Friday Sinyangwe & 3 Others v The People (Appeal 29 of 1996) [2000] ZMSC 8 (18 January 2000)

IN THE SUPREME COURT COURT FOR ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO.2930,31&32(1996 BETWEEN: FRIDAY SINYANGWE FRANCIS KAHILA MONDAY B. SINYANGWE JOHN ICANDEKE 161 APPELLANT APPELLANT APPELLANT 411I APPELLANT Vs. THE PEOPLE (cid:9) RESPONDENT CORAM: (cid:9) Chaila, Lewanika, Chibesakunda, JJS. Judges of the Supreme Court On 18th January, 2000. For the Appellant: (cid:9) Capt. F. B. Navizyambo Acting Director of Legal Aid For the Respondent: (cid:9) Mr. V. A. Kabonga Assistant Principal State Advocate JUDGMENT Lewanika JS 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. The particulars of offence are that the appellants on 17'h day of January at Kasarna, in the Kasarna District of the Northern Province of the Republic of Zambia, jointly and whilst acting together stole a motor vehicle a TOYOTA HILUX bearing registration number AAA2898 valued at 1(2.5 million the property of Vincent Sihmgwe and at the time of or immediately before the time of such stealing did threaten to use actual violence to the said Vincent Silungwe. After a trial, the appellants were convicted and were sentenced to a term of 20 years imprisonment with hard labour. The appellants appealed against their conviction. This appeal could not be heard for a considerable period, by reason of the fact that the record of the proceedings in the trial court could not be found. After a lengthy and diligent search what we have before us is -J2 - the judgement of the Learned Trial Judge. And in view of the time-lapse and we have decided to deal with this appeal on the basis of what is contained in the judgement. Counsel for the respondent, Mr. Kabonga, has quite rightly in our view stated that he does not support the conviction of aggravated robbery in respect of all the appellants from what is contained in the judgement. It was only the first accused in the Lower Court, who has since died, and the first appellant who was the second accused in the Lower Court who were found in possession of the stolen motor vehicle on the 12'h day of June of 1993. There is no evidence against the other three appellants. For that reason we will allow the appeal in respect of all the appellants on the conviction of aggravated robbery and set aside the sentence of 20 years imprisonment with hard labour but in respect of the first appellant we substitute it with a lesser conviction of receiving stolen property contrary to Section 318 (I) of the Penal Code and sentence him to 7 years with hard labour with effect from 12th day of June, 1993. The effect of this sentence is that the 1 appellant will have served his sentence as well. M. S. Chat SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE L. P. CHIBESAICUNDA SUPREME COURT JUDGE