19820715 TZHC Tabora

HIQh CC'JRT CF TANZANI! w 'T' L . '' 01) .L .L.*.) ORIGINL JURISDICTION (Tabora Registry) CRIMINAL SSSICNS CASE NC 20 OFi 1979 c/f - Misc. Cririnal cause No. • The Republic versus • WILLIA: FURAHISHA RUHINDA CH[RGE: Attempted Murder C/S 211 (1) of the Penal Code. JUDGI'ITT/REASCNS FOR ORDER CHIPET1., J. On 12th July, 1932, I acquitted the accused person, William Furahishauhinda, and ordered his immediate release. from custody unless otherwise lawfully, detained. I reserved my reasons for doing so, which I now give in this judgment. The accused person stood charged with the offence of attempted murder c/s 211 (1) of the renal Code. The prosecution alleged that on or about the 9th day of January 1 198, in Tabora Region, the accused unlawfully attempted to cause the death of:one Tabu d/o Rashidi's The accused denied the char'. The prosecutions evidence, from a total of five witnesses, was as follows: a person by the name of Kakingilima Kaluguyu (who died in 1930) was a cousin of the rather of the accused who died many years ago. The said K'kingilima had two wives, namely, iili d/o Juma (P.w.3) who was the first • wife, and Tabu d/o Rashidi (P.w, 1),' who was the second wife and the eompl.ainant in this casea Kakingilima 4nd his wives and children lived at a place called Farm Nyamwezi, Tumbi, in Tabora District. Sometime in or about 1978, the accused went to visit Kakingilima, his uncle, 'but, whom the accused used to call his father, at Tumbie he stayed there for about six months and had to b chased because, it was aaid, he had stolon his UnCle'S 'money. . Some two months later, the accused went back there. He stayed there for about two months and was chased away again. On his leaving the village on this second ocCasiOn 1 the accused - is said 'to have threatened, according to P.W.l: - 2. - -. "I am going. 3ut whatever happens here after I have left, know that I have done it." Malieta (P.w.2) who is a s o n of 'the late Kakingilima, quoted acciid to have said: "you are chasing me without any reason. But although I am leaving, you ri.LI kno'ar about O•? At about 2.CC a.u.on the night of 8th January, 19781 whIch wa about a week after the accused had left Tumb'i, P.WO1 'and the late a! igilima were aroused from sleep by the barkirtg f thcr ccgs.. When P..l peeped outside through open spaces in t'ho•ualls of their'unmüdded hoüé, sh;sa.d, she saw two bandits co'ning towards the house.1 One of the bandits had a gtln a nc t Ile other had a torch. P. clamd 16 that he managed to identify the bandit with a gun as the accused in this case. When she was asked as to how she managed to identify the accused at night, P.W.l said that she did so because of torcblight from the tovch held by the other bandit. Having seen them, her hushand took out a spear and stood guard at the doors He tried to threaten the bandits that he would stab them if thoyentered the house. Just about then, a gun shot rang out. P.1,1.1 then went to her bed to attend to her child who was crying. It was then that a second shot was fired and P.W.l was wounded on the left side of the chest. Meanwhile P.W.2 had also been aroused from sleep by the first shot. According to P41,1.2 1 on hearing the sound of the gun, he went out to investigate and saw two men, one of whom had a gun and - P.w,2 recognized that man to be •the accuaed. He could not identify the second bandit. The two men were then standing outside P.W.l's house about 20 paces from where P 0 7 0 2 stood. Because he stood in darkness, P.W.2 said, he could see the bandits, but they could not see him. Just thee a second shot rang out. P.1,1.2 heard his mother er'ying inside the house. ' 11hereupon P.w.2 raised an alarm and the accused and his companion fled.. ' P,W.l was then takn to hospital where she Was admitted £ or about 25 days. The accused Put up a defence of alibi. He said that on the nigit of the incident he was at Shinyanga, having left Ttimbi a few clays eariier, He denied Any involvement or connection with the shooting incident at P.Wl's house. 19 -3-. In his final subrission, Mr. Ntabaye, learned counsel for the defence, submitted that bearing in mind the fact that the incident.occurred at night and most probably on a:dark night, the contrEdiction'.s in the testimony of the witnesses, and the fact that neitherthe ].ate.Kakingilima nor P.W.1 named the accused as the attacker in their statements to police; and, besides, since the accused's alibi was' in no way shaken, the in-evitablo in :'ce must be that the prosecution witnesses 'were framing the accused in that they did not identify any of the bandits. Af'te' my summing-up to the two gentlemen assessors, they were unanimously of the view that the prosecution had not proves their case heyønd reasonable. doubt. They both accordingly advised that the accused be acquitteda From the evidence, there can be no doubt that bandits went to P.W.l's house and shot and wounded P.W.l, and there cah equally be no doubt that whoever shot and wounded P.W.l unlawfully attempted to cause her dbath. What is seriously in dispute is as to who that perSon Was. ' From the very outset, I must say' that I seriously doubt the truthfulnes8 of P.W.i, P.W.2 and P.W.3. P1W.1 wished - this Court to belioye that she managed' to identify the accused by the torchlight; but I find lit difficult to believe that a person on whom a torch is shone could be in a position to identify someone who is outsidei And yet, this same witness - says that it had rained that night and that it was a dark night. P.W..2 faired no better. While conceding that it was a dark night, he still claims to have identified the accused. P.W.3 tried to iimrove upon the testimony of P.W.2 and P.W.l by saying that thor? was moonhight that night. This witness also claims to have ident±iied the accused, and yet she was in a dffarent house and never ventured outside. She tried to improve on this by saying that she also identified the accused by hs 'voIce while the accused was arguing with Kakingilima during the incident. I do not believe a word of this, and even If I did believe her, it is on high authority that identification by voice is :notoriously unreliable, I will add that the story of P.W.1 that she identified the accused is rendered oven more suspect by the fact that neither she nor the late Zakingilima named the accused to th police in their statements. If they had been that sure that the accused was one of the bandits, they surely would not have omitted to tell the police at the very first opportunity. As I told the ZeYitlerian assessors 3 there is ample authorityfor the lropositionti)at where the evidenc. against an accused person is entirely that of identification, such evidence must be watertight to justify a conviction. In the instant case, the evidence of identification. is not only not watertiht but is in fact very weak and unreliable. -. - It was for the forgoing reasons that I acquitted and dischrged the accued forthwith. CHIATA, J. Delivered in open Court at Tabora this 15th day of July,. 1982. -- / -'l•b 3.D0 CHIPTA, JUDGE.