idfonce so melikior vs republic 2010 tzhc 278 13 october 2010

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ' IN THE DISTRICT REGISTRY AT MWANZA APPELLATE JURISDICTION HC. CR. APP. NO. 125 OF 2008 (Original Cr. Case No. 996 o f2005 of the District Court of Nyamagana District at Mwanza. Before K. D. Mhina, RM) IDFONCE s/o MELIKIOR....................... .......... APPELLANT (Original Accused) Versus THE REPUBLIC........................................... .. RESPONDENT (Original Prosecutor) 11. 10.2010 - 13. 10.2010 JUDGMENT G. K. RWAKIBARILA, J Appellant Idfonce MeTikior was convicted of armed robbery c/s 287A of The Penal Code, Cap.16 (Vol.l, R. E. 2002) in Nyamagana Distict Court Criminal Case No. 996 of 2005 and sentenced to the statutory minimum ^thirty (30) years I i • ;* j 1 imprisonment. He felt aggrieved by both his .conviction and sentence in that criminal case and lodged this appeal. The summary of evidence which led to his conviction and sentence is that by 14*09.2005, PW1 Agness Kitanda and his son PW2 Gabaseki Charles used to sleep at night together in a room l within a house situated at Igogo-Kakiro suburb within Mwanza City. At around 03:30 am of that day, a group of thugs invaded their room and picked from there numerous household items whose value was estimated at Shs 450,000/=. Thereafter, PW1 reported this incident at Igogo police station. In course of their investigations on this matter, detectives at that police station arrested appellant Idfonce Melikior and Jonas Bartazar who were accused No.2 and accused No.l respectively in that criminal; case. On the next day which was 15.09.22005, PW4 Assistant Inspector Adam conducted an identification parade at that police station whose participants were appellant, PW3 Emmanuel Kaneno, accused No.l Jonas Bartazar and about six other men. During that parade, PW1 failed to identify both appellant and accused No.l Jonas Bartazar. But in course of that endeavour, PW2 identified appellant alone. At the end of the trial, Jonas Bartazar was acquitted. But appellant was convicted on the strength of his identification at the locus in quo and during an identification parade. In his memorandum of appeal which had four grounds, appellant's main contention was that he was not at the locus in quo on 14.09.2005 at around 03:30 am, when PW l's room was invaded by thugs. And Mr. Ndamugoba, learned State Attorney who represented the Republic cum respondent in this appeal did not support the conviction. This learned State Attorney pointed out at that stage that conditions for identification of appellant were not adequate. In their evidence PW1 and .PW2 narrated that there was light which was illuminating in their room when the thugs invaded there on 14.09.2005. But PW1 and PW5 did not disclose how was the intensity of that light or whether it -was of ai kerosene lamp, electricity, fire or others. Then the likelihood of a faint or shallow light can not be ruled out because during an identification parade PW1 singled out appellant alone but PW2 did not trace any culprit. It follows that Mr. Ndamugoba, SA correctly supported appellant's grounds of appeal to wit, evidence which was adduced against appellant during his trial did not fulfil to prove the prosecution's case against him beyond reasonable doubt. This appeal is therefore allowed to wit, appellant's'conviction;;? quashed and his sentence of thirty (30) yearsj imprisonment is set aside. Then appellant should be released immediately from jail unless still confined there due to other lawful grounds. G. K. Rwakibarila JUDGE . 12 10.2010 Date: 13.10.2010 Coram: G. K. Rwakibarila, J ♦ Appellant: Present in person Respondent: Mr. Ndamugoba, SA for Republic B / C : Ihuya Court:' Judgment delivered at Mwanza this 13th day of October, 2010 at presence of Mr. Ndamugoba, SA for Republic cum respondent and appellant who is present in person. _A G. K. Rwakibarila JUDGE AT MWANZA . 13 10.2010