Republic v Daukire and Another (148 of 2004) ((148 of 2004)) [2005] MWHC 50 (24 March 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CRIMINAL APPEAL CASE NO 148 OF 2004


BETWEEN:


DAUKIRE AND MATIASI………………. APPELLANTS


-and-


THE REPUBLIC …………………………… RESPONDENT


From the First Grade Magistrate Court sitting at Lilongwe. Being criminal case no 103 of 2004


CORAM: HON. JUSTICE CHINANGWA


P. Kayira, Counsel for the State

Accused, Present/Unpresented

Mr Mlenga, Court Interpreter

Mrs Namagonya, Court Reporter



JUDGMENT



The two appellants: Allan Daukire (1st appellant) and Paul Matiasi (2nd appellant) appeared before the First Grade Magistrate Court sitting at Lilongwe on 17th May, 2004. It was on a charge of Robbery contrary to section 301 of the penal code. They pleaded not guilty, but after full trial the court found both of them guilty, convicted and sentenced to 4 years penal servitude. Trial was concluded on 25th August, 2004.


Facts show that on 8th April, 2004 Mr Masida Royidi Zangazanga of Area 18 Lilongwe was that night at Biwi. He was at a bottlestore. At about 1 a.m he walked towards his car he met 3 youngmen. One of them pushed him on the back. He staggered. The other youngman took a cellphone from his shirt pocket. It was a nokia valued K14,000. The complaint said that he did not resist because he did not know what they had carried. The complainant did not elaborate what he meant. The young men ran away. Complainant reported the incident at Kawale police station on the same night. Three weeks later the appellants were arrested by police who also recovered the stolen cellphone. As said earlier the appellants were tried in the First Grade Magistrate Court sitting at Lilongwe.


The 1st appellant appeals against the severity of the sentence. He says that he pleaded guilty to the charge and restored the cellphone. He has family responsibility.


Whereas the 2nd appellant appeals against both conviction and sentence. He alleges that he was not involved in the commission of the crime.


The state supports the conviction against both appellants. As for 2nd appellant counsel for the state submits that there is evidence that he was present and he took part in the crime. His statement under caution narrates the story of his participation clearly. It was 2nd appellant who led police to 1st appellant and recovery of the cellphone. He prayed to the court to reduce sentence to 2 years.


This court concurs with the submission of counsel for the state on the 2nd appellant. It is obvious that he is merely putting a defence in this appeal for the sake of it. The appeal against conviction is dismissed.


This court concurs with the state that circumstances mitigate in favour of a reduction in sentence. It is accordingly reduced from 4 years I.H.L. to 2 years I.H.L. for both appellants. Appeal succeeds to this extent only.


Pronounced in open court on this 24th March, 2005 at Lilongwe.




R.R. Chinangwa

JUDGE