Eliya and Others v. R. Crim. App. 90-104-Dodoma-71; 15/1/72, Mnzavas, J.

 Eliya and Others v. R. Crim. App. 90-104-Dodoma-71; 15/1/72, Mnzavas, J.

The seven accuseds were charged with and convicted of robbery with violence c/ss 285 and 286 of the Penal Code and each sentenced to five years imprisonment. Save for the first and third appellants the other appellants were also to suffer 24 strokes corporal punishment. The fact as found in the lower court are that on the night 26/10/70 a gang of thieves burst into complainant’s house armed with pangas and suddenly started attacking the complainant and his wife (PW.3). Complainant (P.W. 1) related to the court that he was cut with a panga in his forehead and on his arms. According to the evidence of Mariam (PW. 3) she was hit on her forehead with a stick and cut twice on her right hand. Both the complainant and his wife told the court that they saw the first accused clearly as he was the one who took active part in assaulting them. They also related to the court that they recognized the

Other appellant because it was a moon-lit might and that the complainant had a torch which he flashed at his attackers. All the seven accuseds were neighbours of the complainant. The only evidence which corroborated complainant’s testimony and that of his wife was the evidence of Polina (P.W. 2) who told the lower court that he saw the 1^st and the 7^th appellant as they were departing from the scene of the crime. There was no evidence implicating the other accuseds with the offence apart from the words of the complainant and his wife. The prosecution case wholly depended on the identification of the appellants.

            Held: (1) “The entry of the bandits in complainants home-stead and the subsequent assaults on the complainant and his wife must have left them in a confused stated of mind and as such it was extremely unsafe for the trial magistrate to have totally relied on the testimony of the complainant and his wife. Both of them were in panic and had received serious injuries at the time they alleged they saw and recognized all the seven people. The learned magistrate should have looked for corroboration of complainants’ testimony in connection with the identification of each of the seven accused before entering a conviction against all of them …. The testimony of these two witnesses needed confirmation evidence before it could be relied upon as basis of conviction. Looking at these appeals in the light of the above the only convictions which seem to be in harmony with the evidence are those in respect of 1^st appellant and 7^th appellant. It would in my view be unsafe to support the convictions of the other five accuseds.” (2) In the event the appeals in so far as the 1^st appellant and the 7^th appellant are concerned dismissed; but appeals of the other five appellants upheld.