THE HIGH COURT OF MALAWI
APPEAL CASE NO. 23 OF 2007
the Senior Resident Magistrate Court sitting at Mchinji, being
criminal case no. 84 of 2006.
Counsel for Appellant,
Counsel for Respondent
Yeremia Banda and three others namely: Mitholo Samisoni Chinoko,
Fungulani Positani and Peter Staff Mbewe appeared
in the Senior
Resident Magistrate Court at Mchinji from 16th
November, 2006 to 11th
April, 2007. It was on a charge of Robbery contrary to section 301
of the penal code.
that during the night of 20-21st
October, 2006 at Kambanda village in Mchinji district robbed Mrs
Mercy Jones K1,226,00 cash. They pleaded not guilty. Full trial
was conducted. At the close of prosecutions case three had no
case to answer. They were accordingly acquitted. The appellant
put on his defence. After trial appellant was found guilty,
convicted and sentenced to 10 years penal servitude. In the trial
court and before this court counsel Nkhono represented the appellant.
counsel Nkhono appeals against both conviction and sentence. The
petition of appeal has three grounds.
magistrate erred in law in convicting the appellant without warning
herself the danger of convicting the accused without
The state fell
short of the proof beyond reasonable doubt hence the learned
magistrate erred in law to convicting the appellant.
was against the weight of the evidence.
At this juncture
it is pertinent to briefly state the facts of this case. The
complainant Mrs Mercy Jones (Pw1) lives at Kambanda
Kapando, in Mchinji district. She is married to Mr Jones Yesaya
Banda (Pw3). She has four children. One of them
is a daughter Zione
Jones (Pw2). On the night of 20-21st
October, 2006 at about 7 pm the complainant and her children went to
sleep. She went into her bedroom. The other children into
In the course of the night she heard sounds of gunfire. Then bangs
on the main door. Instantly another bang at her bedroom
men entered. They tied her hands and started to beat her using a
stick. They demanded money from her. The assailants
over the bedroom and under the beddings. They were able to locate
money hidden at various places. They found K5,400
under a pillow.
Another K21,000 belonging to NICE, and a further K1,200,000. The
complainant sustained a cut wounds on the forehead
While these three
men attacked complainant. There were others who attacked Pw2 and her
relatives in their bedroom. They demanded
money. One of them took a
lamp which Pw2 used in her studies. The appellant used the lamp to
search for money in that room.
Pw2 said that she too had heard the
gunfire and a bang on the door. Then the intruders entered into
their room. One of them was
armed with a panga knife. In the course
of the assault, Pw2 sustained a cut wound on the forehead. According
to the testimony
of Pw2 she recognized the assailant being appellant.
Appellant was no stranger to her because he is from the same
he usually came to visit her father (Pw3).
assailants had bolted the complainant and her children went outside
still crying with pain and traumatised. It was at
that time that
neighbours from the vicinity converged. It was too late to help.
Pw2 were admitted at Kapiri Catholic Mission hospital they were there
fore 4 days. Complainant was referred to
Mchinji district hospital
for further treatment. For evidential reasons the medical report
was inadmissible. When appellant
and others were arrested twice at
an identification parade at Mchinji police station. Pw2 identified
appellant being one of the
assailants on the night of the robbery.
denied being involved in or knowledge of the robbery. Counsel Nkhono
attacked the trial court on many
I should start with the
medical report. Counsel Nkhono is recorded on page 97 of the court
record objecting to the admission
of the medical report in evidence.
The trial court obliged. Therefore it was not part of evidence.
Surprisingly counsel dwelt
at length in this court attacking the
medical report. Arguing that it should not have been admitted. The
reason being that it
was compiled at Kapiri but officially stamped at
Mchinji district hospital. I found his labour on this issue futile
was not part of evidence. I totally disregard his
The second issue
relates to police investigation process. Counsel belaboured the
point what begins arrest or investigation. I
found this point
immaterial, which I did advise counsel accordingly.
The third issue is
on identification. Counsel argued that appellant was not at the
crime scene at the material time. He argued
that Pw2 made a mistaken
identity. He said that the evidence of Pw2 was confusing in that she
said that when the assailants attacked,
she was sleeping. Yet she
also said that appellant used a lamp which Pw2 was using for her
studies. Counsel Kayuni argued that
Pw2 correctly identified
appellant and the trial court was justified to attach weight on her
is that the lamp appellant used was the one Pw2 used in the course of
her studies. Not that at that particular
time of the attack Pw2 was
engaged in studies. On identification there is evidence from Pw2
that appellant often visited Pw3 at
home. Appellant conceded that he
knows and is also known by the complainants family. Therefore
appellant is familiar to Pw2.
It is probable that Pw2 recognised
appellant among the assailants.
In the testimony
Pw2 said that in the course of the attack she told the assailants
that she knew some of them and that they were
argued forcefully that Pw2s testimony was not corroborated by her
relatives who were in the same room at the time
of attack. There is
a difficulty here because the circumstances call for corroboration.
The state should have invited at least
one of the children who were
in the same room with Pw2 to testify. Otherwise considering the
commotion and confusion at that time
chances of mistaken identity of
appellant on the part of Pw2 are highlyprobable.
circumstances it is my considered view that it is unsafe to uphold
the conviction. Conviction is quashed and sentence of
penal servitude set aside. Appellant to be released forthwith unless
held on other lawful ground. Appeal allowed.
Pronounced in Open
Court on this 23rd day of August, 2007 at Lilongwe.
U D G E