19771104 TZHC Tabora

':, ;-j.zf? . • . ' j - IN 1'HE HIGH COURT OF TaN2.NIA

AT TABCIRA A?PLL4PE JURISOICTICN t (TLBor nEGISTRY) (i-IC) CRININAL APPEAL NO. 179 CF 1976 ORIGINAl, CRThINAL CASE NC.806 OF 1975 OF ThE DISTRICT COURT CF TABCRA DISTRICT AT t

TABCRA Before. S. J. Lawena,ESq., Resident hag3.trte. - - LUCAS SHINBI . . . , . . .. . • • • . ' • • . • • • • . . . . . . APPELLANT - .- THE REPtJLIC .i....oP.....••a RESPONDENT - - ) . ,. .1. • : ••• • , •; : • •' • .. . .. . : 35 . . ...... &IGE: 1st Ct; Cattle theft C/551 268 and 265 of the Penal Code 1 2nd ct. Grevious Harm c/ 225 of the Penal Code.

JUDGIIENT )4APIGANOJ - The appellant LUCAS S11IMBI was convicted for two offences 1nder th Penal Code, Viz,, attl theft, -contrary to sections - 268 and 263 and doing grievous harn, conrary to ection 225e He Was sentenced to corcurrent termsof imprisonment for, five years and qne year respective]. -y?, He has lodged this appeal against that decision, There was no couhit thatwo peisons came to the hcuse of the complainant at Aig1*. and und lu,m outside. They attacked him by inflicin.g two -vicious blows on his head and theraft!er drc- v lul her-4 mpviSLng of ki head of cattle, Thoug'hbe raised arr alarm bef* he fainted, his two wives cou1d ibt come out Of tie house to see What waS happening as the door of that ho1sE had been seured firmly from the outside, presthnb1,y by the same two asalants. He reportedto the Ward cretay P4. 3 Ze±go on the f'ollowing morning, but accordifig toengo's unsputed evidence, e did not mention m th1 1ams of his assailants. Nor, it would seem, did he de1 rxbe them. PW. 3 in turn informed the Police, The appel1at- was arreSted on the next diy and -brought to ccuz.rt frye days later, initial1y on a charge j x.4bery. The Police did not reoovar a4y or the stclen cattl-e and is not quite lear why, in the firs-t 1ace, the Police dccided to follow the appe11ant The maip' qnostion for determination was whether the appellant was one. of the two assailants.

:This.turned On the reliability or otherwise of the identificatiOn fo thecomplainant. In other ords, what wag ultimately crucial is whether that identification as free from any reasonablç doubt, - . .- The complainant alleged that therewasmoonshine and that he recognised one of the two asai1ants as the appellant whom he had known for a long time, and further that he mentioned his name in the course, of the assault. The evidence of P111.2 Asha, one of his wive appaièt:1ybcr.e out biscontention that he shout1 out the nazpe.6f the appellantat that time,. The appellant did4çtgVeevLdence, but it is clear from the cross-exarni-nt1) that .he conte.nton he. was,putting up is that the complainant had wistakenly identified him. After at':hin trms of !4bdallah Wendo Y.:R O.EACA 167,:,t'he l?irned is*rate.held . that the complainant's identification was secure and with that he convicted the appe1latit on both counts-. The a'ipeal attacks that decision and aft - e'äp.pratsing.. the agree that the cvidnôe 'ieTt room tor doubt. The evidence of PW.3 Zengo was1 of sçme iniportance in tt i€i - I. A w have seen, the complainant never mefltiQnod any'name.to him in the morning. One is bound to ask why tnc the plasiblè answer can be that r;.e'cog'edaft 'hiassai1ants or else that hëwas notu- about the identities of the assailants For it is scarce1y'b1:J2Thct he would nothave disclosed ; the name of

any othàssailantsthen if he had been certain -. of h*.s identity. I thinks therefore, tht when1e came around ,. tornentjon thename.of thEappeilant he may hav.e been engaging in a guesswork. I think that the identification carried a.., reasonable doubt and 'i'*iY be 'unsafe to ...uphold the convictions. with the .technici point which has been raised before this court,ifby4 w words. It is abOut the substitution of the charge. As I have noted in passing, the appellant originally stood charged with robbery 3u.t after four -Osecut?ion s1sse had grrext pro.se.cut.r., apieô s.stite,fzJi cargyhich contained 'thd t:w'bthts of ,'ditt'fe theft'. and dQing grievous harm. I think this substitution was unnecessary and contravened the law though in a way it workedj Qavourably on the side of, the appellant. The pr.8 t41Pence td had at that 7stage disclosed the major offence of robbery and there as therefore 130 occasion for substituting the Maulidi Abdallah Chengo yR (1964) , EA 122, a substitution of achare u derSectin a99.. C.P.C. i ou&.nçnt oa the charge frtxn aerective' ei4e 4stanpe or forn,and 11ia4 th be daeJtLVe mrely ece itheàvidence adtied w3u1d spot 9he ige foa d ntofVence, yabwa r v. 3 194LR?N 40. The appeal is allowed and the convictions andsentences set ide.The ppI1t n i tobe las ediod{.stgdy m uns be '- Prorouned in Court. Mr. Sengwa,,i for the Repib1ic. t c fl Tabora, b. P. AFNC 4.ii177 JUDGE. c J. I