CRIMINAL APPEAL NO 332 OF 2020 SOPHIA IDDI SALUM ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: KOROSSO, J.A., KAIRO. J.A., And KHAMIS, J.A.) CRIMINAL APPEAL NO. 332 OF 2020 SOPHIA IDDI SALUM...................................................... 1st APPELLANT MJEMA IDDI @ MAMA DAUD...........................................2nd APPELLANT VERSUS THE REPUBLIC ........................................... .................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) fMweneirmazi, J.1 ) dated the 22nd day of June, 2020 in Criminal Sessions Case No. 62 of 2018 JUDGMENT OF THE COURT 03rd & 18th July, 2024 KOROSSO, J.A.: In this appeal, the appellants, Sophia Iddi Salimu and Mjema Iddi Salimu @ Mama Daudi were charged before the High Court of Tanzania sitting at Moshi for the offence of attempted murder, contrary to section 211(a) of the Penal Code, Cap 16 (the Penal Code). The allegations are that, on 2/11/2016 at Newland Village, Mabogini area, within the District of Moshi, Kilimanjaro Region, the appellants attempted to murder one Mwanahamisi Amiri Chomoka. The appellants pleaded not guilty. However, at the end of the trial, both were convicted for the offence charged and sentenced to serve twelve (12) years imprisonment each. Before proceeding any further, for better appreciation of the context giving rise to the appeal, we find it apt to provide the background albeit, in brief as discerned from the evidence of the prosecution witnesses Robert Mdee (PW1), Mwanahamisi Amiri (PW2), Hadija Rajabu Omari (PW3) and E8231 D/CPL Vitalis (PW4). It is on record that the 1st appellant and Mwanahamisi Amri (PW2) are married to Mohamed Juma Swedi as the first and second wife respectively. At the time of the incident under scrutiny, they resided at TPC Newland Village in Moshi. The evidence on record reveals that the house PW2 resided in was also a place where she conducted her business. On 2/11/2016, at around 16.00 hours, PW2 was at home together with her daughter Amina and Hadija Rajabu Omari (PW3), her sister-in-law. There was a knock at the door and on opening it, PW2 found it was the 1st appellant, and thus welcomed her in the house. PW2's evidence was that the 1st appellant greeted them and soon after said her goodbyes and then moved to attack PW2 with a razor blade. Then, the 1st appellant shouted "ingieni ingfeni tuuwd' translated informally: "come in, let's kill', then the 2nd appellant 2 entered the house holding a knife and used it to attack PW2, cutting her on the hand and head. There was also a young man who came into the house, took the knife from the 2nd appellant, and used it to attack PW2 on the shoulder joint. It was during the said attack against PW2, that PW3 left the room to call her brother, the husband of the 1st appellant and PW2. Upon hearing PW3 talking to someone on the phone, the 1st and 2nd appellants and the young man who had been attacking PW2 left the premises. Thereafter, the 1st appellant's and PW2's husband came inside and seeing that PW2 was injured, accompanied her to the hospital. PW1 was the doctor who examined PW2 and found that she had sustained multiple cut wounds on her left hand, chest, and head and that the wounds were of grievous harm. PW2 was treated, admitted to the hospital for observation, and discharged the next day. The 1st and 2nd appellants were arrested on 10/9/2016. The 1st and 2nd appellants denied the charges and advanced the defence of alibi. The 1st appellant testified that on the day it is alleged she attacked PW2, being eight months pregnant she went for medical consultation at 15.00 hours and returned home around 17.00 hours. Upon returning home, she was called by PW2 at her house to go collect a gift {khanga) given by their husband. She heeded the call, and at PW2's house, she found Amina and PW3, collected her gift, and went back to her house. On her part, the 2nd appellant stated that, on the fateful day, she left home around 6.00 am and from 8.00 am to 5.00 pm she was not at the scene of the crime as she was at Manyema Market located at Bondeni Ward, Moshi Municipality and came back home at around 6.00 pm. When the trial ended, the 1st and 2nd appellants were found guilty as charged, convicted and sentenced to 12 years imprisonment as alluded to earlier. Dissatisfied, they lodged a joint appeal premised on 17 grounds in total. On 23/6/2021 they filed a memorandum of appeal with 13 grounds and on 1/7/2024 filed a supplementary memorandum of appeal with 4 grounds. We shall not reproduce the grounds of appeal at this juncture for reasons to be revealed soon in the process of the determination of this appeal. On the date the appeal was scheduled for hearing before us, both appellants who were present in person, had the services of Mr. Elia Johnson Kiwia, learned advocate, to argue the appeal. The respondent Republic was represented by Ms. Verediana Mlenza, learned Senior State Attorney assisted by Mr. Peter Utafu and Ms. Edith Msenga, learned State Attorneys. When given the floor to argue the appeal, Mr. Kiwia sought and was granted leave to abandon the memorandum of appeal jointly filed by the appellants on 23/6/2021 and the related written submissions filed on 24/11/2021. Additionally, Mr. Kiwia prayed and was granted leave to abandon the second ground of appeal found in the supplementary memorandum filed on 1/7/2024. Therefore, essentially, only the following three grounds remained which paraphrased, are: 1. That, the trial Judge erred in law and fact not to hold that the charge was defective as the appellants were charged with the wrong provision of the law and the offence charged was unproven or in the alternative, to find a minor offence to the charged offence, proven. 3. That, the trial Judge erred in law and fact that the prosecution failed to prove the case to the standard required by the law as the prosecution evidence was weak, inconsistent, and contradictory. 4. That, the trial Judge erred in law and fact in convicting the 2nd appellant without considering the notice of alibi properly filed under the law. Mr. Kiwia then informed the Court that in amplifying the grounds of appeal his starting point will be arguing ground one and three conjointly and end with ground four. Expounding on grounds one and three, he faulted the trial court for convicting the appellants whilst the prosecution failed to prove the offence charged against them. He argued that, if anything, for the sake of argument what the prosecution proved was that the victim (PW2) had wounds on the head, chest, and neck occasioned by the 1st and 2nd appellants if the evidence adduced by PW2, PW3, and PW1 is to be considered. He, however, argued that causing injuries to a person does not amount to proof of attempted murder contrary to section 211 of the Penal Code, the offence which the appellants were charged, convicted and sentenced against. According to the learned counsel for the appellants, to prove a charge of attempted murder, as held in the case of Bonifas Fidelis @Abel v. Republic, Criminal Appeal No. 301 of 2014 (unreported), cited in Samwel Jackson Saabai @Mngawi and others v. Republic, Criminal Appeal No. 138 of 2020 (unreported) and expounded on the essential ingredients of attempted murder arising from section 211(a) of the Penal Code read together with section 380 of the Penal Code. These are, proof of intention to commit the main offence of murder; evidence to prove how the appellant began to employ the means to execute his intention; evidence that proves overt acts that manifest the applicant's intention; and evidence proving an intervening event, which interrupted the appellant from fulfilling his main offence, to such extent, if there was no such interruption, the main offence of murder would have been committed. According to Mr. Kiwia, in applying the above conditions in the present case, on condition one, there was no evidence that the appellants intended to commit the main offence of murder. He argued that the evidence that the 1st appellant had called the 2nd appellant in the house to kill PW2 and together attacked PW2, using blades and a knife, is not supported by evidence taking into account the injuries sustained by PW2, He maintained that essentially the first condition was not proved, because the evidence does not expressly show intent to murder PW2. About condition two, the learned counsel contended that there was no evidence by prosecution witnesses showing how the appellants began to employ the means to execute the intention to murder the victim. He argued that even when the prosecution evidence is considered, the alleged injuries sustained were not so grave to be labeled as those that could have caused PW2's death as discerned from the evidence of the prosecution witnesses. He implored us to consider the fact that PW2 was treated and then admitted to the hospital for observation and discharged the next day. Therefore, any injuries sustained were not to the extent of endangering PW2's life hence being discharged after a day's observation, he argued. We were also invited to consider the evidence and conduct of PW3. Mr. Kiwia argued that PW3's testimony was that she left the room to remove a child from the room and call her brother when PW2 was being attacked by three people with a razor blade and knife. He argued that her action does not reflect the quarrel was very serious and such serious weapons were used especially where there is no evidence of a call for assistance from neighbours. He contended that PW3's conduct does not reflect that there was any attempt by the appellants to murder the victim and thus condition two was unfulfilled. Moving to condition three, he contended that there was no evidence to show any overt acts on the part of the appellant to manifest any intention to murder PW2. Mr. Kiwia argued that when the evidence of PW2 and PW3 is considered, it shows that, the first appellant went to PW2's house, greeted them and sat in the chair, having gone there to get a gift she had been told PW2 held for her. Regarding condition four, he argued that the prosecution evidence did not reveal there being any intervening event that interrupted the appellants from fulfilling the commission of the offence of murder against PW2. He asserted that the 8 evidence of PW2 and PW3 shows that both appellants left the room after PW3 had left to call her brother (the 1st appellant and PW2's husband). In the circumstances, the act of PW3 calling someone cannot be taken to be an intervening event, he argued, since it only showed whatever was transpiring between PW2, the 1st and 2nd appellants was something that needed to be solved by her brother, whom she called, and that there was no danger to anyone's life. He contended further that had the trial court properly directed itself as expounded above, it would have found that in the instant case, the offence of attempted murder was not proved since the evidence adduced by the prosecution witnesses failed to fall within the ambit of the four conditions precedent stated in the case of Bonifas Fidelis ©Abel (supra). The learned counsel for the appellants also challenged the trial court for relying on the evidence of PW2 and PW3 stating that it was inconsistent and false in many aspects. To substantiate this assertion, he alluded to the evidence of PW2 and PW3 who testified to have heard the 1st appellant saying "come in let us kill', while PW2 stated she heard the 1st appellant saying, "ingieni, ingieni tuuwe", PW3's evidence was that she heard her saying, "njoo tuuwe, njoo tuuwd'. He argued that this discrepancy meant what they stated was untrue. The learned counsel for the appellants further faulted the trial court for relying on the evidence of PW1, the doctor who examined PW2. He argued that a doctor as an expert witness is expected to be professional and cited the case of Republic v. Kerstln [2003] T.L.R. 84, a High Court case, which discussed the role of an expert witness and held that: "An expert must furnish the Court with the necessary scientific criteria for testing the accuracy o f their conciusions so as to enabie the Court to form its own independent judgment by the application o f these criteria to the facts proven in evidence," The learned counsel thus urged us to be persuaded by the observations above and find PWl's testimony not to fall within the ambit of what is expected from an expert for the following reasons. One, he argued that, PW1 testified on matters he did not determine in his examination of PW2. He contended that while in his testimony on page 55 of the record of appeal, PW1 explained that on the material day, he attended to PW2 who had sustained injuries on the left hand, chest and head. According to the learned counsel, examining PWl's testimony, it only provides information on the nature of the wounds sustained by PW2 and does not allude to anything on her life being in danger. Even in exhibit PI which he filled, there is nothing recorded that PW2's life was in danger, he argued. Mr. Kiwia also queried why PW1 filled exhibit PI two weeks after PW2 was first treated. Simultaneously, he prayed to abandon ground four, upon further scrutiny of the record of appeal, convinced that the trial court did consider the defence of alibi and the duly filed notice of the appellants' intention to rely on the defence of aiibi. He implored us to allow the appeal on the two grounds of appeal argued. In the alternative, he implored us, if we find that the victim sustained injuries caused by the appellants, the appellant's conviction on attempted murder should be substituted to one of wounding or causing grievous harm, cognate offences to attempted murder. In response, Ms. Mlenza commenced by informing the Court that the respondent Republic resists the appeal and supports the conviction and sentence of the appellants by the trial court. Thereafter, Mr. Utafu took over submitting for the respondent Republic, making and undertaking to argue the appeal in tandem with how the learned counsel for the appellants had proceeded by confronting grounds one and three together. He argued that when determining a charge of attempted murder 11 contrary to section 211(a) of the Penal Code, section 380 of the Penal Code must be part of the deliberations. He asserted that proving a charge of attempted murder requires essentially proving three elements. The first is, proving the intention to kill. On this, he contended that, the prosecution managed to prove this since PW2 evidence showed that the appellants entered her house intending to kill her and in the cause of executing their intent to kill PW2, they injured her with razor blades and a knife. He stated that the evidence on this is supported by PW3. The second element of execution of the intent, he argued, is drawn from the type of weapons used by the appellants, that is the knife and razor blades. The place of injuries PW2 sustained, on the head, chest, and hand according to PW1, PW2 and exhibit PI. He thus urged us to find that the second element was proved to the standard required. The third element, of there being an intervention to stop the execution of the act, the learned State Attorney argued that in this case, the intervention came from PW3, who rushed out to cail for help which led the appellants to leave the crime scene. He contended that, without the said intervention, the appellants could have killed PW2. 12 Regarding complaints that there were contradictions and inconsistencies in the prosecution evidence, Mr. Utafu objected to such claims saying that the testimonies of the prosecution witnesses alluded to what they had witnessed from what had transpired during the incident. He stated that, PW2 gave evidence on what transpired from the time the 1st appellant entered her house, attacking her and calling the 2nd appellant to join in attacking her with a razor blade and a knife. He contended that PW3 who was also present when the appellants arrived at PW2's house, corroborated the evidence of PW2 regarding the attack and the weapons used. The learned State Attorney urged the Court to find PW2 and PW3 reliable, especially in proving the appellants' intent to kill PW2. On the difference in the words heard by PW2 and PW3 as those uttered by the 1st appellant when calling the 2nd appellant to join in attacking PW2, he invited us to find it a normal occurrence since people have different ways and capacities to recollect and explain what they heard. He urged us to disregard any discrepancy there could be and consider the fact that, PW2 and PW3 stated they heard the 1st appellant inviting the 2ndappellant and another person to enter the house and kill. Therefore, emphasizing the fact that the 1st and 2nd appellant's intentions in attacking PW2 were to 13 kilt her, hence the elements of the offence charged were proven beyond reasonable doubt, he argued. Furthermore, Mr. Utafu implored us to find PWl's evidence reliable as he had outlined what his examination of PW2 entailed and his findings, including the extent of the injuries sustained. He asserted that his evidence is that of an expert, having alluded to his knowledge, skills, and experience. The learned State Attorney stated that PW2 had fully explained the cause for the delay in filling the PF3, stating that it was due to the continued monitoring of injuries sustained, which PW2 was undergoing for almost 14 days after her discharge from the hospital. On the complaint that the appellants' mitigation was not considered, the learned State Attorney stated this is misconceived because the appellants were sentenced to twelve years imprisonment while the offence charged attracts a maximum sentence of life imprisonment, thus as revealed in the record of appeal, the trial court did consider the mitigating factors. He beseeched us to find the appeal unmeritorious and dismiss it. About the alternative prayer, the learned Senior State Attorney asserted that such an action would not provide leniency for the appellants, since a review of section 300(3) of the Penal Code which draws out cognate offences to attempted murder, conviction on such cognate 14 offences specified therein, attracts a similar sentence to that of attempted murder, and wondered whether as such, it will benefit the appellants. He prayed the appeal be dismissed. The rejoinder by Mr. Kiwia was essentially a reiteration of his submission in chief. He stressed the fact that the act of PW3 calling her brother amid the alleged attack of PW2 by the appellants cannot be said to be an intervening act, since there is no evidence showing at the time there was any imminent danger of PW2 being killed. He urged us to allow the appeal. In the determination of this appeal, being the first appellate court, in terms of rule 36(l)(a) of the Tanzania Court of Appeal Rules, 2009 (the Rules), we have to re-appraise the evidence on record and draw inferences of facts to reach our own conclusion as held in the case of Charles Thys v. Hermanus P. Steyn, Civil Appeal No. 45 of 2007 (unreported). We have decided to dovetail on the approach taken by the learned counsel for the contending sides and shall address the only grounds left for our determination, that is, grounds one and three conjointly. We have dispassionately considered the record of appeal and the submissions before us on those two grounds of appeal and we are of the 15 view that, the underlying issue for our determination is whether the prosecution did prove the charged offence of attempted murder contrary to section 211(a) of the Penal Code to the standard required to sustain the appellants' conviction and propriety of the imposed sentence by the lower court. We are constrained to commence by having a better understanding of what the offence of attempted murder contrary to section 211 (a) of the Penal Code entails. This Court has previously had occasions to address this issue. In the case of Boniface @Abel (supra), the Court observed that, the offence of attempted murder under section 211 (a) of the Penal Code entails addressing the word attempt found in section 380 of the Penal Code. Therefore, sections 211(a) and 380 of the Penal Code must be read together and the Court after a careful examination of the two provisions, mapped out the essential elements of the offence of attempted murder as: "Firstly, proof o f intention to commit the main offence o f murder. Secondly, evidence to prove how the appellant began to employ the means to execute his intention. Thirdly, evidence that proves overt acts that manifest the appellant's intention. Fourthly, evidence proving an intervening event, which interrupted the appellant 16 from fulfilling his main offence, to such extent if there was no such interruption, the main offence o f murder would surely have been committed." (See also, Samwel Jackson Saabai @Mng'awi and 2 Others (supra)). Aligning ourselves to the holding of the Court in the above- mentioned case, and applying the above elements to the instant case, undoubtedly, in a charge of attempted murder, intention to commit the offence of murder is essential and according to the case of Boniface @Abel (supra), "...the most important ingredient o f the offence o f attempted murder..." Addressing the issue of whether the offence of attempted murder was proved, it is now apt to revisit the ingredients of the offence alluded to hereinabove. Concerning proof of the appellants' intention to commit the main offence of murder, we have taken into account the evidence on record and plainly, PW2 was attacked by the 1st and 2nd appellants and injured. There is unquestioned evidence to that effect adduced by PW2 and PW3 that a razor and knife were used, evidence which is supported by PW1 and exhibit PI related to the findings upon medical examination of PW2. 17 Indeed, malice aforethought can be inferred from the weapons used and the place where the injuries are sustained together with the extent of the injuries. In the instant case, we are of the view that the circumstances of the crime scene do establish that the appellants attacked PW2 intending to cause her death or cause grievous harm. We hold this, having considered all the obtaining factors. As contended by the learned State Attorney, the use of razor blade and a knife in the attack, and the fact that the injuries sustained were on the chest, head and hand, sensitive and vulnerable areas of the body to sustain injuries, supports the assertion that the appellants had intended to kill or cause grievous harm to PW2. There is also the fact that the 1st and 2nd appellants and another person (who is not part of this appeal) together attacked one person also adds more weight to the intention to kill or cause grievous harm to PW2. Therefore, malice aforethought is inferred. We have also gathered from the evidence of PW2 and PW3, that upon arrival, the 1st appellant appeared to be in a fighting mode. During cross-examination, PW2 stated when the 2nd appellant entered the house she was in a fighting mode (half ya vita). The evidence that after slashing PW2 with a razor on the chest at the right side and left side, the 1st appellant then called others who were outside to come in and kill, shows 18 a premeditated plan, and their action of using a razor and knife, was an execution of their intention and overt acts. TTiere is also the fact that three persons were attacking PW2, which means the intention was to kill or cause grievous harm. Hie evidence by PW1 that his examination of PW2 found that the injuries caused were of grievous harm, alludes to our observation above as discerned from his evidence at page 57 of the record of appeal when he stated: "/ recorded grievous harm because the patient came while severely wounded or profusely bleeding. I f she would be late a little the possible result could be death due to shock.” We are of the view that the fact that PW2 was treated, admitted for one day, and discharged the next day, does not negate the evidence that she sustained serious injuries that endangered her life. PW3 at page 69 of the record stated: "...After I called my brother I came inside and found my sister-in-law soaked with blood, PW3 evidence augurs with that of PW1 that he saw PW2 profusely bleeding, which stresses the seriousness of her injuries. 19 PW1 gave reasons why they discharged PW2, underscoring the fact that PW2 remained under observation for two weeks, which also explained the delay in finalizing filling the PF3. Therefore, in the circumstances delaying filling the PF3 is no evidence that the injuries sustained by PW2 from the attack were not serious or did not occur. We agree with the learned State Attorney that the evidence adduced shows that the injuries PW2 sustained from the appellants' attack were very serious and could have caused her death. We find it apt to also address the issue of the credibility of the prosecution witnesses. In the present case, the trial court believed the version by the prosecution witnesses finding them to be credible and reliable. It is indeed settled that the trial court has the monopoly in assessing the credibility of a witness, and an appellate court may only interfere with the trial court's finding where there is a good cause to do so (See, Ally Chande @Ally and Another v. Republic, Criminal Appeal No. 16 of 2006 (unreported). Having revisited the evidence on record, we find nothing to justify any interference in the finding by the trial court on the credence of the prosecution witnesses. PW2 gave evidence on how she was attacked by the appellants and the injuries she sustained. We also agree with the 20 learned State Attorney that there is no material contradiction in the words alleged to have been uttered by the 1st appellant when calling others to join in the act, "ingia ingia tuuwd' and "njooni njooni tuuwd' as testified by PW2 and PW3. The said words essentially mean the same thing, "come in let us kill'. The fact that they are not the same words, is a reflection of the way different people explain or conceptualize an issue. The underlying fact is still that the 1st and 2ndappellant did attack PW2 and she sustained injuries, that is multiple wounds on her body as testified by PW1, PW2, PW3 and discerned from exhibit PI. Therefore, the complaint has no merit. Ultimately, we are of the view that, the prosecution managed to substantiate the application of the four elements to prove the offence of attempted murder against the appellants beyond reasonable doubt as shown above. Therefore, the issue of substituting the conviction for one of cognate offence does not arise. In so far as the imposed sentence of 12 years is concerned, the learned advocate for the appellant implored us to revisit the sentence arguing that it is manifestly excessive under the circumstances and that, the trial court failed to consider the mitigatory factors advanced by the appellants. We have also considered the arguments by the learned Senior 21 State Attorney taking into account that the maximum sentence for the convicted offence is life imprisonment, thus the sentence imposed by the trial court is not excessive, and there is nothing to fault the trial Judge. We are alive to the settled position that an appellate court can only interfere with the discretion exercised by a trial court in imposing a sentence where there are errors and misdirections or where the sentence is excessive. It is only on rare occasions that an appellate court may find there are good grounds or circumstances to warrant doing so as emphasized in various decisions including Kija Japhet v. Republic, Criminal Appeal No. 2017 and Katin Da Simbila @ Ngwaninana v. Republic, Criminal Appeal No. 15 of 2008 (both unreported). We are of the view that this case is one whose circumstances lead us to find that it will be appropriate to interfere with the sentence. With no intention to interfere with the sacred discretion of the trial court in imposing a sentence, we are of the firm view that, had the trial judge properly considered the mitigating circumstances in the case, whose foundation is a family squabble and being first offenders, it would have not imposed such a sentence, which we find to be rather excessive under the circumstances. 22 In the end, we substitute the sentence imposed for a sentence that will allow the 1st and 2nd appellants to be released immediately from imprisonment unless otherwise held for other lawful purposes. All in all, we dismiss the appeal, save for the sentence which we have substituted as stated herein. DATED at ARUSHA this 17th day of July, 2024 W. B. KOROSSO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 18th day of July, 2024 in the presence of Mr. Lecktony Losiyo Ngeseyan, learned Counsel who took brief for Mr. Elia Johnson Kiwia, learned Counsel for the Appellants and Ms. Witness Mhosole, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 23