na TZHC Dodoma 16

IN TEll' HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT C:I1INAL APPLAL NO... 130 OF 1972 ORIGINAL CRIIIIllAL CASE NO. 305 OF 1972 OP THE DISTI? CT COURT OF IRINGA DISIRICT AT IRINGA Before: T..M.I.Ngitami Esq...,. .......:. ..........District Magistrate EDWARD 8/0 IITEiELA. .......•. . . . 0 • • Appe11ant . • • . . . . (Original Accused) Versus THE REPUBLIC .................................... Rospondent (Original Prosecutor) - Ohare: Unlawful wounding c/s 228 (1) of the Penal Code Cap. 16 of the Revised laws0 J U D G E N E N T KWIKIMA AGI,JO The appellant was convicted of unlawfully wounding ' the c'lniit wb'.n :o the:.apeiiantff:'Thothe:t soil sugar cane to the people drinking beer at the appellant s home on 11th Ji4y, 1972. He was convicted, s.mtencod to two years imprisonment and ordered to pay shs. 100/= compensation to tiiO complainant0 He is now appealing eLgainst this decision. According to his evidence, the complainant was followed behind and slashed on the left jaw with a panga only flfteem:paces from the appellant's home. He was at the 'time on his way from there. The time was 7.00 p.m., according to the complainant. But as far as a neighbour could make out, the complainant was heard crying 'for 1:iclp at 7.30 p.m. The same neighbour said that he found the complainant wounded on his jaw when he got out of his house in response to the cries he heard. It is the law and a natural fact that darkness sets in at or about 7.00 p.m. unless there be moonlight. The complainant must therofore have been attacked in the dark. In his identification of the assailant, the complainant did not •say how he could have recognised the assailant in darlo.ss. There is no evidence that he had a light or that there was moonlight0 The appellant's conviction depended noton the credibility of the complainant as the learned trial magistrate thought, but rather it depended solely on his identifica'tion. The only witness claiming tdhäve identified' the appellant is the complainant Apart from him there is no other identifying witness0 It is settled law, for which authorities are legion, that where the evidence implicating the accused is entirely based on identification, such •videnco must be absolutely water—tight to justify conviction( ANDREA VR197'l HOD 141 R V SEBWATO 1960 EA 174, EI'iANUEL TUI3OTELE VS 1968 HOD 144, WILSON OLOO VR 1968 HCD"183, to cite but a few). And where, as in this case the identification is by a single witness, then the court has, as it did not here do, to warn itself of the danger of