EDWARD JGD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA I 1 1 (BUKOBA SUB-REGISTRY)

AT BIHARAMULO

ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 102 OF 2023

THE REPUBLIC

VERSUS 1. EDWARD THOMAS 2. TUMAINI CHARLES

JUDGMENT 26th & 28th November 2024 KIWONDE,|J.: The accused persons, Edward Thomas and Tumaini Charles stand charged with attempt to murder contrary to section 211(a) of the Penal Code, Cap 16 (R. E 2022). It has been alleged by the prosecution that the accused persons on 21st January 2023 at Ntobeye village within Ngara District in Kagera Region, i 1 did unlawfully attempt to cause the death of Martha d/o Faustine. However, । when they were arraigned in court, both accused persons pleaded not guilty and the prosecution managed to parade a total of seven 3 1 (7) witnesses and tendered two (2) documentary exhibits to prove the case. It is now a settled legal principle that the burden of proof in criminal cases I lies on the prosecution and it never shifts. The standard of proof is beyond I : 1 , all reasonable doubts as it has been stated in several authorities of the । Court of Appeal such as in the cases of Said Hemed V. R [1987] T. L. R i i 117 and Mohamed Matula V. R [1995] T. L. R 3. i । During hearing!of the prosecution case, PW1, Mirca Faustine, a victim's mother testified that on 21st January 2023 at around 20: 00 hours, she I was inside1 her house while her children, such as Martha Faustine, Frida I I Faustine, Awezaye Faustine, Anisia Faustine and Faraja Faustine were in the kitchen burping maize. Also, PWlisaid Awezaye Faustine went inside the house while running

and said she saw Edward Thomas and Tumaini Charles. The witness said she r ; I ' ’ went out and stood at the door and Martha Faustine went and fell down I at that door and so, PW1 held her. According to PWl, when she observed Martha Faustine, she saw an arrow on her rib. Thdn PW1 testified that she looked at the bathroom and saw I ■ ' ! Edward Thomas and Tumaini Charles hiding near it. She said Edward with 2 a bow and farrow and he was gazing at her and drew back his head which act attracted her attention. Besides that, PW1 said she identified the accused persons that night since I i she stood one human pace distance from the bathroom, that there was a । ' bright moonlight, । she used her mobile phone torch light to see the accused persons properly, that she knew Edward Thomas and Tumaini Charles before the'date of event for they lived in the same hamlet for over 16 years and she identified them on the dock too. i I Apart from that, PW1 told the court that the event took place for three (3) minutes while she was looking at them. As to their descriptive features, PW1 said Edward Thomas wore or put on black coat while I Tumaini wore a T-shirt with mixture of spots. . । Moreover, PW1 said she informed her husband, raised alarm and I neighbours went there and they sent a girl victim to Murgwanza hospital ! 1 ! where later on,: she was referred to Bugando Referral Hospital. This

witness went further to state that the source of the event was that i 1 'i she claimed money, a debt from Edward Thomas about five (5) months I : before this event but Edward beat her, she was treated at Murgwanza i : hospital and Edward asked for forgiveness, he paid her TZS 150,000/= but he premised that it must be returned to him. 3 Leave that alone, PW1 said she had some grudges with Tumaini Charles lI ■ who asked her to have sexual relationship but when she refused, he promised to stab her with arrow on her rib. She said the quarrels between her and thL accused persons led them injure her daughter. The witness i i said on the material date, the accused persons intended to harm her but when they missed her is when they injured Martha Faustine. i ! When she was cross-examined by the defence counsel, Mr. Christian Byamungu, PVyi replied that the event took place at night; that the moonlight was .not enough so she sought aid from mobile phone torch I light so that she could properly see the accused persons. She further ■ । replied that she went up to the bathroom which share the same wall with I i the kitchep and that the accused persons shot with the arrow the victim via a mudjdy kitchen wall built with planks (miti). Concerning the clothes ■ I of the accused' persons of that material date, PW1 said Edward wore a coat, but from the knees downwards he had black clothes while

Tumaini .' I। ; i Charles wore a| T-shirt with black spots and white jeans. As to the source of conflict with Edward Thomas, PW1 said it was on the day she cl-aimed from the wife of Edward TZS 24,000/= which she was to receive as sales of common beer, but because she had no such money, I she wanted to:give her instead, a hen. 4 The evidence of PW2, Martha Faustine is that on 21st January 2023 she was in the' kitchen together with her young sisters burning maize. She i said one of her young sisters told her that there was something outside I threatening them, but she said there was nothing; but she then felt something]like a stone hit her on the rib. The witness said such a thing came from the bathroom on her left side. According to PW2, when she cried out, her young sisters ran inside the house while she was pulling her young sister Faraja, however, she said, on arrival at the door she fell down I I and became unconscious until when she gained it only to find herself in Bugando Referral Hospital. The victim said;she did not know who stabbed her with the arrow but she was told later on that it was the accused persons who did so. She said she is still [suffering from chest ache. । ; I When she [was cross-examined by the defence counsel, PW2 replied that । the bathroom is behind the kitchen and the accused persons shot her via I 1 ' matete thatched kitchen and that there was light

from the burning fire. Whereas, PW3, Awezaye Faustine said on the material night of 21st January 2^023 she was in the kitchen with the victim and other young sisters burning maize. She said she heard a person's footsteps in the ; I bathroom; she;said she was afraid and told her sister (the victim) but she 5 said there yvas nobody, so, PW3 turned back and saw Edward Thomas and Tumaini drawing near the victim where Edward had a bow and the i arrow; he threw it to her sister and stabbed her on her rib, thus, PW3 said fI she informed their, mother. i ! The witness, PW3 went on to say the accused persons were about five Ii I ' - (5) meters away and the bathroom is behind the kitchen. There was, she said, bright moonlight. She said Edward wore a T-shirt with a mixture of colours while TUmaini Charles wore a black coat. She added that she had I ' ’ seen Edward during day time wearing the same clothes and she used to i see him right from her birth. Furthermore, PW3 said she saw the accused persons by the aid of the ।i I I burning fire and the event took place for two (2) minutes. I I In cross-examination, PW3 replied that when she gave her statements at ! ' the police (station; she did not state if she saw Tumaini Charles at the ' I 1 " crime scene. Also, she replied that she saw Edward through a kitchen , I door whiclp faces the main house; at the same time, she said the kitchen i ■

; door faces; the bathroom door and that Tumaini Charles wore a long back coat and the gteeh trouser. The evidence of PW4, G. 632 Detective Corporal Deogratias, on 24th January 2023 at night he was involved in arresting the accused persons 6 suspected to attempt to murder and that they arrested them at night for i : they used tio leave at night and were not found at homes. While, PW5, WP 9013 Detective Corporal Upendo, an investigation officer of police said she wrote the witnesses statements of the victim and Martha i ; Faustine. She said the accused persons were identified by those witnesses and so, she arranged their arrest. This witness said according to her investigation, she discerned that it is the accused persons who committed r the offence. When she was cross-examined by the defence counsel, she agreed that it is difficulty to identify the suspects at night but it depends on the i distance and intensity of light. She said if there is an obstruction it is difficulty to identify the accused person. Furthermore, PW6, Remmy Andrew, a medical doctor of then Murgwanza hospital, said oh 21st January 2023 at 20: 30 hours he received a patient, when he examined her, he found on her left rib a long stick joined with a i 1 metal. It was between the 10th and 11th ribs. According to PW6, he sent I the victimjto the theatre and managed to cut the stick but failed to take out the

rrietal, so, he covered the area, prescribed antibiotics as the patient felt great pains and referred her to Bugando. 7 This witness said he filled a PF3 which was tendered and admitted in evidence as exhibit Pl. He said on 10th February 2023 the victim was sent back to Murgwanza hospital and he was told that the metal had been i : removed fijom the victim's body. He said the left lung had a problem. He i , ! said the victim ^vaS pierced at the lung which if it is deeply perforated can cause death. Finally, PW7, H. 4009 Detective Corporal Mhela said he took down the cautioned statements of the second accused person, Tumaini Charles who confessed the offence. The caution statements were retracted, but after a trial within a trial, they were admitted in evidence as exhibit P2. When the I prosecution case was closed, the court found that there was । , sufficient [evidence enough to require the accused persons to enter defence. Both accused persons defended themselves and had other two I defence witnesses. | '■ n In defence, DWl,iiEdward Thomas said he did not commit the offence but on 21st January 2023 he was at home, at 16: 00 hours he was waiting for his fellows Raymond Dioniz and Joseph John who arrived there at 18: 00 hours and they discussed about their agriculture involving tomatoes and cabbage. He said before they wound up their conversation at 19:30 hours, I l! they hear,d some cries, they went to crime scene and found a child 8 stabbed with ah arrow. The defence witness said when the victim was

I I I sent to hospital, they remained there to guard the children who were I there till morning when they were allowed to go home. The defence witness said at 15:00 hours they had a meeting, but the militia marl asked Them to disperse while investigation would continue. 1 i •' But on 24th January 2023 at 3:00 hours he was arrested and his co­ accused. They were sent to Ngara police station. He narrated how they were treated at the arrest including slapping Tumaini Charles on his face, lying them on their stomachs while the police officers trampled on their backs and torture by beating them hung on the table before interrogation. When he was cross-examined by the State Attorney, Dwl did not deny that they are neighbours with Mirca's family and that on the fateful date I of event he was in the village. I । । Then DW2I, Tumaini Charles had more or less similar story as that of DW1 I but he added that he confessed the offence due to fear because he was beaten up at Ngara police station and threatened to be returned to the i room and the battle would be inserted into his anus. He said when he was sent to the justice, of the peace at Nyamiaga primary court, he stated that he was beaten.; He tendered extra judicial statement which were admitted I as defence exhibit DI. 9 The evidence of DW3, Joseph John and DW4 Raymond Dioniz is similar. They testified that on 21st January 2023 from

18;00 hours to 19:30 they were with ^he accused persons discussing the issue of their agriculture I ; when they] heard cries, went to the scene of crime and found the child truly stabbed with ithe arrow. I From the eyidericeof both sides, the issues for determination are whether the accused persons were properly identified at the scene of crime and whether tfjie prosecution case has been proved beyond all reasonable i doubts. | | An offence of attempt to murder under section 211(a) of the Penal Code, I I , Cap 16 (RL E 2'022), is an inchoate offence of murder. The prosecution i evidence must Iprove that the accused persons attempted to unlawfully cause the death of another but death did not occur. In Boniface Fidelis ! @ Abel Versus Republic, Criminal Appeal No.301 of 2014 [2015] TZCA i ' ■ 307 (8th Of±ober 2015) TanzLII, it was held that to sustain conviction of i attempted murder, the prosecution has to lead evidence from credible witnesses to prove that, first, the accused persons had intention to cause death of Another person, that is, they had intention to commit the main I ! I ! offence of murder; second, that the accused persons began to employ means to execute their common intention, third, that there was an overt io act or acts, which manifest their intention and four, that there was an ' i ! intervening event which interrupted the commission of the main offence I of

murder to the extent if there would be no such interruption, the main i : murder would have been committed. I : ; । In this case, it is clearly shown that the victim of the crime, Martha i : [ ; Faustine was stabbed by the arrow from the bow on her delicate part of the body, the left rib. The arrow pierced into her body to the extent that it could not be removed until when the victim was referred to Bugando Referral Hospital. At the trial, PW6, one Remmy Andrew said the arrow metal pierced into the lung which if it could penetrate deeply, it would i ' cause death an,d even when the victim was returned from Bugando, her । । lung was found1 to have a problem. Therefore, this evidence shows that it । was intended to cause the death of Martha Faustine; the perpetrator । ; । I planned tcj execute the intention by choosing the nature of a weapon, a sharp arrc^w, directed the blow to the delicate part of the body of the victim save that the arrow did not perforate deeply into the lung to cause such death. When they were noticed of their presence, they ended up ।, throwing that single arrow and then they disappeared. !i ' i । From that । it follows the issue as to whether it is the accused persons who perpetrated the unlawful act. The victim (PW2) said she did not know who 11 stabbed her with the arrow but she was merely told that the accused persons die so. Thus, this hearsay evidence

is inadmissible and cannot be i i , relied upoh to connect the accused persons with this offence. । Also, PW4 merely arrested the accused persons as they were suspected of attempt! to murder but his evidence did not directly show that the । accused persons actually committed the offence. Whereas, PW5, an investigation officer of police, said she just wrote the witnesses I I , statements andl that in her investigation she discerned that the accused I persons inyolved in the commission of the offence on reason they were identified jy the witnesses on the material night. So, her evidence shows that she was tqld jby the identifying witnesses. There was nothing of her l । 1 1 expertise ijn criminal investigation which connects the accused persons I I with the offence. I : ■ I The remaining prosecution evidence which implicates the accused persons is the visilal identification evidence of PW1, Mirca Faustine and PW3, I ' '■ i Awezaye ffaustine and the cautioned statements of the second accused, I 1 I Tumaini Charles, exhibit P2. The eventitook place at night of around 20:00 hours. The witnesses, PW1 j ! and PW3 alleged to have identified the accused persons that night. In law, i ■ visual identification evidence is regarded among the weakest kind of 12 evidence which should be acted upon with great caution. In Banzi John I I Versus Republic, Criminal Appeal No. 644 of 2021 [2023] TZCA

207 (27th April 2023) it was stated that courts of law must warn themselves before acting on visual identification evidence because it is unreliable and I ; • there is a possibility of mistaken identity. When the court relies on the visual identification evidence, it must satisfy itself that the evidence is watertight Among the important aspects to consider include the time and distance tine witness had the accused persons under observation, if there । was light, then! the source of it, intensity of such light and whether the witness knew the accused persons before. I I Besides that, in Raymond Francis V. R [1994] T. L. R 100, it was held inter alia that it is elementary that in criminal cases whose determination depends essentiality on identification, evidence on conditions favouring iI । correct identification is of utmost importance. Therefore, it must be I proved that conditions of identification were conducive or favourable to I I I. I ■ ■ enable the witnesses to properly identify the accused persons. Apart from that, in Waziri Amani V. R [1980] T. L. T 250, it was stated । that the court should not act on visual identification evidence unless it is satisfied tlliat all possibilities of mistaken identity are eliminated and it is J i fully satisfied that the said evidence is watertight. In so doing, the court 13 has to consider time or duration under which the identifying

witness । I ! observed the accused person (s), conditions such as state of light, distance from the witness and the accused, whether the witnesses knew I or saw the accused before and describe the peculiar features of the i accused person's. I i ! In the case at: hand, PW1 and PW3 asserted that they identified the i 1 accused persom atithe crime scene as there was moonlight. At first, it was I said that tljie moonlight was very bright, but later on, it turned that it was not enough that ijs why PW1 used a mobile phone torch light. In my evaluation of this: evidence is that the moonlight could not enable the identifying witnesses to properly see and identify the assailants. The । evidence shows that the accused persons were seen hiding near the I ' :! bathroom which is behind the kitchen and that even the arrow was thrown I from the bathroom through the kitchen wall thatched with mud and planks i• ' I! (mitf), at other time, PW3 said the wall is built of matete. i Not only that but also, PW1 said she stood one human pace distance from where the accused persons hid. In cross-examination she agreed that the said distance she could touch one, at the same time she said she stood J j ' at the door of the main house holding the victim who had fallen down there and [gazed at the accused persons. At other time she said she went । 14 1 I I up to the bathroom. Thus, it is evident that her

evidence is doubtful if 1i 1 what she testified was the only truth. Also, at first, she said the source of T . the quarrels with the first accused person, Edward Thomas was the debt । ! she claimed. Bdit later on, she turned and said it was due to the hen the first accused's wife gave her in Heu of TZS 24,000/=. So, the credibility l I I1 1 ■ il and veracity of her evidence is diminished. ’ ,1 ?i । ; Likewise, PW3 said when she heard the footsteps, she was afraid, meaning that she jwas in a horrible situation but she turned back and saw । !i i ■ 1 the accused persops drawing near to the victim and hit her. She said she saw Edward through the kitchen door which faces the bathroom, at the I ! same time'/ the' evidence indicates that the kitchen door faces the main house and PW3 agreed that the accused persons stabbed the victim from ' I ' the kitchen wdll. This witness said the accused persons were five (5) ‘ I. ’ meters avyay when she observed them and both PW1 and PW3 said the ! । ■' event todl< plade ifor about two to three minutes only. This was, in my i I ' view, a short tirhd to enable proper identification of the accused persons given the condi(tiQns of identification, i ! ; These identifying 'witnesses said they knew the accused persons before :ii!| 1 i i the fatefu date of event and PW3 added that she saw Edward Thomas i during day time and he wore the same clothes she

saw him with at the 15 crime scene. In law, mere allegations of familiarity of the witness with the accused dojes not suffice to identify the accused person but the witnesses must prove' by evidence that they correctly identified the accused persons I ' ' I on the date of event. However, in this case, when they described the appearance of the accused 1 persons, tiiey contradicted each other. Where, PW1 said at the crime I ' ‘i scene, Edviard Thomas wore a black coat while Tumaini Charles put on a i T-shirt with black spots and white jeans. Meanwhile, PW3 said she saw Edward Thomas wearing a T-shirt with a mixture of colours but Tumaini Charles had a । black coat and green trouser. So, the witnesses saw differently!as to the clothing of the same accused persons. This erodes i 1 ■ the credibility of the evidence of these witnesses. Their evidence as to identity of the accused persons cannot be trusted. The investigationj officer of police, PW5 admitted that it is difficulty to i i identify the accused person if there is an obstruction. In this case, the

I I I accused persons are said to stab the victim from the bathroom which is I behind the kitchen and the arrow penetrated through the thatched wall, i i and it is n'ot stated if the wall was transparent enough to enable PW3 to I see and identify the accused persons. She said in the kitchen she used I ! 16 i i the light frojm the burning fire which again, is not stated how bright was it to see the accused persons. For that master, the conditions of identification of the accused persons on i the date ofj event were not favourable to support proper identification. i The possibilities of mistaken identity were not eliminated due to the doubts I have shown above. In criminal cases, where there are material doubts, the same have to be resolved in favour of the accused persons. In Mabula Makoye and another Versus Republic, Criminal Appeal No.227 of 2017i [2020] TZCA 1762 (28th August 2020), it was held inter aiia’ftxaX. where the prosecution evidence casts doubts, then such material 1 ; doubts haye to be for the advantage of the accused persons. Reverting to the retracted cautioned statements of the second accused person Tumaini Charles, in law, they can be safely relied upon to convict the accused persons if the court is satisfied that the confession is nothing but true, viith or without corroboration. In Hemed Abdallah V. R [1995] T. L. R 17i2, it was held that it is dangerous to

act upon a retracted or repudiated confession unless it is corroborated in material particulars or unless the! court after full consideration of the circumstances, is satisfied that the confession must be true. 17 In this case the statements were admitted as exhibit P2. But admission of the exhibit is one thing but giving it evidential value or weight depends on the evaluation of such evidence. In defence, DW2 tendered extra judicial statements which he gave before the justice of the peace and were admitted as exhibit DI. These statements show that he was subjected to actual torture at the police station before being sent to the i justice of the peace. He had injury on his left-hand palm (aiikuwa na jeraha kwenye kiganja cha mkono wa kushoto) and that he was canned (amechapwa viboko}. This makes me believe that the retracted confession was actually not true and there is no other corroborative evidence. He I i implicated tiis co-accused person in such statements, but for the reason I

I I I have stated above, the retracted confession cannot be relied upon to ground conyiction. Bearing in mind that the accused persons denied the offence and raised I■ a defence of alibi, the prosecution had a great task to prove the case beyond reasonable doubts. In defence, DW3 and DW4 said on the material date, they were with the accused persons elsewhere discussing

I I I their agricultural issues and they went to the crime scene after the alarm I was raised. In; so far, I have said that the accused persons were not 18 properly identified at the crime scene on the material date, it is possible that they were somewhere else according to the defence evidence. j : Under the circumstances of the case, I find and hold that the prosecution f has failed to prove the case beyond all reasonable doubts, i i i As a result, the accused persons, Edward Thomas and Tumaini Charles I are not guilty of attempt to murder under section 211(a) of the Penal Code, Cap 1,6 (R„ E 2022) and they are hereby acquitted. F. H. KIWON DE

JUDGE 28.11.2024 Court: Judgment is delivered in open court in the presence of Ms. । Evarister (Kimaro, State Attorney for the Republic, Mr. Christian I Byamungd, defence counsel for the accused persons and Grace Mutoka (RMA) this 28th November 2024 and the right of appeal is explained. 28.11.2024 19