Ndonu Mnyakangu vs Republic (Criminal Appeal No. 279 of 1977) [1978] TZHC 276 (17 April 1978)

IN TEE IIH COUR OF TA NZA N I A • 0 . • AT DODOMA APPELLATE JURISDICTION . . . . CRIMINAL APPEAL NO. 279 OP 1977 .. ORIGINAL CRIT4INAL OAE NO. 1.39 OF.1976.OF THE . DISTRICT CORT OF DODQMA . .. NDONU I'INYAKANGU •.............. Appellant THE REPUBLIC .....,........• Respondent JUDGMNT J0NATHAN. 3 In the lower court the appellant was the third of five accused persons charged jointly with the robbery of 110. head of cattle and 5.goats. All theother accused were acquitted due to lack of proper identification at the time of

the theft.. The appellant on the other hand,was convicted as.
charged and given the minimum sentence, against which he has.
petitioned this court. '-
PW.'l,the complainant,on the relevant day appears to
have be.engrazing.his big herd, when many people set ,upo
him, beat him up,tied him up,.and blindfolded him. They thereafter
drove off as many as 110 head of cattiean&5 goats. An hour -
or
,
so later,PW. 2 ppears to h ave heard his alarm and corio to
the scene to und.o' the ropes tying him to a tree. They made
a search,. .±' or the catUe but to the date of he tearing 'only
two of.. them had been found.. That this happened has no •.
dispute-at-all.. It was then the prosecjtion case that the..
perpetrators of that incident were the appellant and the. f our
others. . . . . ...
As very fairly and helpfully submitted by Mr. Alimwike,
for the Republic,the evidence of identifict ion on. which the
appellant's conviction was reached was glaringly i.satisfactory.
It was the identification by the complainant oldman alone.
According:, to him two people whom he . identified as the appeUant
and one LAURENT, himself not one of the accused, held his hands
"from behind", tied them up together in that position,and then
tied him to a tree.,where they also blindfolded #im with a piece
of cloth. In the meantime several other people, including the
other four accused, drivin g away his cattle. On such
evidence alone the lower court convicted the appellant.
.../2

It would seem that th'obbe±s. had '•',T±hily approached the complanan' whei. they , tied up his hands together at the back, the idea. being he .should not recognise :them. That they were out to ensure they did not 1" T'Ythe 1r identit they went on .t a blincç4 The appiiant' was himself a neighbour imown to him1 and he would have had every reason to guard against been recognised'bythim. Yet, however, the complainantayshe recogniedhim;J:ga1nst'this claim it is; however to be observed firstly, that he told PW,,2 that he had identified the twQ, uipri s-Oñ by'v"ice, 'secondly, that, although the appellant, as alrea.dy sti:ed, was hisneighh.our. he was not looked for at his hOuse ar ny where cle and final270 that the decision to arrest him was nO; reached until about 1 0 days later.. The only inference to draw from all this is hät the compla.nant first not clear who the iob.bers • ere and only later did he. think, 'for ,rèsons 'which ar e not t hown, that they must have iluded the appellant. In the ppel,lantls ' own deferOewhich.finds •'upport jjj the account. of Pw,3 -ho sashe ws one of those whO answe'ed the'alarm and.assisted in lookingfor the cattle,. This in ielf would aise, considerable doubt if he bad been among the robb erC.: , • The learned resident magistrabc failed to warn himself

• the danger of convicting on evi:nce f,'an only' eye witness. 'He however fb'md the cc.r.:plainant to be a'ci'edible witness. As however indicated above, e could hardly be regarded as a reli!ble witness in the face of the' o bvious unfàvourable circumstances for idnti:•'ying the robbers,md in order to frvict there'asnee1 fo. corroboration Ti.ere was absolutely no suppting evidenc and the appellantlike the other dbctised ., oug1t to have been 2cq,uitted. Acbordngly the appeal is allowed and it 1s o'dert.l.he be forthwith released from custody. . •. Delivered in open court this 17i t''y cf pril, 1978. P.M.'J onthan, JUDGL