19701002 TZHC Mwanza4

Ik IN THE HIGH. COURT OF TANZ.NIJ ATMWANZA. Appellate Jurisdiction, CRIMINAL APPEAL NO.464 OF 1970. Original Criminal Case No.13 of 1970 of the District Court of Kahama District at Kahama Before T.H.M.Mwakilcsa, District Magistrate. SAFARI KASEMA. , . . . . . . . . . . . . . . APPDLLANT(Original Accusot.) Vs. THE REPUBLIC. • • ., • , . , . . . . , RESPONDENT(Criginal Pr000cutr; CHARGE: Shopbreaking and stealing c/s 296 of the Poa-1•C•odo... JUDGMENT. I 2iNZVAS, Ag.J. 1\ The e1pcllant Safari Kasama was Jojint1ychorLowithano3ther Shija s/o Mhogela, with shop—breaking c/s They wore both convicted and sentenced to 4 years imprisonment and twenty—four strokes corporal i:unishmont. r. Singh for the appellant has argued that the conviction was wholly based on identification of the appellant by a single witness (.w.i) as one of the people who broke the shop and stole her property0 The learned counsel argued that the police identification parade from which the complainant identified the appellant was improperly conducted and ho referred the court to various decisions on this point, Mr. Singh further arguod that it is highly improbable that the complainant cohid icicntify the tiieves during that night. There was also argument that the way the parade was conducted it was possible that the complainant saw the appellant before he identified him. Mr. Ismail in support of the conviction agreed that the only evidence in support of the conviction is that of the complainant. Ho, however, argued that the more fact that the conviction is based on the testimony of one witross does not necessarily mean that the conviction cannot be supported. The learned State Attorney further argued that o:c the magistrate was satisfied that the complainant was a truthful witness 1: had no alternative but to find the appellant guilty of the offence. As to the alleged irregularities in conducting the identification parade 9 Mr. Ismail a'rced that some requirements in conducting an idonti±i- cation were not complied with but argued that conditions were such that tbn complainant could not have been mistaken in her identification of the appellant. I agree that the conviction of the appellant is totally based on the testimony of P.W.l who said she could see the appellant in her shop in which there was a lamp burning. This witness is 91logcd to have also iciontifioci the appellant two months later in an idontification para.e I will first deal with the way in which the identification parade was conduetcd. From the testimony of Hussein, (PW.4), a senior inspector of police ho1 in conducting the paradesat a group of 13 people (who included three suspects i.e. the appellant and two others) in a single file and asked the complainant to identify the poopie who wont into her shop on the material night. Tho complainant than picked the appellant and another man who has not lodged an appeal. There was clearly a very serious irrcg'ulariy in the way the parade was concluctod. Threc suspoct were among the 13 people paraded for identification. This is roughly three poopio for ovary suspect i.e. a ratio of 1:3, This is clearly tcr; unsatisfactory. Time and again the court of appeal as well as this court havc stressed the need of placing a suspect among atleast eight persons who are as far as possible of similar age., height, general appearance and class of life as that of the suspect. In this case as mentioned above -2- y suspect was roughly placed among three people only. Thoir station -- ifo or their anatomy has not boon described. Jlso it was held in WANGO s/o MIN.AL v REX 3 page 29 that one of the requirements in an identification parade is that the accused person is always informed that he may have a solicitor or a more friend present when the parade takes place. When P.W,4 was cross—oxaminod by the appellant he admitted that he did not info±'m any of the suspects that they could have their friends present if they wished. In MOHAMED BIN JLLUI - 9 pago 72 the Court of tppoal hold - That in every case in which there is a question as to the identity of the accused, the fact. of there having been a description given and terms of that description are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the person or persons who gave the description and purport to identify the accused, and then by the person or persons - to whom the descriptiOn was givon.' In the present case no such evidence was tendered in the lower court. From the above gross irregularities the police identification parade is valueless. As I said earlier the only evidence implicating the appellant is that of a single witness, the complainant. With respect I agree with the learned State Jttorney that a fact may he proved by the testimony of a single witness, but with even groatol respect to the learned State fittornoy I would add that although this is so, it does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification. It was night tir and although the complainant said there was light in the room, we are not told how bright the light was - a dim light glowing from a "koroboi could possibly have not enabled the complainant to recognise the ai;pcll"i't and his friend as the people who committed the offence. On the other hand a br.ghtor light e.g. from a hurricane lamp could have easily enabled her to recognise the thieves. Whether the light was bright cnugh to enable her to seethe intruders remains a matter of conjecture. Ls it was hold in R v. ERIA SEUWATO (1960) E.L, page 174, and repeated 'by Soaton J inEMMfNUFL TUNBOTELE v Ft (1968) H.C.D. Case No.144, whcro the evidence implicating an accused is 'cntirely of identification it must be absolutely water—tight to justify a conviction. In this case, and with respect to the learned magistrate, it cannot be said that this standard of proof was reached before the conviction was registered. I agree with the defence that on the evidence it is extremely unse:i'? to support the conviction. The conviction is accordingly quashed, and the sentence and the order of compensation sot aside. The appellant is to be released forthwith unless lawful1yhelcl in connection with another charge. The second. accusd, Karamji Sangija, whose conviction is also based on the same evidence is also to be released. Delivered in Court on 2nd October, 1970 A-.JUDGE. 4-