19770813 TZHC Dodoma 1

-... .a• -. . . I, )i7 -r-' mr, T L- ' .Lj .L..ULa Lu T a - u rn TTuT 1I .I ORIGINAL JaRISDICTION (DoDoL Ri!;Gr ; TRY) CRINIilL S3lIO..; U.L NC. 53 OP 1977 THE REPUBLIC Versus -. 0 ALNCINA 13/0 ft.mJIJ. CHLRGE ATTJTBD c/s 211 (i) OP Ti:IE PdL CODE CAP. 16 OP TIfE LAWSO JUDG1'1E11T 1MAKIBNTE, J., — The accised, ALILCINA D/O S1i JLA, was charged with attempted murder c/s 211 (i) of the Penal Cod. It was alleged that on or about 15th October, 197 6 at lIsake 11age within the District and Region of I inga'she unlawfully attempted to caise the death of her husband — one Peter s/o Kadinda — .in €hat after locking the door from outside ake wil'fully and unlawfully set fire to the dwelling house imowing that the said husband ra 'fast asloeii inside. By the evidence of Pete:: ICad!nda PU.1 the prosecution established that the couple had earlier hau g quarrel ovr rhat could be referred to as domestic affair0 rsi0 quarrel oncicd in the.0 accused being tied up with ropes because she had become violent and threatened to commit suicide or burn down their dwelling hotiso. They took her to the. ten (io) cell leader. Khen the ropes were removed the two returned to their home but in no uood to talk to each other. As it was already dark PW.l went to bed, leaving accused in another room used as a kitchen. He was later awakened from his sleep by P. Imock at the door0 He then realized that the hous was on fire when ho escaped to safety through a door forced open by Paskali Nadinda (PW.4), The house was cor:pletely destroyed. Accused was not at the scene. She had escaped but was arrested on the following day. That accused had wilfu]'1y burnt down the house was confirmed by her extra judicial statement to the Justice. of the Peace — Twaha Sanyagi — a frimary Court Hagist.:ate, The 1stauent was tendered and adnitteci as 11 .1. In the sceneni she ji.d claima to have burnt down the house in a heat f pacsion, fol1owin& an earlier' beating received at the hands of PW,l, and for o geod cause, One Julius himua had confirmed of the quarrel and the tying of accused with ropes because she had allegedly become violent and threatened to take her own life or burn down their house. He had observed an injury near her :Lft eye. Pc did not enquire-as to how she came to sustain the injury nor did he enquire about the cause of the quarrel. - 2 - Paskali Hadincia gave evidence as ThJ,4. do said that he was the. first person to arrive at tao scene wuon they saw the house on fire. , One u.s.c He founo all the LoorS aocauo ocuau frcr:i luOtatO Willie the other was locitod ircni cuts:uio ujtu a radiccia. tIe heard lW, 1 shout from inside the house for 1eip, 2W.1 wanted people to open for him. AltiioupTh. the house was burning fiercely, th Lire had not yet reached the sitting root. :dhuro the two doens were located. lie picked a plank and with i tore onen the icon which eras locked from outside. PW.l then squeezed hinself through to safety. The prosecution then called in H 8423 P.C. Charles as PW,5. He was the arresting officer and the one who had conducted the investigations. He had visited the scone anclhad seen the burnt house. He said only the mud walls had remained. He had observed some injuries on accused's body. He later had given a PP.3 to her so she could be exoninod at the Hospital0 He then produced the PP.3 with the medical report on it, The findings on the PP.3 confirmed the injuries - 3PW.5 had observed. At this uncture the prosecution offered one Lukolokwamungu d/o Kasinde - the accused' s nether - for cress examination by the defence. To the cross cnoeiication she renlied that on rI:Le material in date she wibnessed her iaughierjropes. She untied her. She also ohs erved some injuries on her body which were consi s tent with beating. In her statement on onth the acoi.esoi denied having wilfully set fire to the house. Shc pleaded accident, She 1_!nied 9 PH,1 was inside the house whoa the house caught fire. She said she was holding a pot of burning charcoal near the door to their house when R4.1 h. tried to snatc the po -b fr ri her to orevont her from taking it into the kitchen so she could boil water fOr messagine, her injured body. PW.l had earlier beaten hour, inflicting the injuries. She waved her hand with the pot to avoid 1.l. In the process a piece of red charcoal slithered and dropped on the roof, starting fire almost instantly. On the facts there can be ad doubt at oll, and in fact there is no dispute about the house in cjuosiion having hen destroyed by fire as alleged. The main issue iso s to who ce.usei the fire? The two gentlemen assessors wore unanimous in the view that accused deliberately set fire to the I-cuso, I am in agreement with this view. There was ample ei c-floe that accused lad been threatening either to kill herself or to set the house on fire or account of some narital misunderstandings. She had tafact boo ' .n violent and other people had to tie her with ropes and take her to ;hcj ten cell leader as a result. She admits having been tied with nudes and taken to the ten cell leader., She, however, gives no rooson which could possibly he true as to why she had to he treated in that manner. When the fire raged accused disappeared until the following Jay, She could not have so disappeared if the inci:ie:::± woe :.00th.m.cbol, ci that ut thu also ru:,ittei in her / q - — ; — statement before the Justice of the 2ciace having set tloa house on fire in a rage because FW,l had boater her twice earlier on. The gentlemen assessors were however not satisfied that she burnt down the house intoning to kill 2'1.1. They were also not satisfied that PW,1 was asleep inside the house when she set fire to the house. I an also not satisfied the. t an intent to kill has been established. viience was available th,-.t it was not possible to lock PJ.J inside the house to prevent him to escape - because one of utiu doors was incapable of locking iron outside. In addition 9 the fire started at the kitchen - away from the sitting room where the two doors were located. This would also go to show that PW,4 lied when he said that he found ?W.l locked inside and shouting for help. It is unbelievable thst P1.1 should have been shouting for someone, to open for him when he could open the door from inside without difficulty. It was his house - so ho knew the set up and the mechanism of the doors. Lb nay have been inside the house when accused set the house on fire - yet that fact alone does not establish an intent to kill. As alrcadr remarked it cannot be said that PW, 1 was locked iaside when one of the doors was irarable of lockiog from outside, fld on the authority of R. V. NLPLY KINY:obLI 1967 1.00OD, 342 merely setting a house on fire knowing that someone ic inside - does not amount to attempted murder. Something more must h. done to manifest an intontion to kill - as by locking all the doors to i:nevent escape of the victim. But accused had wilfully set the hOUSe c'n fire. It was not her property alone - so the act was unlarful. uoh act offends aainst 5. 319 of the Penal Codo. It is Amen. Accordingly I find accused not guilty of Attempted hurcier but guilty of A:rson and convict her of the offence. (sgd), (]I. J. 1/Iwakihete) JUTGE PR1S CO ;3 First Off mac1.em. But Arson - very serious offence carryi.rj a maximum sentence of life iuprisom:ient. PLPINMITIG:YflOL Circuns tances call for leniency, Accused beaten twice by PW,l. Scars still vivid. Lost control and decided to commit the offence. Accused is nine months pregnant could deliver any tine. On bail but in remand for one month before being released on bail. Pray for leniency. (s gd). (i:. J. liwakihete) JUDGE ALLOCUJS z NIL SiNT211C Accused comnitt.d a very serious offence indeed. It was a senseless act on her part. Sh may certainly have been beaten and irfact I have found it as a fact that she was actually beaten - still it was not open to hoe to act so savagely. It was open to her to take hoe ooapathi to eit. .r the cOurtor Police. /. 4 - Howevcr, I boar in riinci the fact that FW. 1 was equally to blanc because he too took the law into Me own hands when he decided to beat her ard not ones but on two occasions. I an! also very nuch influenced by the fact that accus ccl is now nine inontics preiant. Accordingly I senthnce her to six (6) years inpnisonnant and order that the whole sentonce be suspended for a panic d of three rs conditional on the- accused being of good bohavi:nor and conmiting no offence involvingviolence during such pereca. / k (it., J. M. clKIB:tTE) JUDGh DODOMA IEGE COUMT