republic versus michael mlelwa msumi 2023 tzhc 19007 31 march 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 142 OF 2020 REPUBLIC VERSUS MICHAEL MLELWA @ MSUMI JUDGMENT 15/03/2023 & 31/03/2023 BWEGOGE, J. The accused person aforenamed stands indicted for an attempt to murder contrary to section 211 of the Penal Code [Cap. 16 R.E. 2029]. The particulars of the offence allege that the accused herein on 1st September, 2018, at Kiwalani Area within Ilala District in Dar es Salaam Region did attempt to murder one Eva Aloyce Kavulukutu. i The accused person vehemently protested his innocence when he was arraigned in this court and the prosecution had procured attendance of seven witnesses in a bid to substantiate its case. The resume of the prosecution case, albeit briefly, is as follows: The accused person and the victim herein are husband and wife, though, as ascertained by the victim, they are not validly married. They cohabited together from 2009 to 2018 when they separated. The same are blessed with one child namely, Ezekiel Michael Mlelwa, PW1 herein. Allegedly, on 31/08/2018, having taken dinner, the couple had differed over the rebelliousness of their son. The accused person held the victim responsible for the unbecoming behaviour of their son. The couple exchanged sharp words and, allegedly, the accused vowed to teach the victim a lesson. The misunderstanding between the accused and the victim had exacerbated and culminated in a fight. Allegedly, the accused assaulted the victim so severely to the extent that she had been assisted to break out and reported the incident to the ten cells leader, Mr. Mohamed Magulupesa Mbangalukela (PW3 herein). The said ten cells leader had appeared at the residence of the accused herein, amicably settled the dispute between the couple and retired home. 2 At midnight, allegedly, the accused assaulted the victim with a machete on 1st September, 2018, and inflicted fatal blows on her head. She raised an outcry for help to her co-tenants who had intervened, including the ten cells leader. The ten cells leader, PW3 herein, hired a motorcycle taxi and escorted the victim to the Buguruni Police Station whereas he was supplied with PF3 and rushed the victim to Amana Hospital for medical care. Eventually, the victim was referred to Muhimbili National Hospital for further medical attention in an attempt to save her life. The victim was attended by Dr. Angela Isangya Lameck (PW6) who operated on her at Muhimbili Orthopaedic Institute (MOI), on the 1st of September, 2018. Upon examination, PW6 found that the victim suffered a depressed skull fracture with brain injury. The operation was conducted to remove blood clots from the brain and elevate the depressed skull. PW6 had tendered the medical examination report which was admitted in evidence as exhibit P2. Allegedly, the accused disappeared after he committed the crime. He was traced by one Michael Aloyce Kavulukutu (PW4), the victim's brother. On 31/08/2019, PW4 located the victim at Pugu-Mnadani and 3 reported to the police post nearby. The accused person was eventually arrested and escorted to Buguruni Police Station. Having been arrested, the accused was interviewed by one F.4182 Detective Sergeant Bernard, PW5 herein, on 31/08/2019. Allegedly, the accused admitted to have assaulted the victim with machete and caused her to suffer bodily injury. PW5 had tendered the cautioned statement of the accused person in evidence which was admitted in evidence as exhibit Pl. Based on the evidence gathered, Assistant Inspector Francisca (PW4), the investigator of this case, proposed to the Director of Public Prosecution the charge of attempt to murder against the accused in lieu of the charge of causing harm previously preferred. On the other hand, it is the defence case (constituted by the sole testimony of the accused) that on a fateful night, admittedly, the accused quarreled with the victim whom he alleged to have scorned him. He got furious and slapped her twice. Admittedly, they were reconciled by the ten cells leader, and both the accused and victim had retired to bed, though the victim refused to share dinner with the family and opted to sleep on the sofa. 4 The accused enlightened this court that he works at the slaughterhouse. And based on the nature of his work, he keeps machetes and knives. On fateful night, around 23:20 hrs, the accused woke up and prepared to leave for work. At that opportune, the victim was still asleep. DW1 had left little money to meet the basic needs of his family and strolled outside the room. Before he could open the door, the victim grabbed him from behind, complaining about the meagre allowance he left her to sustain the family. Unfortunately, during the fracas, the victim accidentally harmed herself with the machete buckled in the waist belt of the accused. The accused admitted to have heard the victim complaining that he harmed her. But he failed to offer any assistance as the victim had deliberately locked herself inside the room. Thus, the accused opted to leave for work. Along the way, the accused discovered that he was also harmed by his machete during the fracas. He received medical care at the pharmacy nearby and reported to work. Around 04:00 hrs, the accused received a phone call from PW4 (the victim's brother) who alleged him of causing harm to the victim. Later on, the accused was cautioned of fatal retaliation from the victim's siblings. Being afraid, the 5 accused refrained to visit the victim at the hospital. The accused admitted the fact that he was arrested in 2019 for the alleged crime. In substance, it is the accused defence that the victim had harmed herself. And, based on the injury sustained by the victim, he could not have unleashed blows on her, lest she would have died, as his machete is perilously sharp. The issues to be resolved by this court are as follows. 1. Whether the accused person had assaulted the victim with machete and fatally wounded her. 2. Whether the accused person had intention to unlawfully cause death to the victim. The provisions of section 211 (a) read together with section 380 (1) of the Penal Code guide this court to reach a just conclusion in this case. Section 211(a) of the Act states: "211; Any person who - (a) attempts unlawfully to cause death to another; or (b) (inapplicable) Commits an offence and is liable for imprisonment for life." 6 And section 380 (1) of the Act provides: (1) when a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such extent as to commit the offence, he is deemed to attempt to commit the offence. 3. It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. (Emphasis mine). It is apparent that the above provisions make it paramount that in establishing the attempt to commit the alleged offence, the prosecution must establish the following: One, the intention to commit the alleged offence; two, the manifestation of the intention to commit the offence by an overt act(s); and, three the supervening act which rendered the intended criminal enterprise incomplete. The apposite interpretation of the provisions aforementioned is found in the case of Bonifas Fidelis @ Abel vs Republic (Criminal Appeal No. 301 of 2014) [2014] TZCA 25 whereas it was aptly held: 7 "It seems to us that four essentia! ingredients of attempted murder can be discerned from section 211(a) read together with S.380. Firstly, proof of intention to commit the main offence of murder. Secondly, evidence to prove how the appellant began to employ the means to execute his intention. Thirdly, evidence that proves overt acts which 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 of murder would surely have been committed. From the perspective of the provisions of sections 211 (a) and 380(1), the intention to commit the offence is essentia/, and we may dare say the most important ingredient of an offence of attempted murder. We say so because, if this ingredient is not proved, we will not bother ourjudicial time to the remaining ingredients." I now revert to test whether the prosecution case on record meets the scales of justice aforementioned. I shall commence with scrutiny of the evidence given by PW2, on which the whole prosecution case leans on. PW2's residence was a single room rented in the house with many rooms occupied by several occupants. It is in the PW2's testimony that on the fateful date of 31/08/2018, having eaten dinner, the accused blamed her for the unbecoming behaviour of their son. They quarreled 8 and the accused threatened to teach her a lesson. When they retired to bed, the accused had reopened the discussion, alleging her for the rebellious behaviour of their son. When she attempted to respond to his allegation, the accused assaulted her. He had allegedly beaten her so severely to the extent that the neighbours had broken the door to intervene. She found space to escape and reported the incident to the ten cells leader (PW3). The ten cells leader escorted her home and talked to the accused person in an attempt to resolve the dispute. Allegedly, the accused pretended to have made peace with PW2 and promised the ten cells leader that he would not assault her again. However, PW2 expressed her opinion to her ten cells leader that she was afraid to sleep with the accused person. But the ten cells leader insisted that PW2 should stay home as he had warned the accused not to harm her anymore. PW2 reluctantly complied with the instruction of her leader. However, she opted to sleep on the sofa seat. The accused insisted that PW1 should sleep on the bed. She refused. The accused slept in bed with their son. Further, PW2 enlightened this court that after a while, the accused woke up from the bed, packed his coat and some clothes, and got out. PW2 had slightly fallen asleep to be awakened by a machete blow 9 perpetrated against her head. She had scrambled to put on the light. Then she had witnessed the accused unleashing successive blows on her head. The earlier two blows got her right on the head but the third blow missed her. She screamed, and her co-tenants responded. Thereafter, she witnessed the accused fleeing from the scene. The ten cells leader was summoned. He appeared, found a motorcycle taxi and took PW2 to the hospital. The Corroborating evidence emanates from the ten cells leader who testified as PW3. He deponed that on 01/09/2019 during the hours of darkness, the victim registered her complaint to him that her husband had beaten her. He escorted her back home and found the accused at home. He informed him of the complaint whereas the accused denied the allegation and pretended that he was at peace with the victim. He urged PW3 to leave his premise. PW3 admitted that the victim urged him to leave the house and seek shelter somewhere as the accused threatened to kill her, but he instructed her to remain at home. Further, PW3 enlightened this court that the accused pressed him to leave the house, promising to keep peace with the victim. Having assured himself that the accused would keep peace, PW3 left and headed to his residence. 10 However, before PW3 fell asleep, he received information that the victim had been assaulted with the machete and was about to die. He rushed to the scene of crime and found the victim herein holding her head which was tied with cloth. He likewise witnessed blood oozing from her head. The victim told PW3 that the accused had assaulted her and escaped. PW3 could not see the accused in the neighbourhood. He opted to procure the motorcycle taxi and rushed the victim to Buguruni Police Station, received PF3 and rushed the victim to Amana Hospital where she was immediately attended. The testimonies of PW2 and PW3 were further corroborated by the testimony of the medical practitioner, PW6 herein, who works at MOI (the Department of Neurosurgery). PW6 testified that on 01/09/2018, she was the doctor on duty whereas she attended the victim herein who was brought at 08:44 am having referred from Amana Hospital. The record availed to PW6 entailed that the patient had lost consciousness when she was attended at first instance but she regained partial consciousness having received at MOI though her memory was still impaired. PW6 observed a large wound which had been stitched on her head. The wound was still oozing blood. PW6 prescribed a CT scan test. The result indicated that the victim suffered depressed skull fracture 11 with brain injury. PW6 and her colleagues conducted emergency surgery to remove blood clots from the brain and elevated the skull which had depressed the brain. PW6 tendered the PF3 she authored which was admitted in evidence as exhibit P2. It suffices to point out that PW6 had told this court that she observed the patient /victim with the wound perpetrated on the left side of her head which extended to the frontal-parietal parts of the skull. And, PW6 opined that the description of the wound depicted that the victim was hit by a sharp object as she had indicated on the PF3 in that the victim had sutured laceration on the left front parietal. Lastly, it is the evidence in the record that PW5 (F.4182 Detective Sergeant Bernard) interviewed the accused person on 31/08/2019 whereas the accused admitted to have assaulted the victim with machete and caused her to suffer bodily injury. The cautioned statement of the accused person (exhibit Pl) speaks volumes in this respect. It is the law of this land that witnesses are entitled to credence and their testimonies must be believed unless there are cogent reasons for not believing a witness. And, cogent reasons for not believing a witness include the fact that the witness has given improbable or implausible 12 I evidence, or the evidence has been materially contradicted by another witness or witnesses. See the cases of Goodluck Kyando vs Republic [2006] TLR 363]; Christina Ugbechi vs Republic (Criminal Appeal No. 270 of 2019) [2021] TZCA 3539; Yassin Salumu Kagaruki vs Republic (Criminal Appeal 108 of 2019) [2022] TZCA 687 and Majaliwa Chiza vs Republic (Criminal Appeal 526 of 2020) TZCA 360 in this respect. Having put the testimonies of PW2, PW3 and PW6 herein to scrutiny, I find the same the witnesses of truth in this court who have given credible accounts of what had transpired on the fateful day. As aforesaid, the defence case insinuated that the victim herein had cut herself when she bumped her head to the machete which was buckled under the waist belt of the accused. This piece of evidence appears to contradict the evidence of PW6 and findings in the PF3. PW6 deponed in this court that she observed the victim with the wound perpetrated on the left side of her head which extended to the frontal-parietal parts of the skull. PW6 opined that the victim was hit by a sharp object. In fact, PW6 deponed that the CT scan finding indicated that the victim suffered a depressed skull and brain injury, which necessitated skull elevation procedure. The injury of such magnitude, to my opinion, 13 would not have been occasioned by the victim's accidental bump to the machete buckled to the accused waist. Likewise, the defence given by the accused manifestly contradicts the defence given by the PW2 and PW3 in this case who had given direct evidence. The testimonies of PW2 and PW3, in this case, are entitled to credence. The defence given by the accused person couldn't controvert the evidence given by these two key witnesses. Having weighed the defence case against the testimony of PW6 and what is recorded on exhibit P2, as well as the testimonies of PW2 and PW4, I find the defence case incredible, an afterthought and which doesn't appeal to sense. It is obvious that the accused lied. It is the rule of law that lies of the accused person, in some circumstances, corroborate the prosecution's case. See the case of Felix Lucas Kisinyila vs Republic, Criminal Appeal No. 129 of 2009, CA (unreported). I, therefore, opt to accord no weight to the defence case. In view of the foregoing discussion, I can safely arrive at the conclusion that the accused person had assaulted the victim with machete and fatally wounded her. 14 At this juncture, I proceed to canvass the 2nd and pertinent issue in this case on whether the accused had the intention to unlawfully cause death to the victim. The apposite restatement of the law pertaining to prerequisites for establishing malice aforethought was given in the case of Makungu Misalaba vs Republic (Criminal Appeal 351 of 2013) [2014] TZCA 208 whereas citing the case of Enock Kipela V. Republic (Criminal Appeal 150 of 1994) [1999] TZCA 7 the apex Court held: "Usually, an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of the weapon, if any, used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow were directed at or inflicted on: (4) the number of blows, although one blow may, depending upon the fact of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker's utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing." It is the testimony of PW2 that the accused had informed PW3 that he had decided to make peace with the victim, and pressed him to leave his 15 premise. PW3 had told this court in so many words that the accused promised that he would not further assault the victim and he insisted that he should leave his residence. No sooner than PW3 left the premise of the accused, the same unleashed massive and merciless machete blows against the victim's head. Further, the evidence given by PW2 in that the accused pretended to leave the room for work before he manoeuvred and unleashed surprise blows on her, manifests his evil intent. The fact that the blows were unleashed after the duo were reconciled and anger had surged down, indicates that the accused had malice aforethought when he assaulted the victim. In the same vein, the area upon which the blows were inflicted, the force exerted, the type of weapon used to inflict the fatal wound, and the extent of harm suffered, manifestly lay bare the fact that the accused intended to cause death. Based on the foregoing analysis, I am bent to conclude that the accused had inflicted fatal blows on the victim's vital part of his body with intention to kill. It is the immediate medical services availed to the victim which interrupted the accused person from fulfilling his main intention to kill. Had it not been for medical services promptly availed to the victim which interrupted the accused criminal mission, the main offence of 16 murder would surely have been committed. The 2nd issue is hereby answered in the affirmative. In sum, this court finds that the prosecution has proved the charge beyond reasonable doubt. It has been proved beyond sane doubt that the accused person had assaulted the victim with machete and fatally wounded the victim without justifiable cause. Likewise, it has been r proved that the accused person had intention to unlawfully cause death to the victim. The accused person is hereby found guilty of attempted murder contrary to section 211 (a) of the Penal Code 'and convicted forthwith. DATED at DAR ES SALAAM this 16th March, 2023 17