RAHEL LISO Arson1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB REGISTRY OF SHINYANGA)

AT SHINYANGA CRIMINAL APPEAL NO. 31710 OF 2024 (Arising from the Judgment of the District Court of Meatu at Mwanhuzi before Hon G.R. Rwekiti - SRM, dated on 30th June, 2024 in Criminal Case No. 2084 of 2024) RAHEL LISO….…........................................................ APPELLANT

VERSUS THE REPUBLIC……………..…………..……………….…RESPONDENT

JUDGMENT 20th November & 6th December, 2024 MASSAM, J: The appellant herein above was arraigned and charged before the District Court of Meatu at Mwanhuzi with an offence of Arson contrary to Section 319 of the Penal Code Cap 16 R:E 2022. It was alleged that on 29th day December, 2023, at Sungu village within Meatu District in Simiyu Region, the accused set fire to the shop of one JUSTINE OWINO RADIER and properties which were inside were burned. After the full trial, the appellant was found guilty with offence charged, convicted and sentenced to 4 years imprisonment and pay compensation of Tshs. 8,200,000/= to the victim being the loss incurred. 1 Aggrieved therein, the appellant rightly lodged her appeal in this court with 4 grounds as follows; - 1. That, the learned trial magistrate erred in law and fact by failure to considered the appellant’s defence.

2. That, the learned trial magistrate erred in law and fact to rely of the cooked and contradictory evidence adduced by the PW1- PW5.

3. That, my Lord, the whole trial court proceeding was vitiated with very serious procedural irregularities lead to the miscarriage of justice.

4. That, my Lord, the prosecution side did not prove their case beyond reasonable doubt. During the hearing of this appeal, the same was argued orally and the appellant appeared in person unrepresented, while the respondent was represented by Mr. Saguya Learned State Attorney. Appellant argued that she was dissatisfied with the decision given by the trial court which was not proper and she did not commit the said offence. Mr. Godluck Saguya supported the conviction and sentence meted by the trial court and he argued grounds of appeal separately. 2 Starting with ground no 1, appellant complained that her defence was not considered. Mr Saguya argued that her defence was considered but was not regarded as the same was weak compared with evidence adduced by prosecution witnesses and he prayed this court to dismiss this ground of appeal. Responding to ground no 2, appellant complained that trial court convicted her by contradictory evidence of PW1 to PW5. Mr. Saguya argued that there was no contradiction of evidence adduced by prosecution witnesses but there is a light contradiction in the issue of the costs of the destroyed properties. PW1 said that the said properties and shop costed Tshs 8,200,000/= the properties amounted to Tshs. 6,000,000/= and shop costed Tshs. 200,000/= PW1 is a complainant but he failed to calculate and account for Tshs 8,200,000/=. PW2 a shop keeper

testified that the cost of the destroyed properties was Tshs 8,200,000/= he did not analyse which amount was for what. Also PW5 who was investigator said that the costs of destroyed properties were Tshs 6,000,000/=, and the shop costs Tshs 2,000,000/= which total amount of Tshs 8,000,000/= that is only contradiction which is seen in the records. 3 Apparently, Mr. Saguya stated that the offence was proved, PW1 testified that the appellant admitted to commit offence before VEO, and appellant with her family admitted to pay the complainant that amount by starting to pay Tshs. 3,000,000/= in advance. PW2 was the one who was selling that shop of PW1 and said that he had love affairs with appellant so after break up with her married another woman he started to receive some threat message from appellant that she will do something bad to him. PW2 said that appellant admitted to commit offence before him and ''mwano’’ and the appellant said that she was assisted by Emanuel Mwandu during commission of the offence and she did that because PW2 left her and married another woman (jealous). PW4 said that appellant admitted to commit that offence. Mr. Saguya argued that the oral confession made by the suspect is admissible may be used to convict the appellant. He referred the case of Joseph Thobias and two others vs Republic, Criminal Appeal No. 296/2019 at page no 35 CAT Mbeya. Moreover, Mr.

Saguya stated that PW5 who came and sum up the evidence adduced by the prosecution witnesses, his evidence supported the evidence adduced by other witnesses and appellant did not cross 4 examine him and failure to cross examine the witnesses meant that she agreed with the evidence adduced by the witness. Finally, Mr. Saguya said that the evidence was not cooked as alleged by the appellant and prayed this ground to be dismissed too. On third ground, appellant complained that proceedings of this case was vitiated with very serious procedural irregularities lead to the miscarriage of justice. Mr. Saguya argued that there were procedural irregularities as the trial case started before conducting the PH as per requirement of Section 192 of CPA but later PH was ready over and the witness was re called, however failure to conduct PH is not fatal. Finally, Mr. Saguya argued that the offence was proved beyond reasonable doubt as per the evidence adduced by five witnesses and all of them were reliable and heard from the appellant herself. In brief rejoinder appellant said all stated by state attorney are doubtful, the said shop is there and was not destroyed. Upon going through the entire records and carefully considered the submission from both sides, it is in view that the appellant is challenging the conviction against him on the reason that the prosecution did not prove the case

against him beyond reasonable 5 doubts. Therefore, the main issue to be determined by this court is to whether the prosecution proved the case against the appellant beyond reasonable doubt. It is trite law that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 which read together with Section 3 (2) (a) of the Evidence Act [Cap 6 RE 2019]. Also, the same principle was stated in the case of Woodmington Vs. DPP (1935) AC 462, the court held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shifts to the accused, See also the case of Christian Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, where it was firmly held that the accused person should only be convicted of an offence, he is charged with on the basis of the strength of the prosecution case not on the weakness of the defense case. The term beyond reasonable doubt is defined in case laws, see Magendo Paul & Another Vs. Republic (1993) TLR 219 where the Court held that: 6 "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favor which

can easily be dismissed." Having considered the above stated legal stance, I shall now, for convenience purpose, address the ground of appeal in the same manner adopted by the learned state attorney. Starting with ground no 1, appellant complained that her defence was not considered. Mr Saguya argued that her defence was considered but was not regarded as the same was weak compared with evidence adduced by prosecution witnesses. In have scanned the trial records and going through the submission of both parties. I see this ground as misplaced. Thus, I associate myself with Mr. Saguya that the defense evidence was considered in page no 2 to the copy of the judgment but did not convince the trial court for it to accord evidence. It is trite law that failure to consider defense evidence amount to defective judgment. See case of Leonard Mwanashoka vs. Republic, Criminal Appeal No. 226 of 2014 (unreported), Abel Masikiti vs. Republic, Criminal Appeal No. 7 24 of 2024. However, in the normal circumstances, the prosecution case is firmly proved depending on its evidence and not defense evidence. From the above observations, I find that the first ground of appeal has no merit and it is dismissed. Responding to ground no 2, appellant complained that trial court convicted her by contradictory evidence of PW1 to PW5. Mr Saguya argued that there was no contradiction of evidence adduced

by prosecution witnesses but there is a light contradiction in the issue of the costs of the destroyed properties. PW1 said that the said properties and shop costed Tshs 8,200,000/= the properties amounted to Tshs 6,000,000/= and shop costed Tshs. 200,000/= PW1 is a complainant but he failed to calculate and account for Tshs 8,200,000/= PW2 a shop keeper testified that the cost of the destroyed properties was Tshs 8,200,000/= he did not analyse which amount was for what. Also PW5 who was investigator said that the costs of destroyed properties were Tshs 6,000,000/=, and the shop costs Tshs 2,000,000/= which total amount of Tshs 8,000,000/= that is only contradiction which is seen in the records. However, Mr. Saguya stated that the offence was proved, PW1 testified that the appellant admitted to commit offence before VEO, and 8 appellant with her family admitted to pay the complainant that amount by starting to pay Tshs. 3,000,000/= in advance. PW2 said that appellant admitted to commit offence before him and '' mwano” and the appellant said that she was assisted by Emanuel Mwandu during commission of the offence and she did because PW2 left her and married another woman (jealous). PW4 said that appellant admitted to commit that offence. Mr. Saguya argued that the oral confession made by the suspect is admissible may be used to convict the appellant. PW5 who came and sum up the

evidence which was adduced by the prosecution witnesses and his evidence supported the evidence adduced by other witnesses and appellant did not cross examine and failure to cross examine the witnesses meant that she agreed with the evidence adduced by those witnesses. I have scanned submission from both parties and going through the trial records. PW1 testified that the appellant admitted to offence before VEO. PW2 said that the appellant admitted to commit the offence before him and ‘’mwano’’ and that evidence was corroborated with the evidence of PW3 and PW4 testified that the appellant admitted to commit the offence. From the narrated evidence, I agree with Mr Saguya that the prosecution side proved the case beyond doubt. More 9 on the that, the appellant confessed to commit the offence. Thus I agree with Mr. Saguya that the oral confession made by the suspect is admissible may be used to convict the appellant. See the case of Joseph Thobias and two others vs Republic (supra). On the issue of compensation awarded to the victim of Tshs 8,200,000/= as the loss he incurred. PW1 said that the said properties and shop costed Tshs 8,200,000/= the properties amounted to Tshs 6,000,000/= and shop costed Tshs 200,000/= PW1 is a complainant but he failed to calculate and account for Tshs 8,200,000/=. PW2 a shop keeper testified that the cost of the destroyed properties was

Tshs 8,200,000/= he did not account for the same. Also PW5 an investigator said that the costs of destroyed properties were Tshs 6,000,000/=, and the shop costs Tshs 2,000,000/= which total amount of Tshs 8,000,000/= From the above analysis. I find that there was contradiction of evidence adduced by witnesses on the amount of loss the victim incurred and the value of the house, in absence of the evidence to prove damage or the actual loss i.e. valuation report. It was wrong to order compensation because it was not strict proved. See the case of Zuberi Augustino Mugabe vs Anicet Mugabel [1992] TLR 137 and 10 Stanbic Bank Tanzania Ltd vs. Abercrombie & Kente (T) Limited, Civil Appeal No.21 of 2001 (CAT) (unreported). Thus, I don’t hesitate to say the trial court erred to order that compensation. In the premises, the award of Tshs 8,200,000/= as compensation is quashed and set aside because it did not proceed on any proof. On third ground, appellant complained that proceedings of this case was vitiated with very serious procedural irregularities lead to the miscarriage of justice. Mr Saguya argued that there were procedural irregularities as the trial case started before conducting the PH as per requirement of Section 192 of CPA but later PH was ready over and the witness was re called, however failure to conduct PH is not fatal. I have gone through the trial proceedings. I am

satisfied that the trial case started before conducting the PH, but later PH was read over and the witness was re called. That being the case, I have asked myself this question: Did this omission vitiate the trial of the appellant? The reply to that is not. I agree with Mr Saguya that failure to conduct PH is not fatal. See the cases of Mkombozi Rashid Nassor v R, Criminal Appeal No. 59/2003 (unreported), Joseph Munene and Another vs Republic, Criminal Appeal No. 109/2002 (unreported), and 11 Christopher Ryoba vs. Republic, Criminal Appeal No. 26 of 2002 where the Court observed thus; “….. conducting a preliminary hearing is a necessary prerequisite in a criminal trial. It is not discretionary. The procedures stipulated under S. 192 are mandatory. And needless to say, S. 192 was enacted in order to minimize delays and costs in the trial of criminal cases. However, in the most unlikely event that a preliminary hearing is not conducted in a criminal case that trial that proceeds without it will not automatically be vitiated …. the proceedings could be vitiated depending on the nature of a particular case …..” Having so observed, it’s clear that failure to conduct preliminary hearing cannot vitiate the proceeding but the same will depend on the nature of the case. This case at hand PH was conducted later and cannot vitiate the proceedings. Therefore, I find the third ground

of appeal has no merit and it is dismissed too. On the last ground, Mr. Saguya argued that the offence was proved beyond reasonable doubt as per the evidence adduced by 12 five witnesses and all of them were reliable and all of them heard from the appellant herself. I have considered the submission of both parties and going through evidence on the records. PW1 testified that the appellant admitted to offence before VEO. PW2 said that the appellant admitted to commit the offence before him and ‘’mwano’’ and that evidence was corroborated with the evidence of PW3 and PW4 who testified that the appellant admitted to commit the offence. From analysed evidence. I agree with Mr Saguya that the prosecution side proved the case beyond doubt as it was held in the case of Mohamed Haruna @ Mtupeni & Another Vs. Republic, Criminal Appeal No. 25 of 2007 CAT (unreported) where it was held that; "of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defense." See also the case of Joseph John Makune vs. Republic (1986) TLR 44, George Mwanyigili vs. Republic, CAT Criminal Appeal No. 335 of 2016. 13 For the reasons stated, Appeal is allowed to the extent explained. I upheld the conviction and sentence of 4 years imprisonment. I quash and set aside a compensation of Tshs. 8,200,000/= any interested party may file a suit claiming the same in accordance to the law. It so ordered. DATED at SHINYANGA this 6th day of December, 2024. R.B. Massam

JUDGE 14