19720913 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA PELLATE JURISDICTION HIGH COURT CRIHINAL AYPEAL NO, 97 OF 1972 ORIGINAL CRII!IINAL CASE NO. 89 OF 1972 OF THE DISTRICT COURT OF KODOA DISTRICT AT KONDOA Before S. H. Msele Esq., ..................Dist r ic t Magistrate Ijuniaa s/a Abdallah ....................... Appellant (Original Accused) Versus THE REPUBLIC ............................. Respondent (Original Prosecutor) Char'e: Robbery with violence c/s 286 of the Penal code Cap. 16. JJ D G B N B N T. MNZAV$ J. The appellant ( and another person (oIARI CHEUSI) who has not appealed) was charged with and convicted of robbery c/s 285 and 286 of the Penal Code and sent nced to 7 years imprisonment. Ea has now appealed to this court against both the convicti.a and the sentence. In admitting the case for hearing this court minuted that"identification of the accused called for drastic examination of the whole evidence'j The material facts that led to the arrest and prosecu- tion of the appellant are as follows: On 31/1/72 one, Handa Nakuri ( P.W. 2) an agricultural instructor, received his salary - a total of shs. 312/50. Soon after he met the appellant,' ( a person he imew) who asked for some money to buy cigarettes.. He, in a burst of generosity, gave the appellant eighty cents. This was about 1p.m. At about 8 p.m. on the same day Ha±ida (P.14.2) visisted "High Life Bar" in Kondoa town carrying his portable radia. He also had all his salary in his pocket'enclosed in an envelop. There he met the appellant and his friend the person who has not appealed. The complainant (P.14.2) remained . in the bar drinking up to the time it was closed at .about: 11 p.m. when he left to sleep at one, Mama Kambonats house. At this time the appellant and his friend had left the bar,. As the appellant cvwas on his way to sleep he was attacked, rendered unconous and robbed his radio and a total of she. 2801=. 0/2 -3- The only evidence tending to implicate the appellant with the offence of robbery is the testimony of Hamisi who said that he saw and identified the appellant and Cheusi as they were running from where the complainant was lying. w here as it was in this case, the only evidence of identification is that of a single witness the court must not only take into account the fact that 'the witness could not have been mistaken but must also examine the possibility of mistaken identification. This is all the more so when an alleged offence takes place at night. There was I agree with the learned magistrate ample evidence implicating Cheusi with the offence.. Hamisi's testimony that he saw and recognized him is supported by the fact that he, a few hours later, directed the searching party to where complainants radio was hidden. There was however no evidence in support of Hamisi's evidence that the appellant was one of the two people he saw running from the scene of crime That there is a lot of suspicion against the appellant - there can be no doubt but suspicion no matter how Strong cannot be the basis of a conviction in a criminal charge. It would be unsafe to support the conviction. The conviction is quashed, the sentence is set aside and the accused is to be sot at liberty forthwith unless he is in custody in connection with another matter.. 4 DOLOItIA. N . 13th September, 1972. Judge. S - S