19871125 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZAlH.A AT D,AR ES SALA4i'\f .·':.APFDU.AU JURISDICTION HIGH COURT CRIMINAL APPEAL. N0.64/87 ORIGIN.A.I, ~rn;rMINJJ., .CASE NO. 153/86 ..• ..... , .OF THE: DISTRICT 00,URT OF KILOMBERO DISTRICT AT·. IFJ~rnA BEFORE . J • MSHUMBUSI, . ' .PDM • : , . .. . D:.V ID USVll..GE '~·• • -;·~ • •·•i• ii,·~ • ·• ·:..•••;i. '•-. • • • • •• J.PPELL.tiN!L: THE PiEl?UBLIC. • •••••••.•••• •·• •••.••••• RESPONDENT ·\: David- Uswage, the appellant herein, and an9ther person who we/3 the second aqcu~ed in the. t,r~ll 'i~e,re. joi'htiy eon;,.i~ted' b'y the distri'ct court at Ifa.kara, of ~-bbe:z.-y with. ~,1oience. · The appellant wae sentenced to oeven :y:ea:bs imprisonm(mt~:- The s~:cond accused who was a juvenile wa.s s,entenced ·t_o .\twe_lv~ months imprisonment• This · appeal .· is.. age;inst the . conviqti.oi:/ -~nd sentence • . .,. ~- The compl~inant,' :FW~l Victo_r Malile, said that during the night of .1st June,. 1986 he was riding•. a bicycle when he was attacked on the wa:y and :robbed of _his bicycle • . H'is aEisailants· hit him with a .,,· ' ( ,• •' stone on. the he.ad and so ·they forcibly pull.ed h:l,m off the bicycle · and rari awa,y with it. ·He said.'that the appellan~ and the second (39CUSe.d y.rere the persons who robbed him of the bicycle~ The complainant .' •:• .said that he knew th,e app~llant very well and had even ':'~ been to the appellant's house on several occ~ions. The complainant also said that he knew t_he ·second accused. PW.5 Bartholomew heard the complainant screaming. It was at about 9 pm. Bartholomew ·went to the scene where he. found the eomplai:nant 'bleeding from head ·.· ~ in.,jurie1!3 and said that he was robbed of his :'..bicyo.le: but he did not name the· ·assailants. ... But theThere was no clear ~omplainant evidence as to how appellant was arrested • said that he gave to the Police the description of the the· appellant' a features and the Police arrested h_im. It was not . given •in evidence who arrested the appellant ..:.and when. However, . . . a~cording to the record of the trial court he appeared in court on _; •. •· ·,.· '!3.:\:'d July, 1986, one month· af'ter the commis::;ion of the offenc~. The , :feeord shows that the appellant appeared several times 1n the trial court_ when th~ .case was ad_jour.ned/ and on 7th 1..ugust, 1986 the second accused was arrested by PW.4 Police Constable Stanislaus. The complainant himself pointed to the second accused and the Police Oonstabl~ arrested the ·second accu~ed in the presence of the complainant. There were several appeara~ces by the appellant and. I ·~ .. ~· ::;;,, • ,... t~ . . ·k~,~ ~- . ~~~··· 'bhci ~~ ~~~~_ii.~"~..__....,~,, . . .· On 15:t~¾tgber•:~ . PW.3 Inspector Balcari_Omati condt.tcted e.ri. identification para.de whereby the complainant is alleged to have identified the appellant and the second accused. The a,ppellant 1s defence was that he did not commit the otfenoe.• He said ·that he was arrested on 28th June, 1986 and that the complain~ saw him at the Police Station before the identifi9atioh Parade. dn the pet.iti"on bf appeal, the appellant says that during the several dourt appearances, tfe'~ the complainant saw him in the court or on the wa:y. I thinlt that is a valid point. /..s I have pointed out earlier, the reco:ro 1a clear that the appellant and the seeond accused appe.ared in the court several times after their arrest, a.nd before the identification parade was conducted. ~he appellant appeared in court on July, 3, 17, l~ugust l, 14, 28, September, ll, 25~ 26, 27., ahd October • I~ 10 before the identification. parade was conducted. on 15th O~to\\er, 1986~ Under the cireumata~es, the comp1·a1nant who was a Medical .i\ssista.nt at Itakara had sery opportunity to see the appellant and, of eourse, -: the second acouseu, during these oourt appearances. It was therefore easy for the complainant to identify the appellant at the identificatioa Pa:tade • One other important point is the fact that the complainant said · that he knew the appellant very .well and he also knew the appellant's _n~~e, If that was true, then the complainant would have given the appellant's neme to the iolice, o~ he would havo sent the Police to the appelle.nt 1 a house immediately so that the appellant could be arrested. But the appellant was arr~ ■ted one month after the commj,ss~oJI under circumsta..Yloes which a.re not revealed. It is also in evidence that the complainant could not give the appellants name to PW.5 Bartholomew•. who went to the scene soon a.tter the alleged robbery. In the circumstances, therefore, it cannot be said that the complainant reeognized the appellant at the scene~ Finally, the learned tr1e.l magist~ate said that he warned him- self on the danger o~ eonv1cti~ on identification evidence by a single witnese and that he was satisfied the appellant was properly iden:tified by the complainant. However, the trial magistrate does :- ~tt . not say how the complainant identified the appellant or the seeolld accused at ni6ht in the absenc,e of evidence of any light at the ecene• While the court may convict on evidence by a single witness, but in \ .I I circumsta.nees "v,here the eondition are far from ideal for correct , l,~ identification, . a eonvicti_on ,. cannot be founded without corroboratiollt ·. fhe court m~qt furthermore, SaY how the witness was able to identify the accused. In this case, the complainant did not say how he was able tc identify the appellant that night. The complainant was not able to identify the persons who robbed him of his bicycle aXld that~ . 3 -. the reason he could not even naine the ap,pella.nt whom the complainant claimed he knew very well •. The learIJ.ed State Attorney declined to support the conviction,;_ and with respect, I agree with him. This appeal is alloWea. The conviction is quashed and the sentence is set aside. In exercise of· rev_isional jurisdiction., the conviction o:f the s~cond accused is, for.the abov~ reasons, quashed and the sentence is set aside. It is oidered that the appellant David Uswage and the second . . . accused !t&::16db.&ni Mohamed be l"eleased from custody forthwith 1ln.less they are otherwise lawfully held• \V •. J • ?-L:.INA JUDGE MOROGORO 25th November, 1987 Appellant absent Malaba Stat~ Attorney, for the Repul;>lie •