CRIMINAL SESSIONS NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF ARUSHA) AT ARUSHA \ CRIMINAL SESSION NO. 27 OF 2023 (Originating from PI No. 2 O F2023) THE REPUBLIC..................................................................... COMPLAINANT VERSUS KELELE LILAYO LESUNNDI.............................................ACCUSED PERSON JUDGMENT 0 3 /10/2024 & 10/10/2024 D.D. NDUMBARO J, The accused Kelele Lilayo Lesundi stands charged with an offence of murder contrary to sections 211(a) of the Penal Code Cap 16 R.E. 2022. It is alleged that on the 10th day of September 2023, Gilaibomba village within Longido District Arusha Region attempted to cause the death of one Emanuel S/O Ashumu by stabbing him with a Bush knife (Sime) on his neck. The accused denied the allegations hence the case proceeded to a full trial. During the hearing, the prosecution was led by Mr Donald Mahona and Lidya Mihayo, learned State Attorneys. Mr. Jackson Msuya learned advocate represented the accused. The prosecution paraded five witnesses; PW1 Emanuell Ashumu a victim, PW2 Gladness Mathia Minja Glocery seller, PW3 Karanga Tuke security officer (Mgambo) PW4 Brown Joseph Mwaselele a Clinical officer and, PW5 Kosea Mokololo who is Assistant ward executive officer. They also produced one documentary document namely, a PF3 Medical examination report of Victim Emanuel Hashumu (exhibit PI). Defence paraded one witness who is accused and did not tender any exhibit. In brief, accused person Kelele Lilayo Lesundi was charged with the offence of attempted murder to a victim Emanuel Ashumu, when the matter was brought before the court and charge read against the accused, he pleaded not guilty, and the court proceeded with a full trial. It was a testimony of PW1 a victim that he is a house builder (masonry) and he used to work anywhere he got tender. On 09/09/2023 he was in Gilaibomba village where he got a tender for building a house, on the same date during the night he went to Loi grocery where he ordered the soft drink Fanta. When he was drinking Fanta one person came and insulted him you Mswahi/i what are you doing here, he kept quiet and repeated you Kuma what are you doing there, he asked as to why he was insulted, the accused replied that "/ not only insult but I will show you. "The victim said he was called Mswahili and insulted knowing that he was not Masai as he was having short air looks not like Masai. He thereafter went back to sleep. On 10/09/2024 morning he was with Karanga went to the Gladness grocery at Sokoni street where they bought one bottle of highlife alcohol and shared thereafter each one departed for work. The victim walked for a few minutes get to meet someone who remembered to had insulted him last night at the Loi grocery, he had Bush Knife (Sime) in his right hand and a Masai stick in his left hand, he started slashing and chasing him. He was cut on the left side of the neck, chick and shoulder. The victim ran and raising alarm for help while holding his neck with hands, the incident was witnessed by Karanga, Gladness and other passerby, as the incident happened in the morning and along the road. Karanga organized transport whereby one teacher Sanga offered his car to bring victim to the hospital. Ward executive officer also came to the scene. It was the testimony of PW3 Karanga who were together victim and witnessed the incident, to have seen Kelele cutting Emmanuel using Sime. Emanuel raised an alarm for help, passerby went and stopped Kelele from chasing Emanuel. He went to take Kelele who was seriously injured and organized transport to police and the hospital, and thereafter together with Isaya, went to arrest Kelele who flew from the scene. It was the evidence of PW 2 Gladness she heard an alarm for help coming out of her grocery saw Kelele holding Sime in his right hand and Masai stick in the left hand. The Sime was covered with blood. Kelele was chasing Emanuel saying I will finish you and Emanuel running away while holding his neck with his hands, he was bleeding much. Karanga and some good Samaritan came and rescued Emanuel and brought him to the hospital. It was the testimony of PW 4 who is a clinical officer to have received Emanuel on 10/09/2024, having cut wounds in the neck with 10cm, on the chick 4 cm and shoulder 3cm. The wounds in the neck were bleeding much as the blood supply vein named jugular was cut, therefore he was taken under emergency care to rescue his life, he was observed for 24 hours and thereafter filled a PF3 form on 11/09/2024. PF3 was tendered before the court by PW4 and it was admitted. It was a testimony of PW5 who is the ward Executive officer that, he received a call from someone on 10/09/2023 around 07:50 hrs and informed that someone was injured with Sime in Gilaibomba. PW5 immediately went to the scene and found a young boy named Emanuel Ashumu lying down, he was cut in his neck, chick and shoulder, and he was bleeding much. He organized transport for taking him to hospital, the victim was taken to the hospital by teacher Sanga's car. He then organized arrest of accused whereby village security officers (Mgambo) Isaya and Karanga take the charge to arrest the victim brought to the ward executive office. He handed the accused person to the police from Longido at 14:00hrs. On the question as to whether accused was identified. PW1 who is the victim testified to have seen accused on the date of the incident as it was a bright morning. It is also PW2 testimony to have known the accused and used to see him in the village. Testified PW3 to have known each other and he is his friend. PW5 has known the accused since he was a young boy in the village. All PW1, PW2, PW3 and PW5 identified the accused before the court. When the prosecution closed its case, court found there was a case to answer against the accused and was addressed in terms of section 293(2)(b) of the Criminal Procedure Act Cap 20 R.E 2022 whereby he 5 chose to defend by oath and not to bring witness nor tender any document. It was the testimony of the DW1 accused that, to had never committed the offence, it was the first time he met with the victim he was not at Gilaibomba on the claimed date of the incident 10/09/2024, as he was at Ndilima his home village which is bit far from Gilaibomba, he was taking care of her wife who gave birth to a child. Testified he was from his village to the Bwawani area where he mates a car with No. IT 1616 going to Melingoi, he was stopped by the people from the said car and asked his name, he told them and took him into their car and to the ward executive office. He heard the ward executive officer talk with the village security officers that, they failed to bring the accused they wanted but they managed to have this Masai, let's bring him before the police for interrogation. He was taken to the police for two days and told he was charged with the offence of attempted murder. He got to know the name of the victim in the comital, never known to him before, he first saw victim before the court. Accused made a prayer before the court should be considered innocent as he did not commit offence. The defence closed their case, and both prosecution and defence made a prayer to file the final submission whereby the court fixed 08/10/2024 as the date of filing the final submission. Counsel for defence Jackson Msuya filed the submission and raised an issue of visual identification particularly on the day before victim met the accused person at Loy grocery, he cited a case of Wazir Aman Vs Republic (1980) TLR 250 and Raymond Francis Vs R (1994). Further argued victim failed to name accused at earliest, till he was told by PW3, cited the case of Marwa Wangiti Mwita and others Vs R (2002) TLR 39 to support the argument. It was testimony of PW2 and PW3 that it was bright morning, and the distance was not far, they could clearly identify the accused, the accused was also identified before the court. The victim testified hesaw the accused but he could not identify him by name until PW3 told him. Despite that PW2, PW3, PW4 and PW5 identified accused person by name, testified accused known to them even before the date of incident. This clear the doubt that accused was not identified. Having summarized the evidence as presented, the court observed that there is no dispute that the victim was injured. The PF3 medical report revealed that the victim was injured in the neck chick and shoulder,was treated, and the scars were shown before the court. The onlyissueis whether; a) The accused committed the offence of attempted murder contrary to section 211(a) and (b) of Penal Code Cap 16 RE 2022. b) Whether the prosecution proved the case beyond reasonable doubt. On the first issue whether the accused committed an offence. I have also examined the evidence of the accused person tried to establish he was not in the scene of crime on the date of incident, stating that he was at his home vilage Ndilima which is bit far from Gilaibomba, he was taking care of her wife who gave birth to a child. I also have considered the testimony of PW1, PW2 and PW3 who witnessed the incident. Section 211(a) and (b) of the Penal Code provides that: "211. Any person who- (a) attempts unlawfully to cause the death o f another; or (b) with intent unlawfully to cause the death o f another, does any act or omits to do any act which it is his duty to do, the act or omission being o f such a nature as to be likely to endanger human life, is guilty o f an offence and is liable to imprisonment for life." In the testimony of PW1 that it was a bright morning on 10/09/2024 and suddenly met with the accused who slashed him with Sime on the neck, chest and chick, he was running for help, PW3 was an eye witness to the incident the accused slashed the victim on the neck chick and shoulder with Sime. The accused had Sime in his right hand and a Masai stick in his left hand, the Sime had blood. The victim was running and raising an alarm for help PW2 heard the victim's alarm went outside and saw the accused holding Sime in his right hand and Masai stick in his left hand, the Sime was having blood. Accused chasing the victim and saying I want to finish you, accused was stopped by some people (passerby) by putting stick up and he stopped chasing the victim, accused was identified by PW1, PW2, and PW3 who have seen him committing the offence. On defending the case, the accused claimed to hence not been in the scene on the material date, and to have not committed the offence however there was no notice of an alibi file on the claiming absence, nor any witness brought to testify on the same. I found the victim's testimony very weak creating doubt as to the commission of crime. The fact that PW2 and PW3 identified the accused; the fact that having seen the accused chasing the victim on the material day saying I will finish you; and the fact that the accused stabbed the victim in the neck very sensitive part, established accused intention to kill as per section 211(a) of Penal Code supra. Therefore, this issue is answered in the affirmative. The second issue as to whether the case was proved beyond a reasonable doubt. For the prosecution to be regarded as proving the case beyond a reasonable doubt case am guided by the decision of the Court of Appeal in the case of Bonifas Fidelis @ Abel Vs. Republic [2015] TLR 156 which held th a t: "There are four ingredients o f attempted murder that can be discerned from section 211(a) o f the Penai Code [Cap 16 R.E.2002], 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 overt acts manifest the appellant's intention. Fourthly, 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 would surely have been committed." Guided by the above position from the court of appeal and to our case at hand, I am imperatively enjoined to see if the prosecutions who have unchanging duty managed to prove each ingredient which has to be proved for the offence of attempted murder to stand. In the testimony of PW1 that it was a bright morning on 10/09/2024 and suddenly met with the accused who slashed him with Sime on the neck, chest and chick, he was running for help, PW3 was an eye witness to the incident the accused slashed the victim on the neck chick and shoulder with Sime. The accused had Sime in his right hand and a Masai stick in his left hand, the Sime had blood. The victim was running and raising an alarm for help PW2 heard the victim's alarm went outside and saw the accused holding Sime in his right hand and Masai stick in his left hand, the Sime was having blood chasing the victim and saying I want to finish you, accused was stopped by some people (passerby) by putting stick up and he 11 stopped chasing the victim. He was identified by PW1, PW2, and PW3 who have seen him committing the offence. In defending the case, the victim claimed to hence not been on the scene on the claimed date, and to have not committed the offence hover there was no notice of an alibi file on the claiming absence, or no witness to testify that he was not in the scene on the material day, I found the victim testimony every week to create doubt as to the commission of a crime. Considering that the cut was on the right side of the neck chick and shoulder, I consider the neck a sensitive part, as it was testified by the clinical officer if he had not immediately rushed to the hospital he would die. The fact that the accused chase the victim and uttering I will kill you, and the fact he slashes on the neck using Sime is sufficient to establish the intention of killing. In the case of Bujigwa John Vs. Republic, criminal appeal no. 427 of 2018 Bukoba CAT (unreported) in which the Court of Appeal referred the case of Enock Kapele Vs. Republic Criminal Appeal No. 150 of 1994at page 19 on how to assess intention as; a) type and size of weapon used, the amount of force applied in the assault, b) the part or parts of the body the blow or blows were directed or inflicted, c)the number of blows, the kind of injury inflicted, d)the attacker's utterances, if any, made before during or after the killing and e)the conduct of the attacker before and after the killing.' In this case, there is no dispute that the alleged injury was caused by the Sime (bush knife) and the victim was slashed to the neck which is a sensitive part of the body as evidenced in exhibit PI revels. In the testimonies of PW1, PW2 and PW3 who are eyewitnesses, the accused used Sime to execute his intention and slashed sensitive part parts of the body. The fact that the accused repeatedly slashed the victim in the neck chick and shoulder and the fact that the accused was seen chasing and heard saying I will kill you, the prosecution has managed to prove accused intended to kill. The testimony of PW1, PW2 and PW3 that slashed the victim by Sime in the neck very sensitive part, and the issue as to the evidence proving an intervening event, that some people stopped the accused from chasing the victim. If he had not stopped he would have executed his intention of killing the victim and considering the evidence of 13 PW4 a clinical officer, if the victim had not rushed to the hospital within 48 hours he would have died for hemorrhage. I find the first, second third and fourth issues in the case of Enock Kapele Vs. Republic supra is answered in the affirmative. I have also noted some discrepancies in the oral testimony of PW3 and PW5. PW3 testified the accused was arrested by three people which are Isaya, Karanga and the Ward executive officer, Isaya and Karanga are village security officers (Mgambo), and he was brought to the ward executive office by Motorbike boarded by Isaya and Peter Kosea Mokolo who is ward executive officer. While the PW5 ward Executive officer testified to have sent Isaya and Karanga to arrest a victim he did not arrest the victim. I have carefully considered this piece of evidence but I find the discrepancy so minor and does not go to the root of the case, does not negate or create any doubts on the prosecution case, that the accused slashed the victim in the neck and the fact that PF3 reveals the injury, it was tendered and admitted before the court without any objection from the defence. DW1 wanted this court to believe that he was not involved in the commission of a crime as he was not on the scene on the material day 14 and time, but nothing was brought before the court to prove that he was not on the scene on the material date. I consider DW1 his testimony is an afterthought on his part and do not discredit the strong evidence by prosecution that he was identified by PW1, PW2 and PW3 as eyewitness on the commission of a crime. The testimony of PW1, PW2 and PW3 and exhibit PI speaks louder of the commission of crime against the victim. That said and done, I am of the considered opinion that, in this case, the prosecution proved his case beyond reasonable doubt as per the standard described in the number of cases including the case of Mohamed Haruna @ Mtupeni and another Vs. Republic, Criminal Appeal No.25 of 2007 (CAT) (Unreported), and consequently, I hereby convict the accused person for the offence of attempted murder contrary to section 211(b) of the Penal Code [Cap 16 R.E.2022] as charged. It is so ordered. c r\ D.D. NDUMBARO JUDGE 10/10/2024 15 SENTENCE This court having convicted the accused person of the offence of attempted murder c/s 211 (a) of the Penal Code Cap 16 R.E 2022, it is now the duty of the court to assess appropriate sentence by considering both aggravating and mitigating factors. Ms. Hellena for the Republic though did not have any record in relation to the accused's previous conviction yet she prayed for imposition of unmerciful sentence against the accused person on the reason that the accused person had the intention of killing the victim, and according to her if there was no intervention perhaps the accused person could have killed the victim. Mis. Hellena also reminded the court of the dangerous weapon (a sword) which was used by the accused person to cut the victim, she also informed the court on the sensitive parts of the body that was cut by the accused person. She therefore pleaded for unmerciful sentence against the accused person. The accused through the learned counsel, Mr. Jackson Joas Msuya advanced the following mitigating factors; First, the accused person is the first offender and there are no any other previous records. Second, the learned counsel stated that the time the accused has spent in custody, he has remorse to the offence he committed. Third, the counsel also stated 16 that the accused person is a young man of 23 years, a father and also he has parents who depended on him he therefore prayed for a lenient sentence to the accused person. I have considered thoroughly on the commission of the offence by the accused person to the victim, first, the weapon that was used by the accused person to inflict injuries to the victim is a very dangerous weapon which can even cause death. I have also taken into consideration the observation that was done by this court on the scars of the victims, the accused person did cut the victim on his neck which is a very sensitive part of the body. I have also in mind on the conducts of the accused person towards the victim which implicated that the accused person had formulated the intention to kill the victim, therefore it is my opinion that the level of seriousness of the offence is high level and the actual sentence that may meet ends of justice is the term of FIFTEEN YEARS (15) years imprisonment. The imposed sentence to start running from when the accused person was placed in custody that is on the 15/09/2023. Order Accordingly. D. D. NDUMBARO JUDGE 17 10/ 10/2024 Court: Right of appeal to the Court of Appeal of Tanzania fully explained to the parties. D. D. NDUMBARO JUDGE 10/10/2024 18