Zebedayo Mganga vs Republic (High Court Criminal Appeal No. 90 of 1982) [1982] TZHC 361 (27 October 1982)

AT iTI J\Ifil APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 90 OJ!' 1982 ORIGINAL CRIMINAL CASE NO. 303 OF 1980 OF THE DISTRICT COURT OF MUSOMA DISTRICT AT lVIUSOMA - BEFORE F • S. MSHOTE, ESQ', RESIDENT MAGISTRATE ZEBEDAY O I\IIG AliJG A • • • • •••••• • ••• ·,. •., • •• ·• • • ••••• \ • • • APPELL.ANT (Original Accused) versus: THE REPUBLIC e •• e • e • • c • e e t • • e • • e e O e e • • e e e e e t t t t • • .RESPONDENT , (Original Prosecutor) JUDGMENT M'UNYERA, J;:: The appellant was convicted of causing grievous harm and was sentenced to 2 years imprisornnent'J It is in evid€nce that the appellant and his wife ( who was the seoond accused) were the tenants of the complainant for a long time- It was stated that during the · night of 30/9/80 the appellant's wife knocked a.t the complainant's room; She said they (the appellant anct herself) were being troubled by thief or witch during the ·whole night' · The complainant enquired if the appellant was there'~ The second accused said he was:' The complainant opened the door and went out·~ Surprisingly she sBJN a man whom she recognised as the appellant: He had a torch which he Ii t and armed with a panga': The complainant remarked to the second accused (appellant's wife) as to viby she was calling her husband a thief': The second accused suddenly ran into the complainant's room and loclced it from inside'~ The complainant remained outside with the appellant~' It was at this junctui'e the appellant attacked the complainant and cut her · with his panga'; She raised an alarm and neighbours came to her ·help'~ She mentioned to them that it Wal;! the appellant who injured her'' She was sent to hospital and the appellnnt and his wife :Magda were jointly charged' In his defence the appellant stated that it was true that someone was troubling them by knocking at their door·: Re decided to catch him'~ He went out in search of the supposed thief'~ By then the complainant had opened her room and came out: 1he appellant went to the T-icini ty of the house to look for the thief'~ Suddenly he heard an alarm from somewhere near the road (not in the house)': 'He went to see and found the complainant lying on the ground bleeding'~ He also found one Patroba (DWl) at the scene·~ The complainant 'told him she had been injured by an unknown person who had run away'~ "The trial magistrate he3.rd the defence but was unable to accept it~ He convicted the appellant (and his wife who got a conditional discharge and has not appealed) J In his memorandum of appeal he argues that the evidence of identification of the appellant was not watertight since it was given by a single witness ( the complainant)· and that it was during the night when the oondi tions were unfavourable';' In his judgment, the learned trial resident magistrate was aware of the danger of convicting the appellant on the evidence of a single witness vvhen the conditions for identification were unfavourable After considering the evidence he _pam.e to the conclusion that in this case the co)1di tions were favourable·; _First it vn:i.s undespu ted that the appellant (and his wife) has bee~ the complainant's tenant for a long time prior to the incident': That when she went out of her room

.. 2 and encountered the appellant, he was flashing his torch in the house'~ This helped the complainant to recognise him, something- she did very easily since he was not a new .-comer to her'~ '.rhe appellant .. stated that he was looking for the thief around the house;~ Then he heard an ala.rm in the push and went to see arid found it was the complainant alr.oady injured.'~ There wo.s no reason for the complainant to run into the bush·; Her story that it was after the appellant~ atto.ced her in the house tho.t she tried to find a ho.ven, wo.s reo.so:nnble' The firsi; move was to run back into her room': She found it locked from inside·: She then ran to o. neighbour,J Ano.sto,zia, but she fainted before she arrived· and fell where she was found'~ On tne whole I don 1 t finl any faiD.t,vith the trial mngistrate, 1 s finding'~ ·The conviction was justified': The sentence of 2 yero:s is not manifesf;iy excessive and is confirmed~ The appeal is dismissed in its entirety: !-IN/ ANZA HIGH COURT 27TH OCTOBER 19§2 F. A.,~A JUDGE