19740713 TZHC Mwanza

IN THE HIGH COURT OF TNZiNIJ • !T NNZ! HIGH' COURT CRIMINIL LPPLL No. 114 OF 1974 Original Criminal Case No. 564 of 1972 of the District Court of Goita District at Geita before F.D. Bikongoro, Esq., D.M. • SHILING1 ICLGOL . . . . . . . . . . . . a . . . LPP.LIJJNT versus THE REPUBLIC • . . . . , . • . . , HL'SPOIIDHNT CHLiG: Lrson c/s 319 (a) of the Penal Code. JUDGEMENT LUGLKINGIRi, hG.J.: The appellant was convicted, of arson contrary to section 319 of the Penal Codo and sentenced to three years' imprisonment. The facts were that on 14.12.72 between 5 and 6 o'clock the appellant found his wifc pounding maize at the homestead of one Nkoko Nd,amuhama. He beat her up and she ran away naked. Nkoko was present, looking on. Tho appel- lant then turned to Nkoko's three houses and set thcm on fire one by one. He next turned to Nkoko and chased him away. This was testified to by Sofia Wokurura (.w.i) and Wilfrida John (P.w.2). ThOSG women hoard the yells of the a -'-pc1lant's wife and rushed to the scene. They found the appellant still beating his wife, they saw him setting the houses on fire and finally chasing Nkoko. They raised an alarm and a multitude of people gathered. The appellant was on the SCCSC but he was not apprehended. The incident was also not reported to the Police until five days later. t the trial I'&oko could not he found to give evidence. He had apparently moved to another place. The appellant also said nothing in his defence, other than denying the charge, and he called no witncsoa. The question was whcth.:r it was safe to convict on the evidence of F.U.l and 2 clone. idmittadly, this case had some unusual fcctu.rcs. The failure of Nkoko to mekc any complaint or make himself available to give evidence was rather strange. The appellant submits in his apI)Oal that Nkoko was befriending his wifa and he decided to -tbscond in order to cover up the scandal. Ho also suggests that 1'Jkokc himself burnt the houses so that he could have a free 'time with his. wife when he was committed to prison. He further asserts that P.W.i and 2 were RkokOts relatives and submits that other witnesses should have been summoned to corroborate 'their story. !s pointed out earlier the facts of this c5C arc rather unusual. However, I can find nothing that could hvc induced the trial Magistrate to disbelieve the two witnesses. Lt the trial the appellant said nothing save denying the charge. His submissions on appeal must bc taken as a belated afterthought. Nkoko's behaviour of abscnding is not different from the behaviour of others who did not approhand the appellant on the spot and did not report the incident until five days la't:r. Nor is it different from that of the appellant who. had the courage to burn the houses in Nkokos presence and stay on while they wore burning down. It seems to me that there exists a complicated attitude amongst the spcioty in the area, an attitude of disregard for lw and order and an ettitudo of indifference to crime gcficrelly. This in turn makes it difficult for the courts to got all the evidence desirable but I would hasten and point out that it does not diminish the prosecution's burden of proving the case beyond reasonable doubt. This offence was committed in broad daylight. The appellant does not dCny that P.W.l and 2 wore witnesses to the incident. Thrc is also no reason why they should olcct to frame him. I am therefore satisfied that his conviction was proper. On sentence, it appears that the appellant was not given an opportunity to advance mitigating factors, although the trial Magistrate noted that the appellant was a first offender, The Magistrate also took into account the belief that the offence was too common in Gc'ita "where people are now and then oithor by drinking moshi or prolonged hatred they do not want to come to the authority to settle their problems and take the law in their hands". S I have often held that it is not a sound principle to cssOSs penalty on the prevalence of an offence - which is often unproven. I person should not be punished for the offencos of others. Each case has to be considered on its peculiar facts. In this case the trial Llagistr 0tc may have considered the fact that the offence was committed in broad daylight and in the presence and vision of the owner and others. He may therefore have intanded no more than malicious damage to property and the houses may not have been completely destroyed but for the indifference of the bystanders. The appellant has now been in prison for sixteen menths. Considering the irregularity in sentencing and taking the abova observations into account I consider this period to be adequate. I therefore sat aside the sentence imposed and substitute a sentence that will result in the appellant's immadiato release. Iiccordingly, this appeal succeeds in part. M'v1!NZI: 13th July, 1974. A. JUDO JIi