19780417 TZHC Dodoma

., . - nr THE HIGH COURT. OF TA NZA lirIA ~ i)·!• M AT DODOMA' APPELLATE JURISDICTION CRIMINAL· APPEAL NO. 279 .OF 1977 ORIGTI'TAL. CR.IMINAL CASE NO. 739 OF 1976 OF T.rIE ._. . DISTRICT COOOT OF :OODQMA NDONU MNYAKANGU Appellant versus . THE REPUBLIC · ·~ : . ... . ················~· Respondent JUD GM.ENT In the loWI?r court the appeilant was the third of five accused persons charged jointly with the robb~ry of 110 . . . . head of cattle and_5 goats. All· the.other accused were . . acquitted due to lack of proper identification 9:t the_ time of the theft.. The appellant on the other harid,was -convicted as;.- charged and Biven the minimum sen_tences_ against which _he h'.3:S petitioned this 9ourt. PW. ,.._1 , the complainant, on the relevant day appears to __: . have been . .grazing . . ·his big herd when many people. . set upop. _hirp., ,be_c;3,t him up ,tied him up,.~nd blind'folded h_iip.. They· thereafter drove off as many: as ··110 head of cattle and_ 5 goats. An hour or sq later~ PW_.2 tppears t~ have hea;d hi_s alarm and con~ to :I::·_ the scene to undo1 the ropes tying him to a tree. They made a searc~.. for the .cattle but to the dat.e of ,11.e ·hes.ring '.only.· . ::. . :, , t:wo .of,. them had .been found.. That this happene~ has no·_: -· d:i~put:e .at all •. Tt was then,_ the prosec\iuion case t~at ~!le ..· .. perpetrators of that incident were the app.ellant and the. four others. As very fairly and helpfully subrni t ted by Mr. Alimwike, _ .< . for the Republic, the eviden~e of iden:tii°ic<:J:t ion: on wh.ich the appellant's conviction was ~eached was glaringly u;c3atisfaotory. "" It was the identification by th~ complainant oldman alone. According: . to him, two people whOm,L he identified as the appe1!ant and one LAURENT, himself not one of the accused, held his hands "from behind", tied them up together in that position ,and then tied him to a tree., where they also blindfolded :\rim with a piece of cloth. In the meantime several other people, including the other four accused, woro driving away his cattle. On such evidence alone the lower court convic4ed the appellant • ••• /2 \ .' ~- ,. ' >. ! . . It would se•9m that ·the robbers had :::... ·;:-_~ .. :~1ily: approached the compla£nant· 'i-1hen they• t~e.d up,. his ha.ri,~s, t·ogether at the back, :the i·dea: being he .~houl'd not recognis~ _them. That they were out to en-!3~re ·th~y d_id. ·1:-ot Gi".rr:·"c: :'"'Ythc·1r· identity: - . • . . ., .. .. :- . . • I they went ot1- .to blin9-f Q+Q.. hi.nr•.. T:b.~ appell_ant: was_ himself a neighbour kn~~. to him1 ~~ he would h.ave had every reason to guard agaEst been recognised ·by·him. ~-Yet, however, the ~ •·· ·: complainant l';)ays he re.cogni.sad ·him.· · ·.kgainst·· this ·claim it is; however to be observed firstly, that re told PW.2 that he had identified the two. ~~prit:9...:.:611ih/:by ·v:: ~.CG, ·seco~d.ly, that' al though the appellant, as alr_ea.dy stc~\;ed, was his· -n_eighJ).Our.-.: he was not looked for at his hc:nise ar ruiy where clto .md final:.J:y o that the decision to arre~t him was not reached until about 10 If ' ; . days .later •. T~e only inference to (raw_ from all this-- is· -..: -/ ... ' ~hat the complai~an t at ~irst ·,;,;as not ~lear who. the rob.oers were and only later did he -think 1 .:for r·en:sons ·which ·' . not . are . ~}?.own, :th~t they·mus~_hnve in~luded tbo appel1a~t. In the kppellant' s own- defence,which 1 f-inds ·0mpport in the account. of l?w .3 --he S8Y.8 he was· one of those who anSWG•'ed the. ·alarm and. assisted i:n looking• for the cattre·. This in i·\::ielf wo·Uld rai~c. . .;••.- considerable doubt if he : had been a6c:ag. the robbers._. . . '. The learned resident magistrate failed to warn himself on - .the danger· . of convicting on .tf, 3 evicl :.:.").Ce. of. ·an only· . ' eye w_i . tl')._ess. , He however found the. cc.:-.:plainant ' be a- ·credible t'o wi tne~s. As· ho:wever indicated above9 }.e·" could haxdly be 1 regarded as' a reliable witnesi' in the ~face of the·· o bvious mifavourable circumstances· for identf:'ying the· robbers, and ' in .order to .cffi'!'vict there was need :f o:. corr·oborati on'. Tb.ere was absolutely no supp~ting evidenc · and the appelh.-mt;·:1ike the other accused' 'ou:ght to have been J.CQUi tted. Ac'c·ordingly·, the ap·peaJ. is allowe·a. and it 'is: orderc 'l he be forthwith rel'eased from custody. .·•; ' ·, '. . ' ... Delivered ir1 open. court· 'this 17fi il~~:-y-·· G-.;: ,'.pril; :197a • . ' . ' .. ,,.·,·... , . . .. . . '