19820602 TZHC Mbeya1

1) IN THE HIGH COURT OF TANZ:NIA /iT MBEYA CRIMINAL !PFEAL NO.51 OF 1980 (ORIGINAL CRIMINiL CASE NQ.14b OF 1979 OF THE DISTRICT CORTORU .-WE DISTRICT AT RTWUI BEFORE: P. B. MPONZI Esq SENT OR MAGISTRATE SIMON s/o MAPAMBA : ; APPELLANT (Original Acc.isod) versus THE REPUBLIC ;; :RESPONDENT Charge Unlawful wounding c/s 228(1) of the Penal Code Cap.16 Vol.. I of the Laws. JUDGMENT J.A. 1VlR3SJ:, .. . .... .. ...: During the night of 18/8/79 one Anyeiwisye Iviwanyanje was speared on upper. abclo:non. while içia, was greasing his milling ach±nc T; w ueng '. terç for lighting. He claimed:' that tho e±fond.or. spiod. .ht XrouI';h back and that on turning round hO....dirodd the torch light: at the attackcrmnU a. abl ho roe ogrio; 4m.: aSL h1. bUsiness rival, Simon Iviap bo, the a.po 11art, lie further claimed that as: th a d. was proparing to sppar hirn. .asc.ondi time he managed to wrest tho spear from allegedly then dssa;pea±eft.... .to the darIaess. The c om la t iiod out for help. Two neighbou but none of thorn was in time to see the aacker0. However, the conplainnt non onod the apclant' In the result, the aipellant was arrested 9 prosecuted and convicted for the offonco of unlawful wounding. He was sentenced to a prison term of two ye:ärs.. . He now challenges the conviction .. The crucial question in the case as the trial magistratigtlbservcd was that 3fidCntificti f' the ssai1ant The urial istrao co'tc c '4 - 2 complainants claim that he had a powerful trch which had three now bittory coils and that ho directed the torch light at the ap)Cflant wh was close to him intending to take )ut the spear from his body 0 The trial magistrate also considered and accepted the complainant 2 s claii that hc. was thus able to sac and clearly identify has assailant as being the appoflant who was a familiar person to him as he was of the same village0 The complain::nt mentioned the name of the appellant to his bi other who was the first person to come to the scone in response to his cries for help0 Learned counsel for the apoellant haswo main complaints against the udaent of the trial magistrate. He submitted that the trial magistrate erred in basing the conviction on the eviderioe of a single identifying witness on a dark night. The learned counsel doubted whsthc;r it is belica'able that after being poaroJ. the coel)laillant would, have been in. position to turn rid ica ae toicn lght en the assailant and nct!e1 1 t roes n Jo to expect the assailant o snd b to affoo the c opportunity to iJenifj lilA The rule of practice on identification by a single wies'whcro conditions do not' favour corrootidbntification is that therc should be' corohoration. But in thb 'cs uner'discussion, while it is true''ic was a darkniht thce' wa"tho unchailoncod evidence that' the cor!iliiant was n pissessi'n' 'of h powerful torch If 'mn fc" the appellant was noarby snd the complainant directed the torch light at hm he would be blc to see hia But would the corplainant have been ablo to identify his assailant correctl'i 2 free from any possibility of error' 7 The comolain ut rot lon fter being spoarcd lost consciousness an onl cainm? it in aospital. In his evidence in court he shw certain p oconceptions about the appellent Ho was kink of obsosed by the thought that the apcllen as e-nious f his business success, he also suspected that tl a polint had once previously S - 3- planted. incriminating machinery tols in his milling house. The complainant was prosecuted in connection with those machinery tnls but was acquitted. Bearing in mind these preconceptions the complainant had about the apellant it is possible they may haVo coloured, his m ind, making him believe honestly but wr)ngly that it must have boon his usual enemy, the appellant, who speared. him. Like it was said in the classic case on. identification in circumstances that are not very ideal for unioistakcn identification, the ABDALLAH BIN E17D0 AND .ANOR. case (1953) 20 E,A,00A., 1b6 at pg0 168) - a witness may be honest yet mistaken, and may make orreneus assumptions particularly if ho believes that what ho thinks is likely to be true must be true 0 S', while the cmplainant ay-have appeared honest and truthful befro the trial curt, it should have boon ppsrent that in the cirbumstañcos just cnsidorad,-it was unafe to convict the aDellant without :5 orrThrating evidence that it Was the Lpidllsnt who speared the c3ni1aint. There was no such c)rr)borating evidence. The sc end.. eonplaiiat by Icernod. counsolfor ths: appellant, was that th trial madistrate actod.irroularly in.al1owing the Public Prosceutr..to reoxamine the prosocution'witnosses on, matters which were nt.:rise. duting .cr•oss—oXarflinai1 Ofl0 .' I agree that the tril, mgirate acted..irregularly. Re—examination is opportunity given to the party who calls 'a witness to Dbtain from his witness clarificati:n on matter's, staiod.,'by the witness during cross—examination which unless sa::clai'ifiod 9 may suggest an incmeiotcncy or a ioubtal iaproesien of the evidence of the witness, nd.thorcforo rojud.i -cotho case of the party calling him. It is aot h3wever, a sCC3nd opportunity fr the prty calling the witness to elicit fresh cvi,JLcnco from such witness. If in the couro of re—oxaination en frcs evidence has unavoidably been I given, then the opposite party, iflust be invited. to I; —4- cross—examine the witness on the fresh evidence, if he wishes to do so. The record must shw that the opposite party was afforded such opportunity. In the case under discussion the fresh evidence given by the two prosecution witnesses, PIl and Pi112 under re examination did not really seriously prcudice the — appel1ants case and therefore the irroularity is curable under section 346 of the Criminal Procedure Code. This appeal is alloiod. The conviction end sentence arc sot aside, s the apcllsnt has by now completed the prison sentence, I find it unnecessary to order his reloaso from prisn, .LiRSO...... Mbeya. .. . 2nd June, 1982 PrMwakilasa f lr the polIcrt. ~ . . Mr T(aplrl a, tabe ttornc for tao Ropielic JAM/TMliiea . .'. . . . . . .. et. . ..... , ..