Syankomone v People (SCZ Appeal 9 of 1993) [1993] ZMSC 59 (6 April 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 9 of 1993 HOLOEN AT LUSAKA (Criminal Jurisdiction) Kazi^lo Syankoaone Appel Iant The People Respondent Coram; Saka la, Chai la and Chlrwa JJJ. S On 6th April, 1993 at Lusaka For the Appellant : Mr. M. H. A Samad. Senior Legal Aid Counsel For the Respondent: Mr. L. M. Muuka, STate Advocate JUDGMENT Chirwa JS delivered the juucpwnt of the Court. This is an appeal by the appellant Kazimelo Syankomone against the conviction on a charge of Aggravated Robbery contrary co section 294(1) Cap. 146. The particulars of thecnarge allege that the appellant on 1st day of June, 19S7 at Gwembe in the Gwembe District of tne Republic of Zambia being armed with a matchet did rob Jane Meleki a number of items and that at the time he threatened or used violence to the said Jane Meleki. Upon his conviction he was sentenced to 20 years imprisonment with hard labour with efffect from 19th August 1987. The evidence accepted by the trial Court was that on 1st June 1987 the complainant left Munyumbwe going to Chaamwe Primary School. She was riding a bicycle and on it she had the property allegedly stolen. 2/... Whilst cycling - J2 - Mnlist cycling at a lonely spot, she heard somebody calling her. When she stopped and looked back she saw a person armed with a natchet who was also wearing sacks from head to thighs. She got terrified with the look of this man. She put her bicycle down and started crying. This man came to iier and threatened her and demanded money and that If he was not given any money, that would be the end of her and the child. She had some K50 tied on her cnitenje material which she untied and gave it to the alleged robber. The alleged robber received this money and with his matchet he cut the rubber band which the complainant used in fastening the bag. He took the property and told the complainant that she was safe and should go. This man ran away from the scene witn her property and she proceeded with her journey. When she reached her destination she narrated the story to her husband who on 3rd June 1987 went to Munyumbwe to try and investigate the matter. He finally reported the matter to the police on 7th June 1987. In the meantime some vigilantes at Munyumbwe were informed about this robbery and it appears from their own knowledge they suspected the appellant. On 6th June 1987 PW2 who was a vigilante with his friends went to pick up the appellant who was then in the custody of the local court. They asked the appellant as to where the property allegedly robbed from the complainant was. The appellant is alleged to have led them in the bush and recovered some of the property stolen from the complainant. The appellant also led them to where ha hid the matchet. The recovered property was then taken to the police station. However the appellant escaped from the Local Court custody, but he finally reported himself to the police on 15th August 1987. Whilst in the custody of the police, the complainant was called to identify the property and wnen the appellant was brought out of the cells of the police, on seeing the complainant he is alleged to have told the police that that was the woman whom he had robbed. 3/... The appellant - J3 - The appellant in his defence in the court below, denied robbing the complainant and that ne was apprehended by the vigilantes when he was going to the clinic and that he was badly beaten by the vigilantes and he ran away from them and reported himself to the police for protection, it is clear from the evidence that the complainant was unable to identify the robber because the alleged robber covered himself in sacks. In considering the evidence before him, the learned trial judge was aware of the issue of identification and noting that the complainant was unable to identify the alleged robber, he looked for circumstantial evidence. To this end he found the evidence of PW2 that the appellant led him and his friends to a place where the property was recovered as providing such circumstantial evidence. He also found the alleged confe­ ssion by the appellant to the police on seeing the complainant, that that was the woman whom lie had robbed as providing further circumstantial evidence. In arguing this appeal on behalf of the appellant, Mr. Samad also emphasises the point that the complainant could not identify her robber. Further that the surrender by the appellant to the police should not be held against him as he did that in order to seek protection from the police as he was being narrassed by the vigilantes. He further submitted that the vital and material witnesses were not called by the prosecution at the trial. He submitted that such material witnesses as David Ngoma, the chief who is alleged to have driven PW2 to the spot where the property was recovered and also the uncle of the appellant were not called and these witnesses would have testified contrary to what PW2 said. The failure to call these witnesses, it was submitted, was prejudicial to the appellant's case. He also submitted that since the warn and caution statement allegedly given to the police was rejected by the 4/..,court, it follows • J4 - court* U fol lows that anything after that should not have been admitted In court. Mr. Muuka, for the State supported the conviction that the ciremastantiai evidence of the recovery of the property would only lead to one inference and that was that the appellant was the one who committed the offence. We have considered the evidence on record and also the arguments before us oy the Counsel. We are unable to agree with m r. Samad that the so called material witnesses not called ,could nave added anything more to the case. The evidence on record as found by Ute learned trial Judge, with wnich wo agree* was over- whelming against tne appellant. We cannot speculate that Lhesa witnesses coulo have testified in the appellant's favour. We are satisfied with tne findings of the learned trial judge. We see no merit in this appeal against conviction. As we have said the appellant was sentenced to 20 years imprisonment with hard labour. Looting at the circumstances of this case, especially the robbery of a lonely wonan in a lonely spot, although no harm was done to her, we fell the sentences of 20 years imprisonment with hard labour does not come to us with any sense of shock neither was it wrong in principle. The appeal against sentence is also dismissed. E. L. SAKALA SUPR&C COURT JUOGE M. S. CHAILA SUPREME COURT JUDGE O. K. CHIRWA SUPREME COURT JUDGE