19750123 TZHC Dodoma

\. r IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURI SDI CTION HIGH COURT CRIMINAL APPEAL NO. 9 OF 1974 1, ORIGINAL CRIMINAL CASE NO. 228 OF 1973 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SINGIDA BEFORE H. F. NYALUSI, . . . . . . .. . . . . . .District Mag. Saidi s/o Npepo. . . . . . . . . . . . . . .Appellant versus TheRepublic. . , . • 0•••• . . . . . . Respondent Char 1st Count: Burglary contrary to section 294(1) of the Penal Code. 2nd Count: Assault causing actual bodily harm c/s 241 of the Penal Code. JUDGMENT 1'Iwesiumo Ag. J. The appellant Saidi s/o Mpepo was convicted by Singida District court of two count, first, burglary contrary to section.294(1) of the Penal Co[e, second, assault causing actual bodily harm contrary to section 241 of the Penal Code, and was sentenced to 12 months' imprisonment and six months' imprisonment respectively and the sentences were declared to run concurrently, Aggrieved by that decision he now appeals to this court against both convictions and sentences. Perusal of the lower court's record and the memorandum of appeal shows clearly that the main ground of appeal is credibility of the Prosecution evidence particularly with regard to the identification of the appellant at the time of the commission of the alleged offences, On this question we have the evidence of only the complainant herself who briefly stated she saw the appollait when attacking her and she was enabled to do so by light from a small lamp (koroboi) which she had lit when the appeflant woke her up. She further stated that in that house she was with her two children one of whom, Hadija d/o Hamisi; was suinoned as P.W.4. but due to her tender age of 12 years and the added fact that sho seemed to the trial Magistrate not to be understanding the meaninS of oath her statement was taken without affirmation and therefore strictly speaking that was not evidenco within the meaning of that word. in the evidence Act. Thir thoeforc leaves th in a position o' nJ4r one person's word against the other's. In other words we are 1pf with th e assertion 0±' the complainant which emphatically has appelibpén refuted byalong. from the start of the case to this stage of it all peal. ': ---- I The learned trial magistrate decided to believe the complainant and disbelieve the accused (appellant.) but looking at the character of the complainant as disclosed in the record of the court below one would be entitled to think she is not of such a character as would entitle her to be taken as a truth±'tU. witness and her evidence should have been considered with extreme care before accepting her as a oredible witness on such serious changes, the first of which, though the trial magistrae seems to have misdirected his mind when assessing sentence for it of only 12 months' imprisonnient falls within the scope of the first schedule to the Minimum Sentences Act No. I of 1972. The appellant all along has categorically asserted that the complainant was his girl friend living in an adulterous. association as she happened to be somebody's wife and this assertion in all material ingredients has been fortified by the evidence of Hassani s/o Simba (P. w 5) who among other things stated: "Mariam d/o Nangi and the accused are friends, the accused is Mariam's paramour. They have been friends for a long time.0 Surprisingly against the weight of all this over- whelming evidence on this issue the complainant has categorical.y denied o. reütci -.-dthe existence of the said adulterous associatin between theme She has not either elaborated why all over a sudden the appellant should have decided to attack her with the knife. Be that as it may I feel inclined to think that the complainant's attitude in the lower court as reflected in the record of the court below leaves a lot to be desired as to her creditworthness as a witness,, It could as well be her desire to frame up the appellant in order to revenge on some misunderstanding that migb.t have developed between them in the course of their adults: Qua corinectione The appellant has not either elaborated the details of their association froii which perhaps the lower court could have had more facts to base its findings of fact of the alleged offences but I must add it was the duty of the Prosecution to prove the guilt of the accused (appellant) beyond all reasonable doubt. The complainant havingbeen detected as a dubious character and her testimony having not been coroborated by any other independent evidence, as I have indicated above,. I would feel hazardous placing too much reliance on her evidence as to the identification of the appellant as her assailant. This shaken credibility of the complainant as a witness naturally would result in casting a substantial doubt in the Prosecution case and in consonance with one of the canon principles in criminal trials such a doubt •must be resolved in favour of the accused person Accordingly, in the instant case, it is so resolved with the result that the appellant must be found not guilty on both counts. In the final result I will allow this appeal, quash convictions and set aido the sentences imposed thereon and orde the appellant's immediato release unless he is detained for some other lawful cause. .13 ../3 Delivered in Court a Dodoma this 23rd day of January 1975 .1 I! LA- E. A. IViwesiumo Aj. Judge For ReDublic: Mr. W. X. Mbilinyi, S.A. Absent,