TAGU J: The appellant was convicted by the
court of Regional Magistrate of one count of Attempted Murder and another of
Assault after a contested trial. He was sentenced to 6 years imprisonment
of which 3 years imprisonment was suspended for 5 years on the usual conditions
of good behaviour in respect of the Attempted Murder charge. He was
further sentenced to pay a fine of 100 dollars or 20 days imprisonment on the
Assault charge.
This appeal concerns the conviction and
sentence in respect of the Attempted Murder charge. The appeal is opposed
by the respondent.
The grounds of appeal against conviction
were firstly that the magistrate readily accepted the complainant's version of
what transpired despite the fact that no independent witness was called to
corroborate the state case. Secondly that it quickly brushed the
appellant's averments despite the fact that there is a likelihood that he was
telling the truth of what happened. Thirdly that the evidence led was not
supportive of the charge being preferred against appellant and fourthly that there
is no risk of permanent injury hence attempted murder could not be sustained.
As to the sentences the grounds of appeal
were that appellant was a first offender, a family man, was provoked and that
the sentence was excessive so as to induce a sense of shock and that a non-
custodial sentence would have met the justice of the case.
I do not think there is any validity in
the points taken. The magistrate's judgment is very clear. He rejected
the appellant's version for the reasons which he stated. While I consider
that it would have been necessary that one Obert Katiyo should have been
called, the evidence of the complainants corroborated each other. Even
the evidence of the appellant's own defence witness was clear that it was the
appellant who lifted the second complainant and took him out of the shop, not
that the appellant left the shop under attack. The appellant was only attacked
later outside the shop. The evidence was clear that when all this started first
complainant was not present and was not drunk. The manner the two
complainants were stabbed showed that this was not an accidental stabbing. The
appellant actually produced the knife from his pocket, opened it and then
stabbed the complainants. The counsel for the appellant actually conceded on
this point. This was not an act done in self- defence.
I also do not agree that the evidence was
not supportive of the charge of attempted murder. The counsel for the
appellant was indeed correct to concede that the injuries sustained by the
complainant supported the charge of attempted murder.
The medical report produced during trial
showed that the first complainant suffered severe injuries. There was
penetrating trauma to the left abdomen, sustaining left kidney laceration,
small bowl penetration and left diaphragm laceration. Among other treatments
complainant needed intensive care. Though there was no permanent injury likely
to occur charge of attempted murder is sustained. The magistrate in his well
reasoned judgment explained how appellant exceeded the bounce of self- defence.
From the authorities cited by the counsel
for the respondent there is no need for a permanent injury to occur for a
charge of attempted murder to suffice. SeeS v Munodawafa S
220 /95. The weapon used and the part of the body injured all point to an
intention to cause death.
In casuthe
trial magistrate cannot be faulted when he said-
“but I do not understood why the accused
produced a deadly weapon from his pocket to stab first complainant in the
stomach a delicate part of the body. The fact that he produced the okapi knife
and directed it at a delicate part of his body to the extent that his
intestines actually came out means that he foresaw the real possibility that he
might cause such harm as might seriously affect his health or did not care
whether death resulted or not. His actions were disproportionate to the
provocation event.”
It is my view that appellant was properly
convicted of the charge of attempted murder in respect of the first
complainant. If it was an accident as he wants this Honourable Court to
believe, how does he explain the stab wound sustained by the second complainant
as well? The counsel for the appellant properly conceded that the first
complainant did not fall on the knife. He deliberately stabbed him.
Coming to the sentence and borrowing from
the authorities cited by the counsel for the respondent an effective custodial
sentence for this kind of offence in the region of 3 years imprisonment is
appropriate. However, the counsel for the respondent conceded that the
complainants were also to some extent to blame. Hence a sentence of 6 years is
on the high side. I agree with that observation. Counsel for the respondent
suggested a sentence of 3 year with a portion suspended. But be that as it may
an effective prison term is called for. See S v Bhero & Anor
SC 73 /94, S v Bassoppo-Moyo SC 12/ 85
Wherefore, it is ordered as follows-
1) The
conviction and sentence in respect of count 2 is hereby confirmed.
2) The
appeal against conviction in respect of count 1 is hereby dismissed.
3) The
appeal against sentence in respect of count 1 is allowed to the extent that the
sentence imposed by the court a quo is hereby quashed and substituted
with the following sentence-'3 years imprisonment of which 1 year imprisonment
is suspended for 5 years on condition that the appellant will not within this
period commit any offence involving attempted murder or assault
perpetrated on the person of another for which on conviction appellant is
sentenced to imprisonment without the option of a fine.
TAGU
J
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BERE J Agrees
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Majokoto & Company, appellant's legal practitioners
Attorney
General's Office, for the state
