Danny Chilufya and Ors v People (APPEAL NOS. 41, 42, 43 OF 2011) [2012] ZMSC 120 (10 October 2012)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NOS. 41. 42, 43 OF 2011 BETWEEN: DANNY CHILUFYA CLINT MUSHANGA MICHAEL PHIRI -VS- THE PEOPLE 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT RESPONDENT CORAM: MUMBA, ACTING DCJ, WANKI AND MUSONDA, JJS Onl0th July, 2012 and 10th October, 2012 For the 1st Appellant: In Person ' For the 2 nd Appellant: In Person For the 3 rd Appellant: In Person For the Respondent: Mr. M. Chipanta Mwansa, Assistant Senior State Advocate JUDGMENT · WANKI, JS delivered the Judgment of the Court. CASES REFERRED TO: 1. The People -Vs- Chisata, (1979) ZR 166 at page 42. 2. Miyoba -Vs- The People, (1977) ZR 43. 3. R -Vs- Baskerville, (1916) and K. B 658, (1916-17) ALL ER 38. 4. Woomington -Vs- DPP, (1935) AC 462, (1935) ALL ER 1. 5. McNaughten's Case (1843) lOC. J1 The appellants were each Sentenced to suffer 20 years Imprisonment with had labour following upon their conviction on one count of Aggravated Robbery, contrary to Section 294(1} of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of which were that the appellants, on 21 st May, 2007, at Lusaka in the Lusaka District of the Lusaka Province in the Republic of Zambia, jointly whilst acting together with other persons unknown and armed with knives did steal from Stanley Chango three cell phones and Kl,900,000=00 altogether valued at K2,620,000=00 the property of Stanley Chango and, at or immediately after the time of such stealing used or threatened to use actual violence to the said Stanley Chango in order to overcome resistance from its being stolen. The appellants' conviction was based on the evidence of Stanley Chango, PWl, Michael Chango, PW2, Willy Ngosa, PW3; Number 28402 Sub/Inspector Moya Mubita, PW4; and Number 20108 Detective/Sergeant Wilbroad Katongo, PWS. The evidence of PW 1 was that on 21st May, 2007 around 14.00 hours he went to get mobile phones he was charging accompanied by his friend Michael Chango. He had J2 Kl,900,000.00. After collecting the phones they went to a tavern. As they were at the tavern, Clint, 2 nd appellant ordered Disizo, 3 rd appellant to apprehend him and he was apprehended. The 2 nd appellant then stabbed him on his right upper lip. Danny, 1st appellant stabbed him just below the left armpit. The 3 rd appellant then stabbed him just above his left ear and the knife got stuck in his head. It was only removed at the hospital. Before he fell down Lee the one they called Chilufya stab bed him twice with a big knife. Thereafter, he became unconscious. He later found himself 1n the hospital when he gained consciousness. He lost K2,600,000=00and mobile phones. He identified the appellants whom he said he had known before the attack. The evidence of PW2 was that on 21 st May, 2007 around 14.00 hours, he went with his friend PWl to get two mobile phones. After getting the phones they passed at Kanona Tavern where they found a group of ten people seated. He entered in the tavern first as he was ahead. When he came out of the tavern he found his friend stab bed in the stomach. He then tried to turn his friend who was on the ground but the 1st appellant whom he J3 knew and ,1/ho stabbed his friend wanted to stab him but he ducked. When people shouted at the attackers, the 1st appellant started running and people gave chase. Thereafter, he took his friend to the hospital. The evidence of PW3 was that on 21 st May, 2007 around 14.00 hours acting on a call that he received, he went to Kanona Tavern where he found the 1st and 3 rd appellants at the Scene. The 1st appellant was stabbing Stan PWl. The 3rd appellant wanted to stab him but he ducked and shouted for help. With the assistance of other people they apprehended the 3 rd appellant and took him to Los Angeles Police Post. PW3 also identified the appellants. The evidence of PW4 was that on 14th June, 2007 he conducted an identification parade where two witnesses identified the 1st appellant and the 2 nd appellant. The evidence of PWS was that he investigated the aggravated robbery on PWl. Following his investigations, he arrested the appellants for the subject offence. Under warn and caution the appellants denied the charge. He produced in evidence a Medical Report Form as exhibit Pl. J4 The 1st appellant in his evidence on oath denied stab bing PWl and stealing his money and mobile phones on 21 st May, 2007. According to him on that day he was at Soweto Market where he was operating at his depot, and that while there he was apprehended and taken to the Police. The 2 nd appellant in his evidence on oath denied being involved in stabbing and robbing PWl. His further evidence was that PW 1 and the other witnesses told lies and that on 21 st May, 2007 he was at home with his wife. He was apprehended from home. The 3 rd appellant in his sworn evidence stated that he was found at Malifeni Bottle Store in Chibolya when he was apprehended by an angry mob and taken to the Police Station. He denied being a member of a gang that attacked PWl. The trial Court after considering the evidence before it, found as a fact that PWl was attacked and severely injured by a gang of thieves who also stole his mobile phones and cash on him; that the offence of aggravated robbery did occur; that the crime occurred in broad day light around 14.00 hours when the visibility was very good and was committed by a group of thieves JS 1n an open area; that PW 1, PW2 and PW3 knew all the three appellants before; and that PW3 took part in apprehending the 3 rd appellant soon after the attack while PW5 and other members of the public apprehended the 1st and 2 nd appellants. The trial Judge then found the appellants guilty and convicted them as charged. The appellants were then sentenced to 20 years Imprisonment with hard labour each. Being dissatisfied with their conviction and sentence, the appellants have appealed to this Court against their conviction and sentence. In their respective notices of appeal, the appellants indicated that "grounds to follow after perusal of the case record," however no grounds were filed. The appellants filed heads of arguments on which they entirely relied at the appeal hearing. They contended that the Court below erred in both law and fact when it relied on the prosecution witnesses' evidence without corroboration, it only lumped the evidence of all prosecution witnesses together and made a conclusion without justifying each prosecution witnesses' evidence adduced before the Court. They J6 further contended that, the Lower Court erred in law and in fact when it convicted the appellants against the weight of evidence adduced before the Court; and that the prosecution failed to prove the ingredients of the case. Analyzing the evidence adduced by each of the five witnesses called by the prosecution, the appellants contended that the evidence of PWl lacks merit and verisimilitude of truth when he stated that he was robbed in a broad day light robbery and lost K2.6 million, cell phones and in the process he was assaulted by his assailants and he further stated that, he was stripped of his clothes and remained naked. They argued that, the evidence of PW 1 conflicted with that of PW2 who stated he found PW 1 in bloody clothes which clearly meant that, no one stripped PWl his clothes where he alleges that two cell phones and money were contained. The appellants urged the Court to so find that the evidence of PW2 does not corroborate the evidence of PWl. They further urged the Court to so find and relied on the case of THE PEOPLE ~VS- CHISATA (tJ in which this Court dismissed the evidence of a witness who could not give true evidence about his personal particulars, and held that it was impossible to find the J7 truth about other matters. They submitted that, the decision in the cited case, applied to this case because the witness lied about other matters and therefore, the Court should dismiss his evidence. They further contended that the evidence of PW3 lacks merit when he told the Court below that, he with the help of others managed to apprehend 3 rd appellant and took him to Los Angeles Police Post where he was detained. They pointed out that according to the evidence of PWS, he found nothing with the 3 rd appellant, but he was arrested within the crime area. The appellants argued that, this shows that the 3 rd appellant was mistakenly apprehended by the members of the public and handed over to the police because if he was part of the group that attacked and stole from PW 1, the knife alleged to have been used and the stolen items could have been recovered. In the circumstances, they urged the Court to so find because the evidence of all prosecution witnesses does not corroborate each other despite being together; reliance was placed on the case of MIYOBA ~VS- THE PEOPLE (2J in which this Court ruled that J8 contradiction in statement by the prosecution witness is in the favour of the accused person and that any shade of doubt be a benefit of the accused. Reliance was further placed on the case of R -VS BASKERVILLE {3l where it was held that: - (ii) Corroboration must moreover be independent evidence (for a witness cannot corroborate himself) in some cases this independent evidence must be that of another witness." The appellants contended that, the evidence of the arresting officer PWS, failed to connect all the appellants to the alleged offence of aggravated robbery, he poorly investigated the case. They pointed out that, the appellants were apprehended within 24 hours and nothing was found with them which was alleged to have been stolen from the complainant. They further pointed out that, PWl stated in his evidence that the phones and the money that were stolen from him were in the trousers he was wearing and that all the clothes were taken away by his assailants while PWS refutes what PWl told the Court. It was contended that PWS, based his investigations on mere hear say evidence. J9 The appellants further contended that, the Court below also misdirected itself when it convicted the appellants on highly circumstantial and unjustifiable evidence. In support, they referred us to the case of WOOLMINGTON -VS- DPP. f4l The appellants pointed out that, subject to the exception in the case of the defence of Insanity (MACNAUGHTEN's (5l case) and Section 12 of the Penal Code, Chapter 87 and certain statutory exceptions, the onus of proving beyond all reasonable doubt that the accused not only committed the offence, but did so with the guilty state of mind requisite to constitute the crime charged, rests upon the prosecution throughout the criminal trial and never shifts to the defence. In particular, the guilty mind will not of necessity be presumed from the fact that the accused committed the guilty act. The appellants therefore, urged the Court to find that, the appellants, on these grounds alone, are entitled to an acquittal. In conclusion, the appellants submitted that, the learned trial Judge misdirected himself in law and fact when he said in his Judgment that, the victim was found with the knife stuck in his head while PWS did not produce any such evidence and no JlO knife was brought before Court not even the Doctor was called to give his medical opinion on his findings whether these were consistent with the trial Judge's findings or not. They finally submitted that, the Court should find the appellants not guilty as charged and dismiss the case against them as it lacks merit. In response, Mr. Mwansa, Assistant Senior State Advocate submitted that, the Court below did not err when it convicted the appellants. He contended that, the prosecution discharged its duty and proved the case beyond any reasonable doubt. The State Advocate pointed out that, there were eye witnesses whose evidence was believed by the Court below; the appellants were identified by witnesses who knew them before. Therefore, mistaken identity was eliminated. He referred the Court to pages 5 to 7 of the record which confirms that, the appellants were known to the witnesses before. Further, there was no circumstantial evidence. The aggravating circumstances, 1s evidenced by the wounds suffered by the complainant. He was attacked by about ten people and was stabbed about five times; and was in a comma for four days. Jll Mr. Mwansa submitted that, the Court below did not err when it sentenced the appellants to 20 years Imprisonment with hard labour. We have considered the appeal; the heads of arguments by the appellants; and the submissions on behalf of the respondent. We have also considered the Judgment of the Court below. It is clear from the evidence on record that, the appellants were known by PW 1, PW2 and PW3 before the attack; that the attack occurred in broad day light; and in an open area. The possibility of mistaken identity of the appellants is therefore ruled out. On the evidence as it stands, the Court below cannot therefore be faulted for finding that, the appellants were the persons who attacked the complainant and robbed him of his two mobile phones and the money that he had. Further, on the evidence as it stands, there can be no doubt that the offence of aggravated robbery was committed; the complainant was attacked by about ten people who robbed him, and actual violence was used immediately before and after the time of robbing in order to retain or overcome resistance from the property being stolen. The submission that the ingredients of the J12 offence were not proved has no basis. Further, as stated above, the evidence adduced was not circumstantial. There were three eye witnesses when the offence was committed. The appellants were therefore properly convicted. We therefore find no merit in the appeal against conviction. It is, accordingly, dismissed. In relation to the appeal against the sentence of 20 years Imprisonment with hard labour, we have considered the circumstances, namely, that the robbery was committed by a group of about ten people; the attack on the complainant was brutal and savage in that offensive weapons, knives were used and serious injuries were inflicted resulting in the complainant being hospitalized for three weeks. We are of the view that, the offence that was committed was an aggravated robbery under Sub-section (2) of Section 294. The appellant were therefore, fortunate to have been charged under Sub~Section (l). In view of the foregoing, the sentence of 20 years Imprisonment with hard labour has come to us with a sense of shock as being inadequate. We feel this is a proper case in which to interfere with the J13 sentence as the appellants deserve a higher sentence than that imposed by the trial Court. We in the circumstances, set aside the sentence of 20 years Imprisonment with hard labour that was imposed on the appellants by the trial Court. In its place, we sentence each of the appellants to 30 years Imprisonment with hard labour with effect from 29th June, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . F. N. M. Mumba, ACTING DEPUTY CHIEF JUSTICE , ..... 1 /·, ,. ., ' : ~ .......... ·:· .... L: ....... ~::. ............ .. . ., •( M. E. Wanki, SUPREME COURT JUDGE . ..... .. .. ............ .. ......... ..... . P. Musonda, SUPREME COURT JUDGE J14