republic vs boaz simbachai 2023 tzhc 17688 31 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA ORIGINAL JURISDICITON CRIMINAL SESSION CASE NO. 36 OF 2022 REPUBLIC VERSUS BOAZ S/0 SIM BACH Al ACCUSED JUDGMENT 15/5/2023 & 31/5/2023 MlachaJ. The accused, Boaz Simbachai (83) is charged of Attempted Murder contrary to section 211 (a) of the penal code, cap 16 R.E. 2022. It was alleged that he attempted to cause the death of Chawe Athumani on the 8'" March 2022 at Bubango area within the district and region of Kigoma. He pleaded not guilty to the charge. The prosecution lead by Edna Makala state attorney called 5 witnesses to assist them to discharge their burden of proof. The accused gave evidence on oath in his defence and had two witnesses to call. The court called one witness who is the doctor who attended the accused. 1 of PWl Chawe Athumani that on 8/3/2022 while at It was the evidence to the town after the home, during morning hours, preparing himself to go knocking the gate. He moved close to see morning tea, he heard someone the accused standing what was the matter. He opened the gate and saw outside the gate with a machete (panga). He knew him because he is his have lived together for a long time. The accused cut him neighbour. They of the head) and he fell down. He cut him again on his head (the left side the right side behind the ear). PWl saw Salala Bakari on the head (at alarm calling for assistance. (PW2) coming. He is bis neighbour. He rose an gained consciousness at the hospital. He He then lost consciousness. He dizziness to-date. He could identify the was released after 3 days but have PF3 (Exhibit P3). he was moving to his PW2, Salala Bakari (PW2) said that, on 8/3/2023 as buckets of coffee on both bands, he saw working area to sell coffee with 2 the head who fell down. PWl the accused cutting PWl with a machete on . PW2 also rose an alarm. The accused run away with the rose an alarm the machete which he described as long, bent on the weapon. He saw . He attended the wounds using his cap to prevent bleeding, front area respondent instantly included Amani Said! Tausi Kasimu People who 2 Ndoroma. They picked PWl, put him on a motorcycle and took him to hospital. PWl was unconscious at this time, he said. He went on to say that he saw the accused while at a distance of 5 footsteps. He saw him through the bright sun light. He was also a person known to him earlier. He added that PWl had nothing on the hand. He could identify the accused at the dock. PW3 Amani Said told the court that he was nearby at a coffee pub (kijiwe Cha kahawa) when he saw the accused with a machete moving to the shop. He then saw him coming smoking cigarate moving towards his house. He reached the door close to the gate of PWl. He came out through a different door. He had the same machete on his hand. He then saw him beating a sign board at the door of PWl. He saw PWl moving out. He had nothing on the hand. He saw the accused cutting PWl with the machete on the head who fell down. He was at a distance of 15 footsteps and could see properly. The accused moved inside his house. They picked PWl and set him to hospital. PW4 Dr. Godwini Malyatabu (31) is a clinical officer at Bitale health center. He told the court that he received PWl on 8/3/2022 with cut wounds. He was semiconscious. He could hear and feel pains. The wounds were still 3 said that PWl had 2 cut wounds on the head; fresh with blood, he said. He the head at the left hand side. The second one was on the upper side of and the rear side of the head was on the right hand side between the ear stitched the wounds. He described the first wound as being; (Kisogoni). He 5 centimeter long and 2 centimeters deeps . He said that the second wound was not deep, it was superficiai. He had the opinion that they were caused by a sharp instrument. He described the first wound as being dangerous. He gave the patient a rest for 3 days. He discharged him with a reference to a higher hospital for further treatment. He identified the PF3 (B:xhibit Pl) which he filled after treatment. PW5 J 1612 D/Constable Safiiyu was the investigator. He visited the scene of crime and drew the sketch map which he identified in court. He questioned the witnesses and recorded their statements. It was the defence of the accused (DWl) that he rose up on 3/3/ in the morning and checked the wall of his house. He saw a sign board which he decided to remove. He had an iron chisei (Tindo) which he used to remove it. While doing so, PWl came from behind and cut him with a r^achete on his right shoulder. He moved to Mahembe police post to file charges of wounding. A police started to record his statement but is^oon prevented 4 by another policeman (Afande Hamisi) who arrested and sent him to Mwandiga police post. He took him around in small pharmacies around the area and asked them what could have been the cause of the wound. The declined saying that was not in their profession. He took him to Kigoma central police station where he was questioned by Afande Shafii and Afande Hamisi. They saw his wound but said he did not qualify for a PF3 and treatment. He complained to the RPC who happened to pass around. The RPC ordered them to give him a PF3. He was released in the evening at 6:00PM and went to Maweni hospital where he got treatments. He received 11 stiches at the wound. He returned to the police who allowed him to go home. He was sent to court on 29/4/2022 in criminal case No. 73/2022 of the district court of Kigoma charged of wounding. They were charged later to attempted murder. DWl proceeded to tell the court that he has a land dispute with PWl. Their houses are joined by a wall and a gate. In the particular day he came out to remove a sign board which had been put on his wall hence the conflict. He said that he is the one who was cut by PWl. He showed the cut scar on the rear side of the right shoulder. DWl stressed that he had a long standing dispute with PWl. It started in 2019. He sued PWl at the ward tribunal but he was sent back to the 5 and adviced them to mosque for reconciliation. Religious leaders came . DW2 Rashid Issa (44) is a cyclist close the gate but PWl could not do so He said that he picked DWl on 8/3/2022 and sent him to (bodaboda). wound on the rear side of his right Mahembe police post. He had a and proceeded with his other activities. DW3 shoulder. He left him there Michael Boaz Simbachai (42) is a son of DWl. He told the court that he the day who said that his father had received a call from his neighbour on been wounded by PWl, Chawe Athumani. He told him that he had gone to Mahembe police post. He moved to the police post. Soon his father came motorcycle. He had a wound on his right shoulder. His condition was on a bad, Afande Hamis came and took him to Kigoma central police station. PF3. He sent him to They took him inside but released him later with a hospital where he was treated. He was later charged. The court on seeing that the accused had a big scar on the rear side of the shouider and a PF3 filled by Dr. Peter Edmund of Maweni Referral Hospital Kigoma, it found it proper to call him as a witness of court to say something on the cut wound and the PF3 (Exhibit Cl). He came and said that the accused came at the hospital with a cut w nd and received 6 treatment. He had the opinion that the wound was caused by a sharp instrument. Next is an examination of the evidence to find if the prosecution have proved their case beyond reasonable doubts. If on can look at the evidence from the prosecution quickly, one can say that there is good evidence showing that the accused cut PWl on the head who fell down and turned semiconscious. PWl received 2 cuts on the head one of them being big and deep. The head is a dangerous place showing that the accused must have intended to kill PWl. But looking at the defence brought forward. one may say, the way I am compelled to say that the prosecution case has serious gaps leading to doubts to the prosecution case. DWl has a big scar on the rear side of his right shoulder and DW3 has proved to the court that it was fresh on the material date. That is, the accused came at the hospital that day with a fresh wound which was stitched and attended by doctor. DW2 corroborated the story when he said that he picked his father and sent him to hospital with a cut wound. DW3 has tendered the PF3 to prove this. Looking through the evidence, it is clear that both the accused and PWl had cut wounds, The two doctors have established this fact. Each of them was cut suggesting a 7 fight or something more than what was presented by the prosecution. This is what real element is missing in the prosecution case. The issue now supposed to come from the happened? No answer. The answer was evidence establishing the fact. They took a approach prosecution but no accused committed the crime without a word on aiming at proving that the wound of the accused. That fact was left as a gap in what caused the cut the prosecution case. Having examined the evidence critically, it has come to my mind that there are two possibilities. One, the accused was cut by PWl while removing the sign board and who received two cuts as a revenge. Two, the accused cut PWl when he came to prevent him to remove the sign board and received his cut from people who had come in response to the alarm of PWl. These are the possibilities. It is a controversy left by the prosecution. The issue now is why is it that the prosecution did not resolve this controversy? There is no answer to this question. My loud thinking have led me to a belief that there were some coaching of prosecution witnesses at the time of recording of the statements to hide some facts. There is a second scenario. The prosecution has it that the accused cut the deceased and moved to his house with the machete. No ■forts were made 8 to arrest him as is usually the case. One may wonder the way the accused (83) could cut PWl in a broad day light and be left to go freely as if he is a giant who could not be apprehended. The accused is very old man and weak. He could simply be apprehended and put under arrest with his machete on the spot. Why it that was not done? No answer! Failure to disclose to say anything on the way the accused was cut and the reason as to why he could not be arrested after committing the crime, discredit prosecution witnesses. That fact has cast doubt in the prosecution case which is now resolved in favour of the accused. I find that the prosecution have failed to discharge their burden of proof beyond reasonable doubts. I find the accused not guilty and acquit him. L.M. Mlacha Judge 31/5/2023 Court: Judgment delivered in the presence of the accused and his counsel Japhet Kaiza and Happiness Mayunga state attorney who represents the Republic. 9 Right of Appeal Explained. L.M. Mlacha Judge 31/5/2023 10