Tembo and Anor v People (Appeal 108 of 1985) [1988] ZMSC 64 (19 April 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal Nos.100 and 109 Of 1985 HOLDEN AT KABWE ----------------------------------- ■: - .. 7, . -> - ,r<' ■ (Criminal Jurisdiction) ’ * It , • ' » ■,'• 2 -. X GODFREY TEMBO ; Appellants^ STEVEN SHAWA , ■ f C ' • ' . •• *•'' • <• ; ;.l’^ ':’»* •• V .’ i1^- • iV'V- : j. t ■ ,: .■»i . '. . .'. * ■"■•-■■■■ ? „>^ ijiv ' ■' .'-Tj . ' THE PEOPLE . Respondent .. -v k-. ' •/■■>■ * eV- •lr j- . CORAM: Gardner, Ag. D. C. J., Bweupe, Ag. J. S,, and Chaila, Ag. J. S., ' -'^lOth April. 1988 J. Mwanaketwe. Asst. Senior Legal Aid Counsels for the appellants G. S. Phiri, Senior State Advocate, for the respondent ----------------------------- ,------------ ,---- -—.—. ........ ...-------- ————r- JUDGMENT Gardner, Ag. D. C. J., delivered thejudgmentsofthe court. The appellants were convicted of ^avsted-robbery: the particulars f • ■ ■■ ■ '. of the offence being that they, on the 30th of June, 1984, at Hazabuka, jointly and whilst acting together, did rob Alice Kasamu of her wrist watch and a pair of tropical sandals together valued at K52.50.and at the time ofsuch stealing.used,actual violence. Mr. Phiri the learned State Advocate has,indicated that he does not support the conviction against the second appellant and we agree that the only evidence against the second appellant'is that of PW.2 who said that he was present when the robbery started but he was hit on the head and he could not remember what happenedthereafter. Although he identified the second appellant as having been at the scene we fully agree that Mr. Phiri has taken a very proper coursi and it would be most unsafe to convict the second appellant on that evidence. The appeal of the appellant is allowed, .the conviction is quashed and the sentence is set aside. _ , , . , As to the first appellant. Mr. Mwanakatwe has argued that the evidence against him should not have been accepted because therewere discrepancies between his evidence and that of PW.2, whose evidence we have already agreed should not have been relied upon. . ' ■■ - '• *. . ■ : •. ■- 1L *V ’ Z ‘ Ahei * ***** *? 9 ' 2 - • ■ The facts of this case were that t^cwlainant, W-t a lady was walking with PV.2 going to collect some beer for her jat^erw.^ Whan she was walking near sw/sugar cane fields It lls^eg^that'thej^^ first appellant and others attacked her/ dragged her into the sugar -^ cane field and gave every indication that the-vhole gang of them Intended^ to rape her. Fortunately for tttekcwUInant. according to her • evidence one of the gang said that he would tike her first, and iflM/ -•■ T ”' 4* • • 'k - • I’-.,t * < L ' ’ accordance with this intention he took here away from thc4bthers, Wien they wore out of sight he told her that as he was a friend of her father . he would do nothing to her and she should therefore rurt away. . In >ir. ' ; accordance with this advice PIM In fact ran away and reported the incident to hers father. In Wet/course of being dragged into thebCMe . * --'4 • ' ■ ,1 ;" f, fields she complained.that someone stole her wrist watch. She gave V!- evidence that this wrist watch had her Initial^ O. K/ engraved on it. Subsequently the appellants found to be in possession of The appellant’s explanation for ail this was that he himself had> rescued the complainant from.being robbed,raped end attacked by a gang of peoples and that she had then gone voluntarily to his house whsre.the two of them had had sexual intercourse with the consent of the coplainant. thereafter tlfe/ol lowing day the first appellant said that he was surprised to find that there was a wrist watch bn the bed where he hod had, Intercourse with the complainant. In his evidence however.ha denied > that the wrist watch which the^ollce found in his possession was the one with the Initials d. K. on It. / . ‘ ■ .. ' : The learned trial judge heard this evidence and.accepted, the evidence of the police officer who was led by the first appellant to where the wrist watch was hidden and accepted the fact that the wrist watch which was produced byjthe police officer In court with the initials* d. K. engraved on it was the one which had belonged to the complainant. Nr. Rwanakatwe has argued that there were discrepancies in the , evidence of PW.l. the complainant, and PM. S.her brother, the one who had been knocked on the head. Despite these arguments*# find that the evidence as to what PM.2 saw was irrelevant. What was accepted by the learned trial Judge was that violence was used against tbetcomplainant and there is no dispute that the appellant was present when such violence was used. Although he said that he was rescuing the complainant this does not tally with the evidence that was accepted by the learned trial Judge . that the watch was forcibly taken from her, and that after the assault ■’ • . ■ , ‘..... ";■ ' ™ ' '■'■ '■ ' ' the first appellant was found in possession of ^complainant's wrist watch. On this evidence we have no doubt thattihepappellant was properly convicted. • ■ > . < V • ' ; f The appeal against conviction -i^ ■ ■ 1 ' * ” A* >*»£»' , . We ildte that in sentencing the appellant to twenty-five years imprisonment with hard labour, the learned trial Judge said that he noticed that there yas a preva’&nce^of this type of offence. So far as prevalehcels’f' concerned we are quite satisfied that that hhstfbeen taken^into account \V* i* by the Parliament's prescribing a mandatory .sentence of fifteen years imprisonment with hard labour for all cases of aggravated robbery.'?; court has indicated however, that that minimum should be increased This when ever there are further aggravating ciresistances/ such as the- fact that a gang takes part in the robbery, or actual harm has been- ■ . ■ - - ‘ L'’ \ ■ ■■.;; done to th^victim. In this particular case it is our View that ttiei ' . ■■’. r 1 ' ■ ■ * • 1 . S.. ’ . ’ learned Wi judge misdirected himself by increasing the mandatory • minimum because of the prevalence of aggravated robberies, and we therefore set aside the’sentence of twenty-five years imprisonment ;? with hard labour. However we do take Into account the^act’ th>^this ■ was a gang robbery, and those circumstances .can never be Ignored^*. The proper sentence in tlU&case. which we impose, is J^en^ imprisonment with hard labour with effect from the1st July, 1964. :. J U'. J '.'ii. C'U-K *• 'H; r ’ tbs « * a * « a » * * * a A » m * m A a k' ’■* T Gardner < ’ , ACTING DEPUTY CHIEF JUSTICE T /A UV f hnJ •n * ; ‘ \ ** I■1 on thwt > * •• tit sT^K.* ** ■ ACTING SUPREME COURT JUDGE «Vl Khat 'Of > M. S. Chaila ACTING SUPREME COURT JUDGE ■