People v Phiri (1PG 10 of 2017) [2017] ZMSUB 10 (24 April 2017)

... :\ IN THE SUBORDINATE COURT OF 1PG/01O/2017 THE FIRST CLASS FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA (Criminal Jurisdiction) J 1 THE PEOPLE v PAUL PHIRI Before the Hon N. C. Simaubi on the 24th April 2017 JUDGMENT For the people : Mr. B. Simuusa, PP. For the Accused : In Person Legislation referred to: Section 300, 303 (a), of The Penal Code Cap 87 of The Laws of Zambia. Cases referred to: Mbinga Phiri v The People (2011) Vol. 3 ZR The accused person stands charged with one count of Breaking into a building and committing a felony therein contrary to sections 303 (a) of the Penal Code Cap 87 of the Laws of Zambia. The particulars of the count allege that Paul Phiri on 16th February 2017, at Lusaka in the Lusaka district of the Lusaka Province of the Republic of Zambia, did break namely Patrick store-room and did steal from therein one generator Hamukoma's of Patrick Hamukoma. The valued accused pleaded not guilty to the count. into a building, at K3400.00 the property and enter is upon the prosecution to prove the case beyond The burden reasonable doubt. There is no burden upon the accused to prove If, after considering all of the eviden his innocence. 11 The People v Paul Phiri IPG/010/20l7 ~ ,F? ~'" llill.lC GF jIJ01C"'" . WoO/A '~'I 'v RT r:OMPL<~ MAGISlRAlc COU - 2 4 APR 2017 A\h.. ~~ MAGISlRJ-JE CLASS 1 "0. BOX 3121Q.11l- ~~Il~' ~ '") J 2 there is any doubt he is entitled to the benefit of that doubt. in my mind as to the guilt of the accused, then In order to establish the guilt of the accused, the prosecution must satisfy me upon each and every ingredient of the offences charged. s. 303 (al of the Penal Code is in the following terms: Any person who- (al breaks and enters commits a felony in it; or into any building other than a dwelling house and Is guilty of a felony and is liable to imprisonment for seven years. and entering. The s. 300 of the Penal Code defines breaking provision shows that a person is deemed to have broken into a building once he opens a building by unlocking, pulling, or pushing to cover or close an opening. any door, window or object meant Entry thereof occurs once any part of his body or instrument used to commit a by him is within the building. The criminal of the felony therein can be ascertained case. In this regard, the prosecution must establish: from the circumstances intent 1. That the accused broke, 2. And entered, 3. Into a building other than a dwelling house, 4. With intent to steal therein, and 5. Did steal from therein. I will now consider two witnesses remain silent and to call no witnesses. the evidence on record. The prosecution called in support of the charge. The accused elected to in this matter. He PWl, Patrick Hamukoma is the complainant testified that on 16th February 2017 he came home only to discover the locking system to his store-room was broken. On chec in that \l att ~~e'fil inside, he discovered that his Ryobi 2700A genera MI\~;-;\7]~ '11k;;;~i\:r~ IPG/010/20ll C01JR1 C JUDICII\;: oMPU:Y. v Poul People ~ 21The ,t- Phiri t;\~.'.".,,f . - 1':0. ~("'i 3 \ 2.,r;" ~~.. ,.; \\~:~: :4 ,. , J 3 there were some foot prints stolen. He also noticed that in the field showing where the thieves passed and rested with groundnut the generator. However, a follow-up yielded no results. Hamukoma then reported the matter officers came home with him to visit the scene of crime. at Rosedale Police Post and that two Hamukoma testified that on his way back to the farm, he found that his wife had picked two of the three workers that were working on the farm that day. He identified the missing worker as Paul Phiri and told the Court that he paid them each time they completed the work they were assigned for the day. He testified that upon looking at the foot prints, they belonged to Paul Phiri. He then gave the two workers his phone to call him as they lived the worker had not called him. At with Phiri. However, by 2000 hrs, around 2100 hrs, he went to where the workers lived and with the help of the community, Phiri and took him to the police. it was discovered that apprehended Hamukoma testified that a day later, police phoned him to say that to the Phiri had told them where the generator was. He then went police from where Phiri at a bar belonging to Phiri's friend. The generator was recovered and taken to the police. As Hamukoma needed to use it, it was taken to the Subordinate Court where back to him by a magistrate on a disposal form he identified marked Pl. He identified the accused in the dock as Paul Phiri. led them to Garden-Chilulu it was disposed The accused had no questions for cross-examination. testified that on 16th February 2017, PW2, Det Sgt Titus Phiri Hamukoma brought a suspect named Paul Phiri to the police post. The suspect was alleged to have broken into a store-room and then interviewed stolen a generator valued at K3400.00. Sgt Phiri the suspect who was already in custody who admitted stealing the generator and taking it to Garden Compound. He testified that the the generator was led him to the place and that suspect recovered. He then made up his mind to charge and arrest the suspect for the subject offence. The suspect, whom later 3 I The P e 0 pie v Po u I Phi r i 1 P G / a 1 0/2 a 1 7 !S . &:ntll.~ ;IJO\C\~.r.~C(l\,;?l£Y- ••••.•. ',j\'.)1 ?-'S S1RP<1<C _ -C\JR1~ 1\\\1 l..~ I. P~ ,,11 ,t>. IlR .'1 11< O.~.o., "A~G\S\? " 1'0" Po. BOX 3\17' ~~\~i'-.,.. •. \\V" / ,~ tMG\ ~ , . J4 Paul Phiri, admitted the charge under warn and caution. He told by the Court the courts on a disposal form that he produced marked PI. the generator was disposed back to Hamukoma that The accused had no questions for cross-examination, This marked the close of the prosecution case, The accused was placed on his defence but he elected to remain silent and to call no witnesses. He is perfectly entitled to do so as there is no onus on an accused to speak in his defence or to call witnesses. I by the on the case have prosecution. However, this does not absolve me from testing that evidence to satisfy myself as to its truth or falsity nor does it affect the onus on the prosecution doubt as to the guilt of the accused person. to satisfy me beyond all reasonable It follows that to decide evidence adduced this accused did not The witnesses. As such, he has raised no defence both in direct and indirect left with only the evidence of the prosecution to consider. cross-examine prosecution I am thus evidence. any the of Hamukoma testified that he found his store-room locking system damaged upon his return home. He further discovered that his I find generator was missing from the same store-room, Therefore, the store-room and take that someone did in fact break and enter the generator. Neither of the witnesses break, saw the accused from the store-room. However, Sgt enter and take the generator testified that when he interviewed the accused, he admitted Phiri taking the generator from the store-room and selling it to someone in Garden Compound. Sgt Phiri later recovered the same generator from Garden Compound. PWI also confirmed accompanying police to Garden Compound and recovering the generator. the only evidence Therefore, accused is the person that not in dispute that for Hamukoma accused was the only worker that was missing fro available took the generator at his farm. is also not the accused is one of three persons that It in dispute suggests that is circumstantial. 41The People v Poul Phiri IPG/010/20ll the It is that worked the at ff:.f?!filt/ff'tin JUOICIP-r. COMP\.tll • coUR1 \l\? :+>. ~J;:' 1. II p.. PR ~ W-GIS1RP,' P. Q, BOO' ~~~.'' ' •. c\.!,-ss 1 ,iJ",. , \""~ ' ':/.'S IN,GIS1RP-1< J 5 material day. As told by Sgt Phiri, it is also the accused that to the recovery of the generator from Garden Compound. led him In Mbinga Phiri v The People (2011) Vol. 3 ZR, it was held that: Circumstantial which the judge may, infer the existence of the fact directly. evidence or indirect evidence is evidence from it to circumstantial is not direct proof of a matter is proof of facts not in issue. But relevant evidence that by its It is a weakness peculiar at issue, but very nature rather to the facts in issue and from which an inference of the fact in issue may, be drawn. the circumstantial A trial judge must be satisfied that has taken the case out of the realm of conjecture, attains inference of guilt. evidence it such a degree of cogency which can permit only an so that a purely is based conclusion Where inference may, be drawn only if it inference on the evidence; an examination and a consideration said to be reasonably speculation. on inference, that is the only reasonable of the alternative they or any of them may, be as be condemned of whether possible cannot the inference that I am satisfied that took the generator, the accused is In this regard, is the only reasonable inference the person that that can be drawn from the facts before me. These facts being that the accused was a farm hand who went missing on the day the led police to generator was stolen. He is also the same person that its realm of take conjecture and I find accordingly. recovery. These case out of facts this the I find that e store-room an it is the accused .gerson, Paul Phiri that Consequently, . EN~7~R.d b k. th lt m t e stonl room an ro e lnto that was stolen and Garden Compound. recovered is the same one that was handed back to Hamukoma as per the disposal of exhibits form-Pl. too the generator I find that k h ld" so d SIThe People v Paul Phir; IPG/010/20l7 ~ (~ had no lawful excuse to take the generator from J 6 . , The accused Hamukoma. VERDICT 1 find that the prosecution has proved the case Consequently, beyond all reasonable is guilty of the offence of breaking into a building and committing a felony therein contrary to section 3CJI, (al of the Penal Code Cap 87 and 1 convict him accordingly. doubt. The accused person, Paul Phiri DELIVERED IN OPEN COURT THIS 24TH DAY OF APRIL 2017 --~- 61The People v Paul Phir; IPG/010/20l7