19751027 TZHC Mwanza

• • •-.- •-& lIT THE HIGH OOtTRT C; TTZJdflht AT UVMHZA H(C )r AITTJJATE JrRI SDI CTI ON HIGH C(TRT lIEIiflL1 AP18J1 NOS. 4451 446, 412 OF 1974 (Ofmal Criminal case: iqo 40 of 1974 of the Distriôt Court of KaragNe District at ITyskehana Before: P.R. ]3uberwa Esq. District Ma.strate) - REVEITIAU. o/o GiBGlBI lIfflOzIM13.,iTGO ). ........ . ... APEEIiLdNTS )TUGlCE T:ThTYA1TKOLE ) VERSUS TH8REBJBLIC .... . . . • • • • , ...... . a ES1ONDEiT CHARGE: Grievous harn cls 225 of the Penal Code Cap 16 J U D G DI E N T KATITI, AG. J. The appellants Reve±'ian Gaba ~,a'mbli y and Nuhozi Mabangó, vide High Court Criminal appeals Hoe. 445/1974 446/1974 respectively, thi1ptr / consolidated Were èonvictod together withPulgence Mnyanko1dn iIih Court Criminal Appeal ITo. 412/19749 now allowed, of the offence under section 241 of the Penal Code and senteiced to three years imprisonment each and compensation of 3hs0 250/= oach The two appellants just like Thlgonce Mnyankole were a;iovod end hence These appeals - The grounds of appel have boon well studied arid appropriately applied to the case contested This is one —witncss prosedution case The complainant P.W. 1 - Pata /o Kimbaka of'Karagve Di .,6trict y made a point of seeing his sistei' in—law on Ester eve— 13/411974 They apjear to have been living in same village going bythc name Nykahanga'. According to the complainant he went to4hexrat 5 p.mo and as this day smpathises with festival drinking, there wOre d±iñks too thore The complainant parto of the same up to past 9.20 pra when he decided to leave for home He claimed that during his drinking Oeasion the first and 3rd accused osne there imbibed some and went off. On his way home, he was attacked and rendered to suffer bodily hai which was reduced to fall under 241 of the Penal Code The complainant claimed that his assailants were the appellants This claim is made despite the records admissian that it was a dark night He also ciimed he kaev thom by their voices While I have but to aCcept, that identification by voices is posib1e and may be hiüy reliable, it is not as lcin sailing as that It is riot shown as to how one appeflant.O voioe differs from the other appellant s or any other possible assdilcnt Over and • above that the conditiOns for facial identification, were so unideal, that certainly is rulOd out, and the complainant having been imbibing for such a longtime, I would be surprised, if his senseshad by the juncture of incidenti i4 not suffered considerable impairment On the above grounds this conviction cannot stand The appeals are allowed, convictions quashed and sentences set aside The appellants to be released unless otherwise legally detained Delivered in Court at NThITZA this 27th day of October 1975 E, /. KsTITI !CTIIT C JT5DGE.