R. v. Chamtigiti Crim. Sass. 199-M-70; 31/8/70; Mzavas, Ag. J.

R. v. Chamtigiti Crim. Sass. 199-M-70; 31/8/70; Mzavas, Ag. J.

The accused was charged with attempted murder c/s. 211 (1) of the Penal Code. it was alleged that the accused had a quarrel with his brother the husband of the complainant over some cattle which had been used as dowry by the brother in marrying the complainant. The accused asked his brother to divorce the complainant but he refused. Whereupon the accused swore to separate them collected an arrow and shot the complainant in the chest. The complainant was the only witness who saw accused outside the house holding a bow. The accused set up the defence of alibi that he had at the material time been with his girl friend.

            Held: (1) “I heard the testimony of Webiro (P.W.1) the complainant. From her testimony and demeanour I was left with an impression that her evidence may well be true.

of what happened on that night. But I must warn myself that there is always a danger to rely upon an identification of a single witness although a conviction so based cannot be, in law, said to be invalid. In Thairu s/o Muhoro and others v. R. 21 E.A.A.C.A. page 187, a conviction was based on the identification of one witness. But that case can be clearly identified from the present one. In that case the identifying witness had to identify the prisoner from other people. The fact that he identified the prisoner and left the others showed that h was definite that it was the prisoner who struck him. In the present case the complainant was faced with the problem of identifying her assailant soon after a quarrel between her husband and the accuse. There was no doubt had-blood between complainant’s husband and the accused. But from complainant’s answers on cross-examination it is clear that the accused was to lose if the complainant was t die. What the accused wanted was for the complainant to be divorced so that dowry paid for her marriage could b refunded.” (2) “Again we have evidence of the let’s diary which shows that there could not possibly have been moon-light on the 12/4/69. In CHANDE s/o SAIDI v. R. Dar es Salaam criminal Appeal No. 216/63 Biron, J, had this to say – “Where the prosecution relies on the identification of the accused by one 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.”  We have the testimony of Wambura (D.W. 2) who told the Court that one Saturday in April last year the accused spent a night at her place. The 12/4/69 was a Saturday. This testimony is not in any way challenged by the prosecution. From the evidence before me there can be no certainty as to who was the person that shot the complainant with a poisoned arrow. The matter becomes all the more difficult because the alleged arrow could not be produced in court because the person who should have produced it, (the husband of the complainant) has since died.” (3) Accused acquitted.