Musumfwa v The People (S.C.Z. Appeal No. 20 of 1991) [1991] ZMSC 60 (16 April 1991)

IN THE SUPREME COURT OF ZAMBIA S. C. Z. Appeal No. 20 of 1991 HOLDEN AT KABWE KALWILA MUSUMFWA Appellant vs THE PEOPLE Respondent CORAM: Silungwe, C. J., Gardner and Challa JJ. S. Mr. E. Sewanyana, State Advocate for the People Mr. F. B. Nanguzyamba, Assistant Senior Legal Aid Counsel, for the appellant 16th April, 1991. JUDGMENT Chaila, J. S. delivered the judgment of the court. The appellant was charged with an offence of aggravated robbery. The particulars of the offence were that he, with some other persons unknown, on 12th day of April, 1986 at Chingola in the Chlngola District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did steal 1 rifle, ' 1 watch, 1 radio, 3 shirts, 4 pairs of long:trousers, 8 T shirts, 3 shirts, 5 pairs of socks, 8 pairs of short trousers, 2 jackets, 5 under pants, 10 towels, 10 pairs of bedsheets, 2 bedcovers and 4 blankets altogether valued at K8,970.00 from Gorden Steven and at or immediately before or immediately after the time of such stealing? did use or , threatened to use actual Violence to the said,Gorden Steven in order to obtain and retain the said property. The prosecution’s evidence was that on the night of 12th April, 1986 the complainant, Gorden Steven, was attacked by two men one of whom tried to strangle him. During the struggle, PWT recognised the appellant who was his former employee. The complainant was struck on the head with a pressing iron and then th^^^pel 1 ant broke off the struggle and ran out of his son's bedroom .where the attack took place. The son was not in the room at the time. The attackers went - J2 - out through a window. Later on the complainant looked into his son’s bedroom and noticed that it had been stripped of ' everything except two mattresses. Among the property stolen was .22 rifle serial No. 4190SB. The complainant went out to look for his son and narrated the story to the son. The appellant and another person were apprehended but the other person was released on the ground of a mistaken identity. The appellant was released two days later for lack of sufficient evidence. Few days later information was received that the appellant was selling a .22 rifle, and the complainant’s son followed up the information. In May 1986 the appellant's house was searched and a radio cassette was recovered and a .22,rifle was found hidden in the make-shift . ceiling of the house. Later, the appellant confessed to PW4 about the robbery. The confession was made on 14th May 1986. The appellant took out the gun from the ceiling and told PW4 that he had stolen, the gun from Mr. Steven Gorden, the complainant. He was tried and convicted as charged. In his ground of appeal, the appellant has argued that the complainant did not know the man who robbed him because at first the appellant had been released on lack of sufficient evidence. He has urged the court to treat the evidence of the complainant with caution. . He has further argued that the learned trial judge misdirected himself when he accepted the evidence of discovery of the ,22 rifle. He argued that the gun had been given to him by somebody. The appellant has further argued that he was not properly identified as the person who had robbed the complainant. He has maintained that in the lower court he gave sufficient explanation of how he was found with the gun. He told the court that he was given by some people and it was the duty of the police to apprehend the culprits. He further argued that the same people had taken the radio cassette and batteries to him for safe keeping. We have considered the arguments put forward by the appellant. The evidence did reveal that the appellant made a 'confession to PW4 about the gun. He told PW4 that he had /3................ J3 - stolen the gun from the complainant. The complainant in his evidence testified that he thought he recognised the appellant as one of his former employees but he was not sure. His evidence was corroborated by the appellant’s confession made to PW4. In addition to the confession, the appellant was found in possession of the rifle stolen during the attack from the complainant. The evidence also showed that on the day of the attack, the appellant was not found at his home. In his judgment, the learned trial judge considered the explanation given^by the appellant and said: "under other circumstances I would accept this submission, but in the present case I do not find the explanation reasonable for the following reasons. The accused had been arrested for having broken into the house of Mr. Steven assaulting him and stealing from him. He was released for lack of evidence. Would it be reasonable to accept that not long after he would receive .an item from other men well knowing that the item had been the subject of his earlier arrest. Why did he not report the matter to the police or to someone else when he realised that the two men were not coming back? Two other item, have also been shown to have been found in the house, i.e., the radio battery and cassette-tape. There is no explanation as to how he came by these items. There is a combination of seemingly innocuous pieces of evidence which tend to support the evidence of the prosecution. On the night of the robbery the accused was not found at home at 01.00 hours and at 03.00 hours, but when he was finally trapped at 05.30 hours he was found to have grass in his hair suggesting that he had been hiding somewhere when the army officer and PW2 went looking for him. The gun was found hidden in a make-shift ceiling; why should he hide something that he believed was innocently in his possession. These circumstances together with what I have already stated above leave no doubt in my mind that the accused Kalwila Musumfwa was involved in the crime charged." The learned trial judge considered the explanation tendered by the appellant and he came to the conclusion that the explanation could not reasonably be true and dismissed his explanation. We find that the learned trial judge did not /4....................