Mwashinga & Anor. Crim. App. 863-D-70 and 97-D-71; 2/4/71; Biron J.

 Mwashinga & Anor. Crim. App. 863-D-70 and 97-D-71; 2/4/71; Biron J.

The two appellants were convicted of robbery c/ss 285 and 286 of the Penal Code. The complainant alleged that on 19/3/70 he entered a certain pomber club where the accused were drinking pombe. He ordered his pombe but before he had chance to drink it, the appellants ejected the complainant from the pombe club. Nobody responded to the complainants’ alarm and the seventh accused, he alleged, took Shs. 534/90 from his pouch. The complainant ran away. The following day Hepa took the complainant to the local ten cell leader who took the complainant to he local TANU Chairman, who happened to be one of the appellants. The complainant immediately identified him as one of the persons who robbed him. The other accused persons (who did not appeal) were not identified by the magistrate until they were pointed out to him by the seventh accused. The second accused made an unaffirmed statement and the seventh gave evidence on oath but the rest opted to remain silent. In this judgment the magistrate stated, inter alia: “The fact that accused Nos. 1, 2, 3, 4, and 6 elected to remain silent in court when their time for their defence came, makes me believe that they really committed this offence of robbing the complainant of his local medicines.” The question then was whether or not this was misdirection and if so it was fatal to the convictions.

Held: (1) “Apart from the fact that the second and seventh accused did make their defences, the misdirection in respect of the five accused is not necessary fatal to the convictions, provided such convictions are supported and justified by the evidence. As I have remarked recently in more than one judgment in dealing with the functions and duties of a first appellate tribunal, quoting from the case of Dinkderrai Ramkrishan Panday v. R. (1957) E. A. 336 at page 337, “that on first appeal an appellant is entitled to have the appellate court’s own consideration and view of the evidence as a whole and its own decision thereon”, and from the case of Selle and Another v. Association Motor Boat Company Limited and Others (1968) E. A. 123, “than an appeal from a judge sitting alone is by was of re-trial”, and also from the English case  of Scott v. Musial (1959)2 Q. B. 429, “that an appeal from a judge sitting alone is by way of re-hearing”; there obviously being no difference between an appeal from a judge sitting alone and from a magistrate sitting alone, the directions or misdirection’s of a magistrate are not particularly material, unless they are in respect of evidence dependant of the credibility of a witness which is determined by  and from the observation of his demeanour.” (2) “As noted, according to independent witnesses, the seventh accused was immediately identified by the complainant as one of those actually the leader of the gang, who robbed him. The magistrate’s finding that eh seventh accused participated in the robbery is fully supported by the evidence and no court would be justified in interfering with it. (3) “With regard to the six other accused as noted, they were

            Not identified by the complainant until they were pointed out to him by the seventh accused, although there is evidence of a police constable that some medicines were found in their possession, these medicines were not specifically identified by the complainant as his. In the circumstances, I agree with learned State Attorney that that the convictions of the six other accused cannot be sustained.” (4) Appeal allowed.