19750317 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 523 OF 1974 (Original Criminal Case No0 58 of 1974 of the District Court of Kahama District at Kahama, Before M.S. Kahibi - Esq., District Magistrate) OMARI @ MANYENYE s/o MBARUKUO 000000000000000000000000 0000 OAPPELLANT (Original Accused) versus THE REPUBLIC ................ . .......... . .. . .. 0 0 0 0 0 a 0 0RESPONDENT a a a a a (Original Prosecutor) CHARGE: Arson c/s 319 (a) of the Penal Code Cap 0 16. J U D G E ME NT LUGAKINGIRA, Ag0J0: - The appellant was convicted of arson and sen- tenced to twelve months' imprisonment0 At about 9.00 p.i., on 5th August, 1974 the complainant (P.W01), his wife (P.W.3) and his son (P0W.2) were outside their home warming up themselves at a fire0 Suddenly, they saw their grass thatched house on fire at the back thereof0 POW0 1 and 2 rushed to the scene and were in time to see the culprit sprinting away whom they properly recognised as the appellant0 The trial Magistrate was satisfied that the appellant was properly seen and recognised0 The two witnesses said they clearly saw his face in the enormous light emanating from the inferno0 They raised an alarm and when P.W.4 answered thereto they immediately reported the appellant as the culprit0 The appellant and the complainant were neighbours for many years. There was no ill-will between them0 On these factors, I think the trial Magistrate was justified in believing the prosecution witnesses. I will therefore not interfere with the appellant's con- viction0 When admitting this appeal, it was remarked by my brother Mfalila, Jo, that a sentence of 12 months' imprisonment for arson committed at night is rather on the low side. I share his views. Counsel for the Repub- lic was also of the same view after she had considered the time the offence was committed and the fact that there were children asleep in the house0 The appellant was called upon to show cause why the sen- tence should not be enhanced and he stated that he was in remand prison for two months before conviction. The record bears truth to this. However, I do not consider that a sufficiently mitigating factor. Arson is a very serious offence, more so when it is committed in aggravating circumstances as in the instant case. The appellant therefore needs to be properly punished. I therefore enhance the sen- tence from twelve months to three (3) years imprisonment 0 In the result the appeal is dismissed in its entirety. 1 MWANZA O LUGAK / GRA 17th MARCH, 1975. ACTING JUDGE