Charles Musonda v People (APPEAL NO. 68 OF 1996) [1996] ZMSC 58 (5 June 1996)

APPEAL NO. 68 OF 1996 I" THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA/KABVE/NDOLA P E T W E E N : CHARLES MUSOND1'. APPELLANT AND THE PEOPLE RESPONDElff CORAM: BWEUPE, D. C. J., CHAILA AND LEWANIKA, J. J. S. o,....__ s-ff... ~ , ( ~ <, ,6 · For the Appellant: Ms. H. L. Henriques. Deputy Director of Legai Aid For the Respondent: Hr. S. K. Muntna11~ Principal State Advocate JUDGMENT Lewanika A. J.s. delivered the judgment of the court. The Appellant had been convicted of the offence of Aggravated Robbery contrary to section 294 (1) of the Penal Code. The particulars being that the Appellant on the 27th day of June, 1994 at Kalulushi in tht Kelulushl District of the Copperbelt Province of Zambia jointly and whilst e.ctlng togeth•r with other persons unknown stole various proJ)ftrty whlch 1$ set out ln the indlctSBent, the property of WU Ham Gullelmus 8oossens and that at or immediately after or immediately before the ti• of tuch steeling did use or threeten~d to use actual violence to the s1ld William Goossens in order to obtain or overcome resistance to Its being stolen or retained. The t~idence before the trial court in brief was thot the ~omplainont who Js a Catholic priest ~as in the early hours of 26th June and 27th June at around 03:00 hours confronted by a group of four or five men who broke into his house and told hlm to be quiet J2 and not to shout. These men were anned with small knives and they then proceeded to runsack the house and collected various items from the housa. P. W. Z an officer who was on duty on that night received a teport of thls robbery. proceeded to the scene of th~ incident, interviewed the complainant and then set out with two other officers to a place between Kitwe and Kalulushi in an attempt to intercept the people -ho had stolen from the complainant. As they .ere walking along the rail line at about 04:30 to 05:00 hou~s 1n the 110rnlng they heard a group of people coming towards thetn. They ehallenged. this group which was about four or five in number and they noticed that thts group was carrying some ttus on thM. Upon being challenged, thls group dropped the property that they had and P. W.2 pursued one of the people and apprehended one of th'1ff who turned out to be the Appellant. The various items th!t were dropt,ed were subs-equently identified by the complaSnant es having been some of the property stolen fro,a him an hour or an hour and half before. Counsel who appears for th• Appellant has advanced one ground of app1al. She has submitted that the learned trial Judge misdirected himself 1n his evidence by finding that the Appellant was found 1n possession of goods th1t had been recently stolen. She has pointed out that according to the evidence on record P. W.2 had sald tnat ~t that time, it was dftrk and that 1t was difficult to see and that therefore th@re could be some doubt 1s to whether or not the Appellant was one of the group of people that were carrying the property or es he claimed in his evidence was merely found et the wrong place at the wrong tiine. We have considered the argument advanced by counsel for the Appellant and ware unable to agree with her because the evidence is such that fr0111 the time that these people were challenged and they threw down the property and the Appellant W4S apprehended there is no like11h00d that P. W.2 had lost sight af the Appellant fl"OII the time that he first saw hla and the time that h• was appreh•nded. Wt er. satisfied th1t tht learned trial Judge was quite right ln his finding that the Appellent had*" found In possession of property that had been recently stolen and convicted him of the subject 6ff1nce. The Appellant was sentenced to flfteen (1S) years tmprtsonment with hard labour which is the minimum sentence for this offence. We note that th11 offence was comittad by• group of four or five people and that the cOllll)lainant ~•s a Catholic priest of SOiie 68 year$ old and we have said ti• and time again that we teke • very serious view of offences of this naturt belng perpetrated on defenceless pirsons by gangs of robbers. WE do not think that this was an aoproprlate case for the trial judge ta laipos• the alnil'IUII penaulty. We therefore interfere -,1th the sentence and set •side the fifteen (15) years and substitute the sentence witti on• of twenty (3:Vyears wtth hard lobour with effect from the daw of the Appell1nt•s 1rrast. a. K. 8. iJW(!upe pEPUTY CHIEF JUSTICE M. 1. Challa SUPREME COURT JUDG£ o. M. Lewanika A/SUPREME COURT JUDGE