19780201 TZHC Dodoma

I !hic IN THE HIGH COURT OF TANZANIA - AT 3INGIDA ORIGINAL JURISDICTION (DODOMA EGD:STRi) . CRIMINAL SESSIONS CASE NO. 119 OF 1977 THE REPUBLIC YE_R5 US LIAS S/O,MWANGU Attempted. murdc/s. 2111) ojF the Penal Code. - . . JUDGMEN T . . JONATHANJ . ELI-AS 4WANGU is charged with attempted murder c/s 211(1) of thdPenal Code, the particu1as alleging that on the 2nd day of May, .1976 at p5,imo v.i.11age in the district of Singida he unlawfully attemptd ..tocUse the death of GABRIEL.ITUKA by firing an arxoW at his back, • ,is he has denied.: The undisputed facts show that the complainant on the reievent,night at about nine o'clock rtired to bed in the same room as his-ife while his brother P.W 4 9 NAFTALI ITUKA who was their guest that night slept in an adjacent room in that house. The complainant'.s son EDWARD (P.w.2) had a house to himself in the same homestead at the entrance. He seems to have returned there at about the ame time. Before any of the witnesses, including the complain.ant's. wife had, fallen asleep someone appears to have stealt1iily entered th,homestead and moved to the house of,the complainant, 'There was a small, rather low.window adjacent to his bed and it sem.:that.through it that person fired an arrow into the room thereb'striking the back of the complainant and getting erribedad there..'he complainant and his wife as they immediately. raised an alarth tried to pull out the arrow head but it had hooks and would not 06ne.out0 NI\FTALI had in the meantime rush€d'in ahd. removed thc'arrow" head by cutting off the flesh in which it was stuck. That, In effect, also minimised the danger of ahy poison the arrow head had spreading through the blood stream. A sheep was. also hastily slaughtered and .NAFTALI extracted a medicinal substance from it which he administered to the complainant. From there he was 'takez-'to the local dispensary and then on to .Singida Government .H.osp'itl"h:re he lay admitted foreveral days. .ThO-.ernow was later,taken to the Government Qhemist. • His repo4 shOws i.t to, have had a'quantity of a poison called q thain eqivaient to about..te.'n time's the minimum lethal dose.,' There can be no doub.t ther.ef ore that. whoever shot that arrow • intended to take the 1if,of the complaint. It,is the prose'thition case that that arrow was dischared by hL accused. Fer this re-liare is placed both on a state of hostility thathad ecisted beteanthe two men and on 'theridence of witnesses who claim to have:een the accused not 27cirp.1fren the scene soon after the incident in high1y.supicoiis. cIrcumstances. Firstly, the evidence Of rnotive. The cthplainazt and the accused in.174 had Jieid electedpost's intheir YfIlage,. the'former - • . ' - 2 4 as the chairman and the latter a s the secretary. There is no dispute that they had not .orked together in harmony. The nature and details of their differences can -iot possibly be determined in these proceedings and I would be content to note that all was not well between them. ?Inticr' must however be made of one specific incident which is said to have occurred only about one, month previously to the arrow—shooting. The accusd had not been reelected as secretary after that y ar but the complainant had continued to hold office, until the end of 1976, At the relevant time then they no longer held these posts, but unfortunately the state of hostility had not also been terminated. Now, according to P.W.5 SALIMU.LISSQ who. in 1970 had worked with the accused and complainant as a committee merer of the village council the accusd in the month of April, 1976 had called on him at his house to threaten,, inter. a].ia, to the effect that thol, cbm1lainaht would be killed0 According to the witness he took a serious exception to this and informed the complainant whereupon a meeting of the-.-villaers was convened and infQrrnad of the threats. The accused had not however been preseñtattht meeting. The accusediñ his evidence hasdenied such incident and as the motive for, the witness telling the big lie has said that in the aff- airs of the village the: witness h.id en working in very close co—operation with the complainant. I aid not however .undarsbarid"him to say he had been on bad terms with the witness. Hia sayt theefore that by reason of the close relations between the. witness and, the complainant the former has to take sides in the matter. The-witness an elderly parson, impresed meas being nothing but truthful and I am satisfied that he did not fabricate the incident., and in my respectful disagreement with both. the. 'gentlemen asessors I wuld' say the accused had occasion to'. threaten agñinst.the'..complhinjitts life. . The proscution side is however more dpendent on the evidenc2 Of the eye witnesses'.' According to the complainant's son EDWARD, while in. his house beforeg.oing to bed'he hd at once come out Upon iearing the alarm whenh saw a perñith a bowcoming towards hiii from his father's house. That .pesbn, h. says, he recognised -'to be the accused, this because there was moonlight and he caine very close to him before deviating towards the exit and also on accountof the - clothes he w a s wearing. With regard to the 'latcr the witness said during the day he had seen the accused "pass by heading for the local pontha shop. He had then been wearing a gen trousers, a white, short sleeved shirt and plastic shoes and thesd, he said, were the seine clothes the accused was wearing at th releVant time. Tha witn-ss found himself in real troub].e when being, cross—examined by Mr. Ptezi, counsel for the defence"'on what alerted him. 'in his evidence—in—chief, as already stated, he said he . came. out on: accouflt of the alarm. However, in a statement he had made to the police he appOars to have said he 'first heard footsteps, hnco his cprning out. 'In the end he could not clear the confüsio. do not however think that such equivocation really goes to the roGt of cac matter. Somthirig, whethrthe alarm or foctsteps, S ems to have first alerted the witness thd'rEi' Was something wrong, hence .-his going 'outo T. carry on the story, 'the witness testified h chased the accused as he ran past the entrancé::iri the direction of the house of a neighbour called OMARI. Here'also the witness seemed to contradict himself for, in the police statement he appears to have' saidhe had not followed'the accused a:s. he was 'armed.. is will however be seen prcis.ently, the fact of' his not followThg the runaway rinbes to the next stage. To continue then, OMARI and his wife ,MAREANU (P.W.3) 'a1 .ce heard th alarm and come out f thir house to..met a person being chasd' by DWARD about hai' way between their house and that of the com1ainent. MARIANU seeing that the man was 'armed. aUvied EDWARD against carrying on theursuit as the man ran into a millet sharaba. ' The witness dU'ly heedd. ' MARIANU, like EDWARD, was clear that there was moonlight and she recognised that ';'?rson tc be the accused and it is relevant to note that, adcor'ding to her, ho'hid Come to within two or three pac.s b fEe 'changing course and disappearing into the rriiliet shamba'. " It is the prosecution case that the next person to meet the accused was P.W.4 JUNANNE 'MAXTJRX He testified that he had ben drinking at the 'house of one RAMnDHANI until about 7.010 pm. or so when he left to'go' home. It ly in the dirction of the complain.'an- and beyond it. Abcut 100 paces..frcm it he says he mat iccus d running in the opposite direction and 'upon suddenly coming up against the witness h. stopp.-?d He gr. .eted the witness and Upon th:,' latter repying the. accused asked him ifNASSOR0, the accused's broth-in-law was at home. To this the witness said he had not passed at his houe. Theythen proceeded, each on his Way. The accus jd's house' it may be noted was in the same' dirction as that of th cemplainant. The wtness, describing the house of the accus -d aaid he ws then wearing a green treusers and a vist whilci he' had "a wnit. shirt on his shoulder and his hands had shoes. Significantly, hcw.ver, he had 'no bow.. As the witness ;,g' proced.d ha hed thiarm and h eded' ' ..the moLüront's. house. The complainant told hii'n'i'i, 'had b..n 5 h0t aythe accused and the witn...s then told him h had only just met . tccus:.d running. That JUMAN1E 'did say so 4 supported by NnFTALI. . . The n.:xt p'rscn to s.e the accus':d was ?.W.6 ELISANTE MAH:SNJO O He and JUMANNE had for many hours b en drinkinj at the hous'o RAIVIADHANI. JUMANNE left him th:re and shortly thee'afte at abcut 9.00 p.m. the accused came anddrank pombe. A f•w mintites later NASSORO as the village chairman caine looking for .... tio aoru ci in cnnectin with th ¶rrow shooting. Th, accus d in ais evidence has said he':'had that day b'en drinking at the house of RAMADHANI from 3.00 p.m in the company of ELISANTE and NASSORO. The latter had howevdr left . ef ore dark and h and ELISANTE c.;ntinud drinking inside the house until abou t.00 p.m. when NASSORO called him e n an allegation he had shot at th.. cmplainant with an arrow 0 D.W.2 AMINA the wife of NASSORO testified in agr, eñ'ñt that the accused had been' there threuth:,ut. She could not houver be tht 8lire' that 'the ' accu......d had no OCCaSIOn to leave that house until NASSORO caine for him. The evid.ncs c.f D.W.3 JTJ 2KIALA did not tak the 'dfonce case s1gnifJceLly furth.r fcr, h app..ars tc, hive coma to RAMADHANIfs hus1j o 'f1d the accused ELISANTE it a' time not 1ori 'b.f ore NASSORO cam. fc,r th.,: accused. Thv ? accuse d denyirg €h: avidence of the fbu ñia1n 1osu,cuti:n witnesses said they were all relattd to the complainant in one way or aneth.,r. This op. ear's substantially ttueb MIANU qas related to the c m;'lainant by marriage while JUMANN was a member cf his clan. As r.:cjerds ELISANTE the accUsed has said he was th complainant's cell l'ader and they ...hd: , h.rWise b.en on the best of relations. H.' also aided that ho and the complainant had once - Vi t h had b n robbing pec pc using a pistol. Bcth th gntL.mn iss ssors have found P.W.2, P.W.3, P.W04 and P.W.6 t be gnerally unr..li -thle and thy would for that reas.n acquit the accus There w'a' g'eral agreement that'. Lh r. s mLnh1qht tht eight. Th' accused says, - wvr by abut 7.30 p.m. the moon had set and if we's th":±'eafter cark. that The pros.,c -çitic;n witnesses on the other hanc' had said ther6 was the meria. time. EDWARD a's not clar ho high up:a' in th.. sky the moon then was f,.r, he said variously tht1,t'was ,cly th çi•tys ld and that it had b en shining for 'a long time. MARIAMtJ's Versic,n was that the moon was about one week old. Both the wi'::n,.sses and JUMANNE do hwev r seem to be in agreement that there was still moonlight. They convey'.d to me the c1a'r impression that they wore sure about this end as I dt, not, with respuct, -4- have reason to think they were other than truthful about this I accordingly find there was moonlight. In such light, the thr-c witnesses claim tc h -we r&cognlsLd the accusLd. -. - Starting' withEDWARD he was familiar with the accused, beine his neighbour and as he seems to have clime very close to him beforu slipping, through the gate—way chances of mistaken identity were minimal, aIthoigh'I would not altogether discount them . MARIAIvIU, '- .ivod ± ie' neighbourhood of the accused and knew him well.. Her Iiew of' the culprit was sudden 'and brief, but X' am' sati-sfied.'sha 'had sufficient opp6rtünity to identify him especially as he Game so close. According to her, this person ran in the'direction of RANADHANI'S house and, consistent with this, JUMAMNE' says he. met accused running 'in that direction.' Of the witnesses JUMANNE'S was perhaps 'the best oppbrtunity for fying that person.' He seems to have seen hiñ' fron an appreciable distance until he came toe stop on meeting him. They then had a short cnversation to'gath-r before they proceeded in their separate ways.- He was drunk as"h andidly admitted, but the circumstances in n- y 'view were cthrwise romarkaly favourable for him, to make :accute identification and a he knew the accused 'there' would have hen little possibility of 'mistaken idantity. ELISANTE to some lends support Co this when h• says the accused joired them at 1ADrNItS hcuse shcrtly 'if tcr JUMANNE'S departure. The dccused has attributed the eVidence' of JUMANNE and ELISATh?E to their relationship with the complainant. It is not sudgested that they bore any grudge against him. Ineeed, as regards ELISANTE the accused 'would 'app' ar to have baen on good terms with the witness.' I would ac:ordingly dismiss the charge thet they have taken sides in implicating -thc accused. Mr. !ezi has rightly observed that JUNANNE made his police Statement about 2 months after the incident. I think it is intended to suggest that his evidence is an afterthought. such presumption would however be en unf air accusatidn for, in general members of the public voiuntec-r information' to the police only upon being approached. Be that as it may, NAFTALI in his evidence said" JUMANNE that 'same niht told 'them he had met the 'accused running away. Accorcingly, I am satisfied he met the- accused in the circumstances narrated by. him. The defence is an alibi: in" that at the time' of the arrow- shooting the accused was 'at the houC of RAMADHANI drinking. This is 'however refuted by,Jç JUMANNE'-"and ELIS'ANTE who, I am satisfied, testifid'truthfully.' In the end, havingregard to the pre—existing 'state of hostility between the accused and the complainant and considering the evidence of P.W.2, P'.w.3 1 P.W.4, and P.W.6, I have the unpleasant duty to part company with both the nssesscrs in their decision. Accordingly, dismissing the alibi I find the accused guilty.' as charged and he is heeby so convicted. Delivered in open'courtthis 1st 'day of February, 197'- -' P. M. JONATHAN JUDGE Mr, AlirnwJJce: Although the accused is.a'first offender, accused cennot'bS h'-ard to pray for -leniency.. The offence is a serious one •TIe maximum sentence is life imprisonment. The circumstances show quitd 'cleorly'the accused had no respect'-f'r human life. This is reflected 'in the heavy dosage of poison he applied on the arrow. I wu1d ask there be passed such sentence as would reflect the seriousn:.ss of the offence. ' Mr. ?thozi: I agree. the offence 'is. a sCrius one Hewever, e3i7 -0 .. ./5 -- case-is to be judged according to its own merits. The shooting Was -the, culmination of misunderstanding in the local political areas The accused is married and has 8 children, five of whom are aL school, one of thorn is a sec.ndary school. In addition ho has his old mother to lock after. There is no cthr reliable rativo to take care of this big family. He is a first offender. Beora hing released on bail he hd h on in remand for 2 months. Accusad: I had a motor , accident in 1964 I stiffered a rib injury'. There is no one tolock after my property'. I pray for leniency. Sentence: This was a àellL.us act and I agree with the Republic in this case th-re is little to qualify the accused for mercy. There were old misunderstandings and a real state of hostilitv had developed between th.; accused and the complainant, but Old scores are not settled that way by taking the life of ones adversary ± in cold blood. The circumstances in my view cry out for a stiff sentnco. Accordingly, yc.0 are hereby sentencd to 8 (eight) ye arst irnpri sonmant'. Right of appeal explained. The assessors re thanked and discharged. ? 4, ~~ P. M. JONATHAN ( JUDGE