na TZHC Dodoma 1

IN TRT1 I-uGH COTJT.T OF TANZANIA AT DODOMA ORIGI1TAL JTJ?JSDICTION CRIMINAL SESSIONS CASEJ NO. 10 or: 1972 THE ?EFUBIIC Versus SAIDI s/o ABDALLAH Charge:- Manslaughter c/s 195 of the P.C. J U D G E N E N P. NNZAVAS J. The accused Abdullah stands charge with at empted murder 's 211 of the Penal Code. The prosecution allege that the.accused on or about the T5th day December 1970 attempted unlawfully to cause the death of one Maulid s/o Suleman. The accused pleaded not guilty. On 15/12/70 the accused, his wife, Maulid Suleinian, the com- plainant, and one, Shabani Abdallah and his wife went to one Athuman where there was native-liquor. They drank pombe up to about 8 p.m. when they started their way home. According to the evidence of Naulidi (p.W.1 ) as they were going home the accused and Shabani started quarreling. The qur rel led to a fight. Maulid intervened and the fight stopped. Naulidi, related to the court that the accused was the aggressor in that he had abused Shabani - "Kumamayo' and that he followed the abuses by pushing him. After the intervention both the accused and his wife and •4ulidi and his wife went to their respective homes. While at his iiouse Maulid heard an alarm he responded to the alarm accompanied with his wife. On reaching where the alarm was coming from he met one, Athumarii from who he inquired the cause of the alarm and was told that the accused had agaiY:,. quarreled with Shabani and had assaulted Shabani's wife. The witness was also told that the accu- sed had gone to his house. Then the complainant and his wife as well as Athumani and his wife started going hone. According to the complainant, (P.14.1) to go to their homes they have to pass near the accused's home stead. Astthey passed the accusedhouse the accused is alleged to have heard them and abused all of them saying "Kumamayozenu" - (meaning your mother's vaginas). According to the complainant the accused was standing about 20 paces from them when he uttered the vulgar abuses. The complainant responded by saying to the accused What are you saying. What is wrong with you today? Thereupon the accused is reported to have called his wife and asked her to bring to him his bow and arrow. The complainant get worried and started rushing to where Shabani and Athunani were. As he was doing so hë was shot with an arrow on his shoulder. . . . -2- He raised an alaru and Athunani and Shabani and his wife who were a few paces infront of him came to his rescue. Shabani(P.W.2) testified to the court how the accused assaulted him and his wife on the material night and how the complainant intervened the fight between him and the accused. This witness also told the court that as he was going home accompanied with the complainants and Athuman he heard the accused abusing them - "Rumamayozenul. 1 According to his testimony he also heard P'Iaulid asking the accused - 11hat is wrong with you today? - And that the accused responded by telling his wife to bring to him his bow and arrows. Then the witness hoard Maulid's wife telling him that her husband had shot with an arrow. The witness related to the court that he ran to where the complainant was and that he and Athuman(P.11.5) managed to pull out the arrow-head from Naulid 's shoulder. Athuman(PW 5) also gave evidence. In his evidence he also told the court that he heard the accused calling for his bow and arrows from his wife and that soon after he heard Naulid crying that he had been shot with arrow. Like Maulid (P,w, 1) and Shabani(P. W, 2) this witness related to the court that neither the accused, nor his wife answered their alarm. The accused in an unsworn stated denied the allegation against him. In his defence he does not deny drinking pombe at one, Athuman.'s home-stcad, He also admits that he was, ac.Q.omp.aned- with. cothpiainant and Shabthii(P.W2). Abo±'din to h± debhe th-his company loft the pombe party at about 6.30 p.m. to their respective homes and that on arrival at his house he closed the door and started playing with his children. His wife prepared food and that after taking his supper he went straight to bed. He told the court that it came to him as a great shock when next morning he was arrested and charged with shooting the complainant with an arrow. There is no disputed in this case that Maulid(P.1.1), the complainant., was shot with an arrow on the night of 15/1 2/70 as he was coming from a drinking party. The only question the court has to decide is whether there is sufficient evidence to support the Republic 'a argument that it was the accused who shot the complainant with an arrow. In support of this arguments we have the evidence of the complainant who told the court that he heard the a'ccused who was standing about 20 paces away calling for a bow and arrowsofrom his wife and that soon after he i, ,Tas shot with an arrow on his shoulder. Complainant's evidence is fully supported by the testimony of Shabani(P.W.3) and also by At-human (P11 5) the people he was acco- mpanied with. There is no dispute at all in this case that the cornp- lainant and these two witnesses have lrnown the accused for a long i.me. Indeed they all live In the same' village and they are neigho bOtuis. They all told the coixt that they hoard and recognized the accused's voice as he called for his bow and arrows. An alarm was raised but neither the accused nor his wife who were only 20 paces away responded to the alarm. This be- haviour of the accused and his wife is certainly not without significance. a . / 3. 1 here was not the slightest suggestion, leave alone e.iicience:, that the complainant, Shabani and Athumani had reasoito tell lies against the accused. That the accused was unreasonably aggressive on the mate- rial night is clearly reflected by what he had already done just before the shooting of the complainant.with an arrow. He for no obvious reason, quareled and fought with Shabani (P.W.3 The complainant intervened but soon after he again quarreled with Shabani and slapped Shabanits wife. In his defence he told the court that he returned from the pombe-party without any incident and went home. and slept. In The light of the complainant's evidence, supported as it is by Athumani and Shabani I have not the slightest hesitation in regarding his story as nothing but bogu. It was argued by the learned defence counsel that there was doubt as to how the complainant got shot with an arrow because no arrow shaft was found at the scene. It is true that no arrow shaft was found at the scene but we have evidence to the effect that the accused dislodged the arrow-shaft from the arrow- head as he was pulling the arrow from his body and that the arrow-shaft fell on the ground. Why the arrow-shaft was not found at the scene next morning and how it miraculosly disap- - peared is anybody's guess. It was also argued by the defence that as the shooting took place at night and the further fact that the complainant and his friends were under the influence of alcohol there was a possi- bility of mistaken identification of the complainant's assailant. With respect I would say that such a possibility is extremely remote. The complainant gave his evidence in a straigforward cogent manner and his conduct in court left no doubt in my mind that he recognized the accused as - he person who shot him with an arrow. His testimony regarding identification of the accuced is, as I Jiavo already mentioned, fully supported by Shabani and Athumani. For evidence to be so consistent the only deno- minator, save perjury, is truth. I with respect agree with the learned state attorney's argument that there is ample evidence that it is the accused who . shot the complainant with an arrow on the material night. - The next question i have to decide is whether the shooting amounted to the offence of attempted murder. In a case of attempted murder the prosecution must prove that the accused had the positive intention unlawfully to cause death when he did the unlawful act. In the present case the arrow-head (exhibit A) was sent to the G-overnment Chemist f or chemical analysis. The chemist's report (exhibit B) is to the effect that the arrow-head was loaded with 37.37 miligrane of Quabain, a heart poison. And, aording to the report, the generally accepted minimum lcthal for a man *elghing twelve stones is two rLailli- grams. From the report it is amply clear that the amount of poison smeared on the arrow-head was capable of killing 18 people weighing 12 stones each, There can be no doubt that the accused knOr that the arrow he shot at tho complainant was loaded with deadly poison. With this 'mowledge ho, nevertheless, shot the complainant with the deadly arrow, - - - IBM