Francis Changwe and Anor v The People (Appeals No. 31 & 32 / 2002) [2004] ZMSC 141 (8 December 2004)

IN THE SUPREME COURT OF ZAMBIA APPEALS NO. 31& 32 /2002 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: FRANCIS CHANGWE MOSES KAMWANA Vs THE PEOPLE 1st Appellant 2 nd Appellant Respondent CORAM: Lewanika, DCJ, Chitengi, JS and Mushabati, AJS On 6 th April, 2004 and 8 th December, 2004 For the Appellant For the Respondent Capt. Nanguzyambo Director of Legal Aid Counsel Mr. L. E. Eya State Advocate JUDGMENT Chitengi, JS, delivered the Judgment of the Court. Cases referred to: - 1. Ali and Another Vs The People (1973) ZR 232 In this case the Appellants were convicted of Aggravated Robbery contrary to Section 294(1) of the Penal Code Chapter 87 of the Laws of Zambia and each was sentenced to 15 years imprisonment with hard labour. The particulars of this offence allege that Francis Changwe and Moses Kamwana on18th day of August, 2000 at Ndola in the Ndola District of the Copperbelt Province of the Republic of Zambia jointly and whilst acting together with either persons unknown did rob Solomon Chileshe of 2 Television sets, 1 Video Deck, 1 Video Tape, 1 Stereo, 31 J 2 Audio Tapes, 2 Remote Controls, 1 Speaker, 1 Fan, 1 Bicycle, 1 Su.it Case, 1 Brief case, 1 handbag, 1 Wall Clock, 4 Mattresses, 1 Track Suit, 2 Jackets, 1 Wrist Watch, 1 Track Bottom, 2 Pots, 1 Pan, 2 Skippers, 2 Pairs Trousers, 3 Metres Curtain Material, 7 Plates and 2 Ladies' Suits together valued at K3, 177,000.00 the property of the said Solomon Chileshe and at or immediately before or immediately after the time of such robbery did use or threaten to use actual violence to the said Solomon Chileshe in order to obtain or retain the property. The facts of this case can be briefly stated. On the night of 17th and 18th August, 2000 the complainant (PWl) his son Kasongo Chileshe (PW2) and other members of his family were sleeping. About 23:00 hours they were awakened by a group of people who attacked them. These people started breaking windows in the dining room, sitting room and bedrooms demanding property. The damage caused to the house was extensive. PWl switched on the lights and he saw five people outside. Later the people forced the sitting room door open after hammering it with a big block and two of the people (now Appellants) burst into the house armed with a panga and a sharp iron bar and advanced towards the complainant. One of the Appellants aimed to hit the complainant with a sharp iron but the complainant ducked and instead the sharp iron bar hit PW2 on the head causing him a cut which bled profusely and for which he was treated at Ndola Central Hospital as per medical report. After entering the house the Appellants ransacked the house and hauled the property particularized in the information and gave it to the others who were outside the house. After the robbery the appellants and the others left and went in the direction of the stream. While the robbery had been going on the other members of the complainant's family who were in the bedrooms were screaming shouting for help. These shouts J 3 attracted the attention of Major George Mwale (PW3) who is a neighbour of the complainants. PW3 telephoned the Police and rushed to the complainant's house. PW3 arrived at the complainant's house at more or less the same time as Sub Inspector Mbuzi (PWS), Constable Lwanga (PW4) and Constables Chunga and Matambo only to find the robbery was over and to be told that the robbers had gone towards the stream. Except for PW2 who briefly saw death after he had been chopped on the head, the witnesses followed the robbers in the direction of the stream. The Police witnesses fired in the air as they went toward the stream. The robbers left a trail because the items stolen during the robbery were strewn on the path they had taken. After crossing the stream, the two Appellants were found hiding in a wide ditch at a distance from each other and covering themselves with a Catholic Church chitenge material stolen from the complainant's house. The other people who were with the Appellants were not found. On these facts the Appellants were arrested for the subject offence which they denied. The first Appellant's defence was that at about midnight on 17lh August 2000 he was picked by the Police from Dola Hill turn off where he was selling diesel and taken with others who were in the van to Kansenshi Police Station and detained in the cells. The following morning the others were released but he was taken to CID office where he found the second Appellant with whom he was later jointly charged with Aggravated Robbery. He said the Police apprehended him because he had cheated them that he was not selling fuel and for selling fuel illegally. According to the second Appellant he was on 17th August, 2000 picked by the Police on his way home from ZAFFICO Mishishi Plantation where he has been working from 13:00 hours to 22:00 hours and accused of being a thief. He was then put in a Police van and taken to Kansenshi J4 Police Station with other persons the Police picked on the way to the Police Station and detained in the cells. In the morning, he was taken to the CID office where later the first Appellant whom he did not know before was brought. The two Appellants were then jointly charged with Aggravated Robbery. On this evidence the learned trial Judge found that the complainant's house was on the day in question broken into by a gang of more than five men armed with offensive weapons like iron bars bricks and pangas. The learned trial Judge also found that the two Appellants were apprehended soon after the robbery at the complainant's house. After making these findings the learned trial Judge posed for herself the question whether the two Appellants were part of the group of persons who robbed the complainant. After reviewing the evidence, the learned trial Judge found that although there was no proper identification parade held the complainant and PW2 identified the Appellants and that the possibility of an honest mistaken identity was ruled out. Further, the learned trial Judge found that the circumstantial evidence in this case was so cogent and compelling that there was no other rational hypothesis which can be reached than that the Appellants were part pf the group which robbed the complainant and injured PW2. The Appellants now appeal to this court against the conviction and sentence. Each Appellant filed one ground of appeal. The appellants' grounds of appeal are word for word the same. The ground of appeal is that the learned trial Judge misdirected herself in law by allowing the evidence of PWl and PW2 and rejecting that of the Appellants. The Appellants also J 5 complained that the same case was heard by the court with different accused person. In arguing the appeal, Captain Nanguzyambo, the learned Director of Legal Aid for the Appellants, relied on the grounds of appeal, the submissions of no case to answer and on his written heads of argument, in which he argues that the trial was a nullity because one Mukwanyanga who was supposed to be tried together with the Appellants was separately tried and the outcome of that trial is not known. The sum and substance of the submissions of no case to answer is simply that there was no evidence to link the appellants to the robbery. It was argued that all there was, was circumstantial evidence which was full of contradictions and controversy. Mr. Eya, the learned Principal State Advocate also relied on the submissions of case to answer. These submissions were that the Appellants were identified by the complainant and PW2 and that these witnesses were unshaken during cross- examination on the identity of the Appellant's. It was submitted that no danger or possibility of an honest mistaken identity arose because there was sufficient light and the complainant and PW2 even conversed with the Appellants. We have considered the evidence that was before the learned trial Judge, the submissions of counsel and the judgment of the learned trial Judge. As the learned trial Judge properly found the fact that the robbery was committed is not in dispute and we are satisfied that the learned trial Judge was entitled on the evidence to make that finding. The critical issue in this appeal is the identity of the persons who committed the robbery. J6 On behalf of the Appellants, it has been argued that there is no evidence to directly connect the Appellant with the robbery and that the circumstantial evidence is full of contradictions and controversy. On the other hand, Mr. Eya argued and submitted that the Appellants were properly identified by the complainant and PW2. We are unable to accept Mr. Eya's submissions that the Appellants were well identified by the complainant and PW2 and that the possibility of an honest mistaken identity was excluded. There was no identification parade held in this case and, in any case, an identification parade would have served no purpose as the Appellants were shown to the Complainant and PW2 after they had him apprehended. The identification Mr. Eya was talking about was the identification in court. We have said before that identification in the dock is no identification at all. See Ali and Another Vs The Peopld1J. In the event , to the extent that the learned trial Judge based the conviction on identification of the Appellants by the complainant and PW2 in court, the learned trial Judge misdirected herself in law. We, therefore, agree with the submissions on behalf of the Appellants that there is no direct evidence to link the appellants with the robbery and that the evidence is circumstantial. But we do not agree with the submissions that the circumstantial evidence is full of contradictions and controversy. We have carefully perused the evidence and we have not found the contradictions and controversy which counsel for the appellants talked about. Indeed, counsel has not pointed to us any specific contradiction or controversy. So the issue we must resolve is whether in the circumstances of this case, the Appellant can be said to have been part of the group of the persons who committed the robbery. We agree with the learned trial Judge's finding that the circumstantial evidence was so cogent and compelling and that it pointed to the fact J 7 that the Appellants were part of the group that robbed the complainant. We find the circumstantial evidence implicating the Appellants overwhelming. We have considered the Appellants' evidence in defence. We find no ring of truth in the Appellants' explanations. The explanations given by the Appellants are what is called a cock and bull story. The robbery was committed by some five or more persons, some of who actually went into the house where they injured PW2 and stole a lot of property. After the robbery, the persons headed for the stream. Shortly after they had left the persons were followed by the complainant, PW3 and the Police who were firing in the air. The persons left a trail of the stolen property strewn on the path they took. The appellants were found hiding in a ditch. The time was night. There is no explanation as to what the appellants could be doing in the ditch at that time of the night. In the circumstances it cannot be seriously argued that the Appellants were not part of the people who robbed the complainant. The evidence is overwhelming. In fact we would say the Appellants rohhe.d the complainant and were caught red handed as they were fleeing from the complainant's house with the stolen property. Accordingly, we uphold the learned trial Judge's finding on the circumstantial evidence that the Appellants were part of the group, which robbed the complainant. Captain Nanguzyambo raised the issue of the trial of one Mukwanyanga on the same facts of this case. This issue was resolved during the exchange between the learned trial Judge and the State Advocate. In any case, the fact that Mukwanyanga was tried on the same facts of this case and the outcome of the trial is not known does not make these proceedings a nullity. The Appellants in this case were never tried before on this charge. We do not, therefore, see how the trial of Mukwanyanga affects the Appellants' liability for the robbery. We find no merit in this appeal. J 8 The Appcllnnts were C'ach sentenced to the mininium rn :1ncbf.ory senten ce of 15 ycnrs imprisonment with tuud labour. On the fac1 :, of this case we find ourselves bound to interfere with the scntc-rwr ' . li\!'I C was a lot of violence and h a rassmen t i:n this case. In fo_<·t \'-'C \"' 1Juld s,iy that on that night all hell broke loose for the complainan t and liis fnn1ily. There was breaking of windows and the door of the hou~;c a nd PW~~ \vas chopped on the head with a panga or s harp iron bar a n d fo r :;cmH time saw death. In t he circumstances, the appellants did not desen'<_'. onl:\' llle minimum mandatory sentence of 15 years imprisonlllcnt \'.'ith lrnrd labour. We view t h e facts of this case to be serious. We are ,_,i· th<: view that a sentence of 20 years would fit the facts of this case. In ti1c n -c nt. we quash the sentence of 15 years imprisonment wit h lwrd h'1iour imposed by th~ lc. Rrnccl trial ,Judge and substitu te with one 11I 20 yr;-1rs imprisonment with hard labour and eac h accused is so s cntc!wCti. ·1 lie sentences will run with effect from the date the appcllclllts \\'l'f'C !;1kcn into custody. ···· ·················· ············· ······~········ D. M. LEWANIKA DEUPTY CHIEF JUSTICE ~ \ . . Vo> ; •• PET SUPREME C ITENGI RT JUDGE µ . / -- (.. ,, -~ .... ,,, "'-- ~ -,__ • •. 6 . ........... ..... .. , .... . J . . . . . . . . . . . . . , • • • ' \ CS Mtr,--.u A·:, rl TI i:..) iu·Ji. ""'-. ,. ., , ,. • AG/SUPREME COURT JUDGE