Mulenga and Ors v People (SCZ Appeal 121 of 1993) [1994] ZMSC 159 (18 January 1994)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NOs. 118-121 of 1993 HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) RAPHAEL MULENGA FRIDAY KALONGA JACOB GONDWE BOYD KALALA vs APPELLANT THE PEOPLE RESPONDENT Coram: Sakala, Chirwa and Muzyamba JJJs at Lusaka on 18th January 1994 For the Appellant : Mr. M. H. A Samad, Senior Legal Aid Counsel For the Respondent: Mr. S. A. G Twumasi, Assistant Acting Senior State Advocate JUDGMENT Chirwa JS delivered the judgment of the court. The four appellants were convicted on one count of Aggravated Robbery contrary to section 294 of the Penal Code Cap. 146. The particulars are that the appellants on 27th day of December 1991 at Kasama in the Kasama District of the Northern Province of the Republic of Zambia jointly and whilst acting together did rob Odilia Magimela of various items particularized in the indictment including K25. OOO cash and one motor vehicle and that at or immediately before or immediately after the time of the stealing they threatened to use actual violence to the said Magimela in order to obtain the property or prevent resistance to the property being stolen. 2... The evidence — . _ — . — - - - - - — — U-2 ■”— The evidence lea by the prosecution is mainly chat of PWi and PWZ woo were nuns. i'hey testified co the effect that in the night of 27 th day of December 19^1 whilst they were asleep at the convent they were awakenao by intruders who demanded property from them, The two witnesses said that the intruders were with them for close to four hours, in particular both PWa 1 and 2 identified appellants one and two and chat after about six months PW2 went to the police station to checK on the progress of the case and whilst there she identified appellant number one and in doing so she wasn't prompted by anybody, There is further evidence that a matrass and a pillow were recovered from the third appellant and these two items were identified by PWI. The evidence further points that in the course of this robbery appellant number one was guarding PWI and chat appellants three and four are the ones that lifted PWI from her room co where sne had parked the motor vehicle and ordered her to show them how to atart the motor vehicle. PWI further identifier appellant two as the one who collected things from her room. There is further evidence that identification parade was conducted at which the appellants were identified and thereupon the appellants were arrested. After trial and conviction they were each sentenced to 3u years imprisonment with hard labour. in arguing this appeal before us Hr. bamao for the appellants has mainly actaeaed the identification of the appellants, tie submitted chat the robbery took place at night and that the two identifying witnesses although regarded as reliable by the learned trial judge should not have been believed in view of the evidence of cne appellants and also the circumstances under which the robbery is alleged co have taken place. He submitted that it was not possible for PWI co identify the roubers since when the robbers entered her room 3..,she was - J3 - she was lying on the floor facing downwards and therefore not able to see the robbers. He also attacked the identification parade in that there were only eight persons on the parade including the appellants. He submitted that this parade was unfair in that it made one to one with regards to the suspects and other members of the parade. On the recovered property he submitted that the evidence of the third appellant should have been believed in that he had been using this property for some time and that there was a possibility that the police might have interferred with the matress so as to match with the evidence of PW1. With regards to sentence he submitted that the sentence of 30 years imprisonment with hard labour is excessive and therefore the court should think of interferring with it. In supporting the convictions Mr. Twumasi for the State submitted that the circumstances of this robbery were such that the identification of the robbers by PWs 1 and 2 was reliable on which the court below ought to have convicted. The evidence clearly showed that the robbers were with these two witnesses for a considerable time, close to four hours and this gave enough opportunity for the two witnesses to observe the robbers. He also highlighted the evidence of PW1 against appellants 3 and 4 that they were the ones who lifted her up from her room to the vehicle. We have considered the evidence on record and also the arguments submitted before us. We observe and agree with the learned trial judge that as this robbery took about four hours PWs 1 and 2 bad sufficient time to observe some of the robbers. The evidence of these two witnesses clearly shows that there were more than six robbers. Some of these robbers entered the house, others were outside. We particularly observe the evidence of PW1 who spells out the role played by each appellant. 4... She identified - J4 - She identified the first; appellant as the one who was guarding her whilst the second appellant was gathering items from her room. She also identified the third and fourth appellants as the ones who lifted her up from the room to where she had parked the vehicle and was ordered to show them how to start the motor vehicle* We have also looked at the possibility of an honest mistake in identifying appellant number four, but looking at the duration of this robbery we agree with the learned trial judge that this possibility of an honest mistake has been ruled out* We have also considered the possibility of this honest mistake with regard to appellant three. We have found it to be an extreme remote coincidence that the fourth appellant should end up to be the driver of the third appellant. This is a very odd coincidence that PW1 could have identified the fourth appellant as one of the robbers when she never knew him before and be turns out to be the driver to the third appellant. All in all on the evidence on record, we have been unable to fault the findings of the learned trial judge and we see no merits in the appeals against convictions. The appeals against convictions are dismissed in respect of all the appellants. Coming to sentence as we have said the appellants were sentenced to 30 years imprisonment with hard labour. We note that there is no evidence of excessive violence used but however, we observe that this was a gang robbery and as such we do not feel that the robbery commands the minimum sentence. In view of these observations we set aside the sentence of 30 years imprisonment. In its place we substitute a sentence of 20 years with hard labour with effect from the dates of their arrests. To this extent only the appeals succeed. 5. .. - J5 - E. L. Sakala SUPREME COURT JUDGE D. K. Cbirwa SUPREME COURT JUDGE W. M. Muzyamba SUPREME COURT JUDGE