19790309 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA ADOD0MA 14 'c• tsr-- 'I APPELLATE JRISDICTION'' CRThIINAI, APal No. 180 OP 1978 (Original Criminal Case No.156 of 1978 of the District Court of Manyoni, Before Mosha, S.M.) JITh1E HuSSEIN . . . . .. . .• . Appellant (Original A ccused) versus THE REPUBLIC e • . • . . . . . Respoiident (Original Prosecutor) Charge: jt Count: Arson c/s.319(a) of the Penal Code. 2nd Count: Causing grievous harm c/s.225 of the P.C. rd Jount: Stealing c/s .265 of the Penal Code. J U D GEM E N T ISANGA J. - The appellant was convicted on three counts of arson, causing grievous harm and stealing • contrary to sections 319(a), 225 and 265 respectively of the Penal Code. He was sentenced,to 9 years' imprisonment on the first count, 5 years on the second count and 3 years on the third count; 'all the sentences to run c'ncurrently. He has now. appealed against. 'both the convi- ctions and sentenôes. S The facts of the, case were that the appellant and two other persons who could not be traced attacked the attndant of the Gove±'nment Rest House at Manyoni at night inflicting on him severe injuries including a complete amputation, by a panga, of his finger. They then stole Shs.401— which :as kept in the Rest House and eventually set the Rest House on fire.. The Rest House which, according to the charge sheet, was worth Shs.65,000/— was caiipletely burnt down. The 'appellant in his defence flantly denied the charges. The appellant was adequately identified to be one of the three persons who conriitted the offoncos that night. The complainant Ruben Kingu (PW.9) testified that he ident if ied the appellant through the light of a lamp which was barning in the house • While the Rest Houo wts burning and the alarm was being raised the appellant and two other persons wore seen by Mwaime Athu.mani (PW.3) going away from the direction of the burning house. J. the appellant's 'trousers were burnt and he himself sustained a burn wouild on the thigh. The appellant claimed that his trousers and his thigh got burnt on the night of 15.7.78 while those offencos wore -2 committed on the night of 11 .7.78. However,• there was the overwhelming evidence of Frank (PW. 4) and S aniwo 1 (1W.6) which olearly shows that the appellant's trousers and thiah got burnt on the night the Aest.House was set on fire ± .. 11 .7.78, and that the appellant went to mend drmodify his burnt trousers on 13.7.78. ilailn on 12.7.78 Abdala (PW.5) heard the appellant and another person .discusing ähat to do about his (appellant's) burnt trousers when the appellant said that he wld modify and reduce them into shorts. . Again :the appellant gave conflicting accounts on how he sustained the burns. Thus to P.WW.2, 6 and 7 he said that he sutained the burns inhis ho.se'whenhe was lying on his bed drunk, while to PW,4 he said that ho -got the burns when he was 'roasting me. . To my mind all this evidence taken together suff i- ciontly connectst he appellant with the. offences charged. It is true that the appellant'sife'' also gave evidence. which tended to implicate him. This evidence was vrongly admitted because the wife was not put to her election in tems of section 130 of the Evidence Act. However, this error occasiond no failure of justice becanse even if the wife's evidence is excluded, the other evidence as sot out above wns sufficient to sustain the convictions. That error was therefore harmless and hence QUDab1O under section 346 of the Criminal Piocedure Code. I would accordingly uphold conviction on all the counts. As regardssentence the magistrate exceeded his powers in sentencing the appellant to 9 yearS' jail fOr arson. For, under section 7 (1) (a) of the Penal Code the magistrate has powr to impose a prison term Of up to five years only. However, under section 319 (3) of the Criminal Procedure Code this court has power to impose a sentence which is greater than that whih a subordinate court might have imposed. Quite clearly the circumtances in which the offen.es in this case were committed are very aggravating. The appellant end his gang attacked the comrlainant (PW.9) and in so doing they were armed with a panga. The attack was really vicious and brutal in which the victim fell down unconscious for a time and sustained serious juries including a complete loss of his finger. The Government Rest •.Houoo was completely burnt down., Although no evieonce was oivon a5 to its value, there can be no doubt that a house is a iry valuable assetand therefore its destruction must hare caused considerable loss -3-- ,( to the Government. In these circumstances I am of the • view that a severe sentence was called for; I wop1d / have imposed the same sontence 'thyself if the appellant • was brought before me f or the purpose. Therefore the sentence of 9 years' imprisonment shall stand as if it was passed by this pourt. The sentences on the other counts also are not disturbed and as ordered by the trial court, all the sentences shall run concurrently. In the result the appeal is, dismissed in its / entirety. I R. H.KISJ.NGA JtIDGE Dodorna 27.viii.1979. Appellant absent. Mr. Alirnwike: Senior State Attorney for Republic. I hereby. certify that this is a true and correct copy of the original judgment. I. 4- 71AA-1 ? L.KAZIMOTO DISTRICT REGISTRAR DOD OMA September 3rd, 1979.