John Opio an another v. R., Crim. App. 889, 897-M-68, 3/2/69, Mustafa J.
Appellant were charged with robbery c/s 285 and 286, Penal Code, but were instead convicted of assault “occasioning grievous bodily harm” c/s 225, Penal Code because the magistrate found appellants did not steal from complainant. Each appellant was sentenced to two years imprisonment.
Complainant has alleged while he was walking with his wife at night he was suddenly set upon by two persons who he alleged were the appellants. Complainant has stated that he was semi-conscious he felt somebody searching him. He says he had Shs. 520/- in his pocket and this sum of money was stolen from him by his assailants. He said it was night but there was moonlight and he could “see the appearances of his assailants clearly”.
Held; (1) “Learned State Attorney rightly pointed out …… there should have been at least an identification parade for the complainant to identify his assailants. In the absence of any identification parade learned state Attorney says the evidence of identification of the appellants as the assailants of the complainant is very weak.
Appellants have denied that they assaulted the complainant and in view of such a denial it is difficult to say that the prosecution has adduced sufficient evidence to identify the appellants as complainant’s assailants. In view of this lack of proper identification the appeals of the appellants would have to be allowed”.
(2) “I may also mention that I very much doubt if the trial magistrate was entitled to invoke the provisions of section 181 of the Criminal Procedure Code in conviction appellants of assault “occasioning grievous bodily harm” contrary to section 225 of the Penal Code when appellants were charged with robbery. I do not think the offence c/s 225 is a “minor” offence in terms of s. 181 of the Criminal Procedure Code ….. it will be seen that it is not necessary to do grievous harm to any person unlawfully in order to commit robbery. The offence of robbery is committed ‘if a person uses or threatens to use actual violence in order to obtain or to retain the thing stolen’. I do not think therefore an offence c/s 225 is a minor offence to robbery in terms of s. 181 of the Criminal Procedure Code. It may be assault c/s 240 Penal Code could be such a “minor” offence but I do not have to decide on this point”. Appeal allowed.
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