benson belligton fatael urio vs republic 2010 tzhc 225 19 april 2010

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM (DAR ES SALAAM DISTRICT REGISTRY) ORIGINAL JURISDICTION MISC. CRIMINAL SESSION NO. 1 OF 2007 BENSON BELLIGTON FATAEL U R IO ....................APPLICANT VERSUS THE REPUBLIC ....................................................RESPONDENT JUDGMENT MGAYA. J, The accused person Bellington Fatael Urio stands charged with the offence of attempted murder contrary to Section 211 (1) (2) of the penal code cap 16 of the laws:- The particulars of the charge are that the accused person Benson Bellington Fatal Urio on the 9th day of March, 2006 at Kimara area within Kinondoni District Dar es salaam Region, did attempt to murder on OMEGA REWETA by cutting her with a panga on her head, shoulders, and hands. The accused person pleaded not guilty to the charge and the prosecution in the strive to prove the charge against the accused l fielded in five witnesses in support of the charge against the accused person. Briefly the facts of the prosecution case is as follows The prosecution alleges that the accused unlawfully attempted to kill one Omega Rewetta(PWl) on the 9th March, 2006 at Kimara area within Kinondoni Municipality in Dar es salaam Region. On the night of 8th /9th March, 2006 the accused had visited his girl friend omega Rewetta(PWl) at her house but she was not home. At around 20.00 hours Omega Rewetta returned home and found the accused already at home as he had spare keys, and was written some notes in an exercise book. She cooked and welcomed the accused, but the accused refused. Omega (PW1) who is the accused persons girlfriend since 2001 after eating went to sleep. The accused followed her into the bed room, sat on the bed for 3 minutes and left for the sitting room. The accused followed Omega in her bedroom again and left for the sitting room three times, without saying a word. After the third time Omega fell asleep until 2.00 hours when she felt something 2 sharp cutting her fore head, that omega woke up and screamed telling the accused “you are killing me”. The accused did not show any respondense but rather continued cutting Omega using the bush knife “panga” Omega kept on ciying for help, the accused covered her mouth with a pillow, trying to suffocate her but was unsuccessful, as neighbours PW2 and PW4 woke up on hearing the cries for help and broke the door open to rescue the victim Omega, having tried to ask the accused to open the door but refused. It was Stephen Munuo (PW2) who decided to break the door and successfully managed to get Omega away from the accused but by then she had sustained serious injuries and was bleeding profusely. Omega had serious cut wounds on her fore head shoulder and arms, as evidenced by the PF3 Exhibit PI Policemen were called, to the scene of crime, and was issued with PF3 by PW5 and was taken to the hospital for treatment. The accused was arrested and was found with the exercise book Exhibit P3 where all the details of his deteriorating love relationship with 3 Omega because he had no money were recorded and a blood stained panga Exhibit P2 was recovered. The issue before me for determination is whether the prosecution has proved the charge against the accused person beyond reasonable doubt. I have in mind the celebrated principle in JONAS NKIZE VR 1992 TLR 213, reminding us. “The General rule in criminal prosecution that the onus of proving the charge against the accused beyond reasonable doubt lies on the prosecution is part of our law »> »»)»))))))»)))) and forgetting or ignoring it is unforgivable, and a peril not worth taking” In SULEMAN MAKUMBA VR CRIMINAL APPEAL NO 94 OF 1999 court of appeal of Tanzania further echoed the principle and held: is of course for the prosecution to prove the guilty of an accused person beyond a reasonable doubt and the accused person does not assume any burden to prove his innocence,,,,,,,,,,,,,,,,,,” The above principle is the guideline in the instant case to assist me to determine whether the prosecution has proved the charge of attempted murder against the accused person beyond reasonable doubt. Admittedly the case at hand rests purely on circumstantial evidence. Before I move on, I find it prudent to define what circumstantial evidence means. In Oxford Dictionary of law Circumstantial Evidence is defined as evidence from which the judge or jury may infer the existence of a fact which does not prove the existence of a fact directly: In other words, it is evidence of surrounding of circumstance which by intensified examination is capable of proving a case conclusively and is not a weak evidence. The higher courts have on several occasions observed and warned that circumstantial evidence must be thoroughly examined as it is the kind of evidence that can he fabricated to cast a suspicion. From the above, observation it is also necessary before drawing the inference of the accuseds guilt from circumstantial evidence to be sure that there is no other co - existing circumstances which would weaken or destroy the inference. Therefore to justify a conviction on evidence which rests purely on circumstantial evidence the facts and the surrounding circumstances must irresistably point to the guilty of the accused person, see Karuki VR [1986] KLR 190 and the exculpatory facts must point to the guilty of the accused person and be incompatible with his innocence, and incapable of explanation up on any other reasonable hypothesis than that of his guilt, see Kipkering Arap Koske VR [1949]16 EACA 135. ALKADI William @SUPA VR CR APPEAL 188/ 2005 (unreported) ABAKARI & P BAKARI VR 1992 TLR 10. Now coming back to our case at hand, I have said the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reason able doubt and must be clearly connected 6 with the facts from which the inference is to be inferred see ABAKARI &P BAKARI VR 1992 TLR10. To find out whether the circumstantial evidence on record irresistibly points to the accused persons guilty which can justify a conviction in the instant case, I now wish to consider in detail the evidence adduced by the prosecution in this case. As already stated, the main witnesses in this case are PW1, PW2, and PW4 who testified on what happened on the fateful night, at about 2 am on 9th day of March 2006. It is pertinent to examine the conduct of the accused from the beginning, to evaluate whether there exists facts from which an inference adverse to the accused could be drawn with the facts from which the inference is to be inferred. PW2 said in his testimony that on the 8.3.2006 in the evening he was at the house of his fiancee PW4 and he waited for PW4 (Mariy Mushi) at her home where she was sharing a rented house with PW1 the victim Omega. Each of them had rented 2 rooms - bed room and sitting room and were adjacent each other. The witness said when he arrived at PW4’s house which she shared with PW1, he found the accused at P W l’s sitting room writing something in an exercise book. (Exhibit P3) PW4’s testimony was to the same effect that on the material day she returned home and found the accused at P W l’s sitting room writing some notes in an exercise book, she greeted the accused but at first he did not answer and she repeated greeting the accused who only answered - sharply “marahaba” which was unusual. It is in evidence that when PW1 (Omega) returned home she also found the accused at the sitting room as he had spare keys still writing some notes in the exercise books but she did not understand what he was written in the exercise book - that turned out for be exhibit (P3). Again PW1 greeted the accused but he did not answer. PW1, PW4 - in their testimonies said they had the habit of cooking and eating together PW1, PW2, PW4 and the accused but on the material day PW1 cooked food for dinner but when the 8 accused was invited by PW1 to join them for dinner he refused. The version was amplified by PW1, PW2, and PW4. It is on record as testified by PW1 that after they had finished eating dinner, she went to the bed room to sleep after having a bath, and left the accused at the sitting room still writing in the exercises book. This fact of remaining at the sitting room is also admitted by the accused in his defence. It was the further testimony of PW1 that after she had entered her bed room, as she was lying on the bed, still awake the accused person followed her into the bed room 20 minutes later. He sat on the bed, stared at her for five minutes without saying a word and left for the sitting room. The accused re entered the bed room - sat on P W l’S bed, stared at PW1 without saying a word for five minutes and again left for the sitting room. By then PW1 said she was still awake and she later fell asleep.PW1 said she was awakened by a sharp object cutting her on the head and up on opening her eyes she saw the accused with at panga (bush) knife cutting her, on her head. She tried to punch the (panga) bush knife with her hand and was deeply cut at her had hand, shoulder, and neck. PW1 screamed for help and 9 fortunately PW2 and PW4 heard the scream and cry for help by PW1 and responded. It is the testimony of PW1 that she could identify the accused as being the person who was cutting her with the aid of the light from the powerful security light from the bulb 100 watts at her window shining to her bed room, and objects in the house were easily seen. In addition, it is on record there are no shutters on the window it is only wire mesh and nondo,(kashata, and nondo) with a transparent curtain. Further to that, she said she was familiar to the accused who was her boy friend for six years. The witnesses said, PW4’s bed room is just adjacent P W l’s room so heard P W l’s is call for help. PW2 and PW4 woke up, switched on the corridor lights to listen where he cry for help was coming from and confirmed it was coming from P W l’s room and it was PW1 screaming for help and went to P W l’s door to listen. The witness PW2 and PW4 said they went to P W l’s door and called the 10 accused asking him to open the door, and the accused replied “Nitafungua” but did not open. PW4 opened the main door to the house which PW2 and PW4 said they locked properly before retiring and found it intact. PW4 opened the door and got outside to P W l’s window and called up on the accused - Benson, Benson open the door, and he repeated nitafungua but did not open, and PW1 was still crying for help. It is PW4”s testimony that he told PW2 to break P W l’s door open to gain access to P W l’s room to rescue her. It was PW4’s testimony that she could easily see as were security lights around the house. In addition PW1 said, when the accused was cutting her, she could easily see that it was the accused with the aid of light from a security light bulb 100 watts that reflected light to the room and she was familiar with the accused as her boy friend for six years. As for PW2, it was his testimony that when he broke the door open, he saw the accused kneeling on the bed - suffocating PW1 with a pillow and he rushed to remove the accused person’s hands, 11 to release the victim PW1, who rolled and fell in his legs, bleeding profusely. By then PW1 had sustained deep cut wounds on several parts of her body and was bleeding heavily. The version of the accused trying to suffocate PW1 with a pillow, was also given by PW1 in her evidence - that “ aliponiona bado nina nguvu mshitakiwa aliniziba na mto usoni.” The testimony of PW2 and PW4 was basically the same regarding this incident. The testimony of PW4, elaborates that as she was calling for help, neighbours heard and gathered at the scene of crime and some called the police and PW5 and other policemen came. It was PW5’s testimony that PW5 said he entered P W l’s house and found her already helped to the sitting room by PW2 and there was a lot of blood around her. Up on entering P W l’s room he found the accused lying on the bed. He searched the accused and the exercise book (Exhibit P3) where he had written all the details about his deteriorating love relationship with Omega (PW1) because he had no money, and his properties where about, and that all his properties 12 should be given to her mother, and that the exercise book should be given to is mother was recovered in his body under his shirt It is PW5 testimony that he searched the accused and found him lying over a panga that was blood stained.(Alilalia panga lenye damu) and further the testimony of PW3 Dr Marealle who treated PW1, the witness said he prepared an signed the PF3. He said the victim PW las showed in the PF3 Exhibit PI had five major cut wounds, namely open depressed skull fracture inflicted by a sharp object that was on grievous harm, open dislocation of the right shoulder exposing the ligament - that was termed grievous harm, inflicted by a sharp object, an open fracture of the right ulna termed harm, multiple lacerations termed as dangerous harm and several facial cut wounds classified as harm. Turning back to the accused, up on being called to defend himself he testified on oath but called no witness. He denied cutting PW1 on night of 8th to 9th March 2006. He however admits being at P W l’s house on the material day and time. He agreed that PW1 went to bed and left him at the sitting room and follows her after sometime. 13 The only point of departure with the prosecution case is that the accused alleges, when he followed PW1 to the bed room ready to sleep, he turned to take the clothes only to be hit by a sharp object on the head and lost consciousness - later when he gained consciousness he was at the hospital Muhimbili, and suspected it was PW1 (Omega) who cut him. The next issue is whether the accused persons actions amount to an attempt to commit the offence charged, and whether the accused had knowledge that death would be caused or serious injury would result as a result of the injuries inflicted on PW1. To answer the above it is pertinent to define what amounts to an attempt to commit an offence, and see whether the elements of the offence charged have been met. In PSA Pillais Criminal law 10th edition at page 839: A person commits the offence of attempt to commits offence of a particular offence when: (i) “ He intends to commit the particular offence 14 (ii) Having made preparations and with the intention to commit the offence, he does an act towards its commission. Therefore an attempt to commit an offence, is an act or series of acts, which leads inevitably to the commission of the offence unless something which the doer of the act neither foresaw or intended, happens to prevent t h is ............ . An attempt may be described to be an act done in part execution of a criminal design amounting to more than mere preparation, but failing short of actual consummation and possessing, except for failure to consummate..” The accused person stands charged with the offence of attempted murder C/S 211 (1) & (2) of the Penal Code. To sustain a conviction on the charge of attempted a murder, evidence must show that there was an intention to cause injury which is sufficient in the ordinary course of nature to cause death. From the nature of the injuries inflicted by the accused on the victim PW1 Omega as per Exhibit PI and the evidence of PW3 there is a very high probability of the injuries resulting to death of the victim, and from the evidence on record there was intention to inflict that particular bodly injury according to the testimony of PW1, PW2 and PW4. Further from the evidence on record, it was not accidental a unintentional that some other kind of injury was intended by the accused. From the evidence on record as adduced by the prosecution the accused had knowledge that the act he committed is so imminently dangerous so as to cause the death of PW1 Omega and had the accused succeed in his attempt the victim Omega PW1 would have met death. It is only by chance that she survived. In coming to a finding as to the intention of the accused, it could be inferred from his actions which I believe were motivated by love jealousness on PW1, as fortified by the evidence on record. This is so because when a person intends to commit a particular offence and then he conducts himself in such a manner which clearly indicates his desire translate that intention into action, and 16 in persuance of such an intention if he does something which may help to accomplish that desire then it can safely be held that he committed an offence of attempt to commit a particular offence. The intention of the accused from the circumstances of this case, although the attacker (the accused) did not declare his intention to cause death or grievous harm to his victim Omega (PW1) his attempt to kill PW1 is ascertained from the type and size of weapon used a (sharp panga), the. amount of force resed to inflict the serious cut wounds on PW1 as showed by the PF3 Exhibit PI of the accused, the conduct of the accused before committing the crime and at the time of the commission of the act, the motive of the accused, the parts of the body where the injures were caused, the nature of the injuries and the severity and persistence of the blows given as evidenced by the testimony of the doctor who treated PW1 DR Marealle (PW3) as showed in Exhibit PI (PF3) indeed signifies the accused persons intention to inflict dangerous injures on PW 1 which were immenently dangerous so as to cause the death of PW1. See ENOCK KIPELA CR. APPEAL NO. 150 1994 (unreported). 17 I refer to the scenario of the matter - starting from the time the accused was found by PW2, PW4 who greeted the accused for the 1st time but did not answer, and the second time he only replied marahaba, and was busy writing some notes in the exercise book Exhibit P3. The conduct of the accused after the arrival of PW1, being greeted without response, and his refusal to eat food with PW2, PW4 and PW1 as he used to do. From the circumstances surrounding this matter, the conduct of the accused and the contents of Exhibit P3 was the initial preparation of intention to committing the unlawful act of causing serious injuries or death to his victim PW1. The nature of injuries actually caused may give a considerable assistance as to the intention of the accused. The crucial evidence for consideration is the evidence of PW1, PW2, PW3 and PW4. At this juncture, the issue whether the above inculpatory facts irrestably point to the guilty of the accused, having evaluated the prosecution evidence is in my view answered in the affirmative and that the incalpatory facts are incompatible with the accused 18 opinion that the accused is guilty of the offence of attempted murder. I have considered the opinion of the assessors and the whole evidence adduced in this case by the prosecution and the defence, and find that as the prosecution case is mainly based on circumstantial evidence, I have found that the circumstantial evidence on record, suggest that the facts and the surrounding circumstances forms unbreakable chain of events leading to the guilty of the accused and irresistably point to the guilty of the accused person as held in Karimki Karanja VR (1986) KLR 190 and the inculpatory facts point to the guilty of the accused and are incompatible with his innocence. In addition, from the evidence on record there are no circumstances which could weaken or destroy the inference of guilty of the accused, and the prosecution case leaves no doubt that it is the accused who attempted to murder Omega PW1. Applying the principles cited above, I find it safe to base the conviction of the accused on the circumstantial evidence on record together with the entire evidence adduced by the prosecution. I 20 entirely agree with the gentlemen assessors in their opinion that the accused is guilty. The issue I posed is therefore answered in the affirmative. Having considered the totality of the evidence on record and the applicable law I am of the settled mind that the accused persons conviction is based on a good ground and the prosecution has successfully proved the charge against the accused person Benson Bellington Urio beyond reasonable doubt by successfully leading evidence from which it could be inferred that the accused had attempted to kill his victim Omega Rewetta and he had the knowledge that the injuries he inflicted on Omega are sufficient in the ordinary course of nature to cause death. I accordingly find the said accused Benson Bellington Fatael Urio guilty of the offence of attempted murder contrary to section 211 (1) (2) of the Penal Code and I forth with convict the accused as charged. . < ... 7 JUDGE 16/04/2010 21 Judgement delivered on this day in the presence of Appellant person and Respondent. F JUDGE i 16/04/2010 DATE 19/04/2010 CORAM: Hon. M gaya, J. For the Republic — Mr. Mw akanyam ale For the Accused — Mr. Koga Assessors 1. Mr. Kazibure 2. Mr. Mbega Cc Doris. Mr mwakanyamale State attorney Honourable Madam Judge, the matter is coming for judgm ent today, and the Republic is ready Mr. Koga advocate for the accused is also present. The accused is also present. Mr. M w akanyam ale S/A Honourable Madame Judge, I have no previous conviction for the accused, but I pray that a deterrent sentence be inflicted on the accused as he acted brutally out: of humanity. I pray that a deterrent sentence be inflicted to carter as a lesson to other inhuman people. Mr. Koga In mitigation the accused is a first offender and the fam ily depends on him. I pray that the accused be given a lenient sentence Madame judge. SENTENCE The accused person acted brutally and inhumanly to the victim Omega Rewetta who was his girlfriend and love relationship, and a fellow human being. From the serious injuries sustained by the victim, it was just by sheer luck that she survived the blows. The accused deserves a deterrent sentence but I have considered the fact that the accused is a first offender as mitigated by his advocate. The accused is however advised to control his passion in future when faced with a challenge in life to avoid unnecessary problems such as the present one. The accused person is sentenced to EIGHT YEARS IMPRISONMENT. 40/04/2010 The judgment of the court is delivered to the parties in my presence this 19th day of April 2010. £ •\ JUDGE h 19^4/2010 \> ♦ tv i fV