19710325 TZHC Mwanza

\" IN THE HIGH COURT OF TitNZL;NIh, AT M.ANZL. Appellate Jurisdiction. IMI I APPEAL NC. 688 OF 1970 Original Criminal Case No.l J of 1970 of the District Court of usonia District a t ]us oma Before H. J. T'katte Esq., Resident Nagistrate. CHACHA. KING'O3BE. . . . . . . . APPELLPJ\1T(Originai Accd,) vs. THE REPUBLIC. . . . . . . . . RESPOI\1DENT(Original Prosee,) CHARGE: Causing Grievous Harm c/s 225 of the Penal Code. JUTh[ENT. 3AVA S, A g . J. The a ppellant was charged with and convicted of assault causing grievous hain contrary to section 225 of the Penal Code and sentencedt - 18 n.onths imprisonment. He has now appealed to this Court against the conviction and sentence. On 20/4/69 at about 8 p.m. Malogo Masagulo, the complainant in this case, was proceeding to his home in Mgeta from Isen.ye village, On the way he met six people who suddenly started assaulting him with sticks and an axe. He fell unconscious and was, with the help of villagers who came to the scene, carried to a. cell-leader's house. On 22/4/69 he reported what had happened to the police and mentioned the appellant as one of the six people who had attacked him on the material night. He was given POF.3 and sent to hospital for examination and treatment. ) The appellant was arrested on 1/1/70 i.e. 8 months after the incident. The evidence shows that the only person rho identified the anpellant as one of his

assailants is the complainant (P;,3). He told the Court that hcould identify the appellant because there was moon-light and that the appellant is his neighbour. The learned Resident 'Tagistrate accepted complainant's story regarding identification of the appellant as one of the assailants. There can be no doubt that the complainant was subjected to violence on the material night. The only ouestion i;rhjch this Court has to decide is whether there was sufficient i'dentification of the appellant by the complainant as one of the six people who attacked him. The learned State Attorney who argued this anpeal did not support the conviction on the ground that it was doubt- ful whether the complainant's story to the lower court was wholly truthful. He told the Court that although the complain:wt :2: told the court that the appellant was one of his assailants, the evidence of Corporal Pearson (P..l) shows that the complainant did not mention the appellant as one of the people who attacked him It was also argued that the testimony of the. complainant and that of the cell-leader (P.[.4) that the appellant could not be arrested earlier than eight months after the incident because he had left hisvillage after the incident is inconsistent with the re'Dlies of the complainant when cross-examined by the accused. As I have already said identification of the appellant as one of the assailants

is solely based on the word of the complainant. From the replies of the complainant to ciuestio.ns rut to.him by the appellant it is amply clearthat although the two lived as neighbours, they did so inharmoniously 8nd they were clearly at loggerheads witheach other. is argued by the Republic it would appear from the answers of the complainant when cross- examined by the appellant, that the anpellant did not leave the village after the incident - Indeed the complainant to]d the court that he could see him in the village after the incident and that the appellant one day, after the alleged incident, destroyed his (complainant' t s) fence. If this is so, it is therefore most surprising that the appellant was not arrested till eight months after the incident. The learned Resident Magistrate was entitled to a ccept the testimony of the complainant regarding identification of the appellant - But it has been repeatedly held by this Court as well as. the Court of irpeal that where the prosecution relies on the identification of an accused by a single witness, the C ourt should consider not only the credibility of the identifying witness but also the possibility of the witness having made a mistake - see U3OU1T.LH WEflCvR (195) E.L.C.[. page 116 /D TH1IRUiTJHORO_yR (1954) fl:,,',C,,", 187. In this case over and above the possibility of a mistaken identification the evidence shows that

the appellant and the comrlainant were not particularly in good terms. Taking these two facts into account I could tend to agree with the prosecution that it would be extrene1y unsafe to uphold the conviction. I am also of the view that if the learned magistrate had paid more attention to the parts of the evidence which tend to show th the complainant is not all that re1iab1 91 he would have come to a totally different conclusion fra the one he came to. The conviction which is not supported by the Republic is hereby quashed, and the sentence is accordingly set aside. a 3: The appellant is to be set at liberty forthwith unless he is. lavully held in custody in connection with another charge. Delivered in Court on 25th March, 1971.

L INC JUBGE lTfl5 25-3-71. Mr. D'S ouza for the .Republic Lccused absent and unrepresented.