Meda s/o Mgazi v. R., Crim. App. 36-DDM-72, 11/7/72.

Meda s/o Mgazi v. R., Crim. App. 36-DDM-72, 11/7/72.

            MNZAVAS, J. – These are appeals from the decision of the district court of Manyoni in Criminal Case No. 175 of 1971 in which the three appellants were jointly charged with and convicted of cattle theft c/ss 265 and 268 of the Penal Code …. The following facts are not at all in dispute. On the night of 27/9/71 – 28/9/71 10 head of cattle, the property of one William (P.W. 1), were stolen. An alarm was raised in the morning when the theft was discovered and villagers and neighbours participated in searching for the stolen cattle. It is also not seriously in dispute that the searching party divided itself into three groups. One of the groups included P.W. 1, P.W. 2 and P.W.4. According to the evidence, after this group had walked for some distance in the bush towards Bahi area the group spotted three people hustling ten head of cattle away. P.W.1, P.W.2 and P.W.4. Related to the court that they recognized the three people as the three appellants. They also testified to the court that they identified the ten head of cattle as those of the complainant (P.W.1). All the three appellants gave a defence of alibi and brought witnesses in support of their defence. The learned district magistrate in his judgment believed the prosecution case and convicted the appellants as charged ….. In the present case the question is whether there was sufficient identification of the appellants by the three prosecution witnesses as the people who were seen hustling the ten head of cattle; and whether the cattle belonged to P.W.1, the complainant.  

            The facts of this case are rather odd. On 28/9/72 the three prosecution witnesses saw three people hustling 10 head of cattle away. They alleged that they recognized the three people as the accuseds. They attempted to arrest them but they were threatened by these people with lethal weapons – (bow and arrows and spears) and they retreated. They did not raise an alarm for more help from the villagers. Instead they telephoned to the police. The police took about two weeks to investigate and arrest the accuseds. They were arrested but not one head of cattle was found with them.

            There can be no doubt that the convictions of the appellants were wholly based on the testimony of P.W. 1, P.W. 2 and P.W.4 who related to the court that they saw and identified the three people as the accused. My reading of the evidence of these witnesses before the lower court does not show how they identified the accused as the three people they saw driving ten head of cattle away. They all merely said that they recognized the three people as the accuseds.

            As it was held in LUDOVICO S/O KASHAKU v. R. (1967) H.C.D. n. 194 it is unsafe to support a conviction on the bare assertions of witnesses that they had recognized the accused. There ought to have been evidence by the three witnesses showing how they identified the appellants. A description of their attire and such other evidence in support of their testimony would have been of great help.

            As the evidence stands the trial magistrate merely accepted the bare statements by the three witnesses that they recognized the accuseds.

            [The court then discussed certain other undesirable features of the case and allowed the appeals].