20120221 TZHC Dodoma1

IN THE RESIDENT MAGISTRATE COURT OF DODOMA AT DODOMA (EXTENDED jURISDICTION) PRM. CRIMINAL APPEAL NO. 26 OF 2011 (DC) CRIMINAL APPEAL NO. 10 OF 2011 OF THE DISTRICT COURT OF KONDOA DISTRICT AT KONDOA MATANO MTWANGULU .................................. APPELLANT (Original Accused) VERSUS CELIOPA MPANGWA ............. . ..................... RESPONDENT (Original Prosecutor) 19/1/2012 & 21/02/ 2012 JUDGM ENT R.L. RUTATINISIBWA, PRM. EXT.). This is the second appeal. The dppeiiant One MATANO MTWANGULU, while before Kwamtroro Primary court faced two cases. That is, Criminal Case No. 115 of 2005 and Criminal Case No. 116 of 2005. The charges were for Armed robbery c/s 286 and 285 of the Penal Code Cap. 16 Vol. 1. The allegations on both cases were almost the same. Thus, that on 13.7.2005 at about 16.00 hrs at chase village, Kondoa District the appellant and another accused who was the 1st accused, did steal cash 200,0001= and a parcel of clothes valued Tshs 1 '4 15,000/=. That before robbing they beaten one CELIOPA s/o MPANGWA on the neck, back, and 2 hand by using a stick. In another charge the allegations said that at the same time date and place they robbed beads two empty plastic cane, and various clothes all valued at Tshs 40,000/= and before they kicked one NANINGOI d/o YASSI in order to steal her properties. At the end of full trial the two accuseds and the appellant inclusive, were found guilty, convicted and sent to jail to serve a 'term of 30 years. Aggrieved by the decision the appellant lodged the appeal No. 47 of 2005 at Kondoa District Court. The 1st appellate court consolidated the two cases in one appeal and found the appeal devoid of merits andi it was dismissed. Still the appellant was not contented hence the instant appeal was preferred. The respondents were traced for purposes of service but in vain. Then the matter had to proceed. The appellant lodged the petition of appeal which contained a number of seven grounds. In essence they meant that the complainants did not prove the case beyond reasonable doubt. The question for consideration and decision is whether or not the finding of the trial court and the decisionof the 1st appellate court was fair and just. 2 C I had time to peruse and scan the proceedings. I could agree with the District court that the trial court's decision based on the fact that the appellant was clearly identified because the incidents occurred on broad day light. The 1st appellate court failed to fault that decision simply because the CONDITION FOR identification was favored. I decided to venture and go further. I read the evidence of Cleopa Mpangwa (SM1). She said that she was invaded on 13/7/2005 at 16.00hrs while on the way from the market. That at that time she was with Muhajiza Sasaa (SM 2) and Freji Masal (SM3) was eye witness. Those were the witnesses on the prosecution case who built the foundation in Criminal case No. 115/2005. I tried to compare the notice with criminal case No. 116/2005. In that case the incident occurred at the same time, and place with that on criminal case No. 115/2005. In Criminal case No. 226/2005 the prosecution witnesses included. Namingoi Yassi (SM 1) who alleged to have been invaded. And the people who were around are Mahaji Sasaa Msai (SM 2) AND Pill Gabriel Msai (SM3). After having compared the facts and the nature of the evidence adduced it did not come into my mind how the same person can invade two different people at the same time . Had It been that Cleopa Mpangwa (SM1) were walking together WITH Namingoi Yassi my mind could have been different and the invasion could have been thought as possible but not like how thefacts stand in the two cases which are the subject matter of this appeal. 3 I For the fore going reasons the appeal has succeeded. The convictions in criminal cases number 115/2005 and 226/2005 are hereby quashed and the sentence set aside. The appellant be released forthwith :unless held on another lawful matter. III R.I. RUTAT PRM. EXT. JURISIDICTION 21102/2012 pCIP/L RESIDENT MGISTTE DCTW) (EXTENDEE) MGSTRATE COURT DODOA Delivered in the presence of the appe Right of appeal explained. (R.L RU SIB! PRM. EXT JURISDICTION 21/0Z/2012 prnNCIP/-IL RESIDENT MAGISTTE (EXTEDEO jURDTL DWQ1A RESDE4I NAGISTRATE COURT