19770425 TZHC Arusha

IN THE HIGH COURT 'OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 435 OF 1974 ORIGINAL CRIMINAL CASE NO0 62 OF 1974 OF THE DISTRICT COURT OF MBULU DISTRICT AT MBULU Before P.N. Mosha, Esq., --------------- District Magistrate LEO s/O KAROLI -----------------------------APPELLANT (Original Accused) versus THE REPUBLIC ------------------------------RESPONDENT (Original Prosecutor) J U D G N E N T Jonathan, J. • The appellant was convicted of robbery with violence. The 4 appeal turns on identification0 According to the complainant on the relevant evening at about seven oclock after drinking at a pombe shop he was returning home when the appellant attacked him from behind and robbed him of the sum of shs0 200/-, ,e:: caied an.alarm and P,W 2, P.W. 3 and P0W 4 who had also been drinking at that pombe shop responded. They all say in their evidence that they recognized the appellant before he left the complainant to disappear0 The appellant testified on the other hand that on the reldvant Sunday after returning from church he had stayed , at home and not gone out. Hiswife bore this out. As conceded by the Republic there is a lueking doubt if the witnesses, including the complainant, correctly identified the robber albeit they all say they did0 it seems they had all been drinking, and one of them candidly admitted he was drunk0 They have put the time at about 700 p.m. They however say it was not clark. Against this however it is to be noted that one of them said they abandoned the chase as it was night, which can only suggest it was already dark. 1 would think that the witnesses were not so well placed to be 'that clear that the person they saw was the appellant, and truthful though they may have been the possibility of mistaken identity could not be, excluded, it may incidentally be noted that although the appellant seems to have been at home throughout thereafter he was not arrested until about four days later. it is unsafe to uphold the conviction and accordingly, it is set aside together with the sentence. The appellant is to be forthwIth released from custody Delivered in open Court this 25th day of A'ri1, 1977. P . M.JONATHAN, J U D G E PMJ/GIK