reason that possibilities of mistaken recognition of even close relative and friends may sometimes be made. He forties his argument by referring the case of case of Shamir John Vs. Republic, Criminal Appeal No. 166 of 2004 where the court observed that: 14 “......Recognition may be more reliable than identification of stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition of close relatives and friends are sometimes made”. Also, Mr. Dudu submitted that the law relating/ governing evidence of visual identification in this jurisdiction is settled and the Court of Appeal in many occasions has restated the principle governing it in determination of the accused guilty. See the case of WAZIRI AMANI Vs Republic (1980) TLR 250, RAYMONDI FRANCIS Vs. R (1994) TLR 100, CHOKERA MWITA Vs R, Criminal Appeal No. 17 of 2010, DANIEL PAULO @ MEJA Vs R No.307 of 2016, BAYA Vs. Republic Criminal Appeal No. 593 of 2017 and CHACHA JEREMIAH MURIMI and three others vs. REPUBLIC, Criminal appeal No. 531/2015, 2019 TZCA (4, April, 20214). Now, Mr. Dudu said that the evidence by PW1 and PW2 as regard to visual identification have failed to meet guidelines in the above cases because they failed to tell the duration of time they had the accused 15 person under observation and actual distance he put the accused under observation. Again, Mr. Dudu contented that it is settled that naming the suspect at the earliest possible opportunity is an important assurance of the reliability of the witness likewise failure to mention the suspect at earliest opportunity may put the credibility of the witness in question this position was stated by the court of appeal in the case of Marwa Wangiti And Another vs. Republic 2002 TLR 39 and in the case of Nelson Tete vs. Republic, Criminal Case No. 419 of 2013, 2015 TZCA518 (27 August, 2015) that the delay in naming the accused persons as the suspect responsible for deceased death put the credibility of PW1 in question. He argued that there was no any other independent prosecution witness to prove that the accused person is responsible for the incident. The testimony of PW3 and that of PW4 one will find that in his evidence PW3 told that one MASHAURI IGONZERA the victim's neighbour was one among of the neighbours involved to escort the victim to the hospital and that the victim was in unconscious state as she was able to talk to him and PW4 told this court that it was after interviewing the victim daughter one METRIDA that he got information that it was accused person who is 16 responsible for the incident. Under normal circumstances MASHAURI and METRIDA were material witnesses. Moreover, Mr. Dudu said that the consequences of failure to call material witnesses as was observed by the court of appeal in the case of AZIZI ABDALLAH Vs. REPUBLIC 1991 T.L.R.91 and MASHIMBA DOTTO LUKUBANIJA Vs. REPUBLIC Criminal Appeal No. 317 of 2013 2014 TZCA 271 22 October, 2014 where the court held: “The general and well known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify to material facts if such witnesses are within reach but are not called without sufficient reason being shown, the court may draw inference averse to the prosecution.” He also invited this court to consider delayed arrest of the accused, had multiple effect on the prosecution case as it casts doubt on the appellant involvement in commission of the offence. Also there are no single witness who lived in the same village with the accused called by the prosecution to tell the court that the accused escaped after the incident. 17 Again Mr. Dudu prayed for this court to consider the accused person defence that he was not at the scene of crime at the time of commission of offence but was at Shishiu village with his close friends. Also being familiar and very known by the two identifying witnesses would have been so foolish as to go to the victim’s house to kill her without even masking his face to be sound. He cemented his argument by referring the case of Amos Paula and Another Vs. DPP, Criminal Appeal No. 308/2009, 2012 TZCA 139 (2 March 2012) where the court has this observation to make “..the first appellants contention that it would be most unlikely being very well known to the complainant to have gone to rob her without concealing his identity makes sense.” Finally, Mr. Dudu said that, the prosecution case is weak as it failed to prove the charge against him beyond reasonable doubt and hence the accused person be set at liberty. Having heard both sides together with their final submissions, the main issue for determination before this court is whether the offence of Attempted Murder has been proved against the accused person beyond reasonable doubt. Section 3 (2) (a) of the Evidence Act, Cap 6 R.E 2022 reads that: 18 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; This standard was insisted in the case of JONAS NKIZE Vs. Republic [1992] TLR 213 where this court through Katiti, J. (as he then was) stated that; “The general rule in criminal prosecution that the onus of proving the charge against the accused beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting or Ignoring It is unforgivable, and is a peril not worth taking” Emphasizing the same standard, the court of Appeal of Tanzania in Furaha Michael versus The Republic, Criminal Appeal No. 326 of 2010 (Unreported) had this to say: "The cardinal principle in criminal cases places on the shoulders of the prosecution the burden of proving the guilt of the accused beyond all reasonable doubt"; 19 The onus never shifts away from the prosecution and no duty- is cast on the accused person to establish his or her innocence. See the case of Said Hemed Vs. Republic [1986] TLR 117. In the instant case, the evidence placing the accused person at the scene of crime is the evidence of the identifying witness PW1 and PW2. Now, the question to be resolved here is whether the accused person was correctly identified? It is trite law that in order to convict the accused person on the evidence of visual identification, the court must be satisfied that the evidence is watertight. In the case of Waziri Amani Vs. Republic [1980] TLR 250, it was held that; ” Evidence of visual identification, as Courts in East Africa and England have warned in a number of cases, is of the weakest kind and most unreliable. It follows therefore that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight.” The Court further stated that, 20 "Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions of disputed identity, It seems dear to that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not See also the case of Raymond Francis Vs. Republic [1994] TLR 100 and Vitalis Bernard Kitale Vs. Republic, Criminal Appeal No. 263 of 2007, (CAT) Arusha, (unreported). In the latter case the Court of Appeal held that; 21 "We do not think that knowing the appellant alone is sufficient, There should be more concrete detailed description of the appellant. The witness should have given a description of the appellant as he saw him at the time of the incident.” In the instant case, PW2 said that accused person is the son of the person whom they marry in the same family and he recognized the same through solar light. However, PW2 did not mention any one at the scene until when he went to Shishiu police station. Moreover, PW1 said Mashauri Igonzela was the first person to appear at the scene and when he asked who committed the offence, they said that knew nothing. In my considered view, the accused person was not properly and correctly identified by PW1 and PW2 because accused person was well known to the identifying witness but failed to name the same at the earliest stage, while at the same time they said that they don’t know who committed the offence. Hence evidence of PW1 and PW2 is not reliable evidence against the accused person. Furthermore, the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his credibility. This position 22 was stated in the case of Marwa - Wangiti Mwita and Another versus Republic [2002] TLR 39, where it was held that: “The ability of a witness to name a suspect at the earliest opportunity is an all- important assurance of his credibility, In the same way; unexplained delay or complete failure to do so should put a prudent court to inquiry. " (Emphasis added) In this case, PW2 said that he saw the accused person entering in his house and cut his wife on her neck, two fingers, but he did not mention any one until when he reached at Shishiu police station. This court asked itself a question that if PW2 knew the person who committed the offence, why he did not mention the same at the scene? Nevertheless, when Mashauri Igonzera asked who committed the offence they said they did not identify the culprit. Basing on what I have explained herein above together with the cited authorities, I am satisfied that in absence of other evidence it is unsafely to convict the accused person as he was not correctly identified by a PW1 and PW2, the main witnesses. 23 Coming to the issue of failure to call the material witness. The meaning of material witness was exlained tha the case of Director of Public Prosecution Vs. Sharif Mohamed @ Athuman, Criminal appeal No. 74 of 2016, where the court defined the meaning of material witness to be a person who has information or knowledge of the subject matter which is significant enough to affect the outcome of a trial. She continued to state that the court should not rely on speculative views from the respondent. It is well known principle that failure to call material witnesses renders the court to draw adverse inference that if at all the said witnesses were called, they could have tendered adverse evidence against the party. See the case of Boniface Kundakira Tarimo Vs. Republic Criminal Appeal of 350 of 2008 (unreported) where the court held that: “It is thus now settled that where a witness who is in a better position to explain some missing links in the party case is not called without any sufficient reasons being shown by the party, an adverse inference may be drawn against that party”. 24 In our case at hand, the testimony of PW2 shows that Mashauri Igonzera the victim's neighbour was the one who took the victim to the hospital and was the first neighbour to go at the scene but he was not called in as witness. Thus I agree with Mr Dudu that Mashauri Igonzera was a material witness who was supposed to be called by the prosecution side. Also, there was variance between the charge and the evidence adduced by the prosecution witnesses. The variance between the the charge and the evidence has been emphasized by the Court in several decisions. For instance, in Abel Masikiti Vs R [2015] T.L.R. 21 which was referred in Emmanuel Kabelele Vs R (Criminal Appeal 536 of 2017) [2021] TZCA 531 (23 September 2021, TANZLII) the Court stated: "In a number of cases in the past, this Court has held that it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet which the accused was expected and required to answer. If there is any variance or uncertainty in the dates, then the charge must be amended in terms of section 234 of the CPA. If this is not done, 25 the preferred charge will remain unproved and the accused shall be entitled to an acquittal. Short of that failure of justice will occur"[Emphasis added]. Variation on the date when the offence was committed cannot be treated as minor one, especially in this kind of case where a charge provides a specific date. This was also the stance of the Court in Ntobangi Kelya & Another Vs R (Criminal Appeal 256 of 2017) [2021] TZCA 393 (23 August 2021, TANZLII) and Said Musa Soweni vs R (Criminal Appeal No. 93 of 2020) [2022] TZCA 218 (22 April 2022, TANZLII). Particularly, in the latter, it was held that: "The law is settled that, a charge which is in material conflict with the witnesses' testimonies materially shakes credence of the prosecution case and renders the prosecution case not proved to the required standard. " In our present case, the charge sheet indicates categorically that the offence of attempted murder was committed by the accused person on 14th day of November, 2022 after amendment of the charge which earlier shows that the offence was committed on 14th day of November 2023. However, the evidence of the victim (PW1) suggests that the 26 offence was committed on 14/7/2022, The evidence that was collaborated with that of PW2 and PW3 while PW4 said that the offence was committed on 14/7/2023. I am alive to the general rule that, for the prosecution to establish the guilt of the accused, it must prove the offence as laid in the charge before the court. From the evidence above, the charge was not proved to the standard required by law, it followed that the prosecution case against the accused person was not proved. I disagree with Ms. Mushumbusi that the said inconsistences and contractions were minor and does not go to the root of the case and the cases cited by her to that effect is irrelevant because the inconsistent in this case go to the root of the case and shaken their evidence. In his defence the accused person raised a defence of Alibi. It is a cardinal principle that the accused person does not have to establish that his alibi is reasonable true, but all he has to do is to create doubt as to the strength of the prosecution’s case. Further to that the law sets some conditions to be observed when admitting the defense of alibi, and this was pointed out under the provision of Section 194 (4) (5) and (6) of the Criminal Procedure Act, [Cap 20, R.E, 2022]. In his defence he 27 said that during the commission of the offence he was not at Kidabu village but he was at Shishiu centre with his fellow. Consequently, this court is of the firm view that, the defence of alibi raised by the accused person and supported by DW2 does not shake the prosecution case at all. However, for other reasons explained herein above the prosecution failed to prove the case beyond reasonable. Notably, Section 211 (a) of the Penal Code which the accused persons stand charged with, provides that; "Any person who; (a) Attempts unlawfully to cause death of another, is guilty if an offence and is liable to imprisonment for life. ' When considering the offence of Attempted Murder, the contents of Section 380 (1) and (2) of the Penal code, [Cap. 16 R. E 2022] provides that: ” (1) when a person; intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention to such extent to commit the offence. 28 (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of further prosecution of his intention." The Court of Appeal of Tanzania in the case of Samwel Jackson Saabai @Mngawi and 2 Others versus Republic, Criminal Appeal No. 138 of 2020 and the case of Boniface Fidelis @Abel versus Republic, Criminal Appeal No. 301 of 2014 four ingredients of Attempted murder arising from section 211 (a) read together/// with section 380 of the Penal Code were summarized as follows:- “ (a) Proof of intention to commit the main offence of murder, Evidence of prove how the accused/ appellant began to employ the means to execute his intention. (c) Evidence that proves overt acts which manifested the accused's/appellant’s intention (over act means an act directed towards another person that indicate an intent to kill). 29 Evidence proving an intervening event, which interrupted the accused/appellant from fulfilling his main offence to such extent if there was no such interruption, the main offence of murder would surely have been committed.” In the instant case, the accused person was not properly identified, prosecution side failed to call the material witnesses and more to that, there was variance between the charge and evidence adduced hence the ingredients of this offence as stated herein above were not proved to the standard required in criminal cases, that is beyond reasonable doubt. In the upshot, I find the accused person not guilty of the offence of Attempted Murder as charged. I accordingly acquit the accused person one, Anthony Joseph Katelege unless held for another lawful reasons. It is so ordered. DATED at BARIADI, this 8th day of April, 2025. R.B. MASSAM JUDGE 30