19870301 TZHC Mtwara2

IN THE HIGH COURT OF TANZANIA AT MTWARA HIGH COURT CkIMINAL APPEAL N0.96 OF 1986 Original criminal Case No,24 of 1986 of the District court of Newala District at Newala Before DoMoKo Luhaga, Esq., Dist. Magistrate 1o AViINI MOH11.HEDI Vi.:lUSA 2o CHARLES MKWELE • • •-'•" • •• • • r\Pl?ELL,\NTS versus '.CHE REPUBLIC o.ooooocooouo ,.:ioooo JUDGMi:;NT RUBAMA 7 Jo AMINI I··iOI·IAhl.mI hSU:3A and CHKkLES MKw,t:;LE were Cho...:-·:, ~c with and convicted of robbery with violence contrary to section 285 and 206 of the P~nal Code and each was sentenced to seven ( 7) yec1rs ir.iprisonroentp Each has appealed against the conviction and sentence. One Zainabu Saidi ( F\!Jl} testisfied that the appellapt.s had - broken into her house on the night of· 5th April', ,19~6 and assaulted her, stdle a pair of khanga, a bar of wnshing soap, a towel,. a vest, n torch and two pieces of toilet soap., . There had been no light inside her room but PWl maintained that she had managed to identify the two.appellants becaus(~ of the torch light that had been flashed on her face by one of the appellant. She further claimed that.she had known the two c.flpellants for sometime and that there had been some conversation bet~een them. Th0 conversation was in low t6nes·an-d cons:i,sted of demands ti1,:·~ they (appellants) be shown the items they needed or else the:{ were go'ing to" sexually assault her. soth appellants denied having committed t'"le offence they stood charged with but the trial m~gistrate aceepted the evidence for the prosecution found the appellants guilty as charged and convicted them. Mro sengwaji, the le,lrned Ser-,ior state Attorney, did r.ot support the conviction ma:1.ntaining that Zai:1.abu Sci:i.di. 1 Pvil could not have identified his as~ _ _:_.:._ .-.:.:, on the night in question because the conditions were not £:-: -'..>urable for facilitation of correct -j.dentif'tc.tion of the appellantso Mc Sengwaji further submitt<::d ·'-.,~c. it would havE:: been difficult for orie to really ident.ify the assailan·ts with a .to1;-ch being flashed on one'• s face, He put no much valur~ in l?Wl • s testimony that she· had· identified th_, voices of the. appe'.'..lar. ts whom she had stated were speaking to her in low tones,. I find merit in th,~ submissions o:: i'lr. sengwaji-. I accept ·that the house of Zainabu ~aidi PWl was burgled on the night oL5th .~.pril, 1986 and several i terns sto'ien from the hotiseo Th1?re is plenty of evidence to that effect. sut her evidence of ·:he .:. _. ...~-:.:.fica-tion of her assailan·ts is not straight forwardo One is to ;.;e.:.r in his mind that PWl had b~en di.stu;:-bed at 2 a,m. and according to her evidei1.ce by three assailants who were making forceful demands albeit in low tones., There was, no ·light in the room,· the only light · in the room uas provided by ·to.reh which was being . i. isr,e(! _ 1 · her faceo This light could not have sufficiently wl -1"' > J cr.:d ·that room to facilitate her identify ~er ~,ssail•=mts.. :;. t->Ut no c:redence at all to her abili t:: t~ id m tify P' _.ple' s -voices in low tones however closely shE: had known these people. And I do not dispute her having kno~n the appeilants before this · timeo The trial magistrate·had quoted several authorities•in support of his position among these w~re Abdallah wenct.o and It.is this·very authority ·that has i;iade rne examine. the conditions .. prevalent at the ti::-:e more closely o On po 168, their Lordships state: 11 ..0 It is evident that the learned_.Judge rea.lised that the case against the appellant reste<.:: in.·th .. main on the evidence of Magondo and him alone because in his jtidgment he has cited sectim1 134 of the Indian Evidence Act to illustrate the princi~le th~t-to prove a particular fact tl1ere is no ,1eed to· have a plurality of witnesses. · ~bj_~_s:~--~t.o certain ..w.e.ll,-}(.nowl'.l O exc.eption$ J,.t ~ . .t~~-E;~_l_l3-W. that a fact. :may ::.b.e.!. e.roved .b:( .the· ~-~st.J.{llOn',- of a single.· witn.ess. b11t.. this rule does not,. -1.~_:'..::..:..'::'. :rh~~3i~<[~f_or tes.tin2 ·.wi.tb~ t.be _grea_tes~.: .t;:,~re · ~~t... • ~::_c:_e of a singl.e .witnes.s· .resp~ctirw ~~e~t;f1.c;...it;i..9n ~~-e_c.i.~~H- .when it .is: known that the cone :.9-ons f<;t_~o.ux.:in.9..._ a· correct ident.ifica·ti.on were .. aif:f.icult. - 3 .... 1.1}._s,u.c.h_,~cir,--:·:--c_u_m_s-.t,..a...n.,.·c_e..,s_w_h_'._a~t-·_i..,;s......n...e_.~_"'d;,;,e~d...;;;i.;;;s. .o;..;t;.;h,;;,;e.r__,'e;;..;.v.;;;i.;d;,;;e;,;;n;,.;c;;..;;;e, .~:::.l·~e-~_h_~i:::.. ~:~.t...h~ circumstantial or direct, pointins to . -.£._l;!_i}~~- 2• _fF..<?!'1....!'hich_ a• J·udge or jury can reasonabli: •. · .s._~n~c.;.u,d.~~lbat the evidence of -identification, ·;: , ·~ .~l-~:.~:-1311.~1?2.~ed on the testimony of a sinSl le wi tncz . .'::.~1:- G..7'1_:sc~;i..x.._ be ac--:erted as free from_ the Piss;~!:...L of er-ror, 11 (empri,•.. ~.L. suppli,...,). ------- ........,...,......... . Going through the judg; ____ ;, t, i t is ---:l,._:c:1r that the tc:l..:~.l ,r. ..1;;:i.~; ~rc:i te had ~ - warned himself adequately .:.:is to the risk uf a mLL::iken identity, I-"rom the evidence of li,:.:'..ndb Saidi Pvvl, it has :_,-::~'fl shown that it was a dark night; the only iource of ligh~ was a torch . . being flashed on PWl's face, the talking was in hursh low tones - so low ti,at none of the other occup,mts in the house in which P~l was living were awakened by the verbal exchanges. 1 reali~c the trial iai.'.SJistrate must have been very impressed by the evidence of zainab Saidi, PWl "but on an ide~tificatio~ . . . i~~~e a witness m0y be honest yet mistaken., and may make e:rr0t.~0US . . assumptiono particularly if he be'lieves that what he thinks is likely to be true ·must be true."· ( See Abdallah ·wtmdo (supra) at p.168.) I find the conditions for cQrrect id~ntificatL..m of the app,illants wcrE= unfavourable at the time ar:o as Zainab 3.:iidi w'".s thE-.! .only witness on the issi.ie and dra;,,1:~ _10 indep·en.dent corroborative evident:e on the matte. . ~ne po:.~.si;::iility of miitakcn identity cannot be ruled J~~. I allJ~ the cJ~eals. I quash tht! convictions and set c1.s2.de the impos i sentencE::s • The appcll~nts are to be set frc_ ~t once unl~SL 0theiwise are lawfully iJdng held in custody. . '· Yt;~--Rlam~-- -~~ ·~--~ Judge 1.3.87