Muchaila and Anor v People (SCZ Appeal 119 of 1999) [1999] ZMSC 63 (7 December 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No. 119 OF 1999 HOLDEN AT LUSAKA/NDOLA (CRIMINAL JURISDICTION) DAVID MUCHAILA KENNEDY NG'UNI Vs THE PEOPLE APPELLANTS RESPONDENT Coram: Ngulube, C. J., Sakala and Lewanika, JJS 7th December 1999 For the Appellants: Mr. S. W. Chirambo, Deputy Director of Legal Aid For the Respondent: Mr. R. Okafor, Principal State Advocate JUDGMENT Lewanika, J. S. delivered the judgment of the court. The appellants were convicted of the offence of aggravated robbery contrary to Section 294 (1) of the Penal Code, Cap 87 of the Laws of Zambia. The particulars being that on 21st day of July 1998 at Ndola in Ndola District of the Copperbelt Province of the Republic of Zambia jointly and whilst acting together being armed with a knife did rob WHITESON MUMBA of a bicycle valued at K120,000 and at or immediately before or immediately after the time of such robbery, did use or threatened to use actual violence to the said Whiteson Mumba in order to obtain or retain the said property. The evidence adduced by the prosecution before the learned trial Judge in brief was that on the 21st day of July 1998 the complainant was on his way to his fields sometime in the morning to go and cultivate. Whilst on his way at some point in the bush he was accosted by three men who emerged from the bush and attacked him. These men were armed, one with a stick and the other one with a knife. He was hit with a stick and also stabbed and sustained serious injuries which necessitated him receiving : J2 : treatment in hospital. The complainant in his evidence gave a graphic description of his assailants, their appearance and what they were putting on, on the date in question. On the 18th day of August 1998 the complainant went to Chifubu market in Ndola, at around 13.00 hours during the day where he saw the first appellant whom he identified as being one of the people who had assaulted him and attacked him. The complainant followed the first appellant and he then saw the second appellant and the two appellants went into a restaurant and thereafter the complainant went to seek assistance from a neighbour and he apprehended the two appellants and took them to the police station. In their defense the two appellants said that on the 21st day of July 1998 they were both engaged in the business of burning charcoal in the bush along the Mufulira/Ndola road. They said that on the date when they were apprehended they had in fact gone to Chifubu market to sell charcoal. They denied having attacked the complainant and stealing a bicycle from him. Counsel who appears for the appellants has advanced two grounds of appeal. The first ground being that the learned trial Judge was in error in that he convicted the appellants when both appellants had not been found in possession of the stolen bicycle and that the stolen bicycle was not exhibited before the trial court and that no identification parade was conducted after the appellants had been apprehended. We have considered this ground of appeal and submission by Counsel for the appellants. As we have said earlier the evidence on record is that the two appellants were in fact apprehended by the complainant and it would not have served any useful purpose for the Police to conduct an identification parade to enable the complainant identify the appellants when in fact it was the complainant who in the first place apprehended the two appellants. The other ground advanced by the Counsel for the appellants was that the learned trial Judge erred in convicting the appellants on the basis of a single identifying witness and that the learned trial Judge did not warn himself of the danger of relying on a single identifying witness. We have considered this ground of appeal and the evidence on record is that this robbery took place sometime in the morning during the day and as we have said before the complainant gave a description of his assailants, the role that they played in the assault, the clothes that they were wearing as well as the scar that was observed on one of them and it was the complainant again who identified the appellants when he saw them a month after the attack. The learned trial Judge in coming to his decision in this matter said after considering all the other circumstances and we quote: "I have no doubt in my mind that PW. 1 never made any mistake in implicating the two accused as men who robbed him." Although the learned trial Judge might not have said so in so many words, he was alive to the possibility of a mistaken identity and he considered this and he was satisfied on the evidence before him that the possibility did not exist. We are satisfied that the learned trial Judge was on a firm ground and we find no merit in the appeal against conviction. On the question of sentence the appellants were sentenced to 15 years imprisonment with hard labour which is the minimum penalty for aggravated robbery contrary to Section 294 (1) of the Penal Code. The complainant in this matter suffered serious injuries and the medical report of the injuries was produced before the learned trial Judge and the injuries that he sustained were multiple cuts one to two centimeters deep inside on the right hand and on the right leg and bruises on both his hands and he was also said to be having general body pains. There is no doubt that the complainant was subjected to a vicious attack and that the minimum sentence imposed by the learned trial Judge was wrong in principle. We therefore set aside the sentence of 15 years imprisonment with hard labour and substitute it with one of 18 years imprisonment with hard labour. This will be with effect from the date of their arrest. M. M. S. W. NGULUBE CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE