19770716 TZHC Dodoma 1

qlr IN THE HIGH COURT OF TANZANIA AT DODOMA APPEL ATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.8O/7 ORIGINAL CRIMINAL CASE NO. 177 OF\1976 OF THE DISTRICT COURT OF MANYONI DISTRICT '\T MANYONI Before E.S.Kiwanuka . . . a . . o .. .. Ditrict Magistrate MAIKO S.10 SANANE. , o o o o Appellant (original Accused) Ver su S THE REPUBLIC. 0 0 . . Respondent (Original Prosecutor) Charge: Doing Grieveous Harm, c/s 225 of the Penal Code. J U D G N E N T MAKIBETE, J. The appel1ar was charged with and convicted of 'doing grievous harm c/s 225 of the Penal Code'. It was alleged that on 12th September, 1976 at about 10.00 p.m, a L Agondi village within the district of Manyoni - Singida 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 it all happened just decided to turn hostile. It was the complainant's wife (P.W.3) 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 that the evidence available for the prosecution was that of the complainant (P,w.l) alone. According to P.W.l, he was in another house nearby when he heard P,w,3 and another person talk in his 2nd house. He went out to investigate. He knocked the door and P,W,3 went to open for him. As at that juncture POW.1 had not identified the stranger inside the house. When he entered he allegedly saw and identified that other person as being the appellant. Allegedly the light of a paraffin burner (koroboi) enabled him to identify appellant. The exact location of the burner was not indicated. Nor is it clear whether the house had any partition, and if it had one where exactly he saw the appellant. P,W,l is said to have ordered P.w,3 to bring the burner near the door but the burner went of f suddenly. P.W.1 would not explain why he demanded that the burner was brought near the door if it was not a precaution lest it 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 taik'éd' bo PW.l 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.t,1 should have withheld the identity of his assailant from his fellow villagers - the 10 cell 12ader included - if he had actually identified him as he purported to tell the court. On the question of a single identifying witness, the observations of the Court of Appeal in upholding the convictic: in THAIRU s/o MUTHORO and two othersy. R. 21 E.A.C.A. 187 are partinent They are as follows:- 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 convicti eo 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 P.W 0 2 nor P8 could have been mistaken in their identification0" Here one of the two witnesses had claimed to have identified 2nd and 3rd appellant while both had claimed to have identified 1st appall ant In the case of RORIA v0 R. (1967) E0A0 583 however where the conviction had also rested on the evidence of identifica: by a single witness the Court of Appeal allowed the appeal on the grour.ds that in all the circumstances of the case it was unsafe to act on such identification0 So that if the above decisions of the Court of Appeal are to no by the principle involved in coming to a conclusion as to the reliability or otherwise of the evidence of identification by a single witness is this: Taking all the prevailing circumstances into consideration 'is it safe to act on such ident±iicatioi7 In the present case, as already amply demonstrated, it caflnot he said that the learned trial maqistrate had carefully directn himself to all the circumstances when he came to the conclusion that PWOJ.. had not mistaken in his identification0 All the indications are that P.W.l actually did not see his assailant but simply suspected appellant because according to him he had once founc. him in flagrantedelicto with P0w.3 and firmly believed that the two continued their illicit association0 For these reasons I find it very unsafe to uphold the conviction. And as the Republic does not also support it -- the same cannot be allowed to stand - it is quashed and tee sentence set aside0 Apnellant is to be released forthwith from prison unless otherwise held for some other lawful order. Order accordingly0 ielivered in Court at Dodoma this 16th day of July, 197 7 M. X J0 ..MWAKETE JUDGE