IN THE HIGH COURT OF MALAWI
CRIMINAL APPEAL NUMBER 20 OF 2007
CORAM: THE HONOURABLE JUSTICE E. B. TWEA
Miss Kayuni, State Advocate
for the State
Appellant present in person
Mrs Moyo Official Interpreter
J U D G M E N T
This is an appeal against conviction and sentence.
The facts of the matter are that the house of the
complainant, PW1, was broken into on the night of 18th
September 2006. Entertainment equipment was stolen. Nothing was
The convicted person was subsequently arrested on the
evidence given by the wife of the complainant to police. In the
she informed the court that she saw the convicted person
on the night in issue under the security light when she peeped
She said the convicted person took away a TV screen, home
theatre and 6 DVDs. Further that convicted was in the company of
friends. She told the lower court that she was able to identify the
accused because she had seen him before this date.
The appeal against the conviction is basically on
identification of the convict. It was the argument for appellant
that in the
heat of the moment PW2, wife of the complainant, could
not have properly identified the appellant as one of the intruders.
was put to this court that in her evidence in chief she alleged
that the appellant had carried the stolen items. In cross
examination she said she saw him carrying stones and that he run away
when she challenged him.
This evidence had caused me some anxious moments.
I bear in mind that the complainant, PW1, told this
court that he did not see the intruders. It was his evidence that he
the people who gave chase to the intruders say that one of them
was the appellant. He did not refer to his wife, PW2, having equally
identified the appellant. Further, it was his evidence that the one
who claimed to have identified the appellant refused to come
testify. This is corroborated by the prosecution dispensing with a
witness they failed to bring to court.
It was in the evidence of both PW1 and PW2 that they
know and knew the appellant before the matter in issue. It is rather
that PW2 would not have disclosed her identification of the
appellant to PW1, her husband or, on the other hand, that PW1 would
have overlooked to mention this in his evidence if she had so
disclosed. It is strange that PW1 had to refer to a third party,
that refused to come to court, as the one who identified the
PW3 the investigating officer told this court that he
relied on the evidence of PW2 and another lady on the identification
appellant. However, when the appellant denied the charge he
did not cause any follow up. According to his evidence PW2 did not
go to Police to give information, she was actually summoned and
questioned. It is strange that PW2 had not volunteered to inform
police of the identity of the person who broke into and stole from
their house. There was no identification parade conducted in
case. The identification therefore is based on the evidence of PW2
which can be challenge for in consistency.
I therefore agree with the appellant that the
identification by PW2 in this case cannot be relied up. The
conviction is unsafe.
I accordingly quash it and set aside the
sentence. Unless the appellant is in custody for any other lawful
reason he must be
Pronounced in Open Court
this 17th day of
January, 2008 at Blantyre.
E. B. Twea