19731105 TZHC Moshi

/LQ (1 - IN THE HIGH COURT OF TANZANIA AT MOSHI ORIGINAL JURISDICTION •' (Arusha Registry) '' CRIMINAL SESSIONS CASE NO0 43 OF 1973 - . . THE. REPUBLIC versus' ' MTUNGA s/o MTINA, AGED 27 YEARS, TANZANIAN Charge; Attempted murder, c/s 211(1) of the Penal -Code j. DGMENT Makame, J. The accused has pleaded Not Guilty, to a cJ -irge of Attempted Murder. He has denied the allegation by the Republic that at about 8 p0m0 on 13th September,..1972 at'KibaoniHoliii, Himo, in the District of Kilimanjaro, he unlawfully cut the complainant BERNARD 'KIMEU with the 'intention of causing his death0 In view of the PF 3 report, Exh0 1, and the ghastly scars the complainant bears on his neck, abdoffien, and forearm, I am ;5atjsfbcd1 .that the assault was made with the intention of killing'the -complainant0 The complainant, P0W01, told the coirt that as he was nearing his house he saw the accused hid .ing in the shadow of a • tree which is about 20 paces from the complainant's house0 He asked the man who he was but the accused did not' rp1y0- Instead he cut him on.the forearm, nck, and abdomen0 He raised an alarm and a woman JUDISTA, evidently P0W03 EUNISTA JONATHAN, • opened her door, but she closed it again before the complainant as able to rush in0 His cries brouht to the scene his own ife P0W020 He was able to see the accused, his assailant, because there was a moonlight, and he reckons that the attack was because of his previous quarrel with the accused at a pombe club0 . . ., The complainant's wife is P0W02, AENI KIMAO, who said she went out in response to her husband's cries and found the accused holding 'a knife and her husband trying - to ward off the accused's blows with his bleeding àrm She pulled back her • husband and stood between the adverseries0 She was able to see both of them, her.husba.nd and the accused, because there was moonlight0 She took her husband home and found that he had stab wounds on the neck and arm0 When she failed to give him effective first aid she went to call a neighbour, David, who dressed the complainant's' wounds0 She told David,it was the accused who had 'cut her husband0 The same night she went to the accused's house Bnd asked him sto help take the complainant to the hospital as he had injured him,but he refused and said that he j.. had me-rely thrown, a stone. at' him0 It is only at the Customs Police Post that the complainant show d his other injuries, the • ones.on theabdohien0 • - . • The evidence of p0w3 EUNISTA JONATHAN was proved to be • that of a hostile wi±ness and discredited0 Iwould -'add that • in afly. event neither her 'story' in court n,or.he-.admitted .r- statement to the Police would have materially advanced the -e-r the Republic0 • - ' •" ' •- • . -- •' 1 ' ' -- • '• -. I -2-- DAVID NUYOMBO, P O WO4, was the neighbour Waeni went to for help0 He says that Waeni told him that the accused was the assailant0 The complainant did not make the same allegation, but the witness reckons that this was because the complainant was drunk as well as seriously injured0 The accused gave evidence on oath and completely denied having assaulted P0W010 He says that he was told by the,.,cell leader, in the morning of 13th September, that the complainant had been assaulted the previous evening, and later the same day is when he was arrested0 He adds that several days had passed since the quarrel at the pombe quarrel, which was a mere drunken brawl which he did not take seriously0 He suggests, that is, he would have no motive for attacking the complainant0 The first gentleman assessor found the accused guilty while the second gentleman assessor opined that the accused is not guilty0 I am grateful to them for their views0 . • '• Having carefl1y considered, the evidence on r'ecord' and after waching the demeanour of the relevant witnesses, I am unableto move with the'necessary certitude required in a criminal case and assert with satisfation beyond reasonable doubt th.at the accused's guilt has been established0 I therefore respectfully agree with the second gentleman.assessor, albeit not for identical r-asons, that the accused's alleged guilt has not been established0 1'th equal respect I am unable'to agree with the first gentleman asessor who found the accused guilty0 The folloiing are my reasons: .. • The compla'ilnant says.'that his assailant was hiding under a tree, ' Although he says the night was moolit he agrees that where the man was lurking. 'the're,. was a patch of darkness0 It is certain that,.assuming that '- is story was trur, the complainent did not immediately recognize the man under the tree, otherwise he would not have asked whd' the man was.0 If he did see the man clearly at all then it must be immediately before or during the assault when, on his own account, he was running and being chased by his assailant0 Although both the complainant and his wife say there was mdonlight, according to DAVID MI.YOM30 PO4 visibility was down to about8 paces0 Therefore the complainant's opportunity to see cl,ay ahd recognize the assailant was not so favourable0 - .P0W2 would appea' to have, had a better and sufficient opportunity to see., and 'ecognize the accused0 That, is, if her story is,, believed and'f'ouñd to. be reliable0 But is it? ''First, she say.s she heard.p.opltaking, which I take to mean the tone was corversational But according to her husband,' there was no conversation0. He asked the man who he' was, the man did not reply, insteCd he starbedtrying to stab the complainant0 What followed were cri'es,.-' and 'not conversati'on One therefore doubts what it was, if at all, that attracted the witness to the scene0 Be it as it nay, s})e says she went and stood between her bleeding hus.band and. - the accused0 I doubt very much if she. would have had that sort of'c'othç'àge0, Thée is that, 'and the fact that she says she was empty-i'thded while her husband says' he was armed with aiece of firewood0 Further, the complainant's' account does not support the claim that, there was any intervention ,. s. such,,',b her. His versaon makes it appear that the assailant left on seeing the complainant's wife arrive at thescene0 The dther'thing which makes me doubtful is the rature of injuries the complainant rec.\ved, and there ere four aspects to this0 The wife say"she fOund' her husband warding off the blows with his bleeding aim0 As she does not contend that she witnessed any actual wounding, and because she says she immediately took her husband home for first aid, it must follow that by the time she arrived at the scene her husband had alrc•ady received all the wounds0 It is incredible that, with his wounds especially the -3- ones on the neckS the complainant should still be standing and warding off further blows rather than be fleeing or lying down on the ground0 The second.aspect is that, although the complain- ant's account regarding the chronology of the wounds is not so clear, it would appear that the injury on the forearm was the first to be inflicted, after which he started running0 If that was the case is it difficult to see how the cuts on the neck could have been on the front, on the throat0 Thirdly, and connected with the second aspect, seeing the scars on the neck, it seams to me that the injury is more consistent with a supine posture than with a standing or fleeing position0 The fourth aspect, for which I am indebted to the second gentleman assessor, is that going by the complainant's account, one would have expected that he was dressed during the attack, in which case the upper garment he was putting on would have been torn when the knife landed on the abdomen0 No such garment was produced in evidence. There are other matters which have caused me some anxiety0 The first gentleman assessor quote correctly remarked that it is surprising why the accused did not come out in answer to the alarm if he was not the assailant0 I qite agree0 But the point is that except for the complainant's own wife not a single villager, not even P0W,4 DJVID MUYOMBO, their next door neighbour came out0 Waeni had to go to David's house to call him specifically; he did not come out on his own0 Why is it that no one responded to the cries? Were there any cries at all, and if there werent any, what was the secrecy all about? Or were the circum- stances and reasons entirely different from the ones suggested by the Republic? I am not impressed by the David's claim that he did not tell anyone else in the village because he was upset and fri9htened0 He walked the complainant the half a mile or so to the '-'ustoms Post0 What prevented him from alerting other people when there were so many other people in the village? The cell leader's house was only 70 paces away0 The complainant is most undecided as to whether or not the cell leader's mother went to their house0 It rather strains credulity too much for P0W02 to assert that she went to her husband's would-be-killer to plead with him to help take her husband to the hospital0 I doubt if she would have had the guts, and if she had the presence of mind to do that my view is that she would also have had the necessary presence of mind to go to other villagers0 I also don't know if, if the Customs Police were told the same early evening that the assailant was still parked in his house, only half a mile away, they would have failed to go and pick him immediately0 According to the accused he was not arrested until some time the following day, later after the cell leader had told him that the complainant had been assaulted, and there is no evidence to contradict this0 It is because of the foregoing that I find the accused Not Guilty, like the second gentleman assessor did, and I accordingly acquit him0 /cwm L. M. MAKAME, JUDGE 5 /11/73 Assessors thanked and released0 MOSHI: November. 5th, 1-973 (L0 M. MAKAME) JUDGEO