19730726 TZHC Iringa

/ IN THE HIGH COURT OF TANZANIA /., AT IRINGA c- - ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO0 91/3 1 THE REPUBLIC Versus JOHNS/O MWINYI......................................... Chge: Attempted murder contrary to section 211(1) of the Penal Code. 1 JTJDGMENT L. MNZAVAS J. The accused John Mwinyi sthds charged with attempted murder c/s 211(1) of the Penal Code0 It is alleged by the Republic that the accused, on or about the 18th day of December 1972 at Kilolo in the region and district of Iringa, unlawfully attempted to cause the death of one s Pangamwigendo s/o Ludasi. The accused pleaded not guilty to the charge3 That the complainant was on the morning of 18/12/72 at about 8 a.rn * shot in his right wrist with a gun there can be no dispute. It is however in dispute as to who was the perpetrator of this crime0 The prosecution argued that it was the accused who shot the complainant on the material morning and that he did so with the intention of killing him. The- The defence on the other hand argued that the evidence regarding identification of the person who shot the complainant was such that it would be unsafe to relie on it. The Republic produced nine withesses in support of its case6 Pangamwigendo (Pw3)., the complainant., was the star itness- According to his testimony hei on the material day left his house in the morning and went to wd his pyrethrum farm. He started weeding at about 8 a.m. and that as he was doing so heard sound of a gun and instantly realized that he had been shot in his right wrist. The complainant also related to the court that soon after he was shot he looked at the direction the sound caine from and that he saw the accused standing infront of him holding a muzzle-gun.. According to his testimony he asked the accused - "Why are you bullying at me". and that the accused did not answer. He went on and told the court that thinking that the accused was going to shoot him again,took to his heels to one, Bartolomeo's house, and reported to him that John Mwinyi had shot him with a gun. From Bartolomeo's house villagers escotted him to Kilolo dispensary where he receiied first aid treatment and from there he was brought to Iringa govemment hospital where he was admitted for 11 ys. One s Mark Mwenexnpasi (Pw7) a rural medical aid related to the court bow he found the accused's injured wrist when he rendered first aid to him. He testified to the court that the complainants wrist showed two woundswhich were opposite each other. He told the court that one of the wounds was clear and penetrating but that the opposite wound was irregular and there was considerable damage of tissue around it. As the wrist appeared shuttered he decided to transfer the complainant to Iringa gOvernment hospital for specialist treatment. Dr. Mohamed (Pw1), a :surical specialist,relatêd to the court that he examined the coinp.lainant on 18/12/72 and recommended h .. ... . .. .2 '4 his admission to hospital. According to his evidence the complainant ad a lacerated wound qk his right wrist and was of the opinion that he wound must have been caused by a sharp penetrating missile0 He found considerable damage of tissue and blood-vessels and assessed the harm as dangerous harm. He produced P.Fe3 in respect of the complainant which was admitted and marked as exhibit "A". Bartolomeo (PW4) told the court how on the morning of 18/12/72 the complaL'iant came to him bleeding profusely from his injured wrist and told him that he had been shot by John Mwinyi. He also told the court 'ahat he escotted the complainant to Kilolo dispens-. ary One Tuhegelo (Pw5) gave evidence to the effect that fthe on last year's Republic day (i.e. on 9/12/72) she met the accused carrying a muzzle-gu:. According to her testimony she asked him where he was coming from and that the accused replied that he was from a hunting expedition which had proved unsuccessful. This withess further told the court that she waslike the accused, a member of Luganga ujamaa village. According to her testimony on the morning Pangamwigen- do was shot she as usual, attended the 4jamaa village's morning roll- call together with oher villagers 0 She said that the accused did not turn up for the .:oll-call that morning but that later, at about 10. a.rn0 the accused arrived and participated in cultivating a pyrethrum shamba. This withess also told the court that she was with one s Anzemnise when they saw the accused earrying a muz zle-gun. Jacob Chalale (Pw6), another member of Luganga ujamaa village related to the court that he was with one,.Jerusa1emu s/o Munzegule sometime ii. November 1972 when they met the accused carrying a muzzle-gun0 Jacob further testified to the court that on 18/12/72 he attended the villager's morning roll-call which starts at about 8 am. and that the :oll-call ended at about $i,3p a.m. and the villagers went to their variou3 activities0 According tO his testimony the accused was not at the roll-call on that morning and that he had not turned up even at 8.30 when the villagers left to thetr jobs, The court was further told, that on 'that day there was a committee members meeting. Hassani PW7) another member of Luganga ujamaa village also told the court that sometime in November 1972 he was with one Jerusalemu and Jacob (Pw6) when they met the accused carrying a muzzle- gun, and that he was coming to the 4amaa village from his old residen- ce. This witness further testified to the court that he, like the accused is a committee member of the village. According to' his evidence the accused did not attend the morning roll-call on 18/12/72. The court was also told that on the same morning of 18/12/72 there was a committee members ;.eeting which was convered soon after the roll-call. According to the accused was also not present at the QoIninittee members meeting"hehtid the court that the accused arrived at about 9 a.m. when the meeting had ended. The withess further gave evidence to the effect that a week before his arrest the accused had told the villagers that he was to be away from the village for one week as he was going to see his youzjg brother in Dodoma.. When. asked by the villagers why he was late he is reported to have replied that he had gone to cultivate his personal sharnba first. In his sworn evidenco the accused denied shooting the complainant. He told the court that he coutd not have done so as he was. no where near the complainant at 8 a.m 0 on the 18/12/72, the day the complainant was shot in.his wrist. According to his defence he was at the material time working in his'pyrethrum shamba. He also told the court that he has never owned any type of fire-arm or borrowed one from anyone.. The accused further told the court that Hassani, Tuhegelo and Jacob told lies to the court when they said that they had seen him carrying a muzzle-gun., In his speech to the court the learned state attorney argued that there was nothing from the evidence of Pangamwigendo 0 * 0 0 •0 /3 I / .. 0 1 0 •(/3 to suggest that he could have been mistaken in his identification of the accused as the person who shot him with a muzzle-gun. The Republic concided that the complainant was the only identifying witness and that as such his evidence should be examined with care but argued that a conviction based on an identification of one withess cannot be in law, said to be invalid if the court is satisfied that such evidence cannot be other than truthful0 In support of his argument the court was referred to the decision of this court in Rvs CHAMTIGITI (1970) HOC O D. 348. The Republic argued that the accused was well known to the complainant as he was his neighbour and that he shot him in broad day light. rebuttal the learned defence counsel argued that it has always been held by this court and the court of Appeal that there is always a danger to base a conviction on the testimony of a single identifying withess especially where there is evidence that the identifying withess could have been mistaken. It was the defence argument that in this case there was evidence that shadows of bamboo trees which fell on the person who shot the complainant would have made it difficult for the accused to identify the person with certainty and that complainant's testimony that he identified the accused as his assailant could not in these circumstances be relied upon as a basis of his conviction. Alternatively the learned defence counsel submitted that even if the court was to accept the complainant's testimony that he could not have been mistakdn in his identification of the accused there was, according to the defence, evidence that the accused had not formed a positive intention to kill the complainant when he shot him. It was argued that the fact that the accused Ghose to shoot the complainant in his wrist and not invulnerable part of the body showed that the complainant had no intention to kill the complainant0 In support of this argument the court was referred to the decision by Georges C.J.(as he then was) in R vs CHRISTOPHER S/C NGAMBILO (l&57) H.C.D. 388. It was also argued that the evidence showed that there was no enemity between the accused and Pangamwigendo contrary to what the prosecution had endevoured to prove. After summing up the gentlemen assessors, they were of the unanimous opinion that the complainant amply identified the accused as the person who had shot him with a muzzle-gun. Tehy were also of the opinion that at the time he shot him he had formed a positive intention to kill the complainant. They accordingly found the accused guilty of attempted murder as charged. I will first deal with the question of identification. As argued by the defence and concided by the Republic a corn-it has always to be extremely cautio1s before basing a conviction on a single identi- fying witness But, as argued by the learned state attorney this court as well as the court of Appeal have 1 times without number held that a conviction is not necessarily inviiid because it is based on an identi- fication by a single witness. What is important in such cases is for the court to examine the circumstances under which the identifying witness based his identification before deciding one way or the other. In the present case there is no dispute at all that the complainant has known the accused for a long time as they live in neihbouring villages. Over and above this the complainant told the court ha& he always used to buy meat from accused's buchery and that he could not have mistaken his identity on the material day. And it is not at all disputed that the complainant was shot in broad day light and, from the evidence his assailant was standing about 40 paces from him. It was argued that the shadows of bamboo-trees which fell on the said assailant could have obscured complainant 4s vision. This is a fair: submission, but. at the same time we have the evidence of the complainant,which evidence is supported by p.c. Samuel (PW8), that J there was nothing between the complainant and the person who shot him to. obscure his vision. We also have evidence that the bamboo-trees said to be near the assailant were far apart. Taking all thes / ihto account I tend to agree with the Republic's argument that the complain- ant amply identified the accused as the person who shot him on the material day. At this juncture I would like to mention that the comp- lainant's evidence receives corroboration from not less than three witnesses. •These are Hassani, Jacob and Tuhegelo.. These withesses related to the court how on different occ.s!Ons (before the shooting of the complainant) they met the accused carrying a muzzle-gun. These witnesses gave their evidence in a straight-forward cogent manner that left me in no doubt that they were credible witnesses. Apparently the accused told the court that all these witnesses told lies to the court. He however when cross-examined by the prosecution and the court failed to advance any reason why these three withesses should have decided to join forces against him. In his defence the accused proved extremely contradictory. He infact left clear impression to the court that his aefnce was palpably false. He for example told the court in his evidence in chief that he had decieved the ?illagers that he would be away in Dodoma for one week so that he could have more time to cultivate his personal pyrethrum shamba as opposed to the communal village shamba. When he was cross-examined by the prosecution he gave a totally different story regarding his failure to go to see his young brother in Dodoma. He told the court that he infact intended to go to Dodoma but that he could not afford bus-fare as he had used all his money in paying for treatment of his child in a mission hospital. Accordinglto his defence the child had fallen sick in the very week he had iñtendedt• go to Dodoma. When asked by the court as to which of the two diametrically opposed stories should be accepted the accused had no answer. There is also the evidence of Jacob, Hassani, and Tuhegebe that the accused failed to turn up for the ujamaa village's roll-call on the morning of 18/12/72, the morning the complainant was shot. These witnesses told the court that the roll-call always started at about 8 a.m, and ended around 8,30. According to the evidence the complainant was shot between 8 a.ma and 8.30 a,m. When interrogated as to his movements between these times the accused gave contradictory stories. He told P.C. Samul that he was at his house all morning on 18/12/72. When he was inter- rogated by P.C. Martin he told him that he was on that morning at the village's pyrethrum farm. When questioned by Hassani (PW7) he gave yet another different answer. He said he was cultivating his shamba. I now come to the next and final question. This Is the questi-a on as to whether the accused had formed a positive intention to kill the complainant hen he shot him. As I have already mentioned the defence argument)that the accused's shooting of the complainat in his wrist was inconsistent with the Republic's argument that the accused had decided to kill the complainant. With respect to the learned defence counel the facts in CHRISTOPER'S CASE- (1967) H.C.D. 388 are totally different fQDm the present case. In that case the accused had said to the complainant "Today you will die" and aimed a gun in the general direction of complainant's knee and shot him in the knee. The learned judge held., and in my view rightly SO, that the accused could easily have aimed at i vulnerable part of complainant's body and that his action in aiming at the knee did not confirm his original threat to kill. In the present case the accused stood about 40 paces from the complainant aimed his gun at the complainant and shot him in his right wrist. Throughout his defence the accused did not say that he only wanted to injure the complainant as opposed to killing him. On the contrary the accused totally denied shooting the complai- nant. As I have already mentioned above the evidence is clear that it is the accused who shot the deceased with a muzzle-gun. Where a person uses such a lethal weapon as a 9un in attacking another person the a . o C000 /5 . .15 only reasonable inferrence is that he had already formed a pnsitive intention to kill that man unless there is evidence (as that in Crist- per's case), that he had decided only to injure him as opposed to kill- ing him. There is not the faintest suggestion, leave alone evidence, that the accused only intended to injure the cmplainant as opposed t& killing him. Indeed, as I have mentioned the accused denied shooting the complainant.. I In REX vs MUHOJAS/O MANYENYE(1942) .EACA 70 (a Tanganyika case) the court of appeal held that an intention to kill is always inferred when a gun or a spear is used in attacking a persona On the facts of this case I see no reason to come to a different conclusion0 Like the unanimous opinion of the gentlemen assessors I am fully satisfied that the Republic has proved its case against the accused r beyond all reasonable doubt. I accordingly find the accused guilty of attempted murder c/s 211(1) of the Penal Code as charged. N.S MNZA\S JUDGE Prosecution - Nothing known., In Mitigation Mr. Mbezi - The accséd has three children of his own.. He also takes care of six children of his relative0 His wife has run away and there is no oné to take care of his children.. He is .a first offender and has already been in cis€ody for seven months. In vIew of these mitigating factor I ask the court to be mercifulthotthe accused. . . . :. .. . .. . . .... . . ... Accused - T hav nothing to add. . . Sentence 0 Over and above the fact that Iringa is notorious for offence: involvihg violence the. accused ...uSed a gun-a-er-y -le-thal weapo Indeed,: the complainant is extrerne1y lucky. that the bullet missed a more vulnerab1e part of his b6dy, otherwise he would not have been with us toda'. Offences of this nature hve to be strongly deprec'ate Courts of law would be failing their duty if they did not impose adequate sentences as a deterrent to would be offenders. I sentence the accused to 7 years imprisonment., . . . . .. ..• ROO.A, to EACA explained.