20060720 TZHC Bukoba

IN THE HIGH COURT OF TANZANIA ATBUKOBA ✓ / APPELLATE JURISDICTION { ; l (BUKOBA REGISTRY) ,,,,( ..,,.) HC CONSOLIDATED CRIMINALS APPEALS NO. 13A & 13B OF 2004 ;·r"'.,., r (Originating from Bukoba District Court Criminal Case No. 2/2002)(Beforet; P.D. Ntumo, Esq. RM) r-' "' 1. ABDUMALIKI ATHUMANI} 2. YUSTACE RUT/MBA ====== APPELLANTS VERSUS THE REPUBLIC ===============RESPONDENT . JUDGMENT LUANDA,J. These are consolidated criminal appeals. \ In the district court of Bukoba at Bukoba the appellants namely A ~dumaliki 1 Athumani, Yustace Rutimba and one Edward Vedasto who was acquitted, were jointly and together charged with arson C/S 319(a) of the Penal Code. The appellants were convicted as charged. Each was sentenced to 2 years imprisonment. They were also ordered to compensate the victim Tsh:500,000/=. Aggrieved by the finding of the trial court, hence these appeals. Mr. Vitalis learned State attorney for the Republic did not support the conviction and rightly so. The prosecution case is to this effect: Aurelia w/o Diocress (PWl) an old woman aged 66 years was labelled as a witch. PWl was staying with her daughter one Verena w/o Gervas (PW2) at Bunazi. The labelling was done through a letter. Then the appellants and the one acquitted are reported to have ordered PW2 to remove her mother (PWl) from Bunazi. She refused. She was told she will face the music. Around 10.00AM their house was on fire. PWl said this, I quote:- "At night my house, at 3.00AM was burnt. I suspected them because they (accused) had terrified me." PW2 said the following, I quote:- "At 10.00AM [It is doubtful] the house was on fire. I did not see any accuseds when the house was burning." [Words inserted mine J) And these two are key witnesses for the prosecution. And that was the evidence the appellants were convicted with the offence of arson. That evidence is not enough to ground conviction. It is a mere suspicion. 2 Time and again this court has said suspicion however, strong is not the basis of conviction. The prosecution must produce cogent evidence direct or circumstantial to show that it is the accused who committed the offence. In this case, the appellants were convicted on vexy weak evidence. The appeals are allowed. The conviction is quashed. The sentence and compensation order are set aside. The appellants, if they are still in prison, to be set free I immediately. / I r. r I B.M. Luanda JUDGE 19/7/2006 Judgment delivered - Appellants - Both presen Republic - Mr. Kweka- State attorney. ATBUKOBA 20/7/2006 3