19780518 TZHC Kigoma

IN THE HIGH COURT, OF TANZANIA AT'" ORIGINAL 'dURISDICTION g'r' Regis.) " CRIMINAL SESSIONS CASE NO.34 OF 1977 THE REPUBLIC VERSUS /0 • S 5 " HAMfl4tJ'1PINDA' . 7 C.HARG: Attempted murder c/s 211(1) of the Penal Code. U D. G S M S N T MAPIGANO, :r. ;HANINU MPXNDA (r as some prefer to call him StJNGURA)'is on 'a charge of attempting unlawfully to cause ,thedéath of .(abab.a Rukohora who is the PW.l. It' is alleged th't, the accusedass'ati1ted and pushed hir& from a canoe and then 'left him in the middle of a river mouth, 'the incident taking place at Kagere in, the Kigoma district, in the evening' of the 23rd of April, 1976. The accused has denied that 'allegation and protested his innocence. Quite rnuch'is'common ground in this'case Kababa.Rukoora, a youth, went to the mouth of the"iver Lwiche in that evening. He was in the company of two boys including PW5 Changila Muda. They went there for "the 'purpose of drawing some water for domestic use. They arrived at the pI'aée 'and found á anoe at the bank. The canoe was the property of the acéused who was not 'around. Kababa took the canoe and propelled it into the river, taking with him two buckets and ,& kettle. His idea was to get, cleaner water. As I have just said, the accused was not around and had not expressly permitted Kababá' to use the canoe for that purpose. But it seems that Kababa did not foresee that, that would incite a hostile reaction from 'the accused. ' It \ould seem that he had reason to suppose so. By several accounts it was quite normal in that'arèa for 8: person to make use ofanother person's canoe for such purpçse even without his knowledge or permi2i6n. A' short while later, the accused returned to the place. He looked round and did not see his canoe. He âccsted the two boys about it. They disclosed that Kababa had taken it. He, became 'livid and was heard to' remark that he would deal with Kababa. He setout in another canoe which belonged to PW.3 Ndereka Kagoma. He and Ndereka encountered KQbaba in the middle of the river. , There was a certain tension but what actually transpired in there is a subject • ' , ' ' S '., ....'..2/of dispute and I will come 2'.- of dispute and I will come - to tlmt,Laters What subsequently followed that tension was, that the. acçus. took back his canoe leaving Kababa struggling in the water. Kaiaba experieneda very calamitous situation. He tried to swim back to the sh,oe ' He could not reach it. He aonld not reach it. H.e got, exhausted. By a stroke of luck, he saw a tree and clutched and climbed It., It was about 7 p.me at that time0 He spent the night on that tree. He was rescued the following morning, He was in a state of distress.. He explained to PWo2 Ramadhani Ndiethji, one of his deliverers, what had happened. As I have remarked, what , actually took place in the river and why Kababa came to vacate the canoe is in dispute. According to Kababa, the accused was evidently agitated when he met him there and he' treated hIm to threatg. The accused firsta ed him why he taken his canoe. He replied that 'he had had/ just borrowed it':.in order to draw water. That did not soothe the accused and he remarked icily that he Kababa would drink that water for the last time.. .Kababa d6ked for pardon and tçld..him that he was prepared to payfor it. The accused didnot"listefl. He got nearer .andseized. the two buckets and the;kettle. He dropped them Into the river. Next he pulled out a punting—pole from Ndereka's canoe with which he poked him, thereby dislodging him from the canoe. Kababa fell Into the..water and the accused climbed into th.canoe 1".. and..left the place. At that point, Kababay .a.inlYtried.tO.,SWim to the bank and as already pointed out, he was spared by providence. That, however, Is not exactly what he related to PW.2-Ramadhani, if ône'.goes by the evidence of that witness. (in response. to.the, ....quest'ions put t9 hirfi by the second assessor). According..tote. witness, Kabaa had told him that the accused had caught ..him ,a.nd then cast him. overboard. I have mentioned this because it. has ,,been a subject of comments by' the defence and the assessors, .and I think it deserv€s attention. . . - ..'. As stated, the .version of the accused is disL4.lilar. He stated that he Shad ckqssed the river from Nyamoli,.wherehe reside,to Kagera by means of the canoe in the morning of-that day.' .He..had come to Kagera to work in his shamba. He left the canoe at the: edge of he river arid.proceeded to his.shamba. In.the'..eveninghe went back to the bnic intending to return hom He was .. surprised , and disconcerted to find his canoe missing. Shortly after PW.3 Ndereka, a fellow—villager, appeared. He also had a canoe and he offered him a lift. They then set off for home. In the ceurse of their journey they saw Kababa with the canoe. They got nearer • him. and he remonstrated with aim. But instead of answering his question, Kababa panicked and jumped from the canoe. At that point, the accused got intothe canoe' .and paddled it hom, leaving kababa 'and .Ndereka. "behind' and. blindly,b:elieving 'that Ndereka would take Kababa into hs canoe. .. .:. . " . .: ....... 3/PW..3 .NderekatS account is : . 3 Tftl PW I 3 Ndereka's account isparallel 'with that of the.:accused, except that he denies that tie' accused 'left him with Kababa. -According to him, it was he who was earlier to leave the place.' " That is the- 'substance of, the evidence which has been tendered before me. I4r. Sèngwaji, the learned state attorney, would have tthis court hold that it is cogent and enough to ground a conviction on the charge. After pointing out the conflicts in the proution 'case on one' hand and the di'sacbord between the prosecution case and the defence on the other, Miss Mutembei who represented the accused' has argued that the accused's version is plausible. And that if it is sbthen' the only.thing the accused can be blame&for - 'was 'theindifferehce-he'displayed as t.owhatwould eventually happen to Kababa after he had excitedly redovered the, canoe, which, she submitted citing the decision in R v Mtq..(1943)EACA 101, is - •insüficient to establish that the accused positively intended to, cause the-death of Kab'aba. It seems that the gentlemen assessors are 'at one,with the - views canvassed by the learned defence counsel. -.Theyhave expressed the - views that though the accused 'Was unduly sharpw,ith KababaI especially bearingin mind that:, it was not' strange in that locality that Kababa' used - the accused's canoe without his'.perissiofl,' it was quite possible that Kababa was not thrusted from itaahe alleged,' but aiandonéd it himself in. a state of panic, and with a bid to escap. from the accused. They opined that in those circumstancos no positive interit'to cause death can properly.be imputed, to the accused. They have, therefore, uniformly advised his ac' 4-itta1. I have carefully weighed the evidence and paid attention to the speeches of the two learned counsel and the opinions of the gentlemen assessors0 Personally I find it a little hard to believe that Kababa wouid.rnake an attempt to flee from the boat in those circumstances to face a likely death. If it was so, then he must at that particular moment have been in great fear for his life. It is evident that the accused was in a furious temper and his iddiffererice as to the fate of Kababa was a measure of his impulsiveness. There was no, denying that taking another's canoe as Kababa did was acceptable generally in the area and as several witnesses have told this court one was at a loss to ' understand the accused's anomalous reaction and his attitude subsequent to his regaining the canoe. As I have said, it is not easy for me to believe that Kababa jumped from the canoe on his own accord. Yet it is also difficiiit to believe his allegation that he was thrown overboard. He stabed that the accused jabbed him with a pole only once and it would seem that that assault did not leave any mark of injury on his body. Can it then be safcly- accepted that such a single push would havq torn him from the canoe? And his story is made much lessLcredible by his. prior inconsistent statement which , he made to his cousin .,..4/PW.2 Ramadhani. In - PW. 2 Ram adhani. -anything abuut the accused having used a pole to shove hm into the water. He alleged that the accused had actually grabbed and thrown him 'into the rjver. All thingc considered,. I think, inmy judgment, that the - evidence on both sides is even. With' that I cee around to agree with the opinions of the gentlemen assessors., albeit with some difficulty. If I amright in taking that'stand, thenwe can, reasonably entertain the view that in jumping frornthe canoe in order to escape from the accused, Kctbaba himself behaVed precipitately and , hadl he died he would principally have been the author of his demise. What the 'accused did or forbore from doing cannot be saId, with certainty to hve.been acdbmpanied by a' clear intent to cause the death of . Kababa. All he must be f.ound to 1ave dane after he had evinced ill temper and after he had recovered his 'canoe is that he rowed his canoe and set off forborne leaving Kababa and Mdereka bGhind. Doubtlessly, - that was incredible and base, but alone it was not enough to establish beyond a reasonable doubt'that he 'harboured the.necessaryiritent. In sum s I find that the Republic has failed to prove the charge. Accordingly, I find'the.accused not guilty and acquit him. If he is not otherwise lawfully held, he is to be set free forthwith. Pronounced in court Mr. Sengwai for the Republic Miss Mutembei for the accused Accused present in dock. STATION KIGOMA D. P. MAPIGANO, DATE. 18th MAY, 1978 JUDGE ( • i__' 5- rn