19780202 TZHC Dodoma4

--;:~:;:;-(f~I~;':1:-1-E--HJ:yH COURT OF TANZANIA r . . ,. · . Atr DODOMl. ~--"-!:l f-.. u, ; ~.,Jd?PEI~~~TE J1JRISDICTION ,.; 1Y'.tu\ 1 7/Cl I \ - - · - CRIMINLL!rPPEAL No. 194 OF 1977 ~~pg;wr}r.ct2:dn.J-M-tN!. L cum No. 68 OF 1977 OF THE DISTRICT COURT OF SHJGIDA DISTRICT AT Sil\TGIDl1.) Or-1\RI @ KIDUWA l.\'ITEKETA .... • APPELLLNT versus THE REPUBLIC .... RESPOIIDENT CID:.RGE: Cattle theft c/s 265 and 268 of the Penal Code. JUDGMENT CH+PETli. 2 · J. The appellant, Onari @ Ki.duwa Mteketa, was convicted of the offence of cattle theft c/ss 265 and 268 of the Penal Code by Sineida district court and was sentenced to five years inprisoi1r1ent. He n01v e,.i)peals. The ;;rosecution' s evidence was that on 25/9/76 the conplr:tinant, one Mwanga s/o MwaY.(:a (Pw.1) lost five she0j_). In the course of looking for ti1or.1 ht) found soneone skinnii.-ig E, carcass . of a sheep in the bush and c.t night. On approaching the nen; ihe Dan ran· away li~avinc tb.G carcass behind. AccorJ.::.ng to the co:opl-'3.inant, he identified the nan who ran 2~way to be the a~::pellant. On e:x:a.r:d~1±nc; the carcass; th-3 conrlainant discovered tho.t it was cd' one of his stolen sl18cp. Ho tlrnn :caised an alam which was :mswered by his fellow villagers. Anol1{5 those who answered the alarn was the a:)1Jellant. There and then the coripl2,inont told his fellow villagers that the r;erson whon he had found skinning the anirJ.tl was none other than th a a~:>1)ellant. He clainecl that he hc,d r:12,nac;ed to identify the cul1)ri t becnuse there was noonlight. The aJ)pellon t vehe:oently protested his innocence and charged that the conplE.inant was frcu:.1il1t-:; h:i.n because a non th earlier sone cattle belonc;inc to the: conplE1.inant had died at the hone of the appellant and the cm..11'.lL-.::.inant accused the appellant, before elders, of havinr: stolen tho cattle. According to the apr:iellant, that case is still I.lending before tho elders. I will pause to renark here th2.t the allec;ation that there is su.ch Et dispute between the c omplain3l1 t ;.::11d the appell21J.t who, incidentally, are neighbours, would aJ:ipear to be true. It was testified to by nt least two witnesses. The learned trial resident n2.rzistr2.te accepted the evidence of the conpl:-:inen t and so convicted the a:_'J_)ellant 2.s chari!Gd. · -I-.res~ectfully agree ··with ray learnGd brothc:r Judge (Jona-than, u.), who a&::litt0d this a:)i:-~1al to hearing, that the central quc-rntion is ns to whether there was sufficim:d; evidence of identification. It will be noted fron ·i:;J.~,,,) for-,·:e;oing su:r.u:.1ary of th :3 ev1clo11c e that tho only -evidence of id.8n.tj_fj_c2.,tion was tl:c:.t of the •onplainant. 2 !s was held by the Court of li.pp~i2.l for Ec'..stern 1:..frica :;,n ~a1_b'ili bin Wendo &"'ld L.no·S:1,t?r ~ . (20 E.!.. C .L. 166), it is trite law that a fact nay b:; proved b;r the testinony of a sir..[;le witness, but there is n, •,:id to test with tlrn {!,reatest carG the evidence of o, sir.lf~lo w::i.. tnecs respectinc identification; especially when it is known th.1t the condi tj_ons fr.vouring a oo::--rect iclentific2tion werr-:) difficult. In ?U.Ch circUI1stnf1ces what is n1-=:edecl is· othor evidence, direct or circumstantial, pointing to guilt, fron which a court can reasonably inf er that the evidence of identification, 2,lthoueh based on the testinony of a single witness, can sc.fcly be accepted as free fron the possibility of error. In the instant case, there croi be no doubt th~t the circunstancos favouring a correct identific 2.tion were difficult: it was in the night, in tho bush, @d in -~circuEstnnces in vmich '-;hose i·1ho answered th.E.: nlarn found it ncceso .ry to cc1,rry to rchea w:L th the::i. 111. convictil.1££ the o,:;_,peJ.12.nt the learned nc;;,gistrate SUJ:l1Jc'l.ri2ed the evidence 211d then stnted:- 'Fron the above evidoncG I er.1 satisfi.ed· tJ10,t the accused is the onG ~1ho slaughtered· the conplninant' s sheep, e.11d therefore, the 0:10 who had stolon it for he was fully identified by Pw .1 to be th8 very ~_:ierson uho was skinnine; the she1::p. I believe that Pw.1 is telling the truth snd. that he fully identifi f::d th eaccus ;e3cl to OE. the one who was skhmiJ:le the ah00p. He11ce, therefore, I find the accused. guilty as charged. 11 To sfa,rt with, 2.nd uith respect,the learned ~-f:3_itlonto nag is tre'.. te d"Qes not np~:-icar to h:>..ve 2.dC:.ressed his n::.: _d. to th<::: fc;ct th2,t th;-! evict.enc G of identification was the t of o. sinc;le witness Qnd so requirod to be tested with ti:e grf;atest car~. Secondly; and ac;ain ili th respect, there is often e, drIDeer of confusing the truthfulness of ti.. wi tnGss roid tht) correctness of such ,;·Jitness's accom.:t. The ncre fnct th.?,.t o. witn0as is truthful does not nec<:~ssa:rily noan ·1ilat who..t he recounts is correct. il. wi t"t1ess nay trut,hfully testify to thc'l.t which hG believes he s2.w 2.nd yet be quite nistal'::e:i;1. Thn,t was the case with the -t testinony of the co-,1pl.;1,in~.nt~~~hj_o case~ 'I'he circur:1st2.nces ·were such that he could qµite innocently have been r.1ist'.:~ken. Since t.½.e ovidenc:e of iclG1'1tific2.tion 1ms th:-';.t of a sinc;le witness· in circ·.4ns-tD-.11c cs which· did not fG.vour a correct identification, 8,nd as other evidence, direct or cir01.llJ.Stanti::1l, is wantir.ig, I do not th.i:ok, vJith respect to the le2.rned st[tte attorney, that it was s2,fc to convict the a11~~ellant. I think tbat he ourb.t to have be8!1 given tlir, benefit of the doubt. On this crounds, I allc1·r ·i;he 2.11peal. The conviction is quashed, and the sentence 2,na. order of c on:pensa tion are . hereby set aside. The a:)pElJ.-:1.11.t nust be released fron custody forthwith unless otherwise 12.wfully detained. B• /!;(Jl!fi 4} vzro 01-IIPE~. JlJDGE. Dodoma 2nd February, 1978