Davies Kasakula v People (S. C. Z. Appeal No. 117/2008) [2010] ZMSC 18 (11 August 2010)

JI S. C. Z. Appeal No. 117 /2008 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA/KABWE (Criminal Jurisdiction) IN THE MATTER BETWEEN: DA VIES KASAKULA APPELLANT vs THE PEOPLE RESPONDENT Coram: Chibesakunda, Silomba & Mwanamwambwa JJS. 3rct March, 2010 and 11th August, 2010. For the Appellant: Mr. K. Muzenga. Legal Aid Board. For the People: Mrs. C. L. Phiri Senior State Advocate. JUDGEMENT Chibesakunda, JS, Delivered the Judgement of Court Initially the record on this appeal indicated that the Appellant and another person by the name of Kennedy Kalela were charged and convicted of the offence of aggravaled robbery contrary to Section 294(2) of the Penal Code. They were both appealing against conviction and sentence. It was brought to our attention by Mrs Phiri, the learned State Advocate during the hearing of the appeal that Kennedy Kalela was acquitted. So this appeal before this court is by the Appellant. So it is only the Appellant who was convicted and sentenced to 20 years imprisonment I. H. L. on one count of aggravated robbery contrary to Section 294( 1) of the Penal Code. The particulars of the offence were that the Appellant on the 19t h day of February, 2005 at Chingola in the Chingola District of the Copperbelt J2 Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and being armed with offensive weapons or instruments namely iron bars, did steal l bicycle valued at K345,000 from Dawson Kazete and at or immediately before or immediately after the time of such stealing did use or threatened to use actual violence to the said Dawson Kazete. The Appellant and another accused person denied the charge. The evidence for the prosecution, on which the Appellant was convicted was that on the 19th February 2005 around 00:30 hours, PWl (Davison Kazele) had just knocked off from work. He was cycling to his home on his red Zambezi bicycle. As he was cycling home, he met three people who hit his bicycle and he lost control and went off the road. He stated that one of them started beating him with an iron bar and another one beat him with a horse pipe all over his body. In the course of being beaten, these people took his bicycle and ran way with it. He reported the matter to the police at Nchanga Police Station. He was given a medical report from and the following day he went to Nchanga Mine Clinic where he received medical attention. A medical report was given to him, which he later produced in Court. The bicycle was worth K345,000.00. The Police recovered his bicycle few days later. He identified his bicycle in Court. It was marked Pl. PW2 testified that sometime m February 2005 someone he did not know came to him and asked him to lend him some money leaving a red Zambezi bicycle as security. PW2 lent K80,000.00 to this person. This same person promised him that he was going to pay him in three days time J3 the amount of K80,000.00 plus K30,000.00 interest. After few days, this person came back to PW2 with the Appellant whom PW2 knew as they had lived in the same compound for a period of one year. PW2 testified that the Appellant was accusing this other person in the presence of PW2 to have gotten the money and used the money he got using the bicycle as security without sharing with him (the Appellant). The other person who borrowed the money from PW2 then suggested to PW2 to buy the bicycle. Both offered to sell to PW2 this bicycle at K200,000.00. PW2 counter offered to pay KS0,000.00 which would bring the total purchase price to Kl60,000.00 (sic) They agreed on that price. According to PW2, two weeks after they agreed, the Appellant and someone else came with the police. They took away this bicycle and he accompanied them to Nchanga Police Post where he was informed that the bicycle was a stolen item. He identified the Appellant as the one who came with the person who borrowed money from him. Under cross-examination PW2 testified that he got the impression that the person who borrowed the money was the owner of thal bicycle. He also testified that he had known the Appellant as the person who used to stay about½ kilometre from his house. PW3 was the arresting officer who testified that on the 22nd of February, 2005 the Appellant led him to PW2's house from where he recovered Red Zambezi bicycle in the bedroom which was partially dismantled. He recorded a warn and caution statement from the Appellant and another suspect. They both gave voluntary statemenls. He testified also that, PW 1 identified the bicycle as his own bicycle. The Appellant was found with a case to answer. He elected to give evidence on oath. . T4 The Appellant's testimony was that on the 23nd February, 2005,he went to collect rentals for his house at house No. 10 Mupweto Street Nchanga North. He found that the rentals had already been collected by his cousin Richard Chabala. He therefore started looking for his cousin. When he found his cousin, his cousin asked him to go with him to collect money from someone who owed him money by the name of Masawope Chilemba. This person gave him K750,000.00. On 25 th February, 2005 around 21 hours, as he was going home, he was approached by two police officers. They asked him for his name, immediately they apprehended him because he had been involved in some other offence. According to him, they started questioning him concerning a number of offences he was not aware of. He denied. They started beating him accusing him of having stolen the bicycle. He was badly hurt, fearing that they would kill him, he pointed at the shop that this is where he sold some things. He denied ever having stolen things. That was his evidence. Undercross -examination, he accepted that he knew PW2 because they stayed in the same neighbourhood. He confirmed that on 19th February, 2005 he was at a farm and that he offered to take the police to the farm with another person. On that evidence, the learned trial Judge convicted the Appellant hence the appeal before this court. The Appellant raised 2 grounds of appeal. These are:- 1. That the Learned trial Judge misdirected himself in convicting the Appellant when the evidence against him was insufficient. J5 2. That in the alternative, the sentence of 20 years imprisonment with hard labour imposed on the Appellant was so excessive in the circumstances of the case and considering that he is a first offender. When the matter came before us, Mr Muzenga learned Counsel for the Appellant relied on his filled heads of argument which we will not restate. Mrs Phiri's submission was that the State supported the conviction as there was overwhelming evidence to convict the Appellant. We have looked at all the grounds of appeal. We have also looked at the record of appeal and the proceedings before the High Court. We are satisfied that the Learned trial Judge based his conclusions on the question of credibility of the witnesses before him. He chose to b elieve the story of the prosecution as opposed to the story of the Appellant. Because of this, we are satisfied that there was overwhelming evidence against the Appellant. We cannot therefore fault the Learned trial Judge conclusion who convicted the Appellant on the evidence before him. We therefore dismiss the appeal as we find no merit in the appeal against conviction and sentence. We therefore confirm the sentence of 20 years l H L . . . . . . . . . . . . {¥.!: ................ . L. P. Chibesakunda SUPREME COURT JUDGE ······~····· S. S. Silomba SUPREME COURT JUDGE J6 - , - ... --~ . ~~~~zt~::::::::::J . . . . . . . . . . M: s. Mwa:na SUPREME COURT JUDGE