19750322 TZHC Njombe

, 2 IN TIE HIGH COURT OF TANZANIA AT NJ..OMBB ORIGINAL JURiSDICTION (D0DOMA REGISTRY) CRIMINAL SESSIONS CASE NO. 175 OF1 974 THE REPUBLIC VEREJS PAFWEK1 s/C JOSEPH VICTORI s/C KAPUNA CH1RGE: Murder c/ 1 96 of the Penal Code. JUDGNE.NT 4. MWESIUNO. AG.. J. The two accused persons, Pafumeka s/c Joseph and Victori s/o.,Kapuna stand charged on. information for murder contrary to • section 196 of the Penal Code, it being alleged by the prosecutiiz that. the two accused persons on or about The 21st day of October, 1972, jointly and together.in Iringa Region, did murder one Edward s/o Nyatu. The fact that Edward s/o Nyatu 1s dead and that he diod a violent death there is no controversy at all. According to the post-mortem examination report which has been tendered as tip,, exh. 2" coupled with the testimony of an eye-witness (pwi) the cause of death has been established as a stab-wound of the stomaci which caused peritomists. The only question for debate is who caused it and whether the aaid act was done with malice aforethought to bring it ith the realm of the offence of murder. The only evidence we have had on the identifiation of the culprit is that of PW.1 who materially stated that suddenly, wh:LI he was chatting with the deceased outside the pombe club of one Alfonce s/oKikombe (PW7), he was pushed and then a person hurriedly passed him and attacked the deceased who immediately reacted by shouting that he had been stabbed with a knife. According to PW.1 he identified that assailant as being thc: 2nd accused person whom he had seen the previous day and; days before that and he fu,rther testified that he identified him fror an identification parade on 2/3/73. PW.1 was not affirmatively sure of the '1st accused person as having been in the company 0±' the 2nd accused person though the officer i/c of C.I.D. at Njore, 99*2 - - at t1m material time, one Alexander s/o Sangalali (PW4) would like this court to believe that the fellow who was picked from the identification parade by PW.1 was the first accused. This evidence of identification parade has been concodedly branded by both the defence and prosecution as useless for the simple reason that both the identifIer and the identifee had bee:. in remand prison for weeks when the former know that the latter stood charged with murder. This fact added to the conflicting version of PW.1 and PW.4 as to who was picked out of the identi- fication parade all the more weakens the prosecution CaSe again6t the accused persons end particularly so against the 1st accused person. As regards the 1 st accused person there is no semblance of evidence except the implication against him by 2nd accused person and the laiter being a person of some interest of his owr. to serve in this case in that by implicating the other he atten: c.S to exculpate himself his evidence requires corroborative and iniu-- pendent evidence that would re-enforce it 'before it can be actei upon to fai.nd a conviction on it. Such corroborative evidence is wanting in this case. Consequently I find the 1st accused person, as did the two gentlemen assessors not guilty of any offence and as a result I acquit him and order that he be immediately set free unless furt or held in custody for some other knom and lawful cause. Now turning back to the 2nd accused person as I had h.nted heroin earlier the crucial and decisive question in this case is that of identification. In any case witnesses can lie delibarately or they can be genuinely mistaken. In this case no reason has been suggested by the accused why PW.11 should lie against him. However, the danger of his being mistaken as to the identi:: of the man who stabbed the deceased is very real. It was night time though PW1 stated that there was moonlight. Moreover, thc incident took place within a split of a minute and it can hardl:: be said that PW.1 had ample time to observe the assailant of t1' deceased as the culprit took to his heels immediately after thc sudden and hurried attack. I have thecked on the calender and moon was in its last quarter1 As Biron, J. rightly pointed out in the case of'Republic V. Selema.ni, Morogoro Criminal Sessions Case No. 32 of 1973 (to my knowledge unreported): . . . .3 - 3 - "The dangers o mistaken identity could be over- stressed. There have been so many cases of innocent people being convicted due to mistaken identity, that in England there isa movement to insist or having corroboration in cases depe- nding on identifications"0 It is trite to observe that the onus is on the proecutiofl to establish the charge against the accused. Both assessors have found it established. I respect them for theiropiniofl but surely I cannot evade or abdicate my duty and responsibility by blindly or unscrupolously concurring with them. On the question of evidence on identification by a single witness this court ::s at its disposala number of case-law authorities. ( In the case of (1970) H.C.D. 343. Nnzavas, Ag. J. as he then was had this to say: "From her testimony and demeanour I was left with an impression that her evidence may well be true of what happe:'ed on that night. But I must warn myself that there is always a danger to rely upon an identification of a single witness although a conviction so based cannot be, in law, said to be invalid" The learrd Judge tien cited with approval the case of Chande SZO Saidi V. RDares Salaam Criminal Apjl No. 216 of 1963 in thich, Biron, J. had this to say: "Where the prosecution relies on the identification of the accused by one single witness, the court should consider not only the credibility of the identif;ii wItness but also the possibility of the witness having made a mistake". In another case of SainsonBagazoraV. R. (1972) H.C.D. 180 9 El-Kindy, J. as he then was, while allowing the appeal held: • "(1) The evidence which tended to the appellant with the charge came from the complainant alone, and the is sue involved was one of identification. As it was said by the court of Appeal for Eastern Africa in the case of Abdallah Bin Wendo and Another Reginam, 20 E.A.COA. 166 at 167 tsuject to certain well-known exceptions it is trite law that a fact may be proved by the testi- mo:ay of a single with oss but this rule does not lessen the need for • tasting with gratest care the ev.donca of a single witness, respecting identification especially when it is known that the conditions favouring a correct identification ....4 - 4 - were difficult. In such circum- stances what is needed is other eivdence, whether it be circumsta- ntial or direót, pointing to guilt, from which a Judge or jury can reasonablj conclude tha t the evidence of identification, although based on the testimony of a single witness, an sa'eiy be accepted as free from the possibility of error' 0 This requirement was accepted by this court in the case of Raju s/oMahaza V. R. (1968) H 3 C.D1O2. This is -therefore binding on the trial court in this case0 J) In yet another case of Roria V. Republic (1967) E,A. 53 in which the iuestion of identification by a single witness was also in issue the Court of Appeal for East Africa while allowii: the appeal and quashing the conviction and setting aside the sentence of death held "While it is legally possible to convict on the uncorroborated evidence of a single witness iden- tifying an accused and connecting him with the offence, in the circumstances of this case it was not safe to do so" In the case of Selemani Waziri, above referred, my noble and very experienced brother Biron, Judge, quoted with approval a passage from tID judgment of the English Court 0±' Appeal delivered by Widgery L. J. in Republic V. Sean Cooper (53 Criminal Appeal Revisicn 82) at page 86 whith reads and I quoto "How- ever, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all circumstances of the case it is unsafe or unsatisfactory0 That moans that in cases of this kind the Court must in the end ask itself a subjective question whether we are content to let Ihe matter stand as it is, or vthother there is not some lurking doubt in our minds which ma1s us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it0 We have given earnest thought in this case to whether it is one in which we ought to set aside the verct of the jury, notwithstanding the fact they had every advan;age and, indeed, some advantages we do not enjoy. Afer due consideration, we have decided we do not regard this verdict as safe, and accordingly we shall allow the appeal and quash the conviction" 0 .. 0 •5 il That case and the case of Selemani Waziri in whith the abovG passage was quoted incidentally also turned on iden1i.ficatiOfl. The instant cae also turns on identification as I have pointed out herein above the conditions then prevailing were not all that favoirable to correct identification. In all the circumstances, in the words of Widgery L. J. I feel it would not be safe to convict, as have done the two gentlemen assesors, but with due respect to thir Opinion, I find the 2nd accused person also not giilty and acquit him of the charge axi5. finally I order that he should be likeise inoditJ, set free unless further held in custody for some other known and lawful excuse1 • Delivered in ojon court at Njombo this 22nd day of Naroh r 1975. E. A. Mwesiumo AG. JUDGE Assebsors .thaned and discharged. For Republic: Mr. 1J. X. Mbilinyi, State Attor•y, For accused; Mr. D. C. Mbezi, Defence Counsel from Tanzania Legal Corporation. j - p