William Stephano and Bilauli Zalula v. R., Crim. App. 448, 449-M-68, 28/8/68, Mustafa, J.

William Stephano and Bilauli Zalula v. R., Crim. App. 448, 449-M-68, 28/8/68, Mustafa, J.

The two accused were jointly charged with 2 counts (1) of burglary contrary to s. 294(1) of the Penal Code and (2) of assault with intent to steal contrary to s. 288 of the Penal Code. They were convicted instead of (1) malicious damage of property contrary to s. 326 of the Penal Code and (2) assault causing actual bodily harm contrary to s. 241 of the Penal Code. The court purported to do this under s. 181 of the Criminal Procedure Code which allows an accused to be convicted of an offence with which he is not charged, if it is included in the offence charged.

            Held: (1) The conviction for assault charged, bodily harm must be quashed, since it cannot be substituted for a conviction for assault with intent to steal under s. 181 of the Criminal Procedure Code. The former offence attracts a sentence of 5 years imprisonment, whereas the latter only attracts 3 years imprisonment, (2) The substituted conviction for malicious damage to property was, however proper.