19820805 TZHC Tabora

PIF S IN THE HIGH COURT OF TANZANIA AT TZ.BORA Ai?L'LLATE JURISDICTION - HIGH COURT CRThINAL APPEAL NO. 143 OF 1979 ORIGINAL CRIi'tNhL CASE NO. 400 OF 1978 OFTHE DISTRICT COURT OF KAHAMA DISTRICT P,.T KAHAMA Before:CHL,MZIEsq., District Magistrate (Original Accused) versus THE REPU3LIC: ............... , RESPONDENT (Original Prosecutor) 'V CHI"RGE: Robbery with violence c/s 285 and 286 of the Penal Code Cap.0 16 of the laws. JUDGMENT RUBAMI:,, J. HANGA S/O LUIL.iJGh was jointly charged with another than with robbery with violence c)s 285 and 286 of the Penal Code. He was doxivicted and sentdnced to. 7 years imprisonment. He now appeals against conviction. The prosecution called five witnesses. Macho Thumuni (P.w.i) was the complainant. She had been a lover of the appellant for some six rnonths.before the alleged •robber' took place. She informe,d the court that on the night 'Of 8th November, 197 8 , when she had already retired, the door of her house was forced 'open and the appellant and another person moved in. The other person' (2nd accused during the tril) asked for money and slapped her. She (P.W.1)'while t 'raising an alarm managed to struggle with the persOn who feelixig that he was being overpowered, called for' the' a's'Sistaióe of the appellant. The appellant i said to: ..hare' responded by attacking P.We,1 with a knife several times. P..W.1 was thereby forced to let' go and run out o:fthe: hoUse', le.eving the appellant and his corpanioñ in' the hoUse. 'P.W01 'further stated that there was light inside the, house and thus jhe àaw and identified her attackers. The apppellant clenied,,,t,he allegations levelled,aainst him. He stated that he had, been at his house sleeping on the material night and that. be had .seen.P,W.1 at' the bus stand in the morning when he was tol.d of the. attack0 On"hearing '4 ( ift - 2 this, he (appellant) talked to P.W.,1 who confirmed the story he had heard about the attack.. The appellant wondered why he had not been arrested there and then and was only arrested some five days later. He (appellant) testified further that he had even been to the hospital to see the complainant. The trialmagistrate accepted the prosecttión case and rejected that of the appellant. He was satisfied that the complainant had correctly identified the appellant as one of her attackers Mr. Nkwikimo, learned advocate for the appellant severely criticized this finding observing that as the conditions were not favourable, great care was needed by the court in handling the evidence of a single identifying witness. He further submitted that this great care was even riore pressing in the instant case as J the appellant and the coiplainant were not in good terms following the breaking up of their illicit association. There is evidence that the complainant was attacked and robbed — she had raised an alarm and people responded to her alarm. Her brother, Samweli Maziku (P.w.2) was one of the people.who had responded to the alarmraised by P.W.1. He saw two people run aid swallowed by darkness; he did nOt, however, recognise them. The Oompiainant iñunediately reported to him that the appellant was One of the people who had attacked her. The same report was made to Paulo Makoye (P.w.3) - the areas Ten Cell leader. Like p.w.2, Paiflö Makoye did not see the coaplainant's attackers. Now who were these? Samweli Mazilcu (P.,W.2) mentioned that when they got to P.11.1's house, it was dark - is/possible that it had been that way even during the attack? Is it possible in the circumstances and with bad blood between P,W.1 and the appellant that P.W1 was convi aced that it must have been the appellant who had attacked her without being positive? .1 pose these questions partly because of the unusual attitude :f the Ngogwa villags. They get e ser.ous report of the attack alleged by one of the villagers and nobody takes steps to caock them ou that very night. £hey then see the appellant the following morning and there are no efforts to arrest un, c is evcntually arrested days later. This is particularly peculiar consideringthe fact that P.1g.? is a brother of the complainant. .1 see no merit in therationa1iation that the villagers, were waiting for the police to effect the arrest. 000/3 , 3-. In cases •of..unfavoür.ab•le circumstances such asthese, the evidence of lcLentlflcatiork by a single witness has to be examined carefully. The trial court in the case under consideration did not specifically advert to the dangers inherent in convicting on the eiridence of a single witness astoidéntity especi,611 -Y when the conditions did not favour correct icientificatlon4 This should have been done' Abdallah Wendo y. TR. (1953) 20 EPCP 166 and Eoria y. P. (1967) EA 583. There also exists no corroboration of PW.1's evidence ontthis issue. There 1• evidence that, she had mentioned the narses of her issailantS evidezice that estalishe.d..consistency on:het part but the behaviour of R.Wa2 and P.W.3: makes me doubt if they in fact were informed of the identities of the attackers soon after the robbery. 'ürter the evidence tht the roon of P.W.1 was found dark when Pw.2 went there raises doubt if that indeed was not tie. position before the robbery I hesitate to uphold the corviction with these doubts in mind which incidentally was not supported by tLio.opublic.. The fact that the learned 1rial magistrate did not properly direct himself on the issue of evidence of a single witness on identification when the prevalent conditions did not favour correct identification further makes it necessary to allor the appeal. Accordingly the appeal .ii3 allowed. The conviction is hereby quashed and sentence of seven years set aside. The appellant is to be set free at once tuüess he is being lawfully held on another char.ge YLHYA RTJBAMA, J. 5/8/82. Coram: RUBANA, J. Mr. Chaila, State Attorney for the Iepub1ic. Appellant absent. Judgment delivered. YIJ-IYA RUBi.., J. 5/8/82