19751028 TZHC Dar es Salaam

. S • . :., ... . ' . " • 4 . . .. .. .i . .. Ic .cc.:T u TAZ!JiA . ? •,rp1i ZA . : • •. LPPL;ITTE J:h C'urt ri ra .pIl T 166,of 1974 Cxin1 Ci1 o E13 of 1 74 of Tlio Dictri&L Cour of Uoma 13e1'ore I J Cr, i PoSiLent i ctrtJ ji-ir r..mi:q............................ VCrSLJ - THI UPLIC oiD:IT TilT. . KC 4. The jpo11:rt rith two other porsone TT.O w•e abquitcd b the tpi'1 court w s c6uv1ctet f 1urThi d ro 1 1 e ry with violcnc( nd eC.utc'nc co flrcc yczrs iniri&nmcnt nd ss cvcn yxrs irljrion mont resuoct11y tc ic' no r p liri 'L inst coflviction ri( The fcts of tL c < rc f'olJoir To cempi nt (IL [ 3) w's sl.. pint in ho o vilc 'n his dug tcr, en-in-1'i c. two grnnd cnilcir n ¶h rront door (pirontly L11 orly ,door , in The heuso) w - s 1cckd ly p ii -n hurc c ]crip ras 1t burnin Lftcr sio. in for oortiL1c th- compL irnt u s hit rith a club, re ea.rt c 4hL. 1 p ire btirn ug he cculd soc nr idontif t lic ppeUriat s j ron, he h d e'u1-Lcc hi Thj oro ho could co. enc id'nti±y the other eckor, the ppoi1nt hit him with e pm nd ho fell c1 orn ncooscicus His btory u's sp orto 1 by TriR Ryba,his uifo (F.1.4), -tho tc.ifiodt6 the off 'ctthe•t rhcn her haehnd crcc1 out in poinJ'io woe UI? 1okec to see wh 4 i s b'pponnL. 'The tic n r . 1' nt i ioin the rx1oc. She furGhcr testified th t hc entwio h torch oDd club ordered Ii r to cover hi cell up nd th n he hit hoD with aci b Th Dcbo; w s ihron on ton of her I tcr, the third ecured orderc1 her to stand ap so th"t he could toko the od zhocts. JJter to 1:in the bCCL shoi he elsa t - oI the Eosqu.to n. o - coy r, the io' 1n1. eied her uhch ra iou sue proosd and she tc 1J him t}r t she TJ s Irostcet ri fter Jiat the 'pc11art acLcc1 her tO f.ivc urn moucy cr he tr ic im tt s e h'Cl 01 1y 35/= • ocôver thQ sonin-le.w of the conplainnnt Tiswa4hoio • (I.:h5) also told the trial court thr.t. on the materi.1 day he and o wife (P J 6) an the Ii t o cLilircn u re sl-oopinr ii' the comp1rinant' s houoo. the complainant anc. Iiio iiife..uore sic ping tojothor. end he :.n1 his wife 'nd their two childronwor& also si opin. tobthcr. Then icr t niht he fel c ut of a. 1h or his head.. .iter boin cut ±'csumab1y saw th propert3? bein( taken froni the houco. ic, moreover, reconis.d- the. p11ant ihile ho boin cut by t10 e lr1ut 'cj,n, the ovid nec of 1'yodiboa Kjson (r i 6) th'. 1 iiC of (- 5) sup ortod Pi- cora p1ninntts teu'v She toc tootif3oJ t iic of oct th t he hc - en cc well a being .ias1uod en. her lie: d by e. paña .br-.the a5eII-nt. Tcnco her face w e crv:cc: with bi.'d. -L the time th t ho was • bcin beaten, the .ocund ceurcd 'n the third - ccused were heat in her hush nd ane: then ho s thrown under the hod but it is nnt ineic-' ted , ihe throw hin undo: the bo - - - ,- ---.--.-,.- ,w,*.--#- "WF -2- While being cross-examined by the appellant, she stated that they were all sleeping in the same room with s, lamp "burning. The appellant,who chose to make a sworn etatsent, denied that he ever CommiLUod the ot'ence, with which ho was charged. He stated that on 30/10/72 he left his home for Wusoma, where he went to the police siation trcport that his house was "burneddown After reporting tIio incidntt he lçit put but he wa call.d back ama when in a lockup nnd ev.entually. hargcd lie returned heas arrested and with this offence. The only question to be considered is whether the appellant was pro.nerly.. identified. In his memorandum of apesal he contends that the leerned trial magistrate erred in accepting the evidence of the prosecution witnesses as regard his identity "because if he had committed the offence he should then have been arrested immedately and not three days later, since they knew his name and his home we. s only one mile from the complainant's house. He also complained that the magistrate erred in accepting contradictory evidence from the complainant - (P.11.3). Moreover, he contended that he would not have dare to expose himself by going to the police ctation if he had committed the offence. He also complained that P.W.4 taught the other witness (P.W.5) and (P.W.6) her relatives to tell lice against him and since they were all relatives and the victims in the same case they readily told lies against him. The witnesses, who saw and identified the appellant were Peter Nicholaus (P.W.3) and Paris. Ryaba (P.W.4). Kiswa iJkongo (F.W.5) and Nyadibora Kison (P.W.6). F.W.3 in his evidence stated that "... The third accused had a club which he used. I was able to see, three people in all but could not recognise them well. Then I askedmy wife later when I felt "better whether she recognised the other people. She told te they were three young pegsons, who walk together and s-bay at Ka -tunguti. I recognised them to be John Kinoke, Wariyoba and Saidi iisambi." While P.14.3 was cross-examined by the appellant he stated that he knew him because he ab his neighbour, who lived about half a mile from him. He further stated that it was the first accused (nppelant). and not the third accused who had' hit him with 'a club and later he hit him with a panga. 'P.W.4 in hext evidence stated.. Suddenly I hearc.d my husband cry. When I looked up I was'tld to cover myself up. Tien I was "beaten. The first accused is the one who told me to cover up myself.. He had a torch and a clith. •.. I sew 9 peole in all. • The dcubed went on talking up to 2.00 a.m. I was hit with a club by John Kinogo the, second accused did not assault mc.,, Pg the time the accused were, talking to file that night they had taken tb.e lamp. They. had 'a torch. You ae..'.thê one who "beat up my husbad. I waC not awake. .1 woke up "becaAse of the noise f'my husband. You used a clib. It appea- rs tht P J.4 diii not see the "ppollent hit P.W.3 sinccshe woe asleep and P.W.3 did not know his assalants until P.W.4 described them. Kisna idkongo (r.W.5) recognised the appellant" when he. was being cut upu and he was the one, who cut up his wife with a knife. Again Pyad,ihora Keen (i:.W.6) stated in the trial court while she was being cross-examined by the second accused she stated that after she ws "being beraton up she wes able to see accusod the first occu- sea. Yet she could not see the others at the same 'time., .P.J.6 stated further "I was beaten up by -the first accused person. I w s clashed on tao h d TI s ord. He took my caila and thren it inaaek. I stood up and went to,take the....chihd. The first accused pushed me dow. He slashed me and 1 bleed until my f a c e was convered up with blood. I wns thrown on the bd,by, the first accused.. However., while "being crossexar ino iiby the third accuse d she s ted ti'mt it we tho thud acused who lii itPeer Nicholeus. . . /3 0 • 1ri-- -3- The evidence of P.W.2, P.T.3 and P.W.4 is contradictory so that it c:cnot secure the conviction of the pcI Thñt The WfleSC55 agree that they sw the appo1lant on the a.toiia1 d.y yet they could not even describe what kind of clothes he was Lgain,the witnesses stht. ed th:H thu lam.p ws icmoved from the scone and only a torch. boloiin to the accueed wore used. It is doubtful tht such li :ht was enou:h to enable the witrosees to iduntify the aollant ]?23 stated thet ho was hit by a ub by tho appellant, 2 .W .5 1c 1: cing cr0 ss-examined 1 the .1111 2 third accu.od st tad it av the third accused who he.d hit FT 3, Petro bicholaus. Sich avidonco is at bust aoubtfU hence it cannot be said that such ovidenc o provided for watorti;:ht idonti-- fication of the appellant. In the result I s1Jow the anpoal and qtiash the conviction and set the sentence aside. The appellant should be released from custody forthwith unless he is otherwise iafully detained. /i • DAR ES SALAAM, J.C. iI::G, 28th October,1975