Makungu v People (Appeal 16 of 1987) [1987] ZMSC 48 (28 July 1987)

gw THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 16.of 1987 JAMES CHISANGA MAKUNGU Appellant v THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner and Sakala, JJ. S., J. Mwanakatwe, Asst. Senior Legal Aid Counsel, for the appellant N Sivakumaran, Senior State Advocate, for the respondent 28thb July, 1987 judgment Gardner, J. S., delivered the judgment of the court. The appellant was convicted of aggravated robbery the particulars of the charge being that on the 13th day of June, 1983, at Kabwe, he with others unknown stole six hundred and six skippers, a cash box and other property valued at K16,435,82, the property of Kikowe Factory Limited, and at the time of such stealing did use or threaten to use violence. Mr. Sivakumaran on behalf of the State has properly indicated that he does not support the conviction for aggravated robbery. He does however support a conviction for receiving stolen property and Mr. Bwanakatwe on behalf of the appellant has also very properly indicated that the appellant would accwpt a conviction of that offence. Trie facts of this case were that the appellant was found at Kafue Railway Station with a suitcase containing a number of items which were suspected to have been stolen. Investigations revealed that these items had been stolen in the course of an aggravated robbery in Kabwe. The evidence connecting the appellant with the aggravated robbery was that he had led the police to a house where a battery, one of twelve batteries stolen in the robbery, were found. There was however, other evidence that the battery which was produced was found at a garage and not at the house where the appellant was alleged to have led the police. This evidence therefore cannot be used to support the conviction for a aggravated robbery. There was overwhelming evidence that the appellant 2J?knew.............. knew that the property that he had in cposssssion at the Kafue Railway Station had been stolen. The proper conviction in this case should therefore be for receiving stolen property. - For the reasons we have given the appeal against conviction for the offence of aggravated robbery is allowed. The conviction on that charge is quashed and the sentence is set aside. In its place we substitute a conviction for receiving stolen property with the following particulars: Receiving stolen property namely green skippers, one white skipper, four UNIP1 shirts, one jacket and two white uniforms for the use of cooks and one brown suitcase. We substitute also a sentence of five years imprisonment with hard labour with effect from 19th June, 1983. A M. S. Ngulube DEPUTY CHIEF JUSTICE B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE