19770419 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MjiNZi APPELLJTE JURI5DICTION HIGH COURT CRL I ?L ?Pi-4 NO 12 O 1977 ORIGIN;L CRIItti\jL C4JE NO 43 OF 1976' OF THE DISTRICT COURT OF NUSOMA DISTRICT AT MU301-riIL Before A., S. SEMZ Esg RESIDENT MAGISTRATE DAUDI BITA' .BUKAO 0 0 0 00 0 0 00 0' 00 00 0 0 0 0 0 00 0000 0 0 .APPA'L1NT , 0 000 0 (Originel.Accused) versus THE REPUBLICO 000000000000000000000000000000000000060000000 ORESPONDENT (Original Prosecutor) CHARGE: ARSON contrary to section 319 (a) of the Penal Code., -OoO- MFALILJJ., The appellant was charged with rson in the district Court at Musoma. He was convicted and sentenced to 5 years imprisonment.' In passing such a sentence the trial Magistrate appears to have been unaware of the provisions of Section 7 of the Criminal Procedure Code for he failed to make the sentence subject to confirmation. The main question in this cose ws one of identification of the appellant whether the complainan accurately identified him to be the person who set fire to her house. The complainant Bikukule Nyarnugalile P.W.1 said that on the night in question she saw the anpellant outside her house through gaps in the wall of her hut. She said that these gaps were about two palms wide. This possibly indicates that the complainant's house was not properly plastered. Immediately after seeing the appellant her house went up in flames0 The trial Magistrate

accepted this and other evidence and convicted .the appellant0 On the other hand the appellant denied these allegations saying that he could not have set the complainant's house on fire because he had no reason or grudge to make him do it and that during the night in question he never left his house. I think that the complainant's evidence of identification was such that on, its own no criminal conviction could safely be based on it. How- ever, there was other evidence tending to support it. Firstly there was the evidence ofoneof the neighbours Charles Swagale P.102 who said that as he was rushing to the scene he met the appellant running away. This witness knew the appellant well and according to him the blaze from the house was emitting sufficient light which enabled him to see the appellant clearly0 Secondly there was evidence of the appellant's earlier threat against the complainant and her daughter, Hoka Mtami, his erstwhile con- cubine. In this written threat which was in fact sent to the cell leader Majimoto Bianda P..,4 and subsequently to the Police at Bunda, the appel- lant had threatened the complainant that something would happen to her unless she moved away from the village. I think the motive for the appellant to burn down the complainant's house was sufficiently established namely that he had strong need to revenge against the complainant who was instrumental to

the break-up of the love affair between him and her daughter. I think that all these factors were strong corroborative evidence of the identification made by the complainant. I would therefore agree with the trial Magistrate who found that the appellant was the person who set on fire the complainant's house and that therefore he was properly convicted0 I would accordingly dismiss this appeal against conviction. The sentence of 5 years being the maximurr allowed to the trial Magistrate was a bit severe but I do not think I can inrferc0 The trial Macristrate gave as his reason the dangers underlining -éopl who set fire to other people's houses at night ad Iagree.with this assessmente with iheso remarks the sentence of,5 ye ars imprLsc1Lou imposed by the cjmrict Court is donfirmed0 .3:. L. MFJLI Lit 19TH APRIL, 1977 . JUDGE