19740729 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA JS (- 7 AT DODOMA APPELLATE JuRISDICTION HIGH COURT CRIMINAL APPEAL NO. 16 OF 1974 ORIGINAL CRIMINAL CASE NO, 206 OF 1973 OF TIM DISTRICT COURT OF KONDOA DISTRICT AT KONDOA BEFORE S. H. NSELE. , . . • . . . . . . .DISTRICT MAGISTRATE MWANAIDI OIVIARI. . . . . . . . . . . . . . . . . .APPELLANT VERSUS THE REPUBLIC. . . . . . . . . . . . . . . . . .RESPONDENT ( Charge: Two counts of setting fire to crops c/s 321(a) of the P.C. JUDGEMENT MNZAVAS - J. The appellant and her husband (who has not appealed) were jointly charged with two counts of setting fire to crops ó/s 321(a) of the Penal Code and were each sentenced to a total of 3 years imprisonment. Dissatisfied with the conviction and sentences she has appealed to this court. On 5/7/73 the appellant and her husband were guests of one, Abdullah Suki (Pw1) who is apparently a relative of the appellant. After supper the appellant and her husband were given a separate house in which they slept. During the night Abdullah's crop of millet which had been harvested and piled in his shamba was set on fire. An alarm was raised and neighbours responded and helped in extingu- ishing the fire'.-but their efforts were fruitless. The fire spread to a neighbouring shamba belonging to one, Ramadhani Idi (PW2) and destroyed his millet crop as well. The appellant and her husband who were within the compound did not respond to their host's alarm. Abduallah (their host) found it rather odd and went and knocked at the house they were sleeping. He found both of them missing. Some hours later they came to the scene. On being interrogated by their. host and other villagers as to why they -, had left the house in which they were sleeping the appellant replied that her husband had burnt the crops by "bad luck".. She \ also told the villagers that she did not know why her husband had burnt the crops. On being interrogated the husband (1st accused) admitted setting fire on the crops but declined to say why he did so. .... 2 In their defences before the lower court both accused persons denied setting fire to the crops.. In his assessment of the evidence the learned district magistrate accepted the evidence of the villagers that the husband (1st accused) had confessed that.it was he who had set the crops on fire. He also came to the conclusion that the appellant helped her husband in the commission of the offences. He accordingly convicted both, accuseds as charged. As minuted when the case was admitted for hearing, there was ample evidence implicating the first accused with the offences charged. There was undisputed evidence that he and his wife, the appellant, mysteriously disappeared from their host's house soon after the crops were set on fire. There was evidence to the effect that the appellant mentioned her husband as the person who had set fire on the crops; and what is more, he adnitted setting fire on the crops when he was interrogated by the villagers• As to the evidence in connection with the appellant, she only came to be charged with the offence because she was' all along with her husband when the later committed the offences. There was also, as rightly mentioned by the district magistrate in his judgement, and echoed by the learned state attorney, evidence that the appellant tried to shield her husband from the arm of the law. Bec 5 use of this it could be argued that the appellant was guilty as an accessory after the fact to the offence of setting fire to the crops c/s 388 of the Penal Code. Such argument would have been upheld if the appellant was not first accused's wife. Section 387 of the Penal Code is to the effect that ............."A wife does not became an accessory after the fact to an offence of which her husband is guilty by receiving or assisting him in order to enable him to escape punishment." Even if, for the sake of argument, there was evidence that the appellant actively helped her husband in setting fire on the crops it would be a good defence u/s 20 of the Penal Code if she proved that she did so in the presence of, and under the coercion of her husband, the first accused. As it was conceded by the learned state attorney in his final address there was no sufficient evidence connecting the appellant with the offonces of setting fire to the crops. It would be extremely unsafe to support the convictions. The convictions are accordingly quashed and the sentences are hereby set aside. The appellant is to be released from custody forthwith unless she is otherwise lawfully held. Appellant - Absent and unrepresented Mr. Kinabo for the Republic. /k \RA D0D0NP. N. S. 29/7/74 ' JUDGE