IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CRIMINAL
APPEAL NO 173 OF 2005

BETWEEN
:

CLIFF
NYANGU ……………………………….APPELLANT

-and-

THE
REPUBLIC ……………………………RESPONDENT

CORAM : JUSTICE
I.C. KAMANGA (MRS)

Santhe;
Senior State Advocate for the State

Appellant;
Present/Unrepresented

Nakweya;
Court Interpreter

Jere;
Court Reporter

J
U D G M E N T

HON.
KAMANGA, J.

The
appellant Cliff Nyangu was charged with the offence of robbery before
the First Grade Magistrate Court Lilongwe where he pleaded
not guilty
and at conclusion of trial was found guilty and convicted and
sentenced to 36 months imprisonment with hard labour.
He appeals
against both conviction and sentence.

His
grounds of appeal with regard to the conviction include that he was
not the assailant in the fracas that had ensued but that
he had gone
to stop the fracas. He claims that the assailant who robbed the
complainant of the bicycle was never prosecuted and
that he is an
innocent person serving a custodial sentence for an offence committed
by another person who has up to now never been
brought before court
to face the law.

This
is the evidence that was provided in the trial court. On 15the July
2005 at Mpingu here in Lilongwe. Mackson Banda and
his brother went
into a certain Chibuku bar to buy Mahewu. They saw the appellant in
the bar. They never talked to each other
although they know each
other. The complainant and the brother had a bicycle with them.
They asked for Mahewu drink. They
were told that the bar does not
stock the Mahewu drink. It is the complainant’s testimony that he
was suddenly pushed by the
appellant and he fell down. Then the
appellant slapped his brother in the face. A commotion ensued. When
they checked around
for their bicycle they realized that it was
nowhere insight. The complainant had sustained some injuries as a
result of the beating
he suffered from the appellant. The
complainant and his brother went to report to the village headman
about the issue that had
transpired. They were advised to go and
report at Chitedze Police Station. The policemen arrested the
appellant but his accomplices
who had taken the bicycle were at
large. The bicycle was never recovered and the accomplices were
still at large at the time that
the matter was brought to court for
trial. The appellant cross-examined the complainant. In
cross-examination the complainant
stated that it was the appellant
who assaulted him and provided an opportunity for the appellant’s
accomplices to get away with
the bicycle. The other witness who
testified was the police officer who obtained a caution statement
from the appellant. He
told the court that the appellant had denied
the charge. In defence, the appellant stated that on the material
day, he was in
company of one Maluane Chigawa and were partaking
beer. Then he heard some noise and went to investigate inside the
bar. When
he got in he learnt that his friend Maluane Chigawa had
stolen the complainant’s bicycle. He left the place to inform
Maluane
Chigawa’s brother about his friend’s conduct. But he
was surprised when the police arrested him and charged him with the
offence of robbery with violence whose particulars included that he
had taken the complainant’s bicycle.

In
criminal matters, where a person is charged with commission of an
offence the prosecution has to prove beyond reasonable doubt
that it
is the person that is charged who committed the crime. Where
there is one witness that testifies against the accused,
there is a
requirement that the evidence has to be corroborated. In the matter
at hand, only one witness, the complainant testified
against the
appellant. And the appellant states that it is his friend and not
himself who committed the crime. Much as the complainant
was with
his brother when the alleged crime was committed, the brother was
never brought to court to testify. The explanation
given for the
absence was that at the time of the trial the brother was sick and
had been admitted in hospital. All things being
equal I would have
been persuaded to make a finding that it would be unsafe in the
circumstances to convict the appellant on the
evidence as was adduced
in court. However, there is the other part, the trial magistrate had
the opportunity to take into consideration
the demeanor of the
witnesses that were paraded before him. He had opportunity to study
the demeanor of the complainant as well
as the appellant. Upon
balancing the evidence of the two, he was convinced beyond reasonable
doubt that the appellant and the
person at large were accomplices who
had engineered the commotion so that they would rob the complainant.
I am also of the same
view. When you read the evidence of the
complainant, he identifies the appellant as the person who assaulted
him and created
the commotion. The complainant mentions that the
appellant was with some friends when this fracas was happening. At
the end
of the fracas, the appellant’s friends were nowhere in
sight. And so too the bicycle.

In
his evidence, the appellant mentions that he had been partaking the
beer with a friend Maluane Chigawa whom he learnt is the
one that got
away with the bicycle. He mentions that he heard some noise and
immediately went to investigate and stop the fracas
but when he got
there the incident had already happened. At the same time, he was
with the friend that he alleges had caused the
commotion. I find his
statement that he only went to stop the fracas and found that it was
over and at the same time found that
his friend is the one who had
caused the same and was at large difficult to believe. As the
magistrate had found, I also make
a similar finding that the
appellant had connived with his friend to cause a commotion. So the
appellant pushed the complainant
for no reason and stated beating
him. This caused a confusion at the place. It gave his friend an
opportunity to get away with
the bicycle. In that vain, I find that
the conviction was safe and the appellant’s appeal against the
conviction is dismissed.
The appellant’s statement that he was
with a friend who went away with the complainant’s bicycle supports
the complainants
testimony that is to the same effect. The only
difference being the appellant says they had not connived to rob the
complainant.
However, the complaint’s statement that it was the
appellant who pushed him and started the commotion, which the
appellant
failed to dispute shows that he was a party to the ambush.

Then
the appellant appeals against the sentence. He mentions that the
bicycle was later recovered. Let me mention that the charge
leveled
against the appellant is one of robbery. Robbery involves use of
violence in order to take away something that belongs
to another
without the other’s permission. This is what happened in this
matter, the appellant used violence, which resulted
in the
complainant sustaining injuries. According to the medical report, if
the complainant was punched in the face which resulted
in his being
red eyes as to conjunctiva was assaulted. He also had a swollen
face to wit he was treated. This is robbery. The
appellant was not
charged with the offence of theft of bicycle to wit recovery would
have been one of the mitigating factors.
Robbery has a maximum
sentence of life imprisonment. 36 months imprisonment with hard
labour is not a severe sentence so as to
require this court interfere
with the lower court’s sentence. I confirm the same.
Consequently the appeal against conviction
and sentence are
dismissed.

MADE
in Open Court this 13^th
day of April 2006.

I.C.
Kamanga (Mrs)

J
U D G E