People v Banda and Another (IPG 33 of 2017) [2017] ZMSUB 22 (8 June 2017)

J 1 IPG/033/2017 IN THE SUBORDINATE COURT OF THE FIRST CLASS FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA (Criminal Jurisdiction) THE PEOPLE v GEORGE BANDA & BRIGHT NGANDU gf'h Before the Hon N. C. Simaubi on the ~ Ju e-2017 .. \<.~t'\. J.,~-.,.,....."zz.:..t.'li:1' JI1!'!!f"'!I\.r-y ,- l;.:j JUDGMENT J '3~srR,:\I=COURT COMPLEX For the people : Mrs M. Kaumba, PP. For the Accused: In Person Legislation Referred To: Section 272, 300, 30 I (a), 304 of The Penal Code Cap 87 of The Laws of Zambia. Cases referred to 1) Chimbini v The People (1973) Z. R. 191 2) Muvuma Kambanja Situna v The People (1982) Z. R. 115 3) Shawaza Fawaz and Prosper Chelelwa v The People (1995) SCZ The accused persons stand charged with one count of Burglary and theft contrary to sections 301 (a) and 272 of the Penal Code Cap 87 of the count allege that of the Laws of Zambia. The particulars George Banda and A2 respectively), during the night of 15th February 2017, at Lusaka in the Lusaka district of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with another person, with to steal, did break and enter into the dwelling house of Henry intent Mutambo and did steal from therein Ix computer and Ix MTN cell and Bright Ngandu (herein after Al J 2 phone valued at K2450.00 the property of Henry Mutambo. The accused persons pleaded not guilty to the count. the burden of proving the case from start In all criminal matters, to finish rests entirely on the prosecution. There is no burden upon If, after considering all of the the accused to prove his innocence. in my mind as to the guilt evidence in this case there is any doubt of the accused person, then he is entitled to the benefit of that doubt. To establish the guilt of the accused, each and every ingredient of the offence charged. Penal Code is in the following terms: the prosecution must prove s. 301 (al of the 301. Any person who- a) breaks and enters any dwelling house with intent to commit a felony therein; or b) having entered a felony therein, or having committed a felony in any such dwelling house, breaks out thereof; any dwelling house with intent to commit is guilty of the felony termed "housebreaking" for seven years. "burglary" and the offender is liable to imprisonment If the offence is committed and is liable to imprisonment is termed in the night, it for ten years. Section 4 of the Penal Code defines night in the following terms: "night" or "night-time" means evening and six o'clock in the morning; the interval between seven o'clock in the s. 300 of the Penal Code defines breaking and entering III the following terms; 300 (1) A person who breaks any part, whether external or internal, of a lifting, or any other building, or opens by unlocking, pulling, pushing, means whatever, thing, flap, or other cellar intended to close or cover an opening in a building, or an opening giving is deemed to break the passage from one part of a building to another, any door, window, shutter, building. . }6 ~OlJoucI)~ ZAt ..'37; '. JUD!CIAC' \~.' M"'-'''T~ ',,'': CC:U;<l (:C:'/i?I. EX ~El.li~201/ ."r\, w f".:.>tj ' ••..••••• .--._ •• J,j0. f/1AG:STRAi: CLASS 1 Po ~"f.r' .. Box 31219.\.\.i':. J~"'. (2) A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building. J 3 into a building by means of any threat (3) A person who obtains entrance or artifice used for that purpose, or by collusion with any person in the of the building building, or who enters permanently intended to be is deemed to have broken and ordinarily used as a means of entrance, entered the building. left open for any necessary purpose, but not any chimney or other aperture From the above, it can be seen that a person is deemed to have broken into a building once he opens a building by unlocking, pulling, or pushing any door, window or object meant to cover or close an opening. Entry thereof occurs once any part of his body or instrument the offence, to have occurred between 1900 hrs in the evening and 0600 hrs in the morning. The criminal intent from the circumstances the prosecution must establish: used by him is within the building. To constitute to commit a felony therein can be ascertained the breaking and entry ought In this regard, of the case. 1. That the accused broke; 2. And entered; 3. Into a dwelling house; 4. At night; 5. With intent to commit a felony therein; and 6. Took property of another person; and 7. That he did so without any lawful justification. The prosecution called five witnesses accused testified on oath and called no witness. the evidence on record. in support of the charge. The I will now review J4 that he only returned PW1, Henry Mutambo testified that on 14th February 2017 at around 2000 hrs, he left his family to go and attend a party. He told the Court home on 15th February 2017 at around 0400 hrs. It was his testimony that on arrival, he found his their Dell black and grey computer was wife awake and noticed that that missing. He told the Court the computer and phone are worth the matter was reported at Bob Blooms In the morning, K2450.00. Police Post. Mutambo testified that he suspected Bright and George of having stolen the computer and so he went asked George to return the computer. A few days later, one Davy told him that one night, he saw George and Bright carrying the computer. In the morning, Mutambo took George to the police followed by Bright a day later where George told him that Bright planned the theft. He identified the two accused persons in Court. In cross-examination by AI, Mutambo stated that he did approach Al over the theft of the computer and that he asked him if he knew where it was. He conceded that he searched Ai's house but found nothing. He maintained the accused because someone told him. that he knew that it was In cross-examination theft by A2, Mutambo occurred at around 2200 hrs. He denied searching A2's house but maintained that someone saw A2 with the computer. stated that the testified that on 14th February 2017 she PW2, Yvett Muchinga, to bed at around 2130 hrs leaving her phone on the charger. went that her husband was not home and that she She told the Court It was woke up at around 0530 hrs as she did not hear the alarm. it was then that she discovered that her phone her testimony that was missing. On going to the living room, she discovered that the contents of her hand bag that was initially in the bed room were scattered and the computer missing from its table. As she looked PWI entered the house. She testified that around, her husband, they discavered that thaugh the windaw was braken previausly. the burglar bar an the sliding daar was bra ken J 5 to. Gearge's hause Muchinga testified that PWI suspected Gearge and Bright because the camputer. They then they were the anly anes that knew abaut and faund him sleeping. A check inside went faund yielded no. results. They then went nathing after a search. They then tald ather peaple af the theft and reparted the matter to. Bab Blaams Palice Past where she valued all the property at K3900.00. to. Bright's hause but Muchinga testified that the next day, ane Davy infarmed her that an his way fram the University Teaching Haspital at araund 0400 hrs, he saw Gearge and Bright carrying a camputer an the raad in a blanket. The matter was then reparted to. palice and the suspects camputer were never apprehended. recavered. She identified the accused persans in Caurt as Gearge and Bright. the phane Hawever, and In crass-examinatian his hame an three accasians that Davy tald them af what he saw a day after the theft. by AI, Muchinga respanded that she went to. aver a twa week periad. She stated A2 had no. questian s far crass-examinatian. at araund PW3, Daniel Siame testified that 0200 hrs an 15th February 2017, he was earning fram a funeral and walking near that as he walked, he saw twa Racky Gardens. He tald the Caurt peaple in frant af him carrying a camputer manitar, key baard and it was at night, he was able to. see CPU. He explained that them due to. the light earning fram a tipper truck. He identified the twa peaple he saw as Jaseph and Bright in Caurt saying they still ware the same clathes they ware that night. He stated that Bright- carried the CPU and A2 was carrying the manitar while Jaseph that he did nat do. anything but keybaard. He tald the Caurt at cantinued an his way. He testified that a week later,<~i~lJJl1J, thaugh -~ I~ -:. V\j ,?' "r''-' JlJD!CI~-::: _ n)A?LfX ."- COU\<\ \ .. v' 'LlI\7 MAGIS:C;" j\J\--\ ~_. ..,. \- \,.. I P.o.80X3;~ ;-GI" 'pMr, CLi'o <s 1 ""- \\s~. J 6 Mutambo complained that his monitor, PC and keyboard had been stolen. He then went to Muchinga and told her and PW1 that Bright and Joseph stole their goods. He later helped to have Joseph apprehended after Bright was detained. He described the computer as black and grey in colour. Siame identified A1 as Joseph and A2 as Bright in Court. In cross-examination by A1, Siame maintained that he was about 15m away from the accused when he saw them. He stated that though it was at night, he could not make a mistake as he knows the accused and their clothes. by A2, Siame maintained In cross-examination monitor at trouser. He stated that A2 responded that he sold the computer one Isaac but that that A2 had the the time he saw them and that he recognised his to they did not find Isaac to apprehend him. to investigate PW4, Det. Cons. Oliver Mushe Lishili testified that he reported for duties on 15th February 2017 at 0800 hrs. He was then allocated a docket of burglary and theft in which Mutambo complained that his house was broken into and a computer and phone worth K2450.00 stolen. Cons Lishili stated that Mutambo told him that one David Siame saw Banda and Ngandu at around 2200 hrs carrying the alleged stolen property. He told the Court that on 10th March 2017, he reported for duties and discovered that there were three suspects in custody namely Banda, Ngandu and one Isaac. He interviewed the trio and Banda and Ngandu told him they entered Mutambo's house through the living room window that which they found open. He testified that they in the living room before going to the entered and took the computer bedroom where they found Muchinga asleep alone. They took a phone which was under a pillow and went out. He testified that the in a blanket from accused told him that the sofa and went to sell to Isaac at around 2000 hrs. they wrapped the computer they told him that J7 Cons Lishili testified that he interviewed Isaac who denied meeting the accused persons on the material day. He further visited Isaac's work place where he confirmed that Isaac was working at the time the accused alleged to have met him. He then released Isaac on grounds of insufficient evidence. Cons Lishili then decided to charge and arrest and theft. He in Court and explained that nothing identified the accused persons that was stolen was recovered. the offence of burglary the duo for In cross-examination the one that apprehended custody. He responded that the computer not recover the computer led police to him. by A1, Cons Lishili responded that he is not the accused as he found them in the person the accused said they sold to is unable to come to court. He stated that he did from the buyer even though the accused In cross-examination the by A2, Cons Lishili accused led police to the house and the person they allegedly sold and phone were not the computer recovered. to. He stated that computer responded that this point, the prosecution closed its case and I found the At accused with a case to answer. They elected to testify on oath and called no witnesses. that they searched his house without DWI, George Banda-AI testified that on 11th February 2017, he was sleeping at home when Mutambo and his wife came. He told telling him what the Court they they were looking for. He told the Court again came at 0500 hrs and told him that time because they heard that he had stolen their computer. He denied stealing their computer a lot of property at the farm. On 5th March 2017, he was apprehended. He that on 6th March 2017, a third person he did not told the Court that he was know was detained in police custody. He told the Court that a week later, they came last and told them that he keeps J 8 beaten and tortured to reveal where the property was but did not know anything. that he A2 had no questions for cross-examination. In cross-examination by the prosecutor, he denied meeting Siame on 15th February 2017 or going to Mutambo's house. He further denied leading the police to any person. He argued that he was arrested on mistaken identity. that that Mutambo testified that on 6th March 2017, he was DW2, Bright Ngandu-A2, apprehended by Mutambo and taken to the police. At the police, he it was in connection with stolen property. He told the learnt he Court the disclosed where the property is but to theft because he did not know anything. He was later brought court at being that arraigned. him until that he could not admit and told the Court police to torture surprised directed he is still A1 had no questions for cross-examination. In cross-examination by the prosecutor, he denied knowing David that Mutambo told Siame to point at him. Siame. He told the Court He stated that Mutambo said he would look for a witness. He denied stealing anything. persons told the Court the evidence on record. The accused This was denied breaking into the house of Mutambo and taking his computer and that his house was searched phone for his wife. Al and he was later arrested for the offence while Al said he was apprehended their they were nowhere near the Mutambo house and testimony is that only ended up being arrested. As for A2, he sought to show that in Siame who also gave a Mutambo mistaken identity of him. the offence. The gist of a false witness and detained brought for J 9 The totality of the prosecution evidence shows that no one saw the accused persons break and enter into the Mutambo house to take the computer and phone. However, Siame-PW3 testified that in the early hours of 15th February 2017, he saw the accused persons carrying a computer. He stated that Bright-A2 was carrying the monitor while Joseph carried the CPU and keyboard. It is evident that he referred to George as Joseph. Siame explained that he was able to identify the accused because there was light from a tipper truck and the accused still wore the same clothes. This was never disputed. is known as a single identifying witness. A2 raised the defence of mistaken identity by David Siame. PW2 is In the case of what Muvuma Kambanja Situna v The People (1982) Z. R. 115, the Supreme Court held that: 1) The evidence of a single identifying witness must be tested and evaluated with the greatest care to exclude the dangers of an honest mistake; the witness should be subjected to searching questions and careful note taken of all the prevailing conditions and the basis upon which the witness claims to recognise the accused. 2) If the opportunity for a positive and reliable identification is poor has not then it follows that been ruled out unless there is some other connecting link between the accused the offence which would render mistaken identification too much of a coincidence. the possibility of an honest mistake and Further, (1995), the Supreme Court held that: in Shawaza Fawaz and Prosper Chelelwa v The People In single witness required. identification, corroboration or something more IS the offence occurred at night and neither PW1 nor As noted earlier, PW2 saw anyone. However, Siame told the Court that he saw the duo on the road at night. The evidence of a single identifying witness must be closely examined by the Court before it can feel safe to convict. In Chimbini v The People (1973) Z. R. 191, the Court of Appeal stated that: ~ ~ ,r Of 7M.~~ ,"{ •,\11.''- <:f::YVj\',D\C\P", <'f.. -ONWc<" ',.~~\ECO~;~-\ ;;:-\'ll> N\K~';'~\,\ ?~w~ .."';-.~l..sS 1 .......•-: .~~ -_ \.•. "' .•.. ",.;~;/ \,JIi'GI,,1 (.-.' " .- - ,." ••••••.••..t:)(, """,':I ~~. I' \"/ J 10 It is always competent to convict on the evidence of a single witness if that evidence is clear and satisfactory in every respect; where the evidence in question relates to identification there is the additional risk of an honest mistake, and it is therefore necessary to test the evidence of a single witness with particular care. The honesty of the witness is not sufficient; the court must be satisfied that he is reliable in his observation. Many factors must be taken into account, such as whether it was daytime or if the latter, the state of the light, the opportunity of the night-time and, in which the witness observation was alleged to have been made (i.e. whether there was a the parties were comparatively confused fight or scuffle or whether stationary). Most importantly it is relevant to consider whether the witness since there is the greatest knew the accused prior to the incident, difference between recognising someone with whom you are familiar, or at time least whom you have seen before, and seeing a person for the first and attempting to recognise and identify him later from observations made in circumstances which are no doubt charged with stress and emotion. the circumstances the appellant, to observe Siame saw the accused at night as they walked ahead of him. He explained that he was able to identify them because of the light they wore; the clothes from a tipper truck and from the clothes that being the same ones they wore when he testified. I take judicial trucks generally emit a strong ray of tipper notice of the fact that to allow one to see clearly. He was certainly relaxed as there light was no immediate threat from them or anyone. The Court was not told if Siame previously knew Al however, it is evident that he knew them for he helped to apprehend AI. There was no serious challenge to Siame's testimony by the accused who simply said he I find that Siame knew the made an honest mistake. As such, accused previously and that there was no possibility of an honest mistake. PW4 testified that the computer testify. It is important be examined if at all he bought accused. Ordinarily, the accused led him to the person who they sold to. This person was neither named nor called to that such a witness be availed to the Court to the stolen goods and from the the failure to avail such a witn<}Ss;ougKt,!c. e ,0,' \ ...; . "'.;"Y\~'..';':~..:'".~;.\:;,:~cot.;\?\wt.~( e ~:\c,.:~~~5j} ;lkil __ ~ c' I' IRh.,- I-- \,'f.\~::oj ,;,. P.o, BOX 31~:7~,- Cll\SS 1 ,T'>.... '-U' \ \)s~' J 11 fatal to the case of the prosecution. However, I have the testimony of the single identifying witness, Siame who saw the accused persons carrying the computer at night. For this reason, I am satisfied that it is the two accused persons that took the computer and cell phone from Mutambo's house. the theft took place at night at around There is no dispute that 0300 hrs as per the testimony of PW2 and PW3. I find that the accused persons had no right of claim against Mutambo or his wife. they broke and entered into the house for the It is evident that burglar bar was found broken by PW2. VERDICT I find that the case has been proved beyond all Consequently, reasonable doubt. The accused persons, George Banda and Bright Ngandu are guilty of the offence of burglary and theft contrary to section 301 (al and 272 of the Penal Code Cap 87 and I convict them accordingly. ~r'pr- DELIVERED IN OPEN COURT THIS ~ Ie DAY OF JUNE 2017 N. C. SIMAUBI MAGISTRATE CLASS 1 RePUBLIC OF <A MAG/STDA !~'DICIAR'( ('18J"j~~~;J~ MAGiSTO;.rc "0 .... , CLASS I . 20.'( J 1279. LUSI--\<P-,