19770928 TZHC Tabora

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IN THE HIGH COURT CF TANZANIA • AT TABCPJ S -

ORIGINAL JUPISDICTON 1/ (Tabora Rcgistry) CRIMINAL SESSNS CASE NO 18 OF 1978

THE REPUBLIC vers u s NDAHANCSE MJ.NUNGU ' CHARGE: Wounding with intent c/s 22 (1) of the Penal Code. JUDG1ENT MAP IGLNO J: N'AHCNOSE SIO MANUNGU, the accused in this case, stands charged with wcuncii n ' with intent,.contr'ry to section 222(1) • of the Penal Code, neely that on 25/8/74 he unlawfully and • with intent to maim, disigure or disable, wounded Ndabakenga Katabanya. He has denied the charge coplete1y. The prosecution has called threewitnesses, including Ndabkonga himself, to testify' that on the aforementioned day at about 4 p.m. at Maiagarasi in Kigoma district. the accused fired a loaded gun at Ndabakenga. They all said that he' shot from a distance of about tenor twelv paces and that the blow knocked Ndabakenga down. , Their evidence also shows that Ndabakenga bled massively and that he was sent to hospital for treatment after beinE. nttened by a first aider at the scene. Further, it shows that Ndabakenga stayed in the 1o.spita1 for two' months and that' though he surived his left arm is now crippled. As to the events which led to the attack, there is only thin evidence and I see a d.ispai'ity in the prosecution case. According to Ndàbakonoa (Pw.i), thi incident took place on a roac. He stated that he was just walking about in the village When he not with the accused and one Kalikunya. These two 'men were scuffling and he' an;cP..2 Shabeni entervened. In the

course of separating them he, the itness,' pushed the accused who fell down. The accused quickly stood up and then quitoly left the place' but only to come back. within a few minutes. He came back with a mUzzle loader. The crowd apprehended digor and scuttled. The witness looked back and saw the accused' pursuing him and in another moment pointing the gun'and firing at him. The bullet caught him on the left • - shoulder and'hu dropped down unconscious. But according to PW.5 Kisebe, this incident took place at a porthe shop. All of them - himself, the accused and Ndabakenga - had boon drinking Kangara from about 9 a.m.. He said that they . . . . ./2 were all considerably drunk by the time this incident took Place. According to him, it Was the accused who precipitated it. h said that in the course of drinking he 'heard the accused challenging dabakenge to a fight. Ndabekenga replied, rather contemptuously, that the accused was too weak to fight him and at .that the accused stood up and went to :rab Ndaba- kenga. The latter rose up quickly and they locked themselves in a tussle. The accused was.overwhelmed and twice thrown to the ground. The other ptrons then separated thorn and upon that the accused left the place and ran away in the direction of his house wch was about half a kilometre from the p0 be sho.p. He came back within a. short while The witness saw him hiding something

at his back and when he rrived the 'witness realised that th a t something was actually a gun. ile alertd Nc'iabnkenga and in a state of panic all the patrons fled, however, almost at the same time he s a w the accused levelling the gun and shooting at Nd.abakenge and then fleeing with the weapon. . . .. .. ., . The testimony, of another eye witness, P.2 Shabani, is in SUbStflce, in accord with that of Kisoba except on one point. Like IT Cabakenga, Shebni dcn3ed that this incident took place at a pomhe shop. . ,. Tho accused; as observed nt the outset, denied the charge. He denied that he was at the pombe. 'shop and that he ever gough with alone shooting him. he has adamantly clung., to that: story frcni first to last.. - The assessorg was of the opinion that it was the accused who. shot Ndaba1enea in the circumstances as narrated by PW.50 With respect, I do not hesitate to say that she is right. I finci so myself. I thin'- P4.5 was a truthful witness and that what he' told this court was' whet 'actually happened to the best of his recollectin. Ther i was no denying' that Ndabrkunga was snot with a bullet -''nd i seriously wounded. In ccnscqunce I-is left arm is n w l z: meV ~ The incident took place n a public place and in broar dylight. i s we have seen, the accused denied that he was the assailant. In effect ho was challenging th credibility of the three' prose- cution

witnesses.' I find that it is himself who lied to' this court. For there is no suggestion, and there isno reasoñto think, 'that these witnesses stacked against him. . And as I' remerL:'d to the assessors in'my sumring up, it scarcely makes sense tht rather than name ' his actul assailant the 'complainant Would' falsely implicate an innocent man, given those circumsta- •e•. ../3 . - T - - - - -. ...- - 3 j.. -- As pointcd_ out, th-ert.. is o.ly sketchy-evidence -'s to why the .acuseci challenged the complainant-to a fight. As it is, Isee no lawful ocuse for him to ttc,c t;e complainant with such a deadly weapon. searing in m.in the weapon used and that he shot at close range, it is evidence that the accused intended to disable or disfigure the complainant, at the very least, Ufl1CSO he was so drunk as to be incapable of Ioraing such intention. The assessor's view is that the ccc - seci was drunk and th&t..i.s -drun-kn.ess was such as to prevent the formation of the intent. In line with icy direction she foundl that the accused is guiity of the lesser offence of-unlawful doing grievous . m, contrary to Section 225 of the Penal Code. With respect, I ... h;ve to differ with the view expressed by the asoessor. Any doubt I might h-ve entert--ined about the accused's state of drunkness is dispelled by three factors. First, he ran to his house - a distance of hplf at kilometre to fetch

the gun. Secondly, he came back hiding it at his back until he approached his .±arget. And thirdly., he fled frorn---tho...s-h.c-eting site immediately after shooting. This conduct, it seems to me, is not consistent with the bearing of a person who was so drunk as to be incapable of forming the intent. Cn the contrary, it is positive evidence that he was in Inis senses and that he foresaw and desired the consoccuoncos of his act. 7 Cc'nseauontly, I am sctiifiod and - find that he harboured the intent stated in the charge and very well knew that his act would either disablu or disfigure the ccmplainant, at the very least. I fine him guilty as charged anc -ccorc:ingly convict him. Delivered in Court. Acivocc.tes present. Accused Present. -1 Cj D. P. NAPIGANC'[ 28th September, 1977 JUDGE. Mr. Sengwaji: - Nil. Mr. Kauta: Ask for lenient sentence. Accused is afarily man and has been in remand custody for considerable period - since 26/8/74. ..•.. •. .. ./4