R. v. Donald Crim. Rev. 27-A-71; 26/7/71; Kwikima Ag. J.

 

R. v. Donald Crim. Rev. 27-A-71; 26/7/71; Kwikima Ag. J.

The accused was convicted of burglary and robbery. The conviction depended on the identification of one witness, the complainant who testified that when the accused was preparing to have sexual intercourse with her after braking into her house at about 3.00 a. m., she was sable to se and study his face and to recognize him as a man who had frequented her pombe shop. Accused set up an alibi as a defence but the trial court disbelieved him. In Revision.

Held: (1) The only issue before the trial court was whether Zainabu assailant was identified beyond reasonable doubt. There was no other witness besides Zainabu to identify the intruder. It is dangerous to convict on the evidence of a single identifying witness and a trial

            Court must warn itself (R. v. Chantigit 1970 H. C. D. 343). In the present case the learned trial magistrate did not warn himself of the danger of convicting upon Zainabu’s evidence however creditable she may have appeared to be. A tougher test than credibility had to be applied before her evidence could be the basis for a conviction. In the case of Abdallah Wendo v. R. (1954) 21 E. A. C. A. 166 it was stated that; “Although subject to certain exceptions a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of such witness respecting the identification especially when it is known that the conditions favouring identification are difficult. In such circumstances, other evidence, circumstantial or direct, pointing to guilt is needed. The learned trial magistrate did not point out any circumstances tending to correct the appellant to the crime. The record itself is bereft of such circumstances and the learned trial magistrate would have been hard put to it had tried to took for them.” (2) [Referring to the disbelieving of accused’s evidence of alibi]. “This was misdirection. An alibi need not be proved by the accused (R. v. Rutema Nzungu 1967 H. C. D. 445, Morison shem CR 1968 H. C. D. 417, Leornard Aniseth v. R. 1963 E. A. 142). It is therefore wrong for a trial court to reject an alibi because it disbelieves the accused and his witnesses. From what little evidence of corroboration which the court had before it, the alibi was quite capable of raising a reasonable  doubt I his mind of the court had it properly directed itself to the law. Here was and accused whose identification left a lot to be desired. What evidence was there to exclude the possibility of his being at Dodoma or anywhere else for that matter when the crime was being committed? These questions could not be resolved by believing or disbelieving any particular witness. The prosecution evidence had to meet the tests laid down in law and in this the failure of the prosecution was abysmal. There was insufficient evidence on which to convict the accused.” (3) Conviction quashed.