THE HIGH COURT OF MALAWI
APPEAL CASE NO. 87 OF 2004
SIZA & 2 OTHERS
the First Grade Magistrate Court sitting at Mchinji, being Criminal
case No. 32 of 2004.
for the state,
The three appellants;
Lester Siza, Zex Kalirani and Madalitso Rabson (referred 1st,
appellants respectively) appeared before the First Grade Magistrate
Court at Mapuyu on 28th
April, 2004. They were charged with Burglary contrary to section
309(a) and Theft contrary to 278 of the penal code. Each pleaded
guilty to the charges. However after full trial each was found
guilty, convicted and sentenced to custodial terms of 4 years
months respectively. Trial was concluded on 26th
Each appellant has
lodged a petition of appeal against conviction and sentence. The
substance of the appeal is basically the same.
It is to the effect
that they did not commit the said offences and that the court should
quash the conviction and set aside the
Facts which emerge from
the case are that on 12th
April, 2004 the three appellants went to drink local beers together
at Nkhoka trading centre within Namitete area, Lilongwe. From
they went to break in the dwelling house of Mr Henderson Changalusa
(Pw2). They stole therefrom K32,000 cash and 105 Kgs
Total value K48,000. The said cash belonged to Pw1 (Ms Stella
Changalusa) who had given it to her brother (Pw2) to
buy tobacco for
her. Members of the local community help investigate the case
resulting to the arrest of the 3 appellants. The
appellant was actually found in possession a quantity of tobacco.
Upon questioning he confessed that it was the said stolen tobacco.
When the appellants
were being investigated by Pw3 each of them confessed to have jointly
committed the offence. When they appeared
in court each pleaded not
guilty, but after full trial they were found guilty and convicted.
This court has
carefully scrutinised the evidence adduced in the lower court. It
has also scrutimised the judgment. The lower
court properly applied
section 176(1) Criminal Procedure and Evidence Code. On the
retracted confessions. The lower court was
right to give due weight
on the confessions to accept the truth of the contents. There was
overwhelming evidence to set aside
the conviction. This court finds
no basis to overturn it. Appeal dismissed in its entirety.
Pronounced in Open
Court on this 23rd
November, 2004 at Lilongwe.