Death row convict freed over doubtful identification

 

Augustino Netto Ocholla has received a second chance to live.

He was sent to death row for using violence to rob Sh2,530 while part of a gang.

The Court of Appeal on July 21 cleared him of the charges on the ground that he was not properly identified in relation to the crime.

The offence was committed in December 2012 in Bondo, Siaya county, where, according to the evidence, Ocholla was with two other men armed with metal rods and pangas.

They accosted three different men, robbing them of Sh400, Sh1,700 and Sh430 respectively. They injured their victims.

He has been in custody since 2012. His appeal failed at the High Court in 2016.

Ocholla’s co-accused were lucky at the High Court where their conviction and sentences were quashed. His was upheld.

The weak link in Ocholla’s case that paved the way for his freedom at the Court of Appeal was doubts over his identification.

His alleged victim had testified that he identified the man using flashes of lightning that illuminated his white shirt.

But the judges argued that it was uncertain the man could easily identify Ocholla using lightning and on the premise that he had seen him earlier in the day wearing a white shirt.

“We are not convinced that the appellant’s identification by lightning was safe in the circumstances. We think, with respect, that the learned judges ought to have approached with great caution and circumspection, and keenly tested the reliability of the identification evidence to establish whether the conditions at the time favoured correct identification, free from the possibility of error. We are not persuaded that the transient flash or flashes of blinding lightning, without more, lent assurance that the witnesses could not have been mistaken,” the judgment reads.

“Moreover, we very much doubt that recognition of the appellant by the mere fact of the complainant having seen him earlier in the day in a white top was sufficient.”

The judges argued that any criminal prosecution rests on accuracy in identifying the suspects, and that there must be no doubts or errors that can accrue from it to ensure that the right person is the one held accountable for the mentioned crimes.

“Bearing all these principles in mind, we have no difficulty arriving at the conclusion that the identification of the appellant was not free from error and that, in consequence, his conviction was far from safe,” the court concluded in ordering the man freed.   BY THE STAR