Mumba and Anor v People (SCZ Appeal 108 of 1993) [1994] ZMSC 167 (8 March 1994)

IN THE SUPREME COURT OF ZAMBIA 5UZ APPEAL NOS.lUb 6. 109 OF 1993 HOLDEM AI NDOLA (CRIMINAL JURISDICTION) BETWEEN: ALEX MUMBA BENEDICTO KATONGO 1st Appellant 2nd Appellant VS THE PEOPLE Respondent Coram: bakala, Chirwa and Muzyamba JJJ. S at Ndola on the dth March, 1994 For the Appellants: In Person For the State : Mr. P. Agarwal, Senior State Advocate JUDGMENT Chlrwa J,S delivered the Judgment of the court. The appellants were charged and convicted on one count of aggravated robbery contrary to section 294 of the Penal Code Cap, 146. The particulars of the offence were that, the two appellants together with other persons unknown, on 18th day of September 1991 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia Jointly and whilst acting together, robbed one Felix Mulenga of various items outlined in the indictment property valued at K18,750 and at or immediately before or immediately after the time of stealing did use or threatened to use actual violence to the said Felix Mulenga to retain the said property or co prevent resistance to its being stolen. The evidence on record is mainly from the complainant and bis brother. The complainant testified that on the day in question around Id. OU hours he was selling some items 2...along the road - J2 - along the road near co his house and whilst selling he saw a group of five persons who came to him and of these five, he recognised the two appellants. He says he recognised Alex Mumba as he is a friend to Benedicto Katongo and that Benedicto Katongo was his brother-in-law in that his young brother is married to Benedicto Katongo*s sister. When they approached him he was attacked w?t'not ties without saying anything to him. Because of this commotion, his young brother who was PW2 and that this time he was in the house studying, came out and saw that there was this fight between his elder brother and five men. He tried to stop the fight but he too was attacked. He ran away and tried to take refuge in his neighbour's house. As he was running he was stoned at the back and he saw that five men who attacked his elder brother collected the goods that he was selling. The complainant reported the matter to Emmasdale Police Station and he was given a medical report to take to the hospital as he claimed to have been injured. The police carried out investigations which led to the arrest of the two appellants. Upon the close of the prosectitiion case the appellants were found with a case to answer and put on their defence. The first appellant told the court that on the day in question he was in Kabwe and only came back on the 25th September, 1991 and on that day whilst he was at home he was approached by police men who said that they were looking for his uncle Ghisha. Since he did not know where Chiaha was, he told them that he did not know as be had just come from Kabwe. The police asked him to accompany them to the police station and he was put in cells for fifteen days. He said that he was put in cells because he failed to reveal where his uncle Chisha was. He denied any involvement in this aggravated robbery. 3.... The second appellant - J3 - The second appellant testified that on the day in question he was with Chiaha and were drinking some sweet beer known as munkoyo. At Chis bouse there were a number of people including the complainant. As they were drinking he saw his frieno Felix Chiaha leave the house and go to where Felix Mulenga was, and suddenly he heard some noise coming from that direction. He stood up and looking into that direction, he saw that Chieha was fighting Mulenga. He went there to stop the fight and after separating the fight Chisha and him left the scene as they got scared of Mulenga'a relatives. He confirmed that bls sister is married to PW2. He denied that there was any robbery but a mere fracas and that was between Mulenga and Chisha. The learned judge found as a fact that Mulenga was robbed of his property as indicated in the charge sheet and chat after the robbery he reported the matter to the police and that on the 26th September 1991 the complainant led Constable Chilufya to a house of the first appellant and the second appellant was also ..found ■ vthere and they were both arrested for this offence. He found as a fact chat the complainant led the police to this house because he knew his assaillants. He further found that no items that were stolen were recovered. The two appellants have filed in detailed grounds of appeal. As for the first appellant he attacks the learned trial judge's judgment in that the prose­ cution evidence did not prove the alleged offence beyond reasonable doubt and that as he had disputed to have been present at the robbery that he was in Kabwe, the learned trial judge's finding on this defence of alibi was wrong in law. He further submit that the evidence of PWs 1 and z that they were attacked with bottles and knives could not have been accepted. He further said that the evidence of these two witnesses especially of the complainant that he was injured, cannot be accepted as there was no medical evidence to prove that fact. 4... He further - J 4 - He further submitted that the learned trial judge miscirected hiaweli in that be accepted th® prosecution evidence which was not strong enough to prove the ease against hie and that the learned trial Judge misdirected iiianeli in that at pages 35, 36 and 37 was wrong in rinding that some property were recovered when prosecution evidence was to the contrary. Howeverf looking at. the original record, thia court ha# satisfied itself that that was u taispvinting of the record. As to the second appellant he coo nas put in detailed aubmjSKlona in which he says that he ua8 not involved in any robbery at all and that although he put® himself at the scene of the alleged crime, he was there in order to separate the fight between Chisha and the complainant and be also attacks the evidence of the complainant that be was injured in the absence of any medical report. He further say® that th® learned trial judge did not guide Himself on how to deal with the evidence of PWs 1 and x and further the answers given by PW2 as to how long it took him to report to the police 1b not satisfactory. He does accept that it is not in dispute that PW2 was married to his sister but denies as we have already said committing this offence. We have seriously considered the evidence on record and also the ground® filed by tnc appellants. it is not disputed that the two appellants were known to both PW® 1 and 2* *he appellant number two's sister is married to PW2 and also the first appellant lives in the same locality. The question of identification therefore, docs not arise on the facta of this case. Further the evidence of PWs 1 and 2 clearly shows that they had ample opportunity to observe the assailants, faking the evidence of the defence of alibi as put forward by the first appellant, we ace of the view that the learned trial Judge was aware of burden of proof on such a defence. He die guide himself as provided lor in thia court's judgments that the burden of proof on the alibi does not lie on the accused person. We agree with him that insufficient deca Ila were given by me appellant to the police for them to investigate this alibi. 5..,. Also these - J >> Also these details were not supplied in court as can be seen from pages 19 and 20. in view of the insufficient details given on this alibi, this defence could not stand on the facts of this case. Having found that the iaaue of identity does not rise in this matter for the appellants having been known to PWs 1 and 2 for a long time. Also having found that the two prosecution witnesses had ample time to observe the assailants, we have found it as extremely difficult to fault the finding of the learned trial judge that the two appellants were in a group of men who robbed the complainant of his property, aed as such we see no merits in the appeals against convictions. They are dismissed. The appellants were given Id years minimum sentence. There can be no appeal against this minimum sentence. The appeal against sentence is also dismissed. K. L. Sakais SUPREME COURT JUDGE D. K. Chinua SUPREME COURT JUDGE W. M. Muzyamba SUPREME COURT JUDGE