19751006 TZHC Dodoma

- IN THE HIGH COURT OF TANZANIA ATDODOMA .. jAPPELLTE JURISDICTION HIGH COURT CRIMINAL APPEAL No. 235 OF 1974 ORIGINAL CRIMINAL. cASE-. No. 192 OF 1974 OF THE DISTRICT COURT OF .DOO14A DISTRICT AT DODOMA BEFORE F.S. MSHOTE — RESIDENT MGISTRATE, AMBUKA MZAZI o APPELLANT versus .. . THE REPUBLIC. 0 o o o I RESPONDENT CHARGE:: . Robbery with vio]ene c/s 285 and 286 bf the Penal Code, JUDGMENT. H. MWESIUMO, Ag.J. On 27/7/74 Sembuka s/o Mzazi, the app11ant, was conyicted by Dodoma District Court presided over by FS. Mshote; Resident Magistrate, of, robbEry with violence contrary to sëctiôns 285 and 286 ofthePenl .Codd and was sentencedto 7years .imprisonmentin accordance with the Provisions of the Minimum Sentences Act, 1972. Aggrieved by that decision he now appeals to this Court a gainst both conviction and . sentence. The appeal was admitted by Mr. Justice Mnzavas, for . argument - as to the identification f the ic:cUsed by a single witness 0 : 0 Admittedly the appellant was convicted on. the strength,.of a single witness who tu±'ns out to be the complainant. Plainly it was established, and so held by the, trial agistrate asa finding of fact that on 9/3/74' the appellant with another man rent tothe homL of D - marii d/o Makamanyunda (Pw.3) who happened to be a grandmother of the appellant. When they aived there after having been. shown that house by a school boy, chfes sb. ,Daudi (Pw.2) Damarisa. d/o Makmanyunda was still at therazing grounds feeding her animals which included cattle and goats. Later'in the evening she came back with the. animals and the appelant and the other man demanded a head of cattle or money in lieu of the animal. The complainant, declined to comply with that request. Thn the two men spent the night there. If Tha following morning, on 1013/74 9 the complainant led her animals consisting of 30 heads of caftle..and .10 goats to. the grazing grôtinds. While she was there in broad.day.light the appellant in the company of some other people approched her and .unprovokedly tated beating her till she was rendered unconscjous and, then the appellaht arid others niade away with the animals whidh, she found missing when shei regained consciousness. The appellant was later arraigned and brought to Court, as indicated above. In his memorandum of appeal he. introduces nothing new J-ie, merely repeats his iehement denial of any connection.withthe.o.ffence, The law on evidence of a single'witness'.isciearly set out statutorily and by case law. . . . . . /2 - 2 - Stathtorily it is provided for by the provisions of section 143 of the Evidence Act No. 6 of 1967. which for ease of reference states: "143. Subject to the provisions', of any other written law, no particular numner of witness shall in any case be required for the proof uf any fact," It' fo1lows. so it seems to me that unless otherwise provided by provision's of other written law of the land, evidence of a single witness can be acted upon to found a conviction on an accused perscn provided of course, the usual standard is applied and positively and affirmatively met that on such evidence of a single witness the Proecutiori have proved their case beyong all reasonable doubts0 In my view, the facts of the present case indicate that this" is not a type of case where, for instance. corroboration is mandatory as would be in a case of rape in which the evidence of the complainant would as a matter of legal requirement call for evidence 'of an additional witness before the Court acts on it before convicting the accused person. Examples of cse law on evidence of a single witness are accorded by casesuch as Warioba s/o Kandose VR.(1967) H.C.D. 125; Rajabu sb Mahanza Vs R (19 C.b102j_PauloMakimela Vs,R (1969) H.C.D. 30; Rvs. Donald (1971) H.C,D. ,318j Rvs0 Chamtigiti (1970)H.C.D0343; Samson B9azora V.R (1972) H.C.D. 180 and Abdallah bin Wondo and another Vs. Reginarn, 20 E.AOCOAO 166. Gathering from the t"end of views expressed in most of the abo've"cited' cases it seems to be; dommon ground that where the,te is a Sinqle identifyii-ig witness in a. case the Court must warn -itself of the däi-iger of onvicting upon such evidence of a single witness although'a conviction sd based' cannot be, in law said to be invalid. A further guiding proposition was aptly put-by Biron, J, in the case of Chande s/o'Saidi Vs. R, Dar es Salaam Criminal Appear No 216' Of 1963 (to my knowledgd" unreported) where among other things he.positively stated: "Where the Prosecution relies on the identification of the accused by.one single witness, the Court should consider not only the credibilty of the identifyin witness: but also th"ossibility of the 'witness having made a mistake." ,;,:'In:d:llahbin Wc-ndo and another Vs'Regin.an .20 EOA,C.AO 166 at P.67 7 the court of Appeal hadis to say:- "Subject to certain well-known exceptions itis trite law that a fact may be proved by thc tostimoncy of a single witnd'' but -this rule dpe' not lessen th"need. : for testing with greatest care the evidence Of a 'single wines.s-'.sipecting idntification especially when it "is known: that the conditions avburing a correct identification were difficult, In 'such circumstances w.hat is. needed is other evidence whet'h€r 'it be cirums.tantial or' dirc'ct- pointing to guilt, from which,a Judgeor jury can reasonably conclude . that the 'e,videice of identification, although base-oh the testimory.of a single witness,, can safely 'beccepted as free from the possibility of error." Appling'.the'above tests to the instan't 'case 1 am leftwith a positively affirmative view that the 'learned tri.l Resident Magistrate was perfectly enti''led to come to the 'condlusion',he did because the conitions at the. inê of the Commission of the offence and the prior intimate knowledge of the complainant 'of the appellant were positively fvoürable. to' unmistaken or correct identification of the'culprit"by the complainant. It was iri,hroad day light and complainant hAd:ampie opportunity to identify her assailant and there was no grudge 'between them that could ' have motivated the complainant to' 'frame up the appellant and above all the trial Magistrate properly warned himself and came-to a clear conclusion that Pw,3, the only - identifying witness was a truthful'witness. - 3 - This Court at this stage after thoroughly having combed the record of the court below finds no fault Cr irregularity that could entitle it to reverse the decision of the trial court. The sentence imposed was the mandatory minimum under the law0 From the foregoing I am satisfied that the rppellant was properly convicted and sentenced This appeal thus fails and I accordingly dismiss the same in its entirety. Delivered in open Court at Dodoma this 6th day of October, 1975. rJ/I " - E.A. Mesiumo Age Judge. For Appellant: Absent and unrepresented. For 2ndent(Reblic): Mr. Kinabo, State Attorney.