19730820 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 1 36 OF 1 973 ORIGINAL CRII::INL CASE f, 147 OP 1 973 OF THE DISTRICT COURT OF JEYA DISTRICT AT It,EYA Before J. A. P. Mdoe ................District Magistrate ADAMSON s/o MWASEIALA. . , . ,, , • • • • .. •.. , . ,Appellant versus THE REPUBiIC ................................. Respondent Assault causing actual bodily harm c/s 241 of the Penal Code, Cap. 16 Vol. 1 of the laws. JUDGEI'iENT I.UTZAVJSJ, In this appeal the accused was charged with and convicted of assault causing actual bodily harm c/s 241 of the Penal Code and sentenced to 18 months imprisonment. Dissatisfied with the finding of the trial court he has appealed to this court, On the night of 3/3/73 at about 10 p.m. the compla::.nt was assaulted with. a cub and sustained bruises on right side of his face,confoi.on... his right thigh and sub—conjunctival haemorrhage in his right eye. He reported to the police, mentioning the appellant as his assailant. In his evidence before the lower court he admitted that it was a dark night but said that h identified the accused as the person who had assaulted him by his voice, and that he had known the accused for about ten years. One, Kajeta (PW3) told the lower court that he responded to the complainant's alarm. He told the court that he heard and recognized accused's voice as he was tellillg the complainant that he (complainant) "would see him that night" This witness said that he did not see the accused as it was very dark, On this evidence the trial magistrate convicted the appellant saying that he was left in no doubt in accepting the evidence for the prosecution" And adding that "the accused's story is concocted story.' In support of the conviction the learned state attorney argued that the fact that the complainant had known the accused for 10 years suggested that he could not have mistaken his assailant's voice as that of the aco, and y to fortify his argument he koe referred the court to the decision by this Court in LUDOV IC 0 SZO jIys967JF3D194. . . . . . . /2 - 2 - It was also argued that the evidence of the complainant regarding identification of the complainant is corroborated by P.C. Matumbene (PW2) to whom the complainant reported and mentioned the appellant as his assailant. In support of this argument the court was referred to section 166 of the Evidence Act 1967. It was further argued that the evidence of Kajeta (PW3) also corroborated complainant a testimony that the appellant was his assailant. In his sworn defence before the lower court the accused put up a defence of alibi. He told the court that he could not have assaulted the complainant on that day and time as he was no where near the scene of crime. According to his defence he had left the area at about 1 p.m. on 3/3/73 driving a motor vehilce to the village of Isangati. He brought two witnesses Jafari (DW2) and Francis (DW3) who apparently supported his defence of alibi. There is no dispute in this case that the appellant Was well known to the accused. Equally I am inclined to think that there is force in the learned state attorney's argument that the complainant may have properly identified the appellant by his voice. But as it has times without number been held by this court and the Court of Appeal where conditions of identification are wanting, as it was in this case - (it was a dark night) the trial court should consider not only the credibility of the identifyii-ig witness but also the possibility of the witness having made a mistake. With respect to the learned state attorney the remark in LUDOVICO's case above-quotted regarding identification of an accused by his voice or attire was obiter. The decision in that case did not lay down any hard and fast rule regarding identifi- cation of an accused person by his voice or attire. As to the argument that the complainant's evidence of identification was corroborated by the police constable (i2) who related to the lower court that the complainant me:ationed the accused as his assailant; I would, with respect to the learned state attorney say that the complainant's story to the police constable that it was the accused who had assaulted him is merely evidence of consistency but certainly not evidence of accuracy. I agree with the Republic's argument that the police constable's testimony corroborated the complainant's evidence in so far as consistency was concerned but it did not in the least corroborate his accuracy. In my interpretation of Section 166 of the Evidence .4.ct 1967 it deals with corroboration as to consistency in a witnesse's evidence rather that to a witnesse's accuracy. As to the accused's defence of alibi; he told the lower court that he, on the material time, was no anywhere near the scone of crime as ho had gone to Isangati to attend a funeral. He is, as I have already mentioned supported by not less than two people (DW2 and DW3). His defence of alibi, supported as it is by his two witnesses, is not in any way challenged by the prosecution. In his defence of alibi the accused accounted for all the time of the transaction in question as to render it impossible for him to have committed the offence. Even if for the sake of argument this, court was to accept the Republic's argument that the complainant could not have been mistaken in his identity of the accused as his assailant, thcre still remains the accused's unchallenged defence O iibi, The appellant could c.inJy not have bOei ati.t one and.-th-e same tine. . . . . .13 - 3 - There was an unfortunate remark by the learned trial magistrate in his judgement - He says Accused's story is concocted story, and this I rejoct. In a criminal charge the burden of proof is always on the prosecution. It is irrelevant whether an accused is telling lies or not. Indeed he could have chosen to keep quite. Had the learned district magistrate directed his mind to the fact that the accused's alibi romained unshaken he would certainly have come to a different conclusion. From the evidence there could be no certainty as to who was the person that assaulted the complainant on the material night. It would in my view be extremely unsafe to support the conviction. The conviction is accordingly quashed and the sentence is hereby set aside. The accused is to be released from custody forthwith unless he is lawfully ,held in connection with another matter. I .• ])ODONA N. S. Z..VLS 20/8/73 JUDGE