Mwaikasu, J.: This appeal centres on the issue of identification of the accused persons D one of whom was the appellant, as the proper persons who invaded the complaint's home at night, broke into and robbed him of his various properties which were the subject of the charge. E
The appellant, one Kichele s/o Mrange was one of the nine accused persons who stood charged before the lower court with the offence of robbery with violence c/ss.285 and 286 of the Penal Code Cap.16. The appellant was listed as the third accused. They all pleaded not guilty to the charge. However, subsequently the appellant was convicted of F the offence charged alongside with few others. He was sentenced to seven years of imprisonment. Unfortunately the trial magistrate made no order for compensation as required under the Minimum Sentences Act 1972. This however can easily be rectified by this court as empowered under the said Act. G
This appeal is therefore against such conviction and sentence. As stated earlier, the appellant's grounds of appeal are in the main to the effect that the circumstances when the offence is alleged to have been committed were such that he could not have been properly identified, and there was no identification parade to confirm the same. H
A brief account of what took place on the day of the incident will perhaps, enable us appreciate the circumstances under which this offence is alleged to have been committed. The P.W.1, one Martin Lumanilo is the husband of the P.W.5, one Eliza d/o Petro. On the 25th of August 1980, at about 1.00 a.m. while the P.W.1 and P.W.5 I were asleep in their dwelling house, they heard a big bang on the
door of their house. It was done with a heavy stone. This awoke them up. The second A bang broke the door and the thieves got the opportunity to enter it. The P.W.1 had by then put on a head lamp and lit the intruders well. The P.W.15 could then identify clearly the 3rd, 6th and 7th accused, the 3rd being the appellant. The accused too had their B own torches. The 6th accused is said to have been holding a gun. Then a fierce dialogue began. The burglars demanded, after firing a shot on the wall, that the P.W.1 should lie down but he refused. This enraged them and it was ordered that he be shot. This was fulfilled by shooting the P.W.1 in the stomach near the waist, after which he fell down. C Believing that the P.W.1 was dead, they began collecting every valuable item from the house all of which amounted to a total value of Shs. 56,100/=; the property of the said Martin Lumanilo, and made away with it. Later the P.W.1 was helped by his neighbours who had responded to the victim's alarm, and received medical treatment at Bugando hospital, and recovered.
Such then were the circumstances surrounding the commission of the offence and the D identification of the appellant.
The learned counsel for the Republic has submitted and I think quite rightly so that the appellant was, though not known to the complainants before, clearly identified as one of the robbers who broke into their house and stole the goods as narrated in the charge E sheet, because at the time the appellant and the other identified co-accused broke into the complainants' house and carried out the robbery there was enough light which enabled the victims to identify them clearly. He therefore supported the lower court's conviction.
I have no reason to differ from such view as I am fully satisfied that there was ample F evidence by the P.W.1 and P.W.5 to implicate the culprits in the offence in question. As testified by the P.W.1 the two witnesses were not taken by great surprise, rather they had steady minds as they got up and prepared themselves to face the trespassers by G having light on. They did, in fact even have some time of arguing with the culprits as the P.W.1 resisted their demand for him to lie down which then cost him a bullet in the stomach.
With such evidence, I cannot but uphold the finding of the lower court as to the guilt of the appellant and dismiss this appeal. The sentence imposed is the minimum prescribed H by law under the Minimum Sentences Act 1972, and there is no reason to disturb it.
Having thus disposed of the appeal, two more questions attracted my attention. One concerns compensation and the other, the offence as charged before the lower court. As I stated earlier, the trial magistrate did not make any order for compensation by the
accused, including the appellant for the complainants' lost property. This he was duty A bound to do under the Minimum Sentences Act 1972. Having overlooked such requirement on the day he delivered his judgment he still had the power at any other later stage either on the application of the owner of the property concerned or on its own motion, to order such compensation; provided that such order shall be made in the B presence of the person against whom it is made. That is the provision under s. 7(1) (2) (3) of the said Minimum Sentences Act. 1972. As the appellant did not appear and the other convicted accused have not appealed I exercise my revisional powers in respect of such other accused persons and order that they be summoned before the trial court to C hear about such order for compensation which is hereby required to make.
The final point concerns the offence itself. The accused were charged with and convicted of the offence of robbery with violence only. Yet the evidence established that the D accused broke into the complainants' dwelling house at 1 a.m and thereafter in the same house robbed them of their properties as stated in the charge. This then aroused my attention and I had to ask myself the question. "Was this not a case for burglary as well, c/s 294(1) of the Penal Code?'.
Burglary, as provided for under the above section is, among other things "the breaking E and entering, at night any building... used as a human dwelling with intent to commit a felony therein."
Here the complainants' dwelling house was broken into and entered at night. The accompanying intent behind such burglary was to rob the complainants, and this was F done. So the robbery was committed in such setting, that is the burglary, as the felony for which the accused had intended when they broke into such building. Robbery, is in fact an aggravated theft. Thus, in such circumstances, the accused should have been charged with and convicted of the offences of burglary c/s 294 (1) of the Penal Code, G on the 1st count, and robbery with violence c/ss 285 and 286 of the Penal Code, on the 2nd count, and sentenced accordingly.
However, in considering whether this was fit cause to exercise the powers of this court as provided for under s.319 (1) (a) (ii) and s. 329 (1) (a) of the Criminal Procedure H Code, Cap. 20, so as to alter the finding the lower court and convict the three accused-appellant (3rd accused), 6th and 7th accused, of such offence of burglary, I have come to a settled view that, since the three accused were not charged with such offence before the lower court this court cannot properly exercise such power as provided for under the I
aforementioned sections. This, I think was well considered and settled by this court in A the case of Sakila v Republic [1967] E.A. 403.
In that case the appellant had been charged with and convicted for the offence of defilement of a girl under the age of twelve years c/s 136(1) of the Penal Code, yet in the B course of the trial, the learned trial magistrate found as a fact that the girl was between the age of twelve and thirteen years, so that no offence had been committed. On appeal it was urged by the Republic that the High Court, in the exercise of its appellate jurisdiction, could under the provision of s. 319(1) (a) (ii) of the Criminal Procedure C Code, alter the finding to one of guilty of rape c/s 131 of the Penal Code. Platt, J. as he then was, rejected such a proposition in the following terms:
The purpose of a charge is to inform an accused what it is that he is alleged to have done which contravenes the law. If the prosecution fails to prove that charge, although it might D successfully prove another charge the accused is entitled to be acquitted... In my view it would be unjust to read the words "alter the finding" as being wide enough to enable the court on appeal to alter the finding from guilty of defilement to guilty of rape, since that would involve E convicting the accused of an offence with which he was not charged, and therefore had no opportunity to put forward a defence....
Although it could be argued that the case before his Lordship was one of attempt to F convict a person who had been acquitted of one offence, of another offence for which there had been no provision for an alternative verdict, yet the principle remains that in that case as in the instant case, they had not previously been charged with the other offence of which he could possibly be convicted.
I am the more fortified in such view upon reading the A.I.R Commentaries on "the Code G of Criminal procedure' (1898) of India Vol. 11, at p. 2825 by Chitaleyd Appu Rao, (6th Edn.), where the learned authors, while considering a provision of s. 423(i) (b) of 1898 Indian Criminal Procedure Code, very similar to ours under consideration, put a H very pertinent question thus:
But can an appellate court alter the finding in such a way that the altered offence was neither charged in the trial court nor was one for which the accused could have been convicted under I the provisions of ss. 237 and 238 (which sections provided for alternative verdicts)?
To such question the answer was the general trend of opinion is that it cannot do so. A
I am satisfied, therefore, that because no charge had been preferred against the three accused in respect of the offence of burglary at any stage in the course of the trial this court does not have the power to alter the finding of the lower court as to find the B accused guilty of the burglary offence. It is, however, hoped that, in future this observation will be noted by all concerned with the institution of criminal charges and the adjudication of cases thereof.
This appeal, therefore is dismissed in its entirety, and it is hereby so ordered. C
Appeal dismissed.
D
