Omari s/o Masunguru, Sulemani s/o Ladu, Pius s/o John v. R., Crim. App. Nos. 158, 159, 160-D-70; 17/4/70; Georges, C. J.

Omari s/o Masunguru, Sulemani s/o Ladu, Pius s/o John v. R., Crim. App. Nos. 158, 159, 160-D-70; 17/4/70; Georges, C. J.

The three appellants were convicted of robbery c/s 285 of the Penal Code. the evidence of the complainant was that he was on his way home having bought some groceries when he saw the three appellants, neighbours in the same village, standing beside the footpath. They asked him where he was going. He asked them why they wanted to know. Thereupon the first appellant slapped him, the other two pulled his legs and he fell dropping all the items he was carrying. He got up and ran away to the house of Simba – the grandfather of the third appellant – to complain. Simba’s evidence was that the complainant was very drunk when he came to make the report.

            Held: (1) “I think that there was evidence to support the magistrate’s finding. The complainant’s goods did drop as he was attacked. They were not seen thereafter. The appellants admitted having taken them and offered to return them. Once this evidence was accepted the conclusion that the appellants had taken the goods was quite justifiable.” (2) “The conviction is, however, unsatisfactory for another reason. To constitute the offence of robbery there must be evidence that violence was used for the purpose of taking the property or retaining it. The trial magistrate did not consider this aspect of the matter. He assumed without examining the evidence that it had been. There were clear indications that this may not have been so. The complainant was drunk. There was evidence of some abuse between himself and the appellants before the attack. It may well have been that the appellants attacked him because of this and not to rob him. His property having fallen during the attack the appellants decided to seize it. The taking of the property followed the attack but the attack was not for the purpose of getting the property. In Sayale s/o Seliani v. Republic, (1968) H.C.D. n. 243 the accused was in the process of beating the complainant when the complainant’s watch fell. The accused pocketed it and ran away. Platt J. allowed an appeal against a conviction for robbery and substituted a conviction for stealing. He pointed out that the taking of the watch was incidental to the assault. The situation here seems analogous.” Conviction for robberty set aside, and conviction for theft substituted.