19890705 TZHC Dar es Salaam

1,1'1-ELJ.h'.I'i!.: JU1-<lb.uICTION HIGH CUUkT ChIMINJ,L i-.~i-'&1 NO. 142 OF 198/J u.tdGIN1,L Ci:~UiI!'v,L C1-,::,E NO. 29 OF 19b7 o:r TH.i!: 1.,ISTJ.,:ICT CuU1-<T 01" UT:E;TE LISTl-<ICT HUFIJI DBFOi:<.C.: J. P. Iv1TU IY ,1!;!:,~. i,lSTi<ICT M,-,GISTRi,TE l-'iW.M.!<,-,MI 1-1.LLY ••••••••••••••••••••••••• ,-,.Pl'ELL1~NT (Uriginal hc~used) v1::rsus Tfu!. UNIT.81.J h1'.:l-'ULLIC ••••••••••••••••• RESPONJ.JENT ( 0 riginal ~rosecutor) J U iJ G l'-i B N T The apiJellant Mwarami hlly wns convicted of arson contrary to , (a) o: ~~- 0 9~~1 ·Code and was sentenced to 5 years' Section 7iJ 9 Imprisonment·. He is appealing b0th acainst conviction arrl sentence. - 1 he evidence for the prosecution w~s that the complainant was informed oy some people thc.t her house was on fire. The complainant, PW.l then saw the appellant running away from the house which w~s abl~ze and he dsappec..retl into the bush. i-'eople chased him but in, vain • . Earlier on, the appellant had been given corrugated iron sheets which were for delivery c.t J.Jar eS' Sal&i..m. Dut he sold them and was nowhere to be seen again. 'l'he mutter was reported to the poli~ and the Poli•e , .. were looking for him., '.£hen the house of PW.1 was set ~n fire. The ' appel_ant was a cousin of PW.land PW.l found thct the appellnnt had a., ~ grudge age.inst her because she hnd reported him at the Policestat~on for the loss of the eorrugated iron sheets. PW.l was not cross_-examined by the appellant. 1'he other w_itness Yusufu '}Iv/.;. also saiu thc.t the appellant· was job~ less. PW •.2 werit to put off the f:ire at· the house of PW .l. The appellant had nbt been seen at his home which is next to that of PW.2 b,fore th~ ho~6e )t.PW.l went ablaze •. Doth PW.land PW.2 mntle statements to the Police~ ~w.l said in her st~tement that the appellant had aold her sister's corrugated iron sheets an<l had then disappec.red~ • The last witness was Letective Constable William who visited the scene of crime ancl madt:: a sketch plan. The appellant was not arrested until lat~r on. In gefence, the appellant uenieu settit-:g'- the house on fire or threateI1i1i'g to set fi-re to ·the :hou.s.e._ He said the.t' when he learnt that he was a suispect. for hlwing set. a house on fire, he went to live with his aunt. •A ••••o••/2. . I On t~is ev=!,.den~e :the trial court held that the ·cwiclence of PW.l ,o.ould. be relied upo~ ~n CQLVicting_ the appellant who hacl a m~~i!e for the ··•·j crime and exhibited a guilty- conscien~e by :i.:unning away. . .. . . ; . . .:. \ . . ~· .. .ln' h:i petition of appeal the appellant advanced several groµnds of ah,eal. Du~id~lly . ·... the . ... app~li.cint ' ·is. advancing the ar;ument thl'-t no one_saw him ·set fire· to th<:: house un<l thc:;t there was no corrobore..tion to the allet;ed.threats uttered by him to the complainllnt. Mr. Kyuki, lear·ned StD.te J,ttorhe¥ for the hepublic supported the j : . . •. • conviction, arg~ing thut there was evidence to the effect that the appellant w~s seen fleoing from the scene of crime ancl that he never appear,d at th, scene of crime to help Jn the putting off the fire. Nr. Kyuki submittecl that all that iheant that the appellant we.s the culprit. He also submitted th&t since the house was on fire, PW~l would be able to see the appellcint by the help of the light made by ·tho b~ning house. i"l.s for. sentence, Nr. Kyuki said that it was not excessive because the offence w&s a·serious one and because the maximum sentence for it wa$ iife imprisonment. This being a first &pfe~lt this court is erititled to form iis own opinion on the 1;viclence. In my vi1::w, the evidence adduced does not ap~ear to be suf±icient to found a conviction. First, let us exumine the eviu.ence of ?w.1. She stated thut she saw PW.1 running away from the scene of crime. ~id she reullV see him? I do not think so~ The incident is said to hc,ve occUrrecl ot night• We are toitl" that the burning house provided enough light for PW .1 to see the appellant ·£lee. I find it str&nge tho.t an arsonist woulu wait ·until the _house he is settine; on fire is ablaze before he flees from the scene.· Indeed some time niust . ~ ' have passed since the arsonist left the .b!',,ning house becn\16e those who informed .Pw.1 about her house being on fire apparently did not see the arsonist. I am, therefore, not persuaded that PW .1 is telling the truth when she says that she saw the appeliant .-running a.way from the bu~bing.house~ _a~ to the dieappe&rande cf the ~~pellant f~6~ the ~iilage the evi0ence of PW.2 is to the effect th&t the appellant haJ disappeared · from his home after he was reported to have .sold corrugated iron sheets . : of the eister of f'W.l. His absence from th~ +:i:llage can, ther~fore, be. ex~l~ined to hcve been caused uy f&ctors bther than the setting of' the house on fire, Lastly, the recorded evict~hde does not tallj·with what the i~arhed 1 uistrict Magistrate s~ys in his juugment. The iearned Mogistrate refers to thre~ts by ,he appellant to tet the house on fire. The evidence of PW.l to ~horn th~ alleged thr~a.t is said to h,ave been made contains nothing about any threats by the appellant. 'I'he lec:..rned Magistrate therefore con~idered even ·matters not ·in evidence to arrive at his decision, which was wrong. Having .clisbelieved the complainant about ......./}. - 3 - her seeinG th~ ap~eli~nt fl~~ing from the scene of crime, we are left with mi.;re suspicious z.. 60.inst the appellant. It is my opinion thc.t -£'°he evh,enc.e falls shor~ o_f establishing the i<.lentity of: the arsonist • • It fallows 1 : therefore,' that the chc..rge was not established bey;hd all . . reasonable · <.loubt. I allow the api.,eal by quashing the oonvictioh and setting o.sid~- the sent.enbe passed.-' The appellant should be relea.sed forthwith unless oth~rwise lawfully held. -· -· ------·--- -·-·•--•· .... - -· ·-· - ........... ___...... ) ··-·~---------- ·--·-- ·.' ~ 5/?/19U9 Mr. Kyuld. for the Republic Judgment pronounced~ .I JUL-GE