Musonda v People (SCZ Appeal 63 of 1993) [1993] ZMSC 136 (20 April 1993)

. IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No.63/93 HOLDEN AT KABWE (CRIMINAL JURISDICTION) BETWEEN DAVIES MUSONDA APPELLANT Vs THE PEOPLE RESPONDENT Coram: Sakaia, Chai la and Muzyamba, J. J. J. S 4- ?•. 20th April, 1993 $ For the Appellant in person f / . . . .... .... _ .. , ..... . _ For the State: Mr, E. Sewanyana, Assistant Senior State Advocate JUD —---------- E <^N Muzyamba, J. S. delivered the Judgment of the Court The appellant was convicted of Aggravated Robbery Contrary to Section 294 (1) of the Penal Code, Cap. 146 of the Laws of Zambia and sentenced to 15 years imprisonment with hard labour. The particulars of the offence are that Davies Musonda, on 16th day of May, 1988 at Kabwe in the Kabwe District of the Central Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown did steal a motor vehicle Peugeot 504 Registration Number AAD 7860 valued at K80,000-00, property of Patrick Siyowe and at or immediately before or to immediately after the time of stealing the said property did use or threatei use actual violence to the said Patrick Siyowe in order to prevent resistant to Its being stolen. He has appealed against conviction only. □2/ i. Briefly* the prosecution case is that the complainant. Mr. Patrick Siyowe was on 16th day of May, 1988 around 13.00 hours hired by three (3) men to drive them from Kabwe town centre to a place called Kakumbl near Kohlma Barracks within Kabwe. The agreed hire fee was K50.00. Near Kakumbl he was told to turn left and stop near the tavern. When he stopped the three people who hired him "came out of the vehicle and one of them who happened to be the appellant in this case went to the tavern and asked for a certain girl but did not find her. They then got into the vehicle and told the complainant to drive to the western side of the Chindwln Barracks where the girl was believed to be. They used a short cut. On the way one of the three men said to his friends, "come and kill him". Then the appellant and one other who were both seated in the back seat of the car got hold of the complainant and squeezed his neck and the third one who was . z; ■ ■ & in the passenger seat tried to push the complainant put of the cary The complainant resisted and managed to switch off the enginef opened tho door and came out of the car. The attackers then drove off leaving him behind. > On the same day he reported the matter to the Police. < y-f. The following day the complainant was taken by the Police to the ■ ■■ ■■ f western side of Makululu Compound where his car: was abandoned. When he ■ ■ ■. ' r• 1 ■"*। ■■ ■ got there, he discovered that some parts were missing, one of which was a ■ ' i '' '' ■ ' ■ ' pressure pump which was later recovered from PW.2, Mr. Benson Simumba. While at the scene where the can, was abandoned, the arresting Officer Mr. Lameck Slngoma, was led by his Informers to the house of the appellant. He apprehended him and his young brother and took them to the car where the complainant readily identified the appellant as one of his attackers,^ ■ . ... J.;..:. < J3 In his defence the appellant put up an alibi saying that when the robbery took place he was at the market selling fish. There Is one main ground of appeal put up by the appellant namely. that he was not properly identified. In his written submission the appellant ; argued that since the complainant did net say by what features or unusual - ' ZZ*' ' * ' ’ ‘ ... ; marks he was able to Identify him or indeed his body built or clothes he was wearing and the state of lighting for observation it could not be said that the complainant properly identified him. In resolving this issue this is what the learned trial Judge had to say at pages J21-22 of the Judgment "As regards the Identification by PW it was during lunch hour when the three attackershired the complainant to take them to Kakumbl. At the t|me;Ofhire he observed the attackers clearly when he was negotiating the hire charge. This time he was not gripped with fear of being * ‘. • ‘f; < ;1 attacked as they looked innocent at the time/Ht'Kakumbl near the tavern accused was alleged to have come out and asked the people at that place where the. girl they were looking for was. This evidence was not challenged. Assuming this piece of evidence was true then this afforded PW.1 a ■ second opportunity to see and observe accused. Barely a day or less passed when the following morning accused was apprehended - PW.l without difficulty identified him out of the two men and the other man alleged by defence to be young brother of accused was accordingly released as the complainant denied that he was not one of the three men who attacked him". We entirely agree with the learned trial Judge’s observations and findings that the complainant had ample chance and opportunity to observe and identify the appellant. ' •• ■■ ' < - i < There is also the fact that the appellant sold a pressure pump ' to PW.2 which was positively identified by the complainant and the appellant in his evidence admitted that he knew PW.2 before. There is therefore no question of mistaken identity of the appellant on the part of PW.2. The , „ learned trial Judge was therefore right in rejecting the defence of alibi - Jr % put forward by the appellant. We accordingly find no merit in the appeal. It Is dismissed No appeal lies against the mandatory sentence of 15 years Imprisonment for this offence. E. L. SAKALA ' SUPREME COURT JUDGE & J W. M. MUZYAMBA SUPREME COURT JUDGE