19770716 TZHC Dodoma

.w.. IN THE HIGH COURT OF TANZANIA AT DODOMA I >' APPELi ATE JURISDICTION i_ ! . a HIGH COURT CRIMINAL APPEAL N008-0}Z7- 0RIGI!JAL CRIMINAL CASE NOo 177 OF\1976 \ OF 'I'HE DISTRICT COURT OF MANYONI DISTRICT• 'i\.T MANYONI I Before E.B. Kiwanuka . . . . . o • o . . . o • • ... ., • District Magistrate ' MAIKO S/0 SANANE O O o o O o O o O O O o <> O o o o o Appellant D O (original Accused) Versus THE REPUBLIC o o o ., o .. ., .. o e o o o o o .. o Respondent (Original Prosecutor) _Cparge: Doing Grieveous Harm, c/s 225 of the Penal Code .. JUDGMENT ~~AKIBETE, Jo The appellar{\:- was ·charged with and convicted of 1 doing grievous harm c/s 225 of the Penal Code 1 • It was alleged that on 12th September, 1976 at about 10.00 p.m. at Agondi village within the district of Manyoni - Sin<Jida Region -- he caused grievous harm to one Ally s/o Pundugu to wit - he caused the said Ally Pundugu to suffer a broken left femur. This is an unfortunate case .. Unfortunate because the complainant suffered a very serious injury and the person who was in a position to explain precisely as to how i t all happened just decided to turn hostileo It was the complainant's wife (P.Wo3) whose evidence in the circumstances of this case was all the more crucial for a sound decision - but turned hostile. The evidence of a hostile witness is of no value to either the prosecution or the defence because of its unreliability - vide ALOWO v R 1972 E.A. - 324. So thc.t the evidence available for the prosecution was that of the complainant (P .. W.,l) alone. Accordin<J to P.W.l, he was in another house n,::arby when he hPard PoW .. 3 and another person talk in his 2nd houseo He went out to investigate .. He knocked the door and P .. W.,3 went to open for him. As at that juncture Po W.1 had not identified the stranger inside the houseo When he entered he allegedly saw and identified that other person as being the appell n.nto Al1egedly the light of a paraffin burner (koroboi) enabled him to identify appe 11 ant. The exact location of the burner was not indicatedo Nor is it clear whether the house had any partition, and if i t had one where exactly he saw the appellant. PoW.,l is said to have ordered P .. Wo3 to bring the burner near the door but the burner went off suddenly., PoWol would not explain why h<:-: demanded that the burner was brought near the door if it was not a precaution lest i t was put out before he had identified the intruder. There is yet another unsatisfactory feature about this case., It is on record that other villagers were called to the scene soon after the incident.. These other people naturally talk-ed' oo P 0 Wol as to how he came to sustain the injury .. But the record does not show any of the villagers was informed on the material night of the identity of the intruder.. It is strange that P.,W.,l should have withheld the identity of his assailant from his fellow villagers the 10 cell L:ader included - if he had actually identified him as he purported to tell the court. 2 cm the question of a single identifying witness, .the obser·,ations of the Court of Appeal in upholding the convictio: in THAIRU S/0 MUTHORO and two others ·Y~ ~- 21 E.A.C.A .. 187 are partinent~ They are as follows:- 1:This court has often observed the obvious dangers of relying upon an identification by. a single witness, but we have also invariably pointed out that a convict5. no based cannot in law be regarded as invalid.. In thE: present case the ·learned trial judge very carefully directed himself :as to all the ·circumstances and came to the conclusion that neither J;.Wo1 nor PoWo8 could have been mistaken in their identificationo 11 Here: one of thr:! two wi tnE: sses had claimed to have identified 2nd and 3J:"d appellant while both had claimed to have identified 1st appel 1 an J:- In the case of ROHIA Vo Ro (1967) EoA~ 583 however - where the conviction had also rested on the evidence of identifica·;·: by a sing).e witness - the Court of Appeal allowed the appeal on the grou~.cls that in all the circumstances of the case it was unsafe t.o act on such iden tifi cation o So that if the above decisions of thP. Court of Appeal ar0 to <JO by the· pd.nciple involved in coming to a conclusion as to the reliability or otherwise of the evidence of identification by a sing~_e witn(lSS is this: Taking all the prevailing circum:.,ta,1ces into consideration ·is .it safe to act on such ident::.£icati:::ir.7 In i:he present case, as already amply demonstrated, it ce~not be ~aid that the learned trial magistrate had carefully di:cectci h:i_rnself to all the circumstances when he came to the conclusion that ?r. W,,l had not mistakfm in his identificationo All the indications are that PoWol actually did not· see his assailant but :cirnply suspected appellant because according to him he had once fou::ic: him in flagrantedelicto with PoWo3 and firmly believed that the t·:io continued their illicit associationo For these reasons I find i t very unsafe to uphold - ti,0. c:onvictio::,.o A!"ld as the Republic does not . al so support d/.:: •·· the snme cannot be allowed to stand - i t is quash::d and t:nr:.: sentence set asideo Ap1,ellant is to be released forth1vith from priso:1 unlc-:ss otherwise h(!ld for some other lawful order. Order accordingly. T•elivered in court at Dodoma this 16th day of July, 197'7 e Mo (Jivl