19941206 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA \__,_-\\S~. AT DAR ES SALAb.11/f APPEL:U.TE JURISDICTION PC CRIMINAL APPEAL NO~ 18 OF 1993 (From the decision of the vistrict C~urt of Temeke at Kivukoni in Criminal Appeal Ne. 22 of 1993). Original Criminal Case No.1834 of 1992 of Temeke Primary Court. Before Kipilimba, Esq., 'District Magistrate JOSEPH WARIOBA • • o e o • c a • o o G • o • o e o • ~ • o • e APPELLANT versus . lta.JAB1t SilM:ON,. &. :3. OXHEF.S •••.•••••••••••• RESPONDENTS

JUDGMENT NA INA, J. The appellant, Joseph ~ari6ba, was the complainant· ,.,before the Temeke primary court in Vf_hich the respondents., Rajabu Simon, Mathias Boniface 1 Athumani Issa _and Su~ira Kambi were jointly convicted of unlawful wcunding contrary to section 228 of the Penal Code. Another person, named Kulwa Salehe, was acquitted by the offence charged. The Respondents were sentenced to various terms of imprisonment. They we~e each ordered to pay shs.25,OOO/= compensation to the appellant. They all appealed to the district court. The conviction of the first respondent, Rajabu Simon wa~ uph~ld and the sentence was reduced to absolute discharge. The compensation too was reduced to Shs.1,OOO/=~ As for the '· other respondents, the conviction was quashed, ·and the sentence as well as order for compepsation w~re aet aside. The appellant was disatisfied, and he now appeals •. In arguing the appeal, Mr. Ndyanabo_submitted, on behalf of the appellant 2 that the district court erred in c.cquitting the respondents while there wa~ sufficient libht which enabled the witnesses to identify the 2 / respondents. Mre Semgalawe, on the other hand, submitted that the identification evidence was insufficient and the acquittals were proper. It was also stated by Mr •. Semgalawe, on behalf of the second respondent, that it was due to insufficiency of identification evidence that the

trial court acquitted the fifth accused9 The crux of the case is identification of the respondents. ' All the witnesses conceded that the incident took place on a dark night. They·did not know, the respondents before. The first respondent was the only one who. was arrested on the spot. He was seen by the witnesses as he stabbed the appellant. There was some light from a bar where people were drinking alcohol. It was not stated how bright that light wq,s, or whether it was close to the site where the appellant was stabbed. However, since the first respondent was arrested on the spot, his conviction was proper. But the other respondents were arrested on another date after the stabbing.· The appellant and the witnesses who testified for the prosecution, did not say how they identified the respondents. The witnesses were specific that they saw the respondents for the first timeo The appellant alleged he had seen the second respondent before, but he did not say whether he knew his namee So, it is not known what he actually reported to policeQ It has been said, time without number, that a person reporting a crime to the police must give the description of the physical features and other material facts, like clothes the suspect was wearing, to enable the police arrest the suspected person or persons. No police officer gave evidence in this case, although the matter was reported to

police. The respondents were apparently arrested on suspecion only. As Mr. Semgalawe pointed out, the fifth accused who was jointly charged with the respondents 1 was acquitted because of poor identification. The evidence against him was the same as that which was used against the second, third and fourth respondents, who should also have been acquitted. The circumstances were that it was difficult ..... I 2 , 3 :ii --~,,<·_ ,.,/ i';• ~ for proper identification, and the district court properly I : t."< hi_'"· ·~\II ' ' quashed.the convictions against the second, third and fourth ~-· respondents. The first .respondent's conviction is upheld~ t a--:: In the result the appeal- is dimissed~ r•·, . . . _ It,:· ' . ' .-.._r, l~ . q~_fi/V\4, W. J. M.AINA

JUDGE Dar es Salaam 6 '_December 1994 Mr. Ndyanabo for the Appellant _ Mr. Semgalawe for the Second Respondent •. Third. and Fpurth Respondents absent. ) -----.......). .. V· ,;, ,.· • f ' t I