THE HIGH COURT OF MALALWI
APPEAL NO. 34 OF 2007
SHINGIRAYI THYANGATHYANGA & RON FIGEREDO
Phillipo State Advocate for the State
Mangison Official Interpreter
J U D G M E N T
This is an appeal from the judgment of the First Grade
Magistrate Court sitting at Ntonda. The two convicts appeared
a juvenile before the court on a charge of robbery.
They all pleaded not guilty. The court found all of them guilty
after a full
trial and convicted them. The two convicts were
sentenced to 4 years imprisonment. The juvenile was sentenced to 3
on condition of being of good behaviour.
I wish to point out however, that the Courts Order
was irregular. According to Section 3 of the Children and Young
the court should not use the terms convict and
sentence against juveniles. Further, a juvenile cannot be sent
unless the court certifies that the juvenile is so unruly
or raved a character. Such a decision however, must be made in the
interests of the juvenile. The court was therefore under a duty
to consider Sections 4 and 16(1)(h) and (2) of the Children and
Persons Act. However, I will not make any alternative order because
the juvenile is now at large.
The two convicts now appeal against both the conviction
The evidence has it that the convicts, now appellants,
were among the group of 8 young persons who were out on a drinking
on the night in issue. In the course of the night a fracas
ensured between their group and another, which resulted in a fight
and some stone throwing.
It was the evidence of PW1, the victim witness, that he
found the appellants and their colleagues at a bar. They accused him
having been involved in the assault on some of their colleagues.
He denied, but they attacked him. He was thoroughly assaulted
his trousers were torn. It was his evidence that in the course of
this assault his cell phone and money worth K7,000 were
The appellants admitted the fracas and attacking and
beating up the PW1 but denied stealing anything from him.
The state does not support the conviction for robbery.
It is clear that robbery is stealing by use of threat of actual
in order to steal or overcome resistance to the thing being
stolen or retained. In the present case there was an onslaught on
the victim witness by the appellants in revenge for the assault that
one of their colleague had suffered at the hands of some unknown
assailants, which PW1 was suspected to have been part of. It is on
record that this happened at night although there was light
bar. The victim was assaulted in the full view of the public. It is
also on record that after the fracas the appellants
called Police so
that they could make over the victim for the assault on their
colleague. I would agree with both counsel that
the evidence does
not support the finding that the appellants or any of their
colleagues stole from this victim. It is not disputed
attacked him with vengeance, tore his clothes and injured him. He
was then taken to Police and hospital by well wishers.
There is all
possibility that the things in his possession fell during the assault
and were picked up by some other people. I
am fortified in this by
the evidence of PW3 the Police Officer who was seized on this case.
He told this court that he attempted
to call this number of this
cellphone but to no avail. Clearly, if PW1 had reported a theft
against any of the appellants or their
colleagues, the Police would
have preceded to their homes to recover the items because PW1
identified the appellants at the time
he reported the matter.
The conviction for robbery therefore is unsafe and I,
accordingly, quash it.
Be this as it may I find that the appellants had
admitted to have assaulted and wounded the victim. It is my view
that, on the
facts, the appellant would have been found guilty of
unlawful wounding contrary to Section 241 of the Penal Code and I
I therefore set aside the sentence of 4 years, I order
that the accused be released, immediately unless they are in custody
any other lawful reasons.
Pronounced in Open Court this
3rd day of June,
2008 at Blantyre.