republic vs fikiri jumanne others 2018 tzhc 126 30 october 2018

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. N o.l OF 2015 THE REPUBLIC VERSUS 1. FIKIRI JUMANNE 2. HASSAN GASTON 3. SHUKURU MAHENDEKA 4. DESDERY DOMICIAN 5. MWESIGA MSORORO Date o f last Order: 26/10/2018 Date o f Judgment: 30/10/2018 JUDGMENT MALLABA, J. The accused persons Fikiri Jumanne, Hassan Gaston, Shukuru Mahendeka, Desdery Domician and Mwesiga Msororo, stand charged with the offence of attempted murder, contrary to Section 211(b) of the Penal Code [Cap. 16 R.E.2002]. It is alleged in the Information that, the accused persons, on 11th day of October, 2013; at Kizule - Kyota Village within Muleba District in Kagera Region, did attempt to murder one Nasri Elias. The accused persons Page 1 of 21 pleaded not guilty to the charges facing them and hence this case had to proceed to full trial. In order to prove the case against the accused persons, the prosecution brought five witnesses and in the course of hearing, two exhibits, namely PF3 as well as a sketch plan of the scene of crime, were tendered and admitted as exhibits. In defence, all the accused persons testified on oath as witnesses. In addition, three other witnesses testified for them. PW1 was Nasri Elias, the victim of the crime. He is a resident of Kyota Village at Kizure fishing camp in Muleba District, Kagera Region. He testified that, on 11.10.2013 as he was outside his house, at about 7:15pm, he saw six people who included Fikiri Jumanne, Desdery Domician, Shukrani Mahendeka and Mwesiga who came and demanded boat transport. The witness told them that, he had no boat or other means of transport. Immediately, Fikiri Jumanne held the witness’ hands by his back while Desdery Domician who was holding a cooking pot (sufuria), poured onto him some liquid. His body started itching and some blood oozing from his body. He raised alarm. People responded by coming to the scene. After people had responded to the alarm, PW1 was taken to Muleba Police Station where PF3 was issued to him and then he was hospitalized at Kagondo Hospital. Claudia Gervas testified as PW2. She is a resident of Kimwani, Kyota Village. She stated that, on 11.10.2013, she was at home frying fish. Her camp house is about 10 paces from that of PW1. At Page 2 of 21 about 7:15pm, she heard an alarm of a person saying “wananiua, mnisaidie jamani”. She responded to the alarm. When she went to house of PW1, she saw seven people, that is, Desderi, Fikiri, Hassan, Shukrani, Mabele, Mwesigwa and Mafina holding Nasri Elias while Fikiri and Desderi were holding a cooking pot with black liquid, trying to force PW1 to drink the same. She stated that, they later on poured the liquid onto his eyes and hands. The witness and people who assembled after the alarm washed Nasri Elias with water for purposes of diluting the liquid, soothing the victim and later on took him to the up-land area where transport facilities could be available. PW3 was Dr. Peter Innocent Kabyemela. He is from Rubya Hospital. He stated that, on 11.10.2013 at 11:15pm, he was at Kagondo Hospital where he was called to attend a patient named Nasri Elias. The later was swollen on the eyes. PW3 was informed that, PW1 had some liquid poured onto him. He filled the PF3 which the patient came with from the Police. He tendered the PF3 which was admitted in court as exhibit PI. PW4 was one Muswadiku Idrisa. He is a farmer residing at Kyota Village, Kimwani Ward. He testified that, on 11.10.2013 at around 8:30pm, he received a phone call from Mr. Nasri Elias, telling him that, he should go to pick him at Kizule Hamlet on a motorcycle and take him to hospital. Before reaching Kizule, the witness met Nasri Elias at Katurule. PW4 stated that PW1 had his face swollen. As he asked Nasri Elias of what had happened, the Page 3 of 21 said Nasri Elias replied that, it was Fikiri, Shukrani and Mabele Mahendeka who had injured him. The witness took Nasri Elias to Muleba Police Station where he was given a PF3 for medical treatment. Then PW1 was taken to Kagondo Hospital. PW5 was F.2249 D/CPL Hamis. He is a police officer in the OC-CID’s office at Muleba Police Station. He is in the investigation department. He stated that, on 18.10.2013, while at the police station, he was assigned by the OC-CID to investigate a case relating to assault causing bodily harm (shambulio la kudhuru mwili) of one Nasri Elias, who by then was admitted at Kagondo Hospital. He went to the hospital but he was informed that, Nasri Elias had been referred to Moshi for further treatment and that at the time, he was at his home in preparation for the Moshi safari. He went to P W l’s home at Muleba and recorded his statement. Nasri Elias, among others, told the witness that, he identified the perpetuators through torch light. He identified them as Fikiri, Shukrani Mahendeka, and Mabele Mahendeka. On 19.10.2013, he went to the scene of crime at Kyota, where he arrested Shukrani Mahendeka and Mabele Mahendeka. In other words, he failed to arrest Fikiri, the only other mentioned person. While at the scene of crime, he was led by the Kizule Hamlet Chairman, one Rweyemamu Benard, to draw a sketch plan. He tendered the same and it was admitted as exhibit P2. At the end of the prosecution case, this court ruled that, the prosecution established a prima facie case requiring the accused Page 4 of 21 persons to defend themselves. The defence case commenced accordingly. The first accused, Fikiri Jumanne was the first defence witness (DW1). He testified that; he is a peasant and a resident of Kyota Village, Kazilamuyaga Ward in Muleba District. He testified further that, on 11.10.2013, he was at home attending his sick wife who had a problem of blood oozing from the nose since 09.10.2013. He treated her by use of local herbs. He admitted to know the other accused persons in this case but declined to have taken part in attacking the victim of the crime (PW1). He stated also that, he was arrested in November 2013 in relation with the incident of attacking Nasri Elias. He challenged the prosecution evidence for being shaky in that, the claimant claimed to have identified the assailants through moonlight whereas others stated that, they identified them through other light sources. DW2 was Hassan Gaston, the second accused. He is a fisherman at Kizure Kyota Village within Muleba District. He also resides at Bumbile Island and also at Runzewe, Kahama District in Shinyanga Region. He stated that, on 11.10.2013, he was at his home at Runzewe in Shinyanya Region. After moving to Kizule, he was told by Claudia (PW2) that, Fikiri Jumanne and Shukrani Mahendeka poured some acid onto her husband. After some time, he was arrested at Muleba Police Station as he went to raise a claim for his money against another person. He denied to have taken part in attacking Nasri Elias. Page 5 of 21 The third accused person, Shukrani Mahendeka, testified as DW3. He is a peasant of Kigulamo Village in Kimwani Ward within Muleba District. He testified that, on 11.10.2013 at between 4:00pm to midnight, he was at his home. At 6:00pm, his cattle came from pasturing. The cattle keeper informed him that, one of the cows was missing. He started looking for it from neighbours. They returned home at 10:00pm after managing to get it from their neighbour’s kraal (zizi). He became aware of the incident of attack on Nasri Elias on 19.10.2013 when he was arrested by the OCS for Kyamyorwa Police Post. He denied to have attacked Nasri Elias. Another defence witness was the fourth accused person, Desdery Domician, who testified as DW4. He is a businessman who owns three residences, one in Bugolola Village in Misenyi District, the second is at Kyamyolwa Village in Muleba District and the third one is at Kyota Village, Kimwani Ward in Muleba District. He testified that, on 09.11.10.2013, he went to Mwanza by Bunda Bus where he was going to buy fishing nets as his business was that of distributing nets to fishermen and then collecting the fished fish. He arrived in Mwanza in the evening and stayed at his in-law’s house. His in-law is called Rongino Wilbard. On 10.10.2013, he went to the shops to purchase the fishnets. He was not successful. He returned to Muleba by bus and arrived at Muleba Bus stand on 11.10.2013. He tendered two bus tickets and the same were admitted as exhibit D 1 collectively. He denied to have taken part in attacking PW1 and challenged the charges against him as a fabrication. Page 6 of 21 DW5 was Mwesiga Severine Msororo, the 5th accused person. He is a resident of Lulanda Village, Lulanda Ward in Muleba District. His preoccupation is fishnets mending. He testified that, on 11.10.2013, he was at Kibingo Hamlet mending nets of one Gerald Msoke up to 8:00pm. Thereafter, he boarded a motorcycle to Kyota and slept at the house of one Mikidadi, as he would mend his nets on the next day. On the next day, as he was mending nets, he heard that there was an incident of Nasri Elias being attacked by some liquid being poured on him. DW5 further testified that, on 25.12.2015, Nasri Elias sent his wife Claudia Gervas (PW2) to bring to him, nine nets for mending. He mended them but he was told by Nasri to return them to him without the requisite payment. He refused returning the nets without being paid. According to the witness, Nasri Elias told him that, if he did not return the nets to him, he would join him in this case. He was called by the police on 19.01.2016 and joined in this matter. He questioned as to why he was not mentioned by any witness other than the complainant and his wife. He declined to have taken part in this matter. He was of the considered view that, this matter is planted and a fabrication. Anastazia Constantine testified as DW6. She is a resident of Kizule Village in Muleba District. Fikiri Jumanne is her husband. She stated that, on 11.10.2013 she was at home being attended to by her husband, DW1, for the problem of blood oozing from her nose. She testified that, as they used local herbs, she could not be Page 7 of 21 taken to hospital. She did not hear of this incident until her husband was arrested after one month. DW7 Magere Mahendeka is a resident of Kagulano Village, Kimwani Ward in Muleba District. He engages in cattle keeping and peasantry activities. He stated that, the 3rd accused person Shukrani Mahendeka is his son. It was his testimony that, on 11.10.2013 at 6:00pm, he was at home, where he was informed by his cattle keeper that, one cow was missing. He sent Shukrani Mahendeka (The 3rd accused), Makeleano Juma, Alfred Jumanne and the cattle keeper one Alex Juma to look for the same. Thereafter, at 10:00pm, they brought the missing cow. He did not hear of the incident of attack of PW1 but on 19.10.2013, one man arrived at his home and arrested Shukrani Mahendeka. The last defence witness was Rongino Wilbard, who testified as DW8. He is a resident of Miembeni B Street in Mwanza Region. He stated that, on 09.10.2013, he was at his home in Mwanza when Desdery Domician arrived at about 4:00pm saying that, he wanted to purchase fishing nets. The next day he went on with his normal activities while Desdery Domician went to purchase nets. In the evening, he found Desdery Domician at home saying that, he had not got the nets he was looking for. On 11.10.2013, Desdery Domician returned to purchase nets but later as he called him, he said he did not find the nets and he had decided to leave for Muleba by Bunda Bus. Later in the evening, the witness called Desdery Page 8 of 21 Domician by phone asking if he had arrived but the reply was that, he was approaching. Briefly, that is the summary of the evidence by the two sides in this matter, that is, for the prosecution and for the defence. On the basis of that evidence, this court will now move to analyse the same to see if the prosecution has established the accused persons’ guilt to the required standards. As earlier on pointed, the accused persons are charged with the offence of attempted murder c/s 211(b) of the Penal Code. The respective section of the Penal Code provided as follows: “Any person who - (a). . . . (b) With intent unlawfully to cause the death of another, does any act or omits to do any act which it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life, Commits an offence . . . ” Being a criminal offence, it is the prosecution side which has the duty to prove the charges against an accused persons, beyond reasonable doubts. This is in accordance with Section 3(2) (b) of the Law of Evidence Act (Cap. 6 R.E. 2002). The case of Tymos Asao V R (1967) HCD No. 251, among many others, also restated that same position. Page 9 of 21 In the present matter, where the accused persons are charged with the offence of attempted murder c/s 211(b) of the Penal Code, it is the prosecution side which has the duty to prove beyond reasonable doubt; two ingredients of the offence, that is: one, that with intent to unlawfully cause the death of another, a person did an act of such a nature as is likely to endanger human life; and two, that it is the accused person who did that act. In regard to the first element, there is evidence that, some liquid were poured onto the body of one Nasri Elias (PW1). The complainant himself, Nasri Elias (PW1); PW2 (Claudia Gervas); Dr. Innocent Kabyemela (PW3) who examined the complainant; PW4, Muswadiku Idrisa and PW5, F.2249 D/Cpl Hamisi, all testified to the effect that, indeed some liquid was poured onto the body of the complainant (PW1). However, there is no evidence whatsoever, to show as to what that liquid was. In his evidence, PW3, the doctor who examined PW1, did not say what that liquid was. Even the PF3 which PW3 filled, did not in any way help as it ought to. From the PF3 and also from the testimony of PW3, it was clear that, the doctor was informed that, the liquid poured onto PW1 was suspected to be acid. In the view of this court, the doctor (PW3) ought to have made his own finding as to whether the injuries that he observed, were consistent with any type of acid being poured onto PW1. Unfortunately, PW3 did not make any finding that can make this court come to a conclusion that acid was poured onto PW1. In the circumstances of this matter, the doctor was the only expert in a position to convince this court to make a finding that Page 10 of 21 what was poured onto PW1 was acid. As a result, this court is hesitant to conclude that what was poured onto PW1 was acid. If acid had been established to have been poured onto PW1, this court would not have hesitated to come to a finding that, indeed there were intention to murder PW1. As already indicated, there is no such proof. In the circumstances, the only other way to see if there were attempt to murder PW1, is by looking at the nature of the injuries that PW 1 sustained and the condition of PW 1 after the incident. Considering the nature of the injuries and the condition of PW1, in the view of this court, they were not of the nature as to make any reasonable person conclude that death was contemplated. First of all, immediately after the liquid was poured onto PW1, the complainant was in a stable condition such that, he was personally able to call and talk to PW4. In the view of this court, this could not have been the case if PW1 had suffered life threatening injuries. Secondly, the complainant had recovered by 18/10/2013, that is 7 days after the incident, such that he was able to record a police statement. Although PW3 stated that PW1 had just been referred to Moshi (KCMC), PW5 stated that, on 18/10/2013, he was no longer at Kagondo Hospital. At the same time, he was not at KCMC. Rather, he was at home. Life threatening injuries normally take long to cure. With life threatening injuries, PW1 should have been moved from Kagondo Hospital straight to the Moshi Hospital. At the moment, there were also no evidence at all that PW1 went to Moshi. Page 11 of 21 According to PW5 and also according to the PF3, PW1 appears to have previously been charged with the offence of assault causing bodily harm. In the view of this court, in the circumstances, that would be the befitting charge in the present matter even now. Thus, this court finds that, in the present matter the evidence does not establish that the accused persons deserved to be charged with the offence of attempted murder. Rather, if any, it is the offence of assault causing bodily harm which deserved to face them. In the circumstances, the other issue that needs to be looked at, is whether it is the accused persons who caused whatver injuries. Are the accused persons the ones who assaulted the complainant causing bodily harm? The evidence in proof of that element is essentially one of identification. In this regard, in the celebrated case of Waziri Amani V. R (1980) TLR 250, the Court of Appeal stated on evidence of identification as follows: . . the first point we wish to make is an elementary one and this is that the evidence of visual identification . . . is the weakest and most unreliable. It follows therefore, that no court should act on evidence o f visual identification unless all possibilities o f mistaken identity are eliminated and the court fully satisfied that the evidence before it is absolutely watertight. . . it must be shown on the record a careful and considered Page 12 of 21 analysis of all surrounding circumstances o f the crime being tried. . . ” The case of Waziri Amani (supra) cited, gave the circumstances to be considered in order to eliminate all possibilities of mistaken identity to include; one, the time the witness had the accused person under observation; two, the distance at which he observed the accused person; three, the conditions in which such observation occurred - was it day or night; four, whether there was good or poor lighting at the scene; five, whether the witness knew or had seen the accused person before or not; and six, whether the identification was made by the witness after a long period of observation or in satisfactory condition by a relative, neighbour, friend, workmate and the like. In the case of Mathew Stephen @ Laurence V. R, Criminal Appeal No. 16 of 2007 (unreported), the Court of Appeal added two more circumstances to those stated in the Waziri Amani Case. It added circumstances that, seven; whether in the course of observing the accused person, did the witness face any obstruction; and eight, whether, considering the whole evidence before the court, there were any material impediments or discrepancies affecting the correct identification of the accused person by the witness. In the case of Emmanuel Luka and 2 Others V. R, Criminal Appeal No. 325 of 2010 (CAT-Mwanza) (unreported), the Court of Page 13 of 21 Appeal exemplified on how the Case of Waziri Amani (supra) should be applied. It stated that: “The test, in our view, should be objective as opposed to subjective. Objective in the sense that when considering the eight (8) circumstances as enumerated above, or others, the court should always bear in mind the ordinary conditions under which the witness lives or was subjected to as an ordinary person o f his class. Such conditions would be, fo r example, the kind o f place where he was or lived; the intensity of the light (hurricane, lamp, moonlight) and the like. The court should not invoke the subjective test when evaluating the guidelines in Waziri Amani case. It should not, fo r example, judge by its standards (that of the class o f a judge or magistrate); o f what would be the situation if there is no electricity, fenced houses; where the victim or witness is well versed in matters related to law or other professional life . . . ” In other words, the Case of Waziri Amani is not supposed to be taken as “mwarobaini” in every case of visual identification. This court agrees with that, because that is the position which was also stated by the Court of Appeal in the case of Mussa Mbwaga V. R., Criminal Appeal No. 39 of 2013 (CAT-Mbeya) (unreported), which Page 14 of 21 was cited by the learned State Attorney in her final submissions, where it was stated: “In addition to the much cited guidelines from the case of Waziri Amani V. Republic (1980) TLR 250, subsequent decisions o f the Court of Appeal have enlightened further, leading to a considered view that the said guidelines are not {azadirachtaindica (mwarobaini)’ to all cases o f this kind. It is worth noting further that those guidelines need to be given a purposive interpretation as circumstances o f each case determine the fate o f the parties involved. Therefore those guidelines ought to be considered objectively. Generally, the court should consider the following before arriving at its decision • The kind o f light that existed and its intensity. • Time taken by the witness to have the accused person under his/her observation. • The distance between the assailant and his victim. • Whether the victim knew the assailant before the fateful moment. I f so, when and how often. • The whole evidence considered, were there any material impediments or discrepancies, affecting correct identification of the assailant by the witness. Page 15 of 21 • In the court o f such observation o f the assailant by the witness was there any obstruction experienced by the witness”. This court will consider the issue of identification of the accused persons on the basis of the position of the law as amplified in cases from Waziri Amani V R (supra), Mathew Stephan @ Laurent V R (supra), Emmanuel Luka and 2 othes V R (supra) and ultimately Mussa Mbwanga V R (supra). In all those cases, the first thing to consider in clearing every possibility of mistaken identity, is the kind of light that existed at the scene and its intensity. On this, in the present matter, in the first place, there is a contradiction or inconsistence as regards the source of light. PW 1 testified in court that, the source of light was moonlight. On the other hand, PW2 testified that, at the time, it had not become so dark. In other words, she claimed to have identified the perpetuators because of daylight. Yet, in the statement that PW1 gave to the police, he stated that it was dark and identified the perpetuators by a torch. This is also what came from the evidence of PW5. The position of the law as regards contradictions and inconsistencies in evidence is that, material discrepancies or contradictions affect the credibility of the respective witnesses. If the contradiction and discrepancy is material, then the respective evidence need to be jettisoned or disregarded. However, if the contradiction and contradictions or discrepancies are not vital or material, then they don’t affect the credibility of the witnesses or the Page 16 of 21 evidence itself. In the view of this court, where the only evidence that connects the accused persons to commission of the offence is that of visual identification or even of recognition, and the contraction or discrepancy is in regard to the source of light that enabled such identification or recognition, that is a major contradiction or discrepancy. This is because the same shakes the basic version of the prosecution story. For witnesses who observed the same incident, it is incomprehensible that one could remember observing the incident through moonlight, the other by daylight and the other by torch. Such a discrepancy or contradiction may only be consistent with tutored testimony. Although this court is not inclined to make a finding that the witnesses in this matter were tutored, such discrepancies and contradictions create a very serious doubt on the credibility of the witnesses involved. Such discrepancies and contradictions do not eliminate all possibilities of mistake in identification. The other problem flows from the first one. None of the witnesses described the level of brightness of whatever source of light each mentioned. If the identification was by moonlight, it was not described as to how bright was the moonlight. If it was by daylight, it was not described how was bright the daylight at the time of the day, specifically, at 7:15pm; and if it was by torch, it was not descried as to how bright it was. Without being clear on the brightness of the source of light, it is difficult to eliminate the possibilities of mistaken identification or recognition. Page 17 of 21 The above deficiencies are farther complicated by the fact that, witnesses and more so PW1, were not consistent with how many persons he identified at the scene. This is because, in his testimony, he mentioned six persons. However, when he met PW4, immediately after the incident, he mentioned only three persons, that is Fikiri, Shukurani and “mtoto wa Mahendeka” . PW1 also mentioned a different number of people to the police, that is to PW5. He mentioned three names of Shukurani Mahendeka, Mabele Mahendeka and Fikiri. In his statement and mentioned a much longer list in his additional statement to the police which he gave a week later. In this regard, it was stated in the case of Misofi Ndebile V. R, Criminal Appeal No. 75 of 2013 (CAT-Mwanza) (unreported), that:- “This court has persistently held that failure on the part o f a witness to name a known suspect at the earliest and appropriate opportunity renders the evidence o f that witness highly suspect and unreliable” In the view of this court, naming a different number of perpetuators and names at different occasions also makes the evidence of the respective witness highly suspect and unreliable. Then there is the issue of PW1 and PW2 differing on the number of perpetuators who were involved in the incidence and on the roles played by the perpetuators. Whereas PW1 stated that Page 18 of 21 there were six perpetuators, PW2 stated there were seven. On the roles played by the perpetuators, PW1 stated that Fikiri held him by the back and Domician poured the liquid. On the other hand, PW2 stated that, Fikiri was the one holding the cooking pot. Also, whereas PW 1 stated that the perpetuators immediately held him by the back and poured the liquid on him, PW2 stated that, the perpetuators started by trying to force PW1 to drink the liquid before pouring it on the face and eye. As regards the difference in numbers of the perpetuators, this court is of the considered view that, that is not a major discrepancy. The same can innocently happen and thus, in itself, it may not affect the evidence of both PW1 and PW2. However, as regards PW1 and PW2 differing in their account of the roles played by the perpetuators, that one is a vital discrepancy. When witnesses observe the same incident, it is normal for a person to forget what role was played by who and to testify accordingly. However, if two witnesses go on to specifically state what role was played by each, any contradiction or discrepancy in that is a serious and major discrepancy or contradiction and it affects the credibility of both witnesses. This court is of considered view that, the credibility of PW1 and PW2 is affected by such contradictions or discrepancies. All this put together, it makes the prosecution evidence of visual identification and recognition of the accused persons highly doubtful such that it cannot be the basis of conviction of the accused persons. Through such evidence, the prosecution has Page 19 of 21 failed to eliminate all the possibilities of a mistaken identification or recognition. In defence, all the accused persons, raised the defence of alibi of some sort. They all claimed that they couldn’t have been at the scene of crime at 7:15pm. DW1 claimed that, he was attending his sick wife and the wife came to provide support as a witness. He claimed that, he was in his house all day. The second accused claimed that, he was at Runzewe village in Kahama District, Shinyanga Region on the material date and time. The third accused claimed that, at the material time, he was looking for their missing cow. He brought his father as a witness on that (DW7). The fourth accused claimed that, on the material date and time, he was in Mwanza or on the road back to Muleba. The fifth accused claimed that, on the material date and time, he was mending nets elsewhere. Of the accused persons, only the 4th accused gave notice of his intention to raise the defence of alibi in accordance with section 194 (4) of the Criminal Procedure Act [Cap.20 R.E.2002]. In view of the fact that this court has found the evidence of the identification and recognition doubtful, the defences of alibi for all the accused persons, with or without notice, raise a reasonable doubt against the prosecution case. The 1st and 3rd assessors, who were the only ones who attended at the stage of the summing up to assessors, were of the opinion that, the accused persons are not guilty of the charges they Page 20 of 21 are facing. The prosecution had failed to prove their guilty. This court agrees with the two assessors. In the final analysis, this court finds that, the prosecution has failed to prove the case against the accused persons beyond reasonable doubts. This court agrees with the two assessors in this regard. As such, the accused persons are hereby found not guilty of the charges against them, and they are accordingly acquitted of the charge of attempted murder c/s 211 (b) of the Penal Code, for which they stood charged. Page 21 of 21