KWIKIMA

Paul s/o Jumanne Mzee v. R.(1971) HCD 148 

Crim. App. 205-A-70; 20/1/71; Kwikima Ag. J.

The appellant was convicted of robbery with violence contrary to sections 285 and 286 of the Penal Code. It was alleged that the appellant found complainant sleeping with his concubine, beat him up and then took Shs. 60/- and pair of shoes from his.

            Held:

(1) “The learned State Attorney was not convinced that these facts go to establish the offence of robbery and I share his doubt …….The evidence on record does not show that what violence as the complainant received from the hands of the appellant was designed to obtain from him any property for retention by the appellant. The offence of robbery could not have been proved at the appellant’s trial.”

 (2) “An assault is minor to a robbery, for the use of force or the threat of it more often than not involves assault. For example, brandishing a panga at the intended victim is an assault and so is the actual slashing. The same goes with the gun, club or first. I cannot therefore see how any robber could complete his intention without assaulting his victim. I am reinforced in my view by the case of Elmi bin Yusuf v. Rex 1 TLR (R) 269 when Cluer, J. cited Mitra’s commentary on the Indian Criminal Procedure Code with approval: - ‘When an offence consists of several particulars, a combination of some only of which constitutes a complete minor offence, the graver charge gives notice to the accused of all the circumstances going to constitute the minor offence of which he may be convicted. The latter is arrived at by mere subtraction from the former.” Conviction for robbery quashed and a conviction for assault substituted.