Rioba v. R. Crim. App. 123-M-70; 11/5/71; El-Kindy Ag. J.

Rioba v. R. Crim. App. 123-M-70; 11/5/71; El-Kindy Ag. J.

The appellant was charged and convicted of shop-breaking c/s 296(1) of the Penal Code, Cap. 16. His conviction depended on the identification of a single witness (Ahmad) who claimed that he had seen the appellant outside the house broken into when he (the witness) had gone to attend on alarm.

Held: (1) “The learned magistrate accepted the evidence of Ahmad without reservations, but he failed to consider whether the circumstances were such that Ahmad could see clearly that night, and did not advert his mind to the possibility of mistake on the part of this witness. As it has been held in the case of RAJABU s/o MHANZA. v. R. 1968 H. C. D. 102 while a fact could be proved by testimony of single witness, this did not lessen the need for testing with the greatest care the evidence of such a  witness respecting identification, especially hen it is known that he conditions under which the identification took place were far from ideal. The learned magistrate’s attention is directed to this decision and also tot eh case of ABDALLA s/o WENDO c. R., 20 E. A. C. A. p. 166. In this case, the learned magistrate did not consider whether the said witness could have seen. No evidence was led as to the conditions either. His evidence as I have already stated, was not properly and carefully tested. In the circumstances, it could not have been said that the evidence of Ahmad was reliable.” (2) Appeal allowed, Conviction quashed.