CRIMINAL APPEAL NO 353 OF 2023 FOSCA LUKAS LUTENGANO VERSUS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA. rCO RAM: KEREFU, 3.A., MGONYA, 3 .A And MLACHA. 3 JU CRIMINAL APPEAL NO. 353 OF 2023 FOSCA LUKAS LUTENGANO ....... .... .... APPELLANT VERSUS THE REPUBLIC........ ......... ............. ...... ........ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Chamshama, PRM-Ext. 3ur.) dated the 28th day of November/ 2022 in Ext. Criminal Sessions No. 08 of 2020 JUDGMENT OF THE COURT llth & 18tt>March, 2025 MGONYA, J.A.: The appellant In this matter, FOSCA s/o LUKAS @ LUTENGANO and ISACK s/o LUKAS @ LUTENGANO (who is not a party to this appeal), were charged with one count of attempted murder contrary to section 211 (a) of the Penal Code, Cap. 16 (the Penal Code), Having denied the charge, and after a full trial, both accused persons were convicted and sentenced to serve a sentence of ten (10) years imprisonment and ordered to pay Tshs, 5,000,000/= each, being compensation to the victim. Dissatisfied with the decision, the appellant is now before the Court faulting both the conviction and the sentence meted out by the learned Principal Resident Magistrate with Extended Jurisdiction (Chamshama, PRM) who had the conduct of the case upon the same being transferred to him under section 256A of the Criminal Procedure Act, Cap. 20 (the CPA). The factual background leading to this appeal is not complicated. It is a common ground that the appellant and his brother, (his co- accused by then), and their stepmother, the victim herein one REHEMA d/o MICHAEL NGIMBUDZI (PW1), were all residents of Mtwango Village, within the District and Region of Njombe. It is alleged that, on 21st day of September, 2016 about 22:00 to 23:00 hours, the victim while at her home together with her child, one Hilda Ngimbudzi watching television in the sitting room, suddenly, the appellant and his brother, invaded the house having with them a club, iron bar and machete in their hands. The two placed them under arrest. The invaders started to assault the victim where the appellant hit her with a hammer on her head where his brother assaulted the victim by a piece of stick commonly known as "banzi" on her head and caused her lose consciousness. Following the commotion, the victim's husband Lukas Lutengano who had already slept, went to the sitting room and found his wife laying on the floor while bleeding on her head, and her face was full of blood. He also saw the two invaders whom he identified to be his sons, having a club, iron bar, hammer and machete in their hands. Upon shouting for help, neighbours arrived at the scene and together with the victim's husband, took the victim to Njombe Police Station where they reported the matter. The victim was issued with the PF3 and brought to Kibena Hospital for treatment. She was admitted and examined by Dr. Isaya Mvinge (PW2) who also filled the PF3, (Exhibit PI). Later, the victim was referred to Ikonda Hospital for further treatment. F. 3845 Dt. Sgt. Bedom (PW3), visited the scene of crime and drew a sketch map (Exhibit P2). The two accused person were arrested and brought to Njombe Police Station and later arraigned before the court charged with the offence of attempted murder, contrary to section 211 (a) of the Penal Code. To substantiate the allegation during trial, three witnesses were marshalled by the prosecution, Rehema Michael Ngimbudzi, the victim (PW1), Dr. Isaya Mvinge (PW2) and F. 3845 Dt. Sgt Bedom (PW3). Two exhibits were tendered, namely the victim's PF3 (Exhibit PI) and a crime scene sketch map (Exhibit P2) respectively. As for the defence, two witnesses testified, being both the appellant and his co-accused. During trial, the victim testified to the effect that, on the material day, while at her home in the sitting room, his two step sons invaded the house and hit her with a strong object on the head. As a result, she bled heavily and lost conscious. After her husband cried for help, she was brought to the Kibena Police Station and attained a PF3 before she was brought to Kibena Hospital for treatment. However, due to her serious condition, she was transferred to Ikonda Hospital where she was admitted and treated for one month. Stating the effects she got from the tragedy, PW1 informed the court that, due to the attack, she can sometimes lose consciousness, feel dizziness with severe headache. Further, during trial, the victim testified to have recognized her invaders being his two step sons, Isack s/o Lucas @ Lutengano and Fosca s/o Lukas Lutengano whom she lived with since 1991 when she got married to their father, Lukas Lutengano. Further, the victim testified to have easily recognised the invaders as the room had a big bulb with intense light from electricity energy; and the distance from where she was and where the invaders stood, being one pace, made it easy to identify them. In their defence, both accused persons apart from admitting that they knew the victim as their father's wife and stepmother, raised a defence of alibi, alleging that on the fateful date they went to Njombe to attend their parents' case. However, on their way back home, being with their both parents, they were approached by police who wanted them to present themselves at Makambako Police Station. That at the Police Station, they were informed that they were accused for an attempt to kill their stepmother, one Rehema Michael Ngimbudzi. After the full trial, despite of denying the charge, the appellant and his co-accused were convicted and sentenced as indicated earlier. Aggrieved with the said decision, the appellant preferred an appeal to this Court. In his supplementary memorandum of appeal which substituted the original memorandum of appeal, the appellant fronted four grounds of appeal, to wit: 1. That, the plea taking and preliminary hearing conducted by the Hon. H. A. Makube, PRM with ExtendedJurisdiction contravened both the transfer order dated 25/04/2022 and section 256A (1) o f the Criminal Procedure Act [Cap. 20 R. E. 2022]. 2. That, the conviction against the appeiiant over the offence was not proper as the prosecution failed to prove it as required by the iaw. 3. That, the sentence o f 10 years in ja il inflicted to the appellant was excessive, and 4. That, the compensation sentence inflicted to the appellant was not proper as it contravened Article 13 (6) (a) o f the Constitution o f the United Republic o f Tanzania, 1977 and section 320 o f the Criminal Procedure Act [Cap. 20 R. E 2022]. During hearing of the appeal Mr. Jaliy Willy Mongo, learned advocate featured for the appellant, whereas Ms. Xaveria Makombe, the learned Senior State Attorney teamed up with Ms. Elise James, the learned State Attorney to represent the respondent, Republic. Regarding the first ground, it was alleged that, the plea taking and preliminary hearing conducted by Hon. H, A. Makube, PRM with extended jurisdiction contravened both the transfer order dated 25/4/2022 and section 256A (1) of the CPA. Submitting on this ground, Mr, Mongo referred us to the transfer order dated 25/4/2022 by Hon. Judge Incharge, Utamwa J. of which transferred powers to Hon. Chamshama, PRM under extended jurisdiction pursuant to the provisions of section 256A (1) of the CPA to conduct trial of this case. The learned counsel stated that, the said order specifically designated powers to determine the case to Hon. Chamshama. However, it came to his surprise that the preliminary hearing proceedings to the instant case was conducted by Hon. Makube who was not conferred such powers under the order of the Judge Incharge. That being the case, the learned counsel submitted that, Hon. Makube had no jurisdiction to conduct the preliminary hearing of the case. As a result, the preliminary hearing proceedings are nullity which vitiates the entire trial court's proceedings. It is from that irregularity, Mr. Mongo prayed the Court to nullify the preliminary hearing proceedings. He said, since the preliminary hearing proceedings is invalid, the trial court's proceedings will have no legs to stand. He therefore beseeched us to quash the entire proceedings, set aside the conviction and sentence meted to the appellant and order a retrial. In support of his prayer, the learned counsel referred us to the cases of Frank Lucas Ntende v. Republic (Criminal Appeal No. 266 of 2019) [2022] TZCA 626 (13 October 2022); TANZLII and Gidion Musajege Mwakifumba and Another v. Republic (Criminal Appeal No. 451 of 2019) [2022] TZCA 589 (29 September 2022); TANZLII. Responding to this ground, Ms. Makombe concurred to the fact that Hon. Makube had no jurisdiction to conduct the preliminary hearing since the transfer order was not directed to him. The learned Senior State Attorney averred that, despite of the alleged legal irregularity, the one who conducted trial was Hon. Ghamshama who was the one conferred with the powers under extended jurisdiction to conduct the trial, she further submitted that, the anomaly is therefore not fatal and prayed the Court to reject the ground of appeal for that reason. In the course of determining this ground of appeal, we managed to go through the original file in order to satisfy ourselves on this matter, Upon thorough perusal of the file, it came to our sight the order dated 6/11/2020 by Hon. Kente, the Judge Incharge by then, which transferred powers of the High Court to Hon, Makube, to conduct the proceedings of this case in 2020, prior to Hon. Utamwa's order of 2022. We see it apposite to reproduce the contents of the said order for ease of reference as hereunder: 11 Order: Pursuant to section 256A o f the Criminal Procedure Act (Cap. 20 R.E. 2019), this case which was filed in this Court is hereby transferred to the RM's Court at Njombe to be heard by Hon. H. A. Makube, PRM with the extendedjurisdiction. It is so ordered. KENTE, J. 6/11/2020 " It is from this order, we are satisfied that the preliminary hearing conducted by Hon. Makube in respect of this case on 26/11/2020 was valid. From this discovering, this ground dies naturally. Submitting on the 3rd ground, it was the learned counsel's submission that, the sentence of 10 years imprisonment meted to the appellant is excessive. Mr. Mongo referred us to page 89 of the record of appeal questioning as to which source Hon. PRM with extended jurisdiction got the statistics that Njombe Region is faced with prevalence of killings to justify the sentence of 10 years imprisonment meted to the appellant. It is the learned counsel's submission that, the said justification is a misconception which is not borne from the record, even from the prosecution's aggravating factors prior to the appellant's mitigation. It was Mr. Mango's averment that the learned PRM with extended jurisdiction in a first place was to offer the appellant a lesser sentence considering that the appellant was a first offender, a young person, and energetic as he pointed out in the first paragraph of the sentence; and taking into consideration his mitigation. However, due to the above observations, he decided to overturn his direction and pass the excessive sentence of ten years imprisonment to the appellant. Concluding, Mr. Mongo said, since the justification is not from the proceedings, he prayed the sentence be reduced or set the appellant at liberty. Responding to this ground, Ms. Makombe informed the Court that, the maximum sentence to the offence of attempted murder, is life imprisonment. It is her observation that, since the appellant was sentenced to serve 10 years imprisonment, Hon. PRM with extended jurisdiction took into consideration various factors such as appellant being a 1st offender, his young age and his mitigating factors as advanced before the court prior to sentence. In that regard, it was Ms. Makombe's submission that, the 10 years imprisonment sentence meted to the appellant was appropriate and fair. We have thoroughly gone through both learned counsel submissions to see whether the sentence of 10 years imprisonment imposed to the appellant is excessive or not. In determining this ground, we had to revisit the provisions of section 211 (a) of the Pena! Code being the section for the offence charged of attempted murder. Indeed, as stated earlier by Ms. Makombe, the offence attracts the sentence of life imprisonment as the maximum penalty. However, under the circumstances of this case, the Court imposed a lesser sentence of ten (10) years imprisonment. We are aware that sentencing is a judicial process. The sentencing powers by any court must therefore be exercised judiciously and not arbitrarily. Sentencing is not a mechanical process but a balancing act, taking into account the needs of the community and that of the accused. Furthermore, a sentence imposed must have a clear objective and properly rationalized, otherwise, it becomes a non-utilitarian mechanical process. See the case of Mathias s/o Masaka v. Republic (Criminal Appeal No. 274 of 2009) [2014] TZCA 272 (11 December 2014); TANZLII. It is renowned that, one of the main objectives of punishment is the reformation of the offender, and definitely not resubmission. In this case, the appellant before sentence, was already convicted for attempted murder. It is obvious that, if the appellant's mission was to succeed, the death of the victim was inevitable. In this case, the victim escaped from that trap. Therefore, the Court has to weigh the circumstances of the case and decide as to whether the sentence of ten years imprisonment meted to the appellant is excessive or not. In our considered view, we have come to a conclusion that the sentence meted to the appellant is appropriate, fair and balanced; and not excessive taking into consideration that the sentence could have been elevated up to life imprisonment at court's discretion. This ground is meritless. On the fourth ground, it was the learned counsel's concern that, the compensation sentence of Tshs. 5,000,000/= ordered to the appellant was not proper as it contravened Article 13 (6) of the Constitution of the United Republic of Tanzania, 1977 and section 320 of the CPA. Submitting on this ground, Mr. Mango is of the view that, apart from the custodial sentence, the appellant was illegally ordered to pay the victim the compensation of Tshs. 5,000,000/=. He challenged the compensation order stating that, prior to the issuance of an order, the appellant was supposed to be asked about his ability to pay. The learned counsel said, the omission to ask the appellant in that respect, is unconstitutional and contrary to section 320 of the CPA. Responding to this ground, it was Ms. Makombe's assertion that, the Court under section 31 of the Penal Code is vested with powers to order compensation as substitution. Moreover, under section 348 (1) of the CPA, if the sentence is not related to death, and the suffering is proved, the court can order compensation at its discretion upon circumstances of the case. From the circumstances of the instant case, it is the learned Senior State Attorney's observation that, compensation order is fair. She thus prayed the Court to reject the ground as the same is unfounded. Before we determine this ground, it is imperative that we see into the simple meaning of the compensation in criminal offences. The theory of compensation in criminal law is mainly about compensation to the Victim of a crime. A victim to a crime is one who has suffered any loss because of some act or omission of the accused. The victim not only suffers physical injuries but can sometimes suffer psychological and financial hardships from the said act or omission. The predicament of a victim is only made worse by lengthy hearings and tedious proceedings of courts and other related matters. In the Indian case of Hari Singh v. Sukhbir Singh & Others [(1988) 4 SCC 551], the Supreme Court held: "It may be noted that this power o f Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure o f responding appropriately to crime as wed of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system." From the above extract therefore, the theory of compensation in criminal law is mainly about compensation to the victim of a crime. And the logic behind compensation orders, is to ensure offenders repay victims for the harm caused by their actions, serving as a form of reparation and acknowledging the victim's suffering, rather than solely focusing on punishment. In our jurisdiction, in criminal cases, compensation is governed by section 348(1) of CPA. The same provides: "348 (1) - Where an accused person is convicted by any court of any offence not punishable with death and it appears from the evidence that some other person, whether or not he is the prosecutor or a witness in the case/ has suffered materia! loss or personal injury in consequence of the offence committed and that substantial compensation is, in the opinion of the court, recoverable by that person by civil suit, the court may, in its discretion and in addition to any other lawful punishment, order the convicted person to pay to that other person such compensationy in kind or in money, as the court deems fair and reasonable." [Emphasize added] In our considered view, the preceding provision is straightforward. It grants any trial court the authority to dictate, where appropriate, that the convicted individual must provide compensation, either in cash or in kind, that it considers to be equitable and reasonable, in addition to any other lawful punishment The order may be issued upon the fulfilment of three conditions. First, the accused individual must have been found guilty of an offence that is not punishable by death. Second, the court must be persuaded by the evidence on record that the offence committed has resulted in material loss or personal injury to another individual, whether they are the prosecutor or a witness in the case. Third, the affected individual must be able to recover substantial compensation through a civil suit. See the case of Zephania Gemuway v. Republic (Criminal Appeal No. 382 of 2022) [2024] TZCA 1252 (11 December 2024); TANZLII. In relation to the first element, the appellant was charged with an offence of attempted murder. He was convicted and sentenced as seen above. The penalty he procured was the custodial sentence of ten (10) years imprisonment. However, the learned PRM with extended jurisdiction in addition to that, decided to order appellant to pay the victim Tshs. 5,000,000/= as compensation. In relation to the second element, that the court must be persuaded by the evidence on record that the offence committed has resulted in material loss or personal injury to another individual, we are satisfied that the victim's injury inflicted to her by the appellant, made her not only to suffer physical injuries but also psychological. To prove this, we wish to quote an extract in the victim's testimony at page 53 of the record of appeal when she said: "Due to the attack, I can lose consciousness and feel dizziness. I also have a severe headache." This testimony is also corroborated by PW3, the doctor at Kibena Hospital who first examined and treated the victim while testifying at page 56 of the record of appeal. He had this to say; "The wound has a length o f 3 cms. and depth 2 cms. We didn't use ruler, but we know by observation, a patient can get bad effects from the injury. She tost biood, she had dizziness. She also lost consciousness." From the above pieces of evidence, one does not need a spectacle or an iron heart to see the truth that the victim in this case was seriously injured and that the effects from the same are unescapable. Hence compensation order in that respect is justifiable. Under the given circumstances therefore, we are satisfied that the impugned order for compensation, which was correctly and justifiable issued based on the victim's effects from the injuries she sustained out of the appellant's action, was properly made. This ground of appeal equally fails. The last ground which appeared as the second ground of appeal, is whether the prosecution case was not proved beyond reasonable doubt to sustain conviction. The issue for our determination in this ground 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. 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 Bonifas Fidelis @ Abel v. Republic (Criminal Appeal No. 301 of 2014) [2015] TZCA 25 (8 October 2015) TANZLII, 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 "Firstly, proof of intention to commit the main offence o f murder. Secondly, evidence to prove how the appeiiant 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 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, Sophia Idd Salum & Another v. Republic, (Criminal Appeal No, 332 of 2020) [2024] 1ZCA 600 (18 July 2024) TANZLII. In order to compare the holding of the Court in the abovementioned cases, and applying the above elements to the instant appeal, to determine as to whether the prosecution case was proved or not, we have undoubtedly went through the entire evidence of this case and align with the elements above as seen in the case of Bonifas Fidelis @ Abel, (supra), we have the following observation. Concerning proof of the appellant's intention to commit the main offence of murder, we have taken into account the evidence of PW1 at page 52 saying that, when the appellant and his brother invaded into her house, she saw them having a hammer and a long bamboo stick In their hands. It is our observation that, by having those weapons from where they came from, shows that they had an intention to kill. This is so since the same are deadly weapons which can cause big injuries to human body if applied thereto. Proceeding to the second and third elements conjointly on evidence to prove how the appellant began to employ the means to execute his intention and evidence that proves overt acts that manifest the appellant's intention, it is observed at page 52 of the record where the appellant ordered the victim to kneel down, and abruptly hit her with the hammer on the mid of her head. In her words she said: "The one who told me to knee! down was Foska. Suddenly he hit me with the strong object on my head. He used a hammer. The second accused hit me with the bamboo stick on the forehead. I lost conscious and fell down. He also hit me on the shoulder." From the above extract, it is unquestioned evidence that the appellant hit the victim on the head using a hammer. Indeed, malice aforethought can be inferred from the weapons used and the part of the body where the injuries were inflicted and sustained together with the extent of the injuries. From our considered view, the appellant's attack to the victim was intentionally to cause her death. Having considered all the obtaining factors that the injuries were inflicted on the head, fore head and shoulder, all being sensitive and vulnerable areas of the body, we hold that the appellant intended to kill the victim. This fact was also supported by the doctor's testimony. This shows a premeditated plan, as the appellant's action of using a hammer to hit the victim on the head, was an execution of his intention to kill. The fourth and last element is the 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 surely have been committed. On this point, it is in the record that, after the victim was hit on the head, the victim's husband who came out of the bedroom cried for help to the neighbours. Obviously, this was an interruption towards the commission of the major objective to kill. This is evidenced at page 53 of the record of appeal when the victim said: "Latert\ they found transport. My husband is the one who went to find transport, at that time, he was also making alarm to awake the neighbours." 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 appellant beyond reasonable doubt as shown above. This ground of appeal equally fails. In the upshot, we are satisfied that, this appeal has no merit. We accordingly dismiss this appeal in its entirety. DATED at IRINGA this 18th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 18th day of March, 2025 in the presence of the appellant with his learned counsel Mr. Jally Mongo, and Ms. Atupele Makoga, State Attorney for the Respondent/Republic; is hereby certified as a true copy of the original.