19751027 TZHC Arusha

L THI GH COURT OF TANZANIA AT AHUSHA J.PELLATE JURISDICTION HIGH COU T CRIMINAL APPEAL NO, 156 OF 1974 ORIGiNAL CRIMINAL CASE NO0 7 OF 1973 OF THE DISTRICT COURT OF ROMSO bISTRICT AT MKUU Before N. Makero -------------District Magistrate f JUMJ s/O MALEKIA & 4 OTHERS -----------APPELANT (Original Accused) versus THE REPUBLIC ------------------------------RESPONJENT • (Original Prosecutor) JUDGEMENT Makarne, Jo During the night of January 19/20, 1973 at Kisakeni Keni, Rombo District, a group of ththgs broke into the house of Patrice Jorome P,W 1 and so sverely injured him that he had to remain in hospital for more than four months. They also injured his animals and made off with some of his property. These thugs were said to he the five appellants who were eventually each sentenced to he jailed for a subst- antive term of seven years. In his evidence the complainantserted that he recognized all the five appellants iu:ing the assault and gave a fairly detailed account of the part played by each of them, PAULO LAKITURU a neighbour who was called to the scene and wo found the complainant in a poor condition said the complainant told him he had recognized the first three appellants. cpl LUCAS PW 4 too said the complainant implicated only the first three at first and that it was not until two days later that he mentioned the other two0 The girl LESTITUTA PATRICE told the court that she was able to recognize Appellant 1, 4 and 5 who, among other things went into her room as well and threatened to do her what they had done to her father0 In. their defence the appellants put up alibi and called a number of witnesses to support their various stories0 Mr0 Mawal-l& on appeal contended on behalf of the appellants that the Identification was not reliable enough while Mr0 Osinde, for the Republic, sought to support all the convictions In my view the evidence against Juma Malekia, the first appellant, was the strongest of the lot0 I believe P.W. 3's evidence that she heard her gather screaming "Juma unaniva" which would also support the contention by the complainant that the first appellant was the first one to cut him with a panga, 0:-ice he was thus slashed, on the neck0 I am not so sure he would necessarily have been able tb identify the rest, given the particular circumstances0 Admittedly P,W 3 implicates Appellants 4 and 5 neither of whom the complainant implicated in his first report to the Police and to his neighbour, P.W. 2 PW 3 was only 8 years old and her evidence against Appellants 4 and 5 stands in virtual isolation. Appellants 1 and 3 mentioned by the complainant weer not m.ntion by PW 2 and the parts. allegedly pla"ed by Appellants 2, 4, and 5 were not until after the complainant cad fullen down following the initial attack. Appellant 5 had a conceivable motive, considering that he had, had a land dispute with the complainant0 The complainant's honesty is not doubted. The hard fact still remains that one cannot, without reasonahle.lingering anxiety, feel certain that there could not possibly have been mistaken identity, with the best intention in the world. The appeal against JUMA MALEKIA is dismisE:d because of reasons I have tried to set out0 For reasons I have explained the appeals of all the rest, on all the three counts, are allowed. If the four appellants are not otherwise lawfully held they should forthwith he released Arusha; Ocober, 7, 1975 L0M,_MAKAMEJ. LUD )