na TZHC Mwanza 9

IN 1}T RIG-H COURT QP fAHZARIA J(•c J'_ at .Mwanza HIGH COURT CRIMINAL APPEAL NO. 139 oF:: 1972 ORIGINAL CRIMIW..L CASE NO. 248 OP 1971 ON THE DISTRICT COURT OP NZEGA DISTRICT AT NZEGA Before H. J.Jungombe Esq., District Magistrate SHIJASHIMBA ................... .........Appellant versus THE REPUBLIC ................................Respondent Charge Arson contrary to section 319(a) of the Penal Code. TTrnr!1T:Tn'wrn EL-KIIWY, J. - The appe11ar± SHIJA s/o SHIMBA was charged with and convicted of arson contrary to section 319(a) of the Penal Càde Cap 16 and he was sentenced to imprisonment for fifteen months subject to coifinja.tion by the High Court. He appealed against conviction and sentence. The appellant was not present at the 1ieaIing of his appeal as he indicatedthathe did not yTihto attend. The Respondent Republic was epresente:d by the iearnedSeiiör State Attorney Mr. MecIa. The evidence, which the trial court ccepted, proved that during one night Maganga s/c Tengi (Jil)., the complainant was asleep with his family in his house, when he was awaken by indications that his house was on fire. He said that he went out of his house and raised alarm.. He alleged that when he got out of his house, he saw accused (appellant) running away with a fire brand.." He ran after him and some neighbours joined him. It was alleged that as the man with the "fire brand" ran along, he dropped the "fire brand" and continued to run away. •I-Iowever 2 the group, which included 'the conlainant,Kishiwa (PW2) and Hunbi (Pw3) kept rnning after him. Kishivia said that he was the one who actually caught the running person and that the person turned out to be the appellant. The appellant was not clear in his statement of 'defence. He said that he did not burn the house of Mayumba i.e. the complainant.. That he had no cause to make .hin do so.. He disputed running.. He said that since 'it was nIght tine, it was impossible to see the running person and that the three prosecution witnesses told lies against him. The implication was that he was not the one although hewas arrested. '1 The learnedA Senior State Attorney subiaittcd that the evidence against the appe?lant was inconclusive and therefore the charge was not proved beyond reasonable doubt. He said that it depcndcdon whether the complainant did actually identify the person who he alleged, held a "brand of fire" and that it was the one he actually chased and who dropped the "brand of fire." In his opinion, it was doubtful that the persop they arrested was the one who had the "brand of fire" - the imp1cation being that it was possIble that they missed the culprit and held the appellant who happened to be there,. 1. -2- The appellant argued that it was not hisi who was outside the house with a "brand of ±ire and that if the complairant had boon asleep and was awaken as he alleged, it was impossible ior him to see clearly as his eyes by that time were weak to see a further distance end asked how the complainant could have soon and recognise the person as the appo11ant during those hours of his tiredness. lie sUbmitted that when he heard alarm, he went in the direction of the alarm as he recognised that the person who was raising alarm was the complainant, but on the way he net "these" people who turned to arresit him alleging that he was the one who had set fire to the house. He submitted that had the trial court allowed him to call his witness Llihanbo s/o Ndali the trial court would not have convicted all. The evidence did show that the complainant had been asleep before he woke up and immediately he rushed out of the house. I am not certain that in those circumstances that the complainant was ready to so well after having been asleep. The point the appellant was making, cannot be dismissed. It is possible that a person who immediately rises from sleep, may not be able to sac as clearly as he wold have liked. Secondly, it is not known how far the person with "fire brand" was from the complainant when the complainant saw hi:a or her. It scores that when the complainant saw lain or her, the said peron was in the process of running away • If that was the CC3C the likelihood was that the complainant would not be able to see the face of the person. He did not say which part of the porsonst body s -truck his oys cc Inc saw the person. Thirdly, it is also not known how strong was the light from' the fire brand if, any light at all came out of the 5 fire brand," in all the circumstances, it was unlikely that the complainant was in a position to recognise the person who held a ifir e brand" and who was running. He was the one who was running. He was the one who ran after the alleged person,but the alleged person subsccjuently threw away the fire brand it is not known whether the object was still or at all emitting any light. It is not known, as cvdence is lacking, whether those who kept on running after -this man had kept the man in sight until his apprehension. There was no evidence whether it was clerk night or not, so that it cannot be certain whether the conditions wore such that the running person before and after he had thrown away the alleged "fire brand could be soon and could he or was kept in sight until his approilonsiOn. The alleged "fire brand" was not even found. Hence, it was possible that in tile process oi the chase, tiae pursucro missed their target and instead came across tile appellant as the appellant alleged. There was no evidence to 5110w from which side Kishiwa and Huaribi approached the burning house. The likelihood was that the persons who responded to the alarm wont in the direction oi' the house of the complainant iron their respective sides, and if the alleged person had been soon running in the direction of the appellant, it was most likely that the appellant would be ouerried if he is not on the way as it seemed to have happened in this case. But this is far from. saying that the appellant was the one who did the act. There no ill•- will or grudge between appellant and complainant as he so rightly pointed out s He had nothing on this person to indicate or to connect him with tilO alleged offence apart from the doubtful evidence of the complainant. Humbi and Kishiwe. In all the circumstances, I agree that the evidence left a reasonable doubt as to the idcntity 01 the person who immediately ran away from the burning house of the complainant. The appellant allcged that ho was not permitted to call his witness Mihambo s/o 1Tdali. It is true that he was not allowed, b ut this was duo, entirely, to his own fault. I.When ho was asked if he had anr witnesses to call, he told the trial court that he wanted to "call all villagers at Ndcmbozi village," b ut ho would not give any names as he did in this appeal.