Sakarani v. R. Crim. App. 644-M-70; 27 /11/70; Mnzavas Ag. J.

Sakarani v. R. Crim. App. 644-M-70; 27 /11/70; Mnzavas Ag. J.

The appellant and another accused were jointly charged with and convicted of attempted robbery c/s 287 of the Penal code. The appellant testified that on the night of 14/4/70 his house – cum-shop was burgled. The burglers ran away on being threatened by a toy-pistol by the appellant leaving behind a Yellow Sandal. The appellant’s wife claimed that she heard the voice of the second accused during the attempted burglary. Yet another witness testified that he met appellant when the former was on his way to the latter’s house in response to an alarm. This witness added that he recognized the appellant because there was moonlight and that appellant called him by his name.

            Held: (1) “The Question now confronting this court is whether the magistrate was right in basing his conviction on the testimony of a single witness regarding identification of the appellant. In Thairu s/o Muhoro and two others vs. Reginam 21 E. A. C. A. page 187 the Court of Appeal said – “To convict an accused, relying on an identification by a dingle witness is dangerous, but a conviction so based cannot in law, be regarded as invalid.” The court in upholding the conviction went on and said – “In the present case the learned trial Judge very carefully directed himself as to all the circumstances and came to the conclusion that neither P. W. 7 nor P. W. 8 could have been mistaken in their identification.

            In an earlier case ABDULLAH d/o WENDO and another Vs. Reginam 20 E. A. C. A. Page 166 the Court of Appeal had this to say – “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 he conditions favouring a correct identification are difficult. In such circumstances other evidence circumstantial or direct, pointing guilt is needed”. In yet another case  CHANDE SAID Vs. R. Dar es Salaam Cr. Appeal No. 216/63, Biron J. said – “Where the prosecution relies on the identification of the accused by a single witness, the court should consider not only the credibility of the identifying witness but also the possibility of the  witness having made a mistake.” (2) “In the present case the district magistrate believed the bald statement of Antony that he recognized the appellant in a moon-light. He does not say how he recognized the appellant in a moon-light. He does not say how he recognized him apart from saying that he (appellant) called him by his name. I fail to see how a person who had just committed a serious offence could have behaved in a manner which could have led to his immediate identification and arrest.” (3) Appeal allowed, conviction quashed.