19710219 TZHC Mwanza6

IN THE HIGH COURT OF TANZANIA

AT MWANZA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 638 OF 1970 Original Criminal Case. No. 361 of 1970 of the District Court of Geita District at Geita Before S. Wwangwe, Esq., District Magistrate. S HABANI HAMISI . , . . . . . . s . . o . e • , • • • • . • • • • • • • •• • • • • APPELLANT (Original Accused) Versus THEREPUBLIC •i.,......o,,...,... ..... ..........•,..,.,.. RESPONDENT (Original Prosecutor) CHARGE: Arson c/s 319 (a) of the Penal Code. JUDGMENT. El—Kindy, Ag.J. Shabni Hamisi, the appellant was charged with and convicted for arson c/s 319 (a) of the Penal Code. He was sentenced to 14 months imprisonment. He is now appealing against his oonviction and sentence. The appellant was related to the complainant. It was alleged that during the day time, the appellant qi4rre1led with his wife, who moved into the house of the complainant, although the complainant did not make any attempt at reconoileing them. On this day, 24th of May, 197 0 , it was alleged that the appellant went to the house of the complainant, at abo*t 8 p.m., and asked the complainant to provide him with snuff, but the complainant could not do so as she did not have any. After the accused had gone out of the house, the complainant realised that the house was on fire. She went out of the house and raised alarm. She said that she did not see the appellant in the group of people who came to her aid

and believed that he was the one who have set fire to the house. She said that a certain woman had seen him set fire to the house. Elizabeth (P.W.2), who was in the house of the complainant, said that as soon as the appellant was went out she too followed him out immediately and saw the houseLon fire. She alleged that she then saw the appellant run away from the scene of the burning house. If this was the witness who was alleged as the one who saw the appellant commit the offence, her evidence does not positively support this. However, she continued, later the appellant reappeared and as a result of her mentioning him, the appellant was arrested. On the other hand, the appellant denied that he had set fire to the house. He alleged that he was not there at the time when the house was burnt. In his support, Kigai DW 2) said that he first heard the alarm and then he heard the appellant raising alarm and the appellant passed him runing towards the burning house. He also followed. He said that he believed that the appellant could not have been the person who set fire to the house. The trial magi8trate accepted the prosecutions evidence and held that Elizabeth (pw 2) had infact seen the appellant run a.ay from the burning house and this, in his view, was adequate to show that the (appellant) must have been tê 'one who did. it. -2-- As for the fact that the appellant went back to the

house later, the learned. 'agistrate said that this did not absolve him of the responsibility of setting fire to the house. He accordingly convicted him as charged. In his petition of appeal, the appellant said that no body had infact seen him set fire to the house. This is quite correct and is not in issue. In my view, it was circumstantial evidence whioh was sought to connect the appellant with the offence. He alleged that P.W. 2 i.e. Elizabeth was not telling the truth when she said that she saw him run away from the scene when the house began to catch fire. His contntion was that if she had followed him immediately and then 1 set fire to the house and began to run away, the interval between was very short and therefore the light emitted could only have been dim and therefore insufficient to enable her to see clearly the person who set fire to the house. He said that there was evidence showing that he was at his house at the material time, and that he simply joined in response to the cry in later. There was ofcourse no evidence as to the time interval between Elizabeth coming out of the house, seeing the house on fire and the time when the appellant was alleged to have been seen running away from the house. The contention of the appellant, on this issue, cannot be said to be without substance. Unless there was evidenoe that the light emitted from the fire was sufficient, the

possibility that, due to lack of sufficient light, she could not properly identify the person who ran away was not entirely ruled out. The learned State Attorney, Mr. Samatta, did not seek to support the conviction on the ground that the possibility of mistaken identify was there, and that it could not be said that, in the circumstances, P.W. 2, could not have mistaken the person she saw for the appellant. I agree that P.W. 2 could have mistaken the man for the appellant, as it is not clear from the evidence, that the oircu.mstanoes were such that she could not possibly have made any mistake. This possibility was not considered by the learned magistrate, and therefore it cannot be said that the trial magistrate would necessarily have come to the same conclusion had be done so. The fact that the appellant was seen running towards the burning house and at the same time raising alarm, enhanoes the possibility of mistaken identity greatly. I find tharefore it is not safe to support this conviction. Order: Conciction quashed. Sentence set aside. Appellant should be released forthwith unless he is held on some other lawful purpose. Delivered in Court on 19th February, 1971. • ( Z.N. El-Kin&y) AG. JUDGE. Mr. D'Souza for Respondent. Appellant - absent.