Chiti and anor v The People (Appeals Nos 184 & 185 of 1983) [1991] ZMSC 72 (9 July 1991)

IN THE SUPREME COURT OF ZAMBIA Appeals Nos 184 & 185 of 1983 HOLDEN AT LUSAKA (Criminal jurisdiction) / ■ : • ’ < . ,/W r ■ I ; JOHN CHITI 1st Appellant DAVID KASONGO 2nd Appellant / "v" THE PEOPLE Respondent ; -* . -’>• •' ' ' ■ CORAM: • Ngulube, D. C. J., Sakala and Chaila. JJ. S, ■_ I I - y’ , .• • J. On 9th July, 1991 For the appellants, Mr,' Henry Chanda, Senior Legal Aid Counsel For the State, Mr. WiInroad Wangwor, Senior State Advocate ■ iw : r JUDGMENT Ngulube, D. C. J, delivered the Jud^oent of the Court ........ r. ■ ■ ■ -if;-' ■w -J--- . • ••'a. The appellants were sentenced to death in consequence of their conviction on a charg^ of armed aggravated robbery..zJhe particulars briefly stated were thdt on 23rd October, 1982, at Mbala, whilst acting together, and armed with a revolver, they stole some cash from PW1, who was at the time working at a petrol station,> The brief facts were that on the day in question, in broad day light, around 16.00 hours, PWs 1 and 2 were on duty at Bhakta Engineering Company filling station when two people arrived. One of them asked if they had brake fluid. When the reply was in the affirmative ;that person went away but within moments, came back with another who was armed with a gun. The armed robber ordered the witnesses and the watchman to raise their hands and ordered them to get into a room which was adjacent to the office. A shot was fired in the air.and the robbers then took the money which was in a drawer. They ran away with the cash which was in a Standard bank bag; whereupon the witnesses started calling for help. According to the witnesses, PW3 who happened to come by was informed and he chased one of the persons who was 2/i.... running /- ’ L •/ 1* ■ .. •*tt,• W h,' '• *■ - • . -:»• running and who took a shot at him but when the gun refused to fire again, PW3 apprehended this person who turned out to be the first appellant. There was evidence that as a result of the calls for help a police officer, PW4 and other members of the public who happened to be nearby went in thedirection taken by the other person and found the second appellant lying in a maize field and apprehended him. •Jr On behalf of the appellants Mr. Chanda has put up a valiant fight. He has argued in his first ground that there was insufficient evidence to establish the use of a firearm and also to show that the firearm produced in court was the one which had been used in the robbery. Without going into too much detail on the submission which had been made, we point out only that the evidence in this regard was trully overwhelming. The. -qye witnesses, particularly PW3, testified that a shot was actually fired at the filling station. There was also ballistic evidence that the spent catridges recovered from the scene were shown to have been fired from the revolver recovered from the first appellant. The flaws contended for by Mr. Chanda were, therefore, more apparent than real. The second ground alleged mis­ direction on the question of the appellants’ identification., Mr. Chanda has identified some passages from the evidence of the witnesses which said that at some stage, in the initial stages, the witnesses were frightened and did not have a good look at the bandits. But, as Mr. Wangwor pointed out, the witnesses went on to describe what happened subsequently. We agree with Mr. Wangwor and with the conclusion by the learned trial judge that these appellants were caught virtualy red-handed. As against the first appellant he was identified by PWs 1 and 2 who observed him in broad daylight and who followed when PW3 assisted in chasing the first appellant. They arrived at the scene within minutes of the apprehension of the first appellant. Indeed the first appellant took a shot at PW3 but when subsenquent shots failed to fire, he was caught and taken into custody. The possibility of a mistaken Identification in such circumstances does not exisit since the witnesses were catching a person they had virtually not lost sight of. ■ ■ ■' y By ■ With regard to the second appellant, he was also apprehended within minutes while he was hiding in a maize field. He'was identified in a spontaneous fashion by the complainants PWs 1 & 2 when he arrived at the Police Station but even more conclusively, he had the stolen money • 3 - bag, the cash and the bank deposit- book belonging to the complainants which had been taken in the robbery moments previously. We have also considered the submission that the learned trial judge appears not to have given much consideration to the defences put forward by the appellants. The first appellant said he was an innocent passerby while the second appellant said that after a drinking spree he was so drunk he went and slept in the maize field. As we have already indicated, the evidence against these two appellants was so overwhelmi­ ng that there could be no question of accepting their defences. There is in truth no ground upon which the convictions of these two appellants can be interfered with. The appeals against conviction are dismissed. No appeal-Ties against the mandatory death sentence. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE E. U Sakala SUPREME COURT JUDGE