Facts
The Director of Public Prosecutions appealed to the Court of Appeal of Tanzania against the decision of the High Court of Tanzania at Musoma acquitting thirteen persons who were charged with murder. E The learned Trial Judge's basis for acquittal was insufficiency of evidence of identification of the deceased's assailants from a huge crowd characterized by commotion of the moment and a charged atmosphere. At the trial, all the respondents raised the defence of alibi which the Trial Judge accepted. At the preliminary hearing all the respondents told the High Court that they were elsewhere at the time when the murder of the deceased was committed. Six respondents gave particulars of their alibi the rest did not. The appellant argued that the Trial Judge was wrong to accept the defence of alibi because no notice of intention to rely on alibi was given to the Court and the prosecution in terms of s 194(4) of the Criminal Procedure Act, 1985.
Held: (i) There was in this case sufficient notice of intention to raise the defence of alibi within the meaning of section 194(4) of the Criminal Procedure Act, 1985, in respect of the 6th, 7th, 8th, 10th, 12th and 13th respondents.
(ii) Although no form of the notice has been prescribed the notice must furnish sufficient particulars of the alibi and the notice must be given before the main hearing.
(iii) In respect of the rest of the respondents the Trial Judge had discretion to apply the provisions of subsection (6) of s 194 of the Criminal Procedure Act, 1985, and give their alibis some weight.
(iv) Given the uncertainty about whether the deceased was already dead when he was set afire I and the other materials in the record,only those people who assaulted and burned the deceased or those who facilitated or encouraged the assault and the burning could be convicted of murder;
(v) Given the huge crowd, the commotion of the moment and the charged atmosphere, reliability of the identity evidence of the three witnesses was doubtful.
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