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\ IN THE HIGH COURT OF TANZANIA ·, :::'._!'<~ &.INGIDA ; •:. ·:· ..: ', ~ : .' . · 'ORIGI~AL :JURISDICTION (DODOMA REG!STRY) THE REPUBLIC ., 1 • ELI'AS .. S/0 ,MWANGU '' Char_ge i. . ..~tt~mpte_d murder ,cfs 21-1 (1) of: the Penal Code o .. · . . . . . ·' ' -~,,,:. JUDGMENT JONATHAN_, J ~. - ',;: -ELIAS 1'1WANGU :is charged' Jith attempted murder c/s 211 (1) of ;chq. Penal· Code, the particulars' a'ileging .that on the 2nd day of May, 1916 at Jlgirrio v:i,,llage in the 9_istrict of Si'n']ida he unlawfully attempt~d ·:.to :c;:a:use the death of GABRIEL. ITUKA by firing · an ?l~pow at his back~ ,_,~T,k.}s he has denil~d.: Tbe undisp.uted facts show, that the complainant on the relevu.nt·. night at about nine o•cl6ck retired to bed in the same room as his,-wife whil~ hi°s brother P.W.9 NAFTALI ITUKA who was their guest that night slept in an adjacent room in that. house. The complainantt.s son EDWARD (P.W.2) had a house. to himself in the same homestead at the _r;ntrance. Hf~ St:.~ems to have returned there · at about the s:ame·ti!71e. Before any of _the witnesses, including 't:he compla.:)-nant:•s:1 wife h:ad. fallen asleep someone _appears to have stealtliily en-tert;d the;. homestead and moved to the house of :the complainanto · :There. was a small~ rather low. window adjacen·t to his b_ed and .it s~e..ms. that. through it that p<"rson fired an arrow into th2 room thereb~f\·striking th1:; back of the complainant and getting embcd2d thereo_.::·.".Th~ complainant and his wife as tht?Y immediately.· raised an alar~ tried to p~ll out the arrow head but it had· h~oks and l?Ould not: --~-tirti.~: .out.o NAFTALI had in the meantime rushE.'d in ah.ct remov(!d. the· arrow· head by cutting off th<! flesh in which it was stuclc. Tha:t, in effect, ulso minimised the danger of ahy poi'son the· arrow fiead had spreading through the blood stream. A sh~ep was also hastily slaughtered and NAFTALI extracb~d a medicinal substance from it which he: ·administered to the complainant. . From th:~rc he wa.15 ·take~: to the local dispensary and then on to .singida :~,. Goverrtm,:!nt-Hospitdl >t1ri:,;ire he lay admitt~d for· several days. .. •'.The: .er.now was later. taken to the Government Qhemist. His report shows it .to. hav~-had a''qucm,tity of a poison called q ibp.in equivalent to ~out .. te.n ti'me's the minimum lethal dose •. There c·mi be. no doubt•' the':r:·ef ore that 'whoever shot that. arrow intcmdQd to take the lif1:t·of .· ,• the complainant. · It .is the prose·cµtiqn case that th,at arrow was discharged by ·thc.: accused. Far this .r¥:tan.ce is placed both on i;i stat~·.··of hostiii ty th at had existed· betWt~~n- the two men and on 'the iievidence of witnesses who claim to have:,;secn the accused not ::i~~'.t-:C-011 the >scene soon after th~ incident in highly suspic~oµs ' . .L . ~ircumstances. . . Fir~tiy, the evidence cif •otive. ',!.'he ccinplainant and' the accus:;,d in.l,74 had .held 1:!lected·post·s :i..'~ their v:£'llage,· -the-·•.former •• /2 2 ... as the chairman and the latter as the secretary. There is no dispute tho.t they had not__ worked togeth~~r in harmony. The nature and dlJto.ils of their diff"~rences c~p.ot possibly be determined in these proceedings and I would be content to note that all was not well botween them. Mentiorf must however be made of one specific incident which is said to hpve occurred only about one.month previously to the arrow-shooting o · The accus2d had not bE'!en reelected as secretary aft_:;r thu.t year but tbe complainant had continued to hold office until the end of 1976, At the~ relevant time them they no lonrwr held the.;SC posts, but unfortunate.ly the state of hostility had not also bGen tcrminah~d. Now, according to P.W.5 _SALIMU _LIS,$0 who- in 1970 had worked with the accus2d and complainant as a committee member of . .l.• , thG villo.g.e council the accused in the month of April, 1976 had called on him at his hc;iuse to thn~aten, inter. alia., to . the effect thnt the com1::ilainant would be killedo According to the witness he took a sc"rious exception to this and informed the complainant whorGupon a meeting of the-villagers was convened and informtcd of the threats. Tht:! accused had not however been pres,e'nt ··at th,1f·m(~eting. Th1;:; accused ·In his evidence has aenit.'?d such ,incident and as the motive fol:'. the witness telling th::: big lie .has sai°d that in ( .f..' .•. the nfrnirs of the village · thc. witm:ss h .1d 1'een working in very 0 re .cl:osc co-operation with th;,;· complainant. I did_ not however .tind;~rstc.uid' 'him to say he had been on bad. terms with the witness. , ·. HG :say$ th,.;.;.refor~ that by reason of the close relations between tht witnc.:ss ,:md the complainant th,~ former has o ~ to tah: sides in the m2.ttcro The- ·Wi tn,2ss, an e.l;derly p2rson, impressed me ,,as being nothing but truthful and I am satisfied that h'-~ did not fabricate the incicl2nt, and in my respectful dis~gr,..;em.:;nt wi t:h both the ;g,cmtle:m-.2n asses$ors I w·ouid · s.aY th2 accused ha.cl occasion to .. thr~) a.ten· against. the . compLun~3ilt • s life. . : . , · Trio pros,::cution sidu is howev~,r mar~ dependen,t on thE! cvid0ncc of the eye witnesseso Acc:ording to the__ complainant's son EDWARD, while in his .houso before. going to bed .he he.fl 11t once come out upon hL:aring the ala.rm when· hi: saw a pers0rl'with a bow ,coming towurds hi~ from his fath~r•s house. That person, he says, he r::-;cognise:d ·to _b(! the accusu-d, this because th-2.re w'as moonlight and he cam~ very close to him b-2fore deviating towards the·, exit and .also on account of the·clothes he w~s W(:~ringo With regard to the labtcr the: witness sclld during the clay he_ had s~en the accl,lsed pass by hc~nd.i.ng for th-.., local PO!IU:?G shopo · He _had then bc,en wearing a gti;.:en trc\1~ers, a white, .short sleeved shirt and· plastic shoes and ·-these:; he said, were th~= same clothes thQ accused was wearing at th,, rGlcvarit' time. Thi~ wi tn2ss found himself in real troubl~ • • • ➔ when J;c,ing cross-examined by Mro Mbezi, counse;i. for thr~ defence on whut alerted him·. ' In his r.;Vidence-in...:.chief, as already stated, he said hG. came:. out _on account of the alarm. However, in _:a statem,'.mt he had made to th~ police he appears to have said. he first heard footsteps, h~ncc his c9ming out. ·rn -the end he .could ncit clear the confusion. I do not howd,h:,r think that such. equivocation really goes to the -r-001: of the mattGr. Som~thing, wheth~irthe· alarm dr foitsteps, -s•ems to have :first _ali::irted the witn0ss there_ ~Cis sc;m,ething wrong, h,~nce,-:his going ·;:::ut.,_ T◊ ·carry on the story, the witness testified ,tie chased the: accused as h:-: ran past the entranc:e'. :iri the direction .of the house of a nei<Jhbour called OMARI. H£~-re · a-lso the wi tn'2ss seemed to contro.dict himself .for, in the police statement he appears to have said ··he h.:id not followed the accused as h-"! was armed. As w:i,.11 howev-:,r b.::: seen prGs.ently, the fa:ct · of, his not following thr~ runaway · ,_relates to" ·th~ he~t s_tage·o T'.:' conti-nue · then, OMARI atj_c;l his wife .J:l.ARIAMU (P.W~3) ~·,a:, 8ince heard the alarm cmd 'cume ouf.. -,f th,~ir house to . m,cGt a p~rson bt:!ing, chused· by tDWARD about half way b~tween their hou$~ and that of the complninanto MARIAMU ss:-eing that the man was . arm::d, advised EDWARD ·against carrying ori the p·urs1,1it as the man ran into_ a mi_:Llet shamba. The .witness duly- heededo. MARIAMU, like EDWARD, wcis cl-::;ur thc1t there was moonlight and t •• • she r,:;co9nis8d th;.t ·.r:~r:s.:m tc." be the accus,-:d and it is; relev,mt to note tlnt, according to h0r,, hi::·· h,id c:cm<...! to within twu or three Pu<:;'-"s b fc,re cha.n.ging cours~. and d;isappL!uring into th,~ rriill,.~t shamb2·. It is ti:il2. prosc:cutic,n cas<:: that the n,.=xt person to m,!et th2 accus-..::d was P. W.4 JUMANNE 'KAKTJR:l He testifi,!d that he had b-~::..:n drinking at th8. house of uw · R;AM:\DHANI until ubuut 7. 0-0 p~rn. er : so whon h," 1~,ft to"go· horn<~. It lay in th12 dir-'.ction of the complain:1n- .... ' . . .. at.lt~.;§l'~fousu and beyc.,nd ito Abcut 100 pao~s .frc,m it hi.? says he m2t c1.ccu~, :d running in th2 opposi tE= dircct,iun' and ·upCJn suddenly cvming up ·c1.gainst·· the wi.tm:ss h-~ stupp.~ct.· · He g,::. etcd the witness and upoa th ..·_ L1tter ie_p;J.ying ·cho accus,'d askt,d him if, NASSORO, the nccu:S,:d•s brcth:·,r~in-law \'1aS at hc,me.,. Tu this th,~ witm:ss said he . ~ . hu.d net pusscid· at his holl~~o They ·them proc0eded~ t:ach on his wc1y. Th., etccus·d's h0use·it may bt: noh,d w:,s in the, same· dir..::ctj.c:.m .:is that of tt/\ cc...mplain8rito Th•2 ~:i.tn~~ss, d·::scribing thE:! hous,~ o:f th,:-! accu::, -:d aaid h2 ·w,1s then wearing a green trcus(~rs and a v-::,st i,1hilr.i · he h,,d ··a wni t-.., s1iirt en his shoulde.r and his hands had si1G,...:Sa Sign•ific,3.ntly, hcw.sv~:r, h,·! had ·no bow. AS the witness --}~-~,~~~c~:~;~~~~~~~;~,;~c1~~-l!ht~~1~~mh:tbh,~~~h';t·. ~~~;-~~ 0 ~1c~~~1'~n~ 'th~ 0 0 witn.,ss· th\.:!11 tc;ld him h · h:.1d c,nly just m~:t . tCCUS'..d runningo 'Th,.,t JUMANNE •did say so . i's suppc,rted by NAF'•r;U,I. .! . ·'The n.:xt p.-,rsc.n tc s-'•-~ tht., accus-:d wc1s P.Wo6 ELISANTE MAH.'.,1'JJO,o. H<.', and JUMANNE had for m..my hours b en drinking at th1:1 huus-~ :• cf RJ.JvU1.DHi;.NI. JUM/1.Nl\JE Lift him th:,i n: and shortly th~re ·aft-:-,r at '~JC.'Ui:: 9.00 p~m. th~~ iJ.CCU.s·::d cam-~ and ·ctrank pornbe. A f-~W mim.1b."s l 2-t-:.:r NASSO RO as the village chairmo.n camQ loc,king for · tlK cccur;;-.:cl in CL,nnecticn. wi:th_ th,: ,'11;-ruw shootingo Th,. o.ccus ,ct in ids ~"videnC,.! h ..,s s:1id he·:had that day brie~ dr1n'.d110 nt th.-:: hous'":! of RAMADf1ANI from 3. 00 p.m~ · in th(~ company of ELISAi\JTE und NASSORO. Th-.; L:ittC;:r had h91v~~ve.r le.ft -1 efore dark and h . .:'.Dd ELrsj\NTE c .ntinu:;a drinking inside _th~ hous;2 un.til ab(;Ut-·(f.oo p.m. Whim NASSORO calltid him. ,;.n Q11 alh?<]atiun he had shut it·th-.. c,mpL1in;mt witl-i an nrrowo D.W.2 AMINA th<:? wife of NASSO RO_ b..: stifi,~d iri agr, i2Af~ht th::i.t th ..! accused h:1d b(--:.~11 · thE~re thr,.,u.;h:~•ut. Sh_,:! cc,uld n0t 'ho~,1.;v-.=r be th.it sure· thdt ·the o.ccu.:- . .<~ h-::d no uccasiun tc· L.:::1.V(:.: th---,t hc~use until NASSORO earn<~ for himo The ,..::vid,5n:c:·,., 1t f: o.w.:3 :JU~:A _JKlJMALA did nGt tak~ the dl;fcmce case . signifj,d'J.Ycly ·furth2r ;fer', h> n.pp,.:ars tv h:we c,.)m.-c_ to RAMADH-ANI's h---us·J 'cq· ":~?-hi:l. th,.i acCU;-3(·,d '..;J.rid EL.ISAN'.I'E at i:1 tim<~ n~)t lori~- ·:oofore NASSORO c.::im:. ·f ,..r ·;:n.: accus,]d. '· .L . ~: T!i~ 'accused _<knying th: -~vid,,nr::e uf th,c! fcJUr {riiain pros--~.cuti,,n . witn.:.:sscs s,iid they w'"r~.: all r-2lub:d to th,:: complainant in one way or anuth .. r. This np c! ars substantially true" Mi\RIAMU .yr1s n-~lati:d b, th ...: c, nqlG.inant by mo.r.riags:? whihi JUM/\.NIIJl:: was a m,,mb,:r cf his clan.- AS r~:(J-:.trds ELISAI•J'rE th<:': acct.i:;t~d h;::i.s S,1id h-,: WuS th,:; compluin2.0tt~ cell l-·c1d,!r u.nd thciy ·-hcod·-'-6-th-rwise b.:en un th;'~ best of rGl,Ti:L.>nSo H-.·'. also. ,:,.._id-:.:d th~t ·h,; .J.nd th~" complo.inant had once o.llc.;<J-.2,1" th .t h,-:- had b-,, 1c:n rc:.bhing p~:~,r..iJ.;f ·,using a pi~tol •. . . j" ! 1" ·, ·- • • .~ ;: Both th,.J g-~ntl8m~~~n c.iSSt:~s·J~r:~~-·ha,,e fo\if1d ~.W.2,. P.w.~.3., P.Wo4 ubd PaW.-6 tc be CJ<-=Ot!raliy ·unreliable,_ and 1:h\;Y wciul.c(· for that . ·r.:::c1s•.-n ~cqult th-:: dCCUs,cl'~: Th-\re w·as g-,_n_(~f'al agre-:~rrKmt th.at'. th,r-.1 \:l,,S m,.:,cnlight th.1t i~ic_;rht. The.: ucc1:1sed sayst ~ .W::t•"?r. ''.that by ,:ili,...,ut 7. 30 p.m. the muon had set und if was th·,r,...uft,!r ~ark. Th,: pros..:c1,1ticn wi tn2ss""'s un th,i oth-:r _h~nc'_ had ; sai_d there was mct:dfi0nt-il' th,.; m!:1h,rL11 time. EDWARD was. nut ch/ar how high up--~~::-- . i~. th" sky th,~ muon th:cn w:1s fer, h·~ s.,id variuusly th-1t:_;i,t- was ..only trity~,i ~1-i\YS ald illld th 1t it h,1d b ;1;n shining fur· a -long tim0 •. , MARIAMU's Vi.srsic.,n w~s th,1t th~ moon was .:ibout c.;nr~ wo:,,-:!k-c,ld. Both th,.: witn.sss2s and JUMANNE du hc,wev ·-r s,'t:m to b2 in agreement that ther-.: was still mounlight. Th-;-;?y cunvey-·.d to mf~ the~ cl-,ar impression thut ·ch~.y Wc.!rt.:.? sure about this ,md as I ck nut, with ruspuct, , have r22.son to think they were other than truthful about this I accordingly find there was moonlight. In stich light_ the thr8C: witnesses claim ·to:J·h,We ;: recognised the accused• Startin~- with EDWARD' he was familiar with the accused, bein<J his neighbour and as h~ seems to have ci..,m•"? very close to him bcforu slipping thrc.,ugh the gate-way chances of mistaken identity were minimal, although I would net altogether discount in thC::!m~ · MARIAMU, ~... -'ii vcd the'· neighbourhood of .the accused and ·o.·: krkw him well •. Her view cf·the culprit was sudden ·,md brief, but t· am· satisfied-·sh2 ·haa·sufficient opportunity to identify him .especially as he earre so close. According to hef, this p~r~on roo in thc,dir.:iction of RAMADHANI'S house and, consistent with this, JUMANNE · says he. m8t accu.s~d running ·in that· direction.· Of the . thr,.:6 wi·i:ncsses JUMJ\NNE'S was perhaps th•~ best opportu~ity for ~ ; . . ; •·· fying tlrnt p1.:rson.· He s-:.:ems to have seen him from an appreciable distu.nC<'.l unt1.l he came.:- to a stop on meeting him. They then had a short c,:nvl..·rsation tc.,gcith,~r before 'thf;y proc~eded in their separate w·ays. · He wns drunk as ·ht)' candidly admitb!d, but the circumstances in , my ·viu-1 were cthcrwisc rcmarkaoly favourable for him. to m;'.lke : accur,"'tc id,:mtification and as he: kn2w the accusi?,d tht,re· would have : b·..::a.n li·ctlc possibil'ity of ·mistakfc;n id,/ntit:y. ELISANTE to some '_-·-. , : extt/).t Lmds suppo~t · to this when h ~ s.::1ys th•i accused jc:-ined them ,.•.:. ·'·u.t'.-~·fu,1ADEANI•s··fi<.!·U·s·e shcrtly ufter JUMANNE'S departureo Th<:.: a.ccus.:,d hns attribub::d the evidence· of JUMANNE and ELISAN'/E to their relationship with the cc,mplainant. It is nut · -n<A<1c.:::vc:.t sud,gested that th;..:y bare any grudge against him. Inc'eed, as .tie?gctrds ELISANTE the acc:used ·wc.>Uld app ar to h9-ve bi!en on good terms with the witnesso · ·I wculd iJ.C'.:ordingly dismiss the charge th,t tl1i2y have taken sides in implh:ating ·thii ·u.ccuse:d. M.ro Mbezi has rightly ubserved ·that JUMANNE made his polio~ state_ment about 2 months "ftc.:r the incid,mt. I .think it is intcndc~d to suggest tha.t his :.,vic1,-=nce is an aft2rthl•Ught. such presumption would however b 1'= · on unfa.ir accusation f,:r, in general members of the public volunt,:ccr infc:,rmation· to th<:.: p<;lice unly upc.,n b~ing appruached. :B'e thv.t ns it may, NAFTALI in his evidence said' JUMANNE that ·samr: ni'...rht tcld .them h.;~ h<1d met the ·accused running away. AccorC.:ingly, I am satisfied he met the· accused fn the circumsto.nces narruted by. him. -. The def~Jice is· an alibi- in· th.1t at the time- of the arrow- sli0oting .th(~ accused w,:-is -at the hou·se uf RAMADHANI drinking. This is how,Jvcr refuted by. }?yt;h JUMANNE;.- and ELISANTE who, I am . s;::itisfLx1, testifi,,:d truthfully.· In the end, huving :regard to the pre-existing ·state of hostility ·between the accused and the compL:tino.nt u.nd cc,nside::ring the evidence of P.W.2, P~W.3, P~W.4, u.nd P.W.6, I ha.Vt~ the unpl,20.sant duty to part compm~y with both ,,; · tI12 -nss~ssc.rs in their decision. Accordingly, dismissing the alibi I fincl the accused guilty· ns charged and he is h~~reby 'so cc)nvicted. Delivered in open: c0urt this 1st ·day uf February, 197~~- llr/\r{A (" Po M. JONATHAN JUDGE .. \ Mr. Alimw:tke: Al though the accused is. a -first offend,~r, accused crll'lnot ·b-...! h,_-ard tc pray for •leniency •. The offence is a serious one .Tl:le mcJXi.m~m ·.s(;!ntence is life imprisonment. · The· circumstances show ·quite clearly ~the accused had no respect ·fi::r human lifeo This is rcfl~ct-:::d in th•; h~avy dosage of poison he applied on the arrow. I would nsk there bH; pass<.~d such sEmtence as would reflect the sariousn,~.-ss cf the uffcmce., Mr. Mbczi: I agree the cff.:.;nce ·is· a serious c.,ne. However, e....,.:. - · ,_;1-, ••.•• /5 - 5 - _,.I ca~G.,..·is to bE: judged according to its uwn merits. The shooting WclS -the culmination of misund(~rsta!1ding in the local political areas~ The accused is marri.;1d and has 8 children, five of whom aro at school, one c.,,f them is a s<.}Ct.-ndary school. In uddition h~ h~s his cld mothc-~r tc, 1-oclc afb'~ro There is no cth,,r reliable rJ0..0.tivc t0 take care of this big farnilyo He is a first offender. Bef"or,.:: b,.ing reL,asr:~d en b:1il he h,-id b "~n in remMd for 2 manths. Accus,::d: I had a motor accident in 1964 I St.it'f.~red a rib injury·. ';:'h(:ire i s no cne tc,1~,'lc after my prcp(~rty·~ I pray for leniency·. This was a czellLus ·act and I agree with the Republic in this cc::se th.,re is little to qualify the accusEid for mercy·. Then) were cld misunderstD.ndings .:md a real state e,f -hostilitv h::id developed b,:tween th.: o.ccu~c~d and the c0mplainant, but old scores 2.re not settled tlv1t way by taking the life 0f ones adversary i in culd blood. The circumstnnces in my view c~y out for a stiff senb.,:nc-::.:. Accordingly, y,.u are hereby sentenc~d to 8 (eight) ye.::::i.rst imprisonm.~nt. Right of appeal explainP-do The assessors bre thanked and dischargedo (ftw.\ P. Mo JONATHAN . JUDGE