Joseph Banda v People (Appeal 83 of 2000) [2002] ZMSC 102 (2 April 2002)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 83/2000 HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) BETWEEN: JOSEPH BANDA V * APPELLANT THE PEOPLE RESPONDENT CORAM: Ngulube, CJ, Chirwa and Chibesakunda, JJs on 5th February and 2nd April 2002 For the Appellant: In Person For the Respondent: Mr. C. F. R, Mchenga, Chief State Advocate JUDGMENT Chirwa, J. S. delivered judgment of the Court: - When we heard this appeal on 5th February 2002, we dismissed it advising that we would render our reasons later. This we now do. The appellant, JOSEPH BANDA, was charged with and convicted of one count of aggravated robbery, contrary to Section 294 (1) of the Penal Code, Cap. 87. The particulars alleged that on 26th May 1997 the appellants with other persons unknown and armed with knives robbed Vast Banda of 3 blankets, 6 pairs of trousers, I denim shirt, 1 pair bed sheets, 1 pillow case and 1 bed spread all valued at K174,000.00 and at or immediately before or immediately after the time of robbery did use or threatened to use actual violence to the said Vast Banda to prevent or overcome resistance from it being stolen. Upon his : J2 : conviction, he was sentenced to the minimum sentence of 15 years LH. L He appealed to this court against conviction and sentence. The evidence linking the appellant to the offence is that of PW1 and PW2, Vast Banda and Reuben Banda, a couple that was robbed. The evidence of the actual robbery was that PW1, Vast Banda who told the court below that on 26th May 1997 whilst asleep in her home with a child, she was awakened by a knock at the door and on inquiring, she was told to open. She lit a candle and before she could do anything, the door was forced open and three men entered the room. She was ordered not to shout for help or else she would be stabbed. ’She then witnessed the intruders take property, some of which are indicated in the information. While intruders were busy sifting through her property, she managed to sneak out of the house and hid in the toilet and later ran to her neighbour where she spent the night and only returned to her house the following morning to discover some of her property missing. Consequence to this evidence there is the follow up evidence of Reuben Banda, PW2 who told the court that on 26th may 1997 after knocking off from his working place, he went with his workmate to his workmate’s house where he was until around 2100 hours when he decided to go home. As he approached his house, he saw one person jumping over the wire fence to his house. He seemed not to bother until when he entered his house and found some of his property scattered around. It then dawned on him that there was a break-in and the man he saw jumping the wire fence could be involved. He then rushed to the direction taken by the man he saw jump his wire fence. He passed through a funeral house where he summoned some help. PW2 and others whilst pursuing the direction taken by the man PW2 had seen, they saw three people and they chased these people and but only apprehended one man who is the appellant. The appellant was found with some property, namely, blankets, bed sheets, pillow, bedspread, denin shirt and pairs of trousers which PW2 identified as his. The appellant and the property were taken to Mtendere Police Post where the : J3 : matter was reported and the appellant was later arrested for the offence of aggravated robbery. The evidence of the appellant when put on his defence was that on-the day in question, he knocked off from his working place at Soweto Market and boarded a bus to Mtendere where he stays. On arrival in Mtendere he went at a bottle store where he met his friend Derrick (Martin) Mbewe drinking and he gave this Mbewe a parcel of fresh fish and joined him in drinking. After some time he decided to go home but before he reached his house three gentlemen approached him and asked for a cigarette and as he was chatting with tfiese people he saw a mob of people come to where they were chatting. The three men he had been chatting with run away but they dropped a bundle of unknown items. The mob found him standing next to the dumped bundle and they apprehended him and accused him of having stolen the property in the bundle and they started beating him and forced him to carry the bundle to the Police Post. He denied that he dropped the bundle. The learned trial judge after considering the totality of the evidence accepted that PW1 was robbed of her property as particularized in the information and violence was threatened to her. He further found that the property stolen was found in the vicinity where the appellant was apprehended and this was within one hour of the robbery. The learned trial judge further found that there was no eyewitness to the robbery in the sense that although PW1 was present she was unable to identify the robbers and the case rested on circumstantial evidence, namely that the appellant was found in the vicinity of the property stolen within one hour. The circumstantial evidence was further brought out by PW2 who saw a person jump the wire fence carrying a parcel and later apprehended the appellant. The learned trial judge dismissed the appellant’s story that the bundle containing the stolen property was dropped by the people he was chatting with and who had earlier on asked for cigarettes. : J4 : In arguing this appeal, the appellant repeated his story at the trial, expressing his surprise that after apprehension he was charged with burglary and theft but this was later changed to aggravated robbery. Further, no property was found on him and that the property to which he is linked was found on the road after it was dropped by the people he was chatting with. We have considered the evidence on record and we cannot fault the learned trial judge in finding that the complainant was robbed of the property in question. Further that the case depended on circumstantial evidence as the complainant was not able to see her attackers. We accept the careful consideration of the circumstantial evidence by the learned trial judge and the conclusion reached that the appellant was involved in the robbery cannot be defaulted. The learned trial judge was very much justified in dismissing the appellant’s story, which we also do. The circumstantial evidence leads to only one conclusion that it is the appellant and his friends that robbed the complainant of her goods. It is for these reasons that we dismissed the appeal against conviction. As the appellant was sentenced to the minimum statutory sentence, there can be no appeal against this sentence. M. M. S. W. NGULUBE CHIEF JUSTICE D. K. CHIRWA L. P. CHIBESAKUNDA SUPREME COURT JUDGE SUPREME COURT JUDGE