19740710 TZHC Mwanza

L'4r e --- IN THE HIGH COURT OF TANZANI& .: . 'AT' M1NZA / APPILLATE JURISDICTION / PlC-H COIJRT CRI?'INL 1'PPE'L NO0 37 c/F 19742? / ORIGIN1\L CRIPIINi r CSE NO0 378 OF {'73 JUL 174 OF T-1 E, DI TRICT COURT OF BUROBi. DISTRICT P-aU9BA BEORF C0 H0 NS,1ATI Esq0, DISTRICT iGIS1R1E PJ'Sh11I NDET 3ULA 0 JIPPELLNT versus T HE REPUBLIC 0 0 0 00 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT • '. JUD G E M E N T The appellant Pask'li Ndetabula was charged and convicted on thre èounts in the'Resident'Mgistratets Court at F3ukoba. . In the first count for which he was sentenced to two years imprisonment he was ch'rged with arson c/s 0 319 of the Peflal Code0 In the second count for which he was sentenced to imprionrnent fr one year he was charged with. assault causing gricvous harm c/s0 225 of the Penal Code0 These sentences were ordered t un concurrently0 I think I should say at the outset in agreement with the views of the learnd Sta ]'ttorriey that these sentenes wee lenient in the extreme0 The trial'Maistrate gives th impression that hd is completely unaware of the principles of sentLncing0 The seriousness of the offcnce charged in the third count is qui'tc obviously more than that charged in the second • c'ont,' but the trial Ma -3ist.rate never gave any thought to thi.s aspect of the case, and awarded similar sLntences for both counts 0 What is more the offend'C of arson dhared in the first count has absolutely, no connec- tion with the offc.nces charg..d in the second and third counts The offonces • - in thesecond and thd ir counts would appear to have been. commjtt'ed wantonl sb' that in the circ'umstances there was no' justification for t.he.. sentences .. to. be made 'ddñdurrent. The trial Magitate is requested to take the sentencingasbect of his duties as seriously as he other.part of conducting .:t.he trial 0 A remarked, his approach in. this parti . cular.case-was extremely injudicous0 ..., Reveting now to the substantive aspct.of'theappeal, the appellant 1s'6ppeCling against his conviction on all the three counts .andhas-.put foward a number of complaints against the judgment of..the lower Court0 "The'case against the'apellaht as led in the lower Court, shows, that on th'dayor rather night'in question, that is. to say 13th or 14th March,. 1973, the conolainait ? IDenedict, woke up in the middle of the night and found his house ablaze 0 As he was busy removing his belon9lnqs from his hlazing -house he saw the apeilant outside the house apd' when the. appellant saw him, the appellant said, "You hive come out let me finish you0t' There- upcn the appellant all . egedly threw a panga at him and cut his finger. The complainant Benedict ren away towards his moth€.r's house crying out about his assault On hearing her son's cries, the comn]ainant's mother, one Mkanywisa(P0102) came out of the house and according to herevid nce she saw the appellant who n seeihg her said that he would,. kill her as he had some differences with her, son0 Thereupon. he. proceeded to attack Mkany1sa with a panga and slashed her on the 'head 0 Mkanwisa herself said that she recognized the appellant because of moonlight0 Both these witnesses, that is to say, the complainant Benedicto and his mother, stated that. the only grudge they knew between the complainant and the appellant was an ol,d dispute for a shamba' between the complainant and the'appellCnt's.aunt0 During the trial' in the lower Court, the trial Magistrate.accepted the evidencL of these two witnesses holdine that the apoellant haa been sufficiently identified, found him guilty, convicted him and sentenccd him as indicated0 p In his mernorndurn f a 1 T1 , the appellant has attacked the tri Magistr:xte's judgment, that his findings were based on the unreliable evidonce as given by the complainant and his mother and that the evidence led by the prosecution and as given by different witnesses bore sufficient contradictiohs as tornake'tn' Ovidence of the complainant and his mother completely unreliable0 I will now deal with this aspect of the case. It is quite true as stated by the- appellant that there were material contra- dictions in the prosecution case in particular between the evidence of the complainant(PW,1), his mother(PW2) on the one hand and that of PW03 thc local ccl]. leader and another witness Vedasto on the oth.r hand, for according to the complainant and his mother, they clearly recognized the appellant at the scene. They did so first because there. Was sufficient moonlight, secondly because there was sufficient light from the fire, thirdly because he talked t. them and fourthly the way he was dressed, that is to say the appellant was dressed in a military ovarcont. This evidence of clear identification of the apellant at the scene by. the complainants is in direct conflict with evidence givi n by th cell lcciuer and iedasto. The cell lt.adcr(t'0tJ04) said that when he arrived at the scne, he saw thi' ównét of the house - that is to say the complainant Bendict w'herdUpon Benedict told him that he suso€cted the appellant This would indicate that the crnplainant was not positive aciout the a.npellant's involvmnt in this crime, and when the cell loader met the compiainant' mother, he saw that she had been injured and Shettold him categthrically that she did not know her assailant. . If.the complainant and his mother wbre so posi- tive about the appellant's, identity, one may ask why they appeared s.ö hdsitant to mention him hefor the cell leader when he arrive-dat the scene0' There are other considerations to hetaken into account0.." These were the allegations made by the appellant in his d fence0 The appellant gave evidLnce in his own defence. In his Lvldence he- said that iihile- he Was in remand ahother house of,.the complainant was burnt down6 That when he was released on cail the cmnlainant was furious so he went to his old parents and threatned to burn their house0 This threat was reported to the polic, Whn this othLr house of the complainant was burnt down the complainant named the apellant's brother as the culorit. These allegations were not challenged and if it is accented that another house of the complai- nnt was burnt down while the aepellant was in remand, this would 'tend to lend support to'the cell leader's evidence that the complainqnt"is unpopu- lar in the village and therefore a constant target of criminal'act0'" How- ever, the appellants alibi that he was nowhere near the scene on the night in question is supported not, only, by his wife but by his 'ow.P colleagues in what is known as the "village security guard"0 ' These. are C'hriistopher Nyanga(D0W.2) and ipolinri Magaani(D0W 3) These two witnesses who gave "'evidence for the defence st,cited that on the night in question they were on patrol duty in 'thd village and in accordanco with her habit they cc d at the anpellant's house at afew minutes past midnight0 Theycal'le'd. out his name and he responded and assured them that everythin.g was alright. Thereupon they went on with their guard duties in the villagoa This is exactly what the appellant said in his evidence and there was aholutely no reason aild none was stated by the trial Magistrate why these witnesses should have been regarded as untruthful0 What is more the appellant 'annears to ne a more trustworthy member of the- village community t•'.the conplai- nant, for the reason that the appellant is. a member ,of 'the village security guard whereas the complainant is. a former convict of theft. Therefore if it is a question of the word of the appellant against that of the complal- 'nant I would be inclined to accept the appellant's word'. In fact the appellant advanced a more.convincing motive for the complainant.makin' false allegations against him than that advanced by the complainant for the apeellant burning down his house0 The motivp advanced by the drosecution against the appellant was that his aunt was involved in the shamba dispute with the complainant. This appears to me too far fetched as the appellant was not directly involved. In fact it is in evidcnce .that the appellant does not even live with his aunt. On the other hand the apoellant advanced what I call far more cbnvinciri.g motive for the complainant to lie against him. The appellant said thai when the complainant was chrged w±ththeft for which he .wths convicted, the compiaiiant had approached him and asked him to give evidence favourable to him0 The appellant refused and this has chilled their relationship ever since, 0•. L Therefore taking all these points which were not adverted to and considered by the trial Magistrate who only bluntly accepted the evidence of the complainant and his mother I am not sure whether if he had done so, he would have arrived at the conclusion that he did0 Indeed I doubt whether ho would and my doubts are strengthened by the remarks he made in the last paragraph of the judgment which were to this effect and I quote: "The accused's alibi does not help him anything0 May he he and his wife when they say that the accused never went out after his return from safari they are trying to save the accuseth It is possible he went out at midnight and committed the.offences. The villages are two miles apart and the ccused could have easily travelled to the scene and come back in his homes I therefore conclude that it was he who fired PW01's house unlawfully and wilfully and also assaulted him0" It is clear from this passage that the trial agistrate could not have made these possibilities if he had addressed his mind to the points I tried to raise in this judgment0 In the first place the trial Magistrate should understand that-an accused's guilt is never proved on possihiliies, it must he proved beyond reasonable doubt0 Secondly if the trial agistrate -had read the evidence as recordeproperly, he would have realised that at quarter past midnight, the appellant was in his house when the village security guards visited him and that the village security guards -did not visit the appellant at 10 p0m0 as stated by him in his judgment During the hearing of this appeal, the learned State 'ttorney -did not advance the prosecution case any further as he simply kept on pressing the credibility of the complainant and his mother regarding the identifi- cation of the appellant0 As I have tried to point out, the identification should have been considered in greater detail in the light of the problems I have raised in this judgment0 I am not certain whether if this had been doneothe result would have been the same0 These doubts must be resoli'ed to the appellant's favour0 - - For these reasons, I allow this appeal, quash the appellant's conviction, set aside the sentenes with an order that he should be released from prison immediately - unless he is otherwise lawfully held0 Delivered in Court at Mwanza this day of July, 1974 MWAN ZA L. MFAIILA JUDGEO - /rnsk.