IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CRIMINAL APPEAL CASE NUMBER 119 OF 2007
CORAM : SINGINI, J.
: Mrs. Mary Kachale, Principal State
counsel for the Appellant
: Mrs, Mbewe, Court Reporter
: Mrs. Nakweya, Court Interpreter
The appellant was convicted after trial, along with two
others, Charles Pinto and Shaibu Adam, by the First Grade Magistrate
at Kasungu of two Penal Code offences of robbery with violence
and causing grievous harm both in respect of one George Akidu, the
complainant in this matter, who happened to be a police officer
serving at Kasungu Police Station when they attacked him around
oclock in the evening within the Kasungu Township on 15th
The attackers hit the complainant on the head with some
heavy wooden stick and stabbed him with a knife or knives in part
him on the left eye which, according to the medical report,
was so badly damaged that it was eventually removed and replaced with
an artificial device as a false eye. The three of them ran away
leaving their victim lying on the ground. He was found at the scene
of the attack some two hours later by the police who had received a
report of the incident.
At the time of the attack the victim was walking towards
his motor vehicle which he had parked nearby. He complained having
a number of valuable items from the motor vehicle, including a
cash amount of K3,500, and he suspected that it was the same robbers
who must have stolen those items as part of the crimes they committed
against him that evening. However, they were not charged
theft of the items.
The trial court delivered its judgment on 22nd
June, 2007, and found all the three guilty of the offences as
charged and sentenced them on 25th
June to imprisonment with hard labour for nine years on the charge of
robbery and six years on the charge of causing grievous harm,
the sentences to run concurrently.
Only the appellant has appealed against both conviction
and sentence. In essence his ground of appeal against conviction is
he did not commit the two offences against the complainant and
no credible evidence was offered by the State to show that he took
part in attacking the complainant.
The evidence against the appellant came mostly from the
complainant. The two were well known to each other as close friends.
presenting his appeal before me, the appellant himself mentioned
that at one point the two of them lived together in the same house
the township. In his evidence the complainant told the trial court
that he also knew the appellant by his nick name of Joe Mbuzi
appellant was known among friends.
The complainant testified in the trial Court that when
he was being attacked he grabbed and wrestled with the appellant
of the other two attackers hit him with the heavy stick and
the other stabbed him with a knife on the left eye. The complainant
gave particulars of his assailants, including particulars of the
appellant, to the police. It would appear the appellant disappeared
from the township since the police were able to arrest him only two
days later on 17th
October at his house around four oclock in the morning.
The complainant had also described to the police that
the appellant had worn a cardigan jacket, black in colour. When the
searched the complainants house they did find a similar
jacket and the appellant did not deny that it was his. On this
the trial court found that there was sufficient corroboration
of the evidence of the complainant as regards the complainants
identification of the appellant.
Although this did not come out in his evidence in the
trial court, in his notice of appeal, written from his imprisonment
Prison in Lilongwe, the appellant admits being at the scene
of the attack talking to the complainant but claims that he was the
first to be attacked when he was pushed to the ground by the
attackers, but he stood up and took to his heels and ran away fast
escape the attack. He states (in rather poor English grammar but
One day on my way home from the pub, I met with a
policeman who is familiar with me. We started chatting as we used to
Never was it too long when two thugs brutally pushed me
down. I stood to my feet and ran away. Behind me the person to whom I
chatting was in hot soup by the two thugs. Since there was severe
injury he was taken to Kasungu Hospital where he recovered. After
recovery he stated on how the tragedy was. He told the police and the
court that I were the first person to meet him and the
thugs got us
there and how I ran away.
The knowledge he had of these thugs Shaibu and
Charles Pinto who when apprehended agreed to have done the
malpractice. To my surprise
before court I was also found guilty and
slashed me nine years imprisonment with hard labour.
I denied the charge before court because the first
person to be met by the victim was me but I ran away when I was
pushed down by
Had it been I were together with the thugs I
couldnt escape the time they got us.
The victim before court mentioned of these two
people: Shaibu and Charles Pinto to have performed the malpractice.
The court said I was there despite my running
I would myself give considerable weight to the fact of
the close familiarity of the complainant with the appellant, alluded
the appellant himself both in presenting his appeal before me
and in his notice of appeal, as a strong factor in corroborating the
evidence of identification of the appellant by the complainant. There
is also the fact that the appellant did not report this violent
against his own friend when he witnessed the incident. He also
appears to have immediately disappeared from the area for
a couple of
days. I therefore find that in this case the evidence of
identification of the appellant as an accused person seen
hours of darkness has been corroborated to the required degree. The
trial court quite properly believed the evidence before
the appellant as one of the three persons that attacked the
I accordingly dismiss the appellants appeal against
The appellant has also appealed against sentence on the
ground that he is a first offender and that the court did not show
on him in sentencing him on both counts.
I find that several aggravating factors antecedent to
the requirement for imposing a stiffer penalty for the offence of
with violence, as laid down in section 301 of the Penal Code,
were present in committing the offences in this case. Section 301
the punishment for the offence of robbery is worded as follows:
Punishment 301. Any person who commits the felony
of robbery shall be liable to imprisonment for fourteen years.
If the offender is armed with any dangerous or
offensive weapon or instrument, or is in company with one or more
other person or
persons, or if, at or immediately before or
immediately after the time of the robbery, he wounds, beats, strikes
or uses any other
personal violence to any person, he shall be liable
to be punished with death, or with imprisonment for life.
I have found no proper reason to interfere with the
sentences on both counts imposed on the appellant by the trial court
the face of the ground raised by the appellant of being a
first offender and other mitigating factors such as his young age.
trial court did actually consider these as mitigating factors in
arriving at the sentences the court imposed on the appellant and
co-accused. I dismiss the appeal against sentences on both counts.
PRONOUNCED in open court at
the Lilongwe District Registry this 21st
day of November, 2007.
E.M. SINGINI, SC.
J U D G E