Saidi Mohamed vs Republic (Criminal Appeal No. 40 of 1996) [1999] TZHC 44 (2 June 1999)

KAJI, J. nt TB ff!J:Ga efltmf OF 'tANZANIA irJ M!/J.M AfP~ !Diffi())l ,:A¥ .. ;.;i;.,_ ... ;1>,._ .. i'ihi,'f, i.V\ .i.A. A.... ~ ·,IU.tt.U<J+Nlo.i, ff:&'~~ ll\ilj "t'd VI! 1:;7?Q /8Rt'.il(iinlA.ti ~~ oo. :;; 011994 ,;~pfg;;aljKioot}R@ OF W.SASI A'l MASJ\SI ..,. ;:tJ;..;"JJr..,,"}'};_.\f,i!,i;.1;,. - . 'K. '\1JAGISfflDA,TE '\ml:11~·. ·i . ,ruii:)'jj,J;V>j "l:11:>• ·;. u • .. •1'_. ".l.N-1. "··:: :(·•!!:!i.::tP~~ The appeilanit - ~ floo~«tn ~~ia convicted of arson c/s 319(a) of the.fP.f&·t'ttei.ttip ,11 tt.fri~,m~{t/tft \o 5 years imprisonment. Hence this appeal. . It is in the recbr~ -~~a\ ts£ tff\j i.lili."§i~' 1994 at about 01.00 Am or 9 Pm while PW1 A.lfflA d/o mM iJM tf' iei ouse, she heard somebody . . lmocking at the door of her house. '/h she got out she saw the appellant passing. At the same time she saw the house of VERONICA d/o JOACHIM burning. She went to the scene where she found Veronica crying accusing the appellant for burning her house.· · Efforts were made to apprehend the appellant who was apprehended at his home. When asked about it he denied, He was later taken to Court where he was charged with arson. He denied the charge. The trial Court found him guilty and convicted him as charged and sentenced him to 5 years imprisonment. In his growids of appeal he insisted on his innocence. The learned State Attorney Mr. Masaju who fepresented the Repu.:-~ at the hearing of this appettf'i d(tci?not~;;Jipport the conviction on the growid that the appellant:i'w$~ na''f: ·.p?d'.Jff_·ien:tiii;d: , He refilied this Court to the case of WAZIRI AMAN>vw•RJ\f(:1of' Tiii'2S<5 oi th~,- importance cf a proper identification of the accused before being convicted, especially where the offence is alleged tc have been committed at night; I have carefully considered the evidence on record~ the appellant's grounds of appeal and the learned State A.tto:rney 1 s reply• • '. I

There is no dispute that there w~ no eye witness who saw the appellant setting on fire the alleged house. Veronica who told PW1 Anna that it was the appellant who burnt hI' house was not called as a witness, nor was there any reason as to why she was not called as a witness. The· evidence of her husband PW2 ISUMAIL MO did not make things . . . .· any better. He said that on the material day V-eronica told him that she had been beaten by her foer husband te appelJ;,t, and that she had reported the matter to the village chcti.rnJ• Later he saw her ·house burning pn,dVeronica said.it was the appellant who had btU'Ilt ·1t. -This was pure he~13ay ioe lllLμ«I. re.qaj.red

• .. , ·•· . - ~ . corroboration. There was no ,co,rroboraon,. ••< . .,.- 1, ' ,_ ••• Another tl:d.ng which has eli my- mi,ld is as to who was the owner of • -<. . ' /' • • . that house. According to the char.gesp.eet the pwner Wc3.S PW2 Isumai].. . ~ -a.c.oording· to the evidence of P2. ;tsi1. iind. m Anna,; it voulci -appear the £>wner was Veronica. J?W2 ~ ·4 ·#J,a :£oJJ.owiμg words:- . :'.:.>:.__ , . .- 11 :Later her how;;.e oaught fiFI, !We· went to put off the . ~ . ,"!-' fire but W€ failed. Jiowp ioa .. tcl.4 us that the accused was the ™ wtio·:,d biu-nt her house•" . '. '.'J,; ·' ·,t:.•:· . .. "Then I went to the scene where I found Ve:X'Oniea J.oaohinl crying as her housa wru;. burning ®"d. she told me that Saidi the accused ~ the .one who had burnt that ~ ....... _ •••••••Re exm. When I saw the accused I did not know whether ,he had set fire to the house of Veronica.°' Whether the house belongd to J:>W2. Ieumail Mohamed gr to :Veraw.ea Joachim, what is clear is that nobody saw the appellant setting it on fire• The appellant was convicted on mere:'• suspecion, Mere suspecion cannot be the basis of conviction however strong it may be. Since there was no evidence of an eye witness who saw the appellant burning that house, and sihce Veronica who was alleged to have seen the appellant burning that house was not called as a witness for reason or reasons peculiarly within the knowledge of the prosecution, and since there was no.strong circumstantial evidence to conneet the appellant with this offence, the trial court's conviction cannot stand~ It is hereby quashed. and the sentence of 5 years imprisonment set aside. The appellant is to be released from prison forthwith uniess iawfuliy held in connection with another case or cases. Appeal allowed. s. N. KAJI JUDGE 2.6.99. • ••• /3 •••

Court: '! Judgment has been delivered in the absence of the appe+lant -but in the presence of Mr. Mtinangi learned State Attorney for this 2nd.i day of June 1999. .I / . . •' ~ / ' ·~, ' 1 is. N. KAJI ,1 · ·\ JUDGE .. ,.'1 .. ___ z.6.99. ;, * . ,, \ I \ \