Samson Bagazora v. R., Crim. App. 471-M-71, 17/5/72, El-Kindy, J.

 

Samson Bagazora v. R., Crim. App. 471-M-71, 17/5/72, El-Kindy, J.

The appellant was convicted of arson c/s 319(a), Penal Code, in relation to the burning down of the complainant’s grass house. He was convicted on the complainant’s evidence alone. She alleged that on the night in question the accused had knocked several times at her house, identified himself as

“Samson”, and asked to be admitted. She said that she recognized the voice as that of the appellant. She then opened a window and in the light of her torch said she saw the appellant setting fire to the roof and running away. An alarm was raised, but no attempt was made to arrest the appellant that might.

            Held: (1) The evidence which tended to convict the appellant with the charge came from the complainant alone, and the issue involved was one of identification. As it was said by the Court of Appeal for Eastern Africa in the case of Abdalla bin Wendo and Another v. Reginam, 20 E.A.C.A. 166 at 167. “Subject to certain well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness can safely be accepted as free from the possibility of error.” This requirement was accepted by this Court in the case of Rajabu s/o Mahaza v. R.  (1968) H.C.D. n. 102. This is therefore binding on the trial court in this case.” (2) “With due respect to the learned trial Magistrate, the evidence …. Of the complainant was not of such a nature that the trial court could safely accept it without some other evidence tending to confirm her story and establish the guilt on the appellant beyond reasonable doubt …. It is not in keeping with the conduct of an arsonist to (a) knock at the intended house, and (d) stand in such a way that the complainant could see him. This is nearly incredible. And the non-arrest of the appellant immediately after the incident and the infrequency of visits of the appellant did raise further doubt on the credibility of the complainant’s evidence. It is for these reasons that the conviction could not be upheld and not because it was evidence of a single witness.” (3)Appeal allowed and conviction quashed.