19750623 TZHC Arusha

4'- SkA IN HIGH COURT 01 TANZANIA V V - AT L:JAN ZA HIGH COURT CRITINAL APPEAL No. 556 OF 1974 Original CriVminal Case No. 2083 of 1973 of the District Court of MwanzaDistrict at Hwanza before G. Muoà Escj. Dist. Mag. MAN0TTL NGOSO AND ANOTIi . . APPELLANT versus THE BEPtJBLIC • . o 0 0 0 00 .0 0 0 RESPOI'TDEI'TT CHARGES: 4 Gbunts : Unlawfl4l wounding c/s 228 (I).Th the Penal Code Cap. 16 of the Laws. V V • J1JDGLNT KiTI,V AG.J.: The two appo11aits Manonl Ngoso and Luto1eka Bdila wore jointly charged VVrjth unlawful wounding. c/s 22.8 (1) of the Penal Code. They wore convicted and sentenced to 2 years'.imprison- V nent each subject of course to confimation.. The accusods aggriovo c VL, sock to appeal against convictiQn nd sentonce V At the hearing of this appeal the advocate for the appellants submitted at length attacking the jud.Vaent of the trial magistrate. Condoring the grounds of appeal as emplified by the learned dàfonce VQcunol, VI gather that there ae three main giopads of appeal. Vflaly: That conditions for identification were unideal and unreal; That P.W.1 9 P W.3 and P..4 were not corroborotod 9 • (c) That their alibi was sufficiently strong tdV raisd doubt V in the minds of the Court.. V • The learned State Attorney Hrs. Matoiru suhnitted that idontif i- cation was i.rnqucsti.onablcand that P,W.l, P.W.3 andP.W1-4±dentified the assailants properly through. v7ickiamp (koroboi).. She.suhaittod further theA thoir.alibi was such that it could not be accepted as they contradic.te.d onc another. . V . . V As both. learned State Attorney: and defnca- advocate oncede this casa depended SOlVOlY on identification. Nobody in his. right minö. ) would queition and challenge, the fact that the complainent were attackod and seriously wounded. :I\JQb.ody would challong the fact that the assault exercised upon the complainants was unprovoked and indec the offence of unlcvful woundiag was co 'jutted. The isuo which to my mind was well dealt Wi.Lb by the trial- magistrate Was in respect of. the identification of the porpotratb±o of the same. P.W.l S0i'TDA GU1'A ITDBEJI, P.1.3 WIRE 1r1SIJTGA p.\7,4 PADRI KISINZA testified that it was the. appullants who . did the a&aiilt and that they saw thom through wicklanp commonly imown as koroboi and the ,torch light. • The Counsel for defence aintained with disproport- ionatb emphasIs that the light emaiating from such sources is so woak that one cannot identify another. This argumànt snacks more of elitist atitudo than truth and I azi not pisuadod. by it. In my view the trial agistratc was Dight and entitled . to hold as he üid that tho light sufficient for identification and as the appellants wero not; strnger at all to P.W.l P.W.3 ai.d P.17,4 it was cvcñ easier.. VThO idäntificat- ion was thcrofore real. . • • • V . • • ••• Now I come to corroboration. P.W.l, P.W.3 said P.W.4 are all adults and their evidence need not be corroborated as a matt' of law. And as a general rule the Court may even act on the testimony or •- evidence of a, single witness although in practice the Court may well hesitate to convict on the word of one viitness,when there arc no confimatory circumstances. As far as I Imow legal rules requiring proof by two witneses or corroboration of testimony of one witness V are exceptional i.e. scditous ofioncee c/s 56/58 of Penal Code, 0 evidence by child 'of - tr'dor ago etc. 'All 'I Irnow is that there are e:o cagcriis of I P'C 5 1 fE 1311 - 0 consisls of cases in,which corroboration is required as a matter u± Iso; i.e. evidence by o 1- 11 of tender years and the 2nd category consists of cases in which the Courts must wani themselves of the danger of convicting on unc orc berated ovidenc ' i . u. in sexual fonecs'-aooeplico cvidenoo. It is icy hope that the loaniod d sncc Cc'mscl was -nn si. ,os Gulf the cro ioi of anc thor cc in ';hich corroboration should be roquirod. and I on roluctan' to undortako this task. In so holding I en far from suggesting that evidence' of with000'os respecting identification should not be tooted the greateSt care • It has been hold in ABD LL'J BIN YEI'TDO. & SIJEB BIN f,TAMBELE v. R. (1953) 20 'E.A.C.A. i66,,.t1 -1u.:—. "Althch subjoet to certain exceptions a fact nay be proved by the test aony. of single witness this does not lesson the need for testing with the greatest care the evidence of such witness repoct ing -blie identification especially when it is ]rnown Ghat co±aduiuons fevrux'iag acorrcot udcnufice GLOfl are difficult... In 's'uch circumstances othOr evidence circumOtantial or. direct 'pointing to the guilt is needed." In this case; the light was 'sufficient and identification was in my ViOl rufhtly found uO have boon ostsljluohed end corroboretn of P. 77*1,, P.[.3 ancTh P.17.4 is net nocossarro'ither as a matter of low or prudence. The Counsel for the appellants aguin did seriously harp on the appellants staged alibi - that this should have raised ,reasçnahle doubt in the minds, of the trthl magistrate and have thC apcllants bonefit from the sao. I concede of course that oven on defence of alibi it is still. tiico duty, of the prosccution to prove Its case beyond reasonable doubt. And as it hold in R. vs. JOBNSOIT (1961) 3 All. E.R. 969:— ....It,11aJ 'ethattho true view of alibi is the sane as that of Cclf—dcfonco or provocation. It is the answcr which - the accused 'puts forward and the burden of proof .. in the sense of establishing the guilt of the accused rests throughout on the prosecution. If. a men puts forward an answer in the shape of an alubu on in the shape of self—defence, ho does not in law thereby assume any burden of proving the answer ......" This has been adoptcJ by the Court of Appeal in LEOITAB.D JTTST 7 ' v. R. '(1963) E.L. 206 and ably applied fri SITIIEK0 vs. UGANDt (1967) .A. 531. And in case of defence of alibi all the accused has to do is to raise just reasonable doubt as to his guilt although the prosccuiien. oull has to prove its case beyond roasenele doubt - R. vs. FINCH 12 Cr. ATP. I. 77.' Now what was the alibi. The' appoll.ifr 'No'. 1 a'd' that on the night in cjuostinn he was attending a mounaing of the death of the,, child of AlphonOo. Alphoncc Mpandaohao confirLaod"this but according to hin the child aiod on 2542/73 and this is the date the appellant went theDo • He spent a night there and loft the next day oi the 26/12/73. It is not true thaL the appellants were riosted on 26/12/73 as the arresting effice± P.W.4 A,69 2 9 P.C.- Shadrack told. the Court that he got the report o'f'assaulton 26/12/73 and that he arrostcd the appellants on 27/12/73. The evidence of D.W.1 Kahoria Nduta is a'so a bundle ,,, of lies. The funeral took place on 25th and nbt 2642/73. ---- - --. -- - - - - - Hov eThou the 2nd appellant. He is said to have ono for a S wedding. ,D.7.3 ONNYL 7JCHBJ the host said that the appellant slept 1rj-bh him in sane room but on different beds and that hc had no wink the whole night which is strange after the Dartics fatigue, But D.7O4 HAKLNIK fUS]O told the Court that he and 2nd appellant slept together on. the sans bed and used one bed-shoot. VThile this is not iiLpossiblo in the party or wedding circumstances D.JO4 goes on to toll the Court that D.7.3 must be telling lies if he says he slept in the sane room with the second appellant. All this was sheer creation ±rom the blue. The trial naglecrai;c was therefore enitlocL tO reject On the whole therefore I have but one option 9 to disnio.s the appeals against convictions. Considering the scntenQos imposed end bearing in mind the Tounds inflicted I cannot say that the sentence was at all excessive. The appeal aguinst sentence is therefore and ctls'e dismissed. D1ivcrcd this dey of 1 975. 1. E.VJ. KLTITI (i .TT11Y!'