Siwale v People (Appeal 18 of 1987) [1988] ZMSC 62 (8 March 1988)

IN THE SUPREME COURT FOR ZAMBIA SCZ Appeal No. 13 of 1987 HOLDEN AT NDOLA (Criminal Jurisdiction) RICHARD SIWALE Appellant vs THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Bweupe, A. J. S. and Chai la A. J. S. The appellant appeared in person Mr. J. Mwanachongo, Senior State Advocate, appeared for the respondent. 8th March, 1983. JUDGMENT Chaile, A. J. S. delivered the judgment of the court. The appellant was charged together with another person with the offence of aggravated robbery contrary to section 294 (1) and with the offence of attempted murder contrary to section 215 (a) of the °enal Code. After trial the other person was acquitted of the offences and the appellant was convicted of the offence of aggraved robbery and was not found guilty on the offence of attempted murder but was convicted of the minor offence of unlawfully causing grievous bodily harm contrary to section 229 of the Penal Code. He was sentenced on the first offence to 20 years imprisonment with hard labour and was given 3| years imprisonment with hard labour on the lesser offence. He appealed to this court against conviction and sentence in respect of the first count i.e. aggravated robbery. The prosecution's case briefly was that at about 03.30 hours on the morning of 16th October, 1935, PW1 and his family were sleeping when they were awakened by an explosion which was followed by a gun shot. Two voices, one from the outside of the house and one from the inside were heard demanding money. PW2 wife of PW1 was badly injured by the explosion, she ran to her children's bedroom, she heard a voice from outside saying "bring the money". She replied that she had no money. /2 ... Then the............ Ihan the voice threatened to kill ner if she did not bring the money. ?U2 took a sum of X1,060.00 and gave it to the man who was inside the house. The thieves then took 1 box containing on3 gross Peter stuyvesant, a wrist-watch, a packet of surf washing oowder and a radio. The house was filled with smoko after the explosion and was extensively damaged. The explosion shattered the window of the bedroom and left a hole large enough to admit a fully grown person. PW2 wno was badly injured was rushed to Wusakile hospital. She had lost the two middle fingers of her right hand, her face was burnt and she sustained a severe flesh wound on the Inner-side of her left thigh. As a result of this attack she has permanent scars on her face and thigh. She has developed a permanent limp. After the matter was reported to the police PW1 went to the market where he met friends to whom he narrated the episode. Later he was informed that a certain man was seen selling Peter Stuyvesant cigarettes at a very cheap price. He got the police and proceeded to a house in Luangwa compound where the man was alleged to be selling cigarettes. On arrival at the house, a man who had no shirt, but who was wearing a pair of trousers and holding a pair of new shoes in his hand was challeged by the police. The house was searched and a carton box stampted "Peter Stuyvesant cigarettes" was found. The box contained 8 packets of Peter Stuyvesant cigarettes. It was also covered with some red dust. PW1 also noted that the box had money calculations in ink on the side. These calculations had been made by PW1‘s wife when buying the cigarettes. From these calculations and the red dust he realised that the box was the one taken by thieves and which had cartons of Peter Stuyvesant cigarettes. The red dust seemed to be from the blast at the house because the wall was made of red-brick and when the explosion occurred some of the dust got into the box. The police took the suspect, the box, a pair of shoes the man had been holding,a new shirt and a new pair of trousers found in the house, to the police station. PW2 confirmed that she later identified the box on which she had written some calculations at the time she bought the cigarettes. The value of the cigarettes stolen was K967.50 and only <16.00 worth was recovered. The police bomb expert confirmed after examining the box which contained the cigarettes that the box had some holes which could have been made by flying debris and pieces of broken glass. The box had some black smoke stains similar to those which he had observed at the seat of the blast in the /3...complainant's... complainant*s house. There was a faint s~ell of 'Wiosive on the box. The learned trial tudre considered the evidence before aim and wes satisfied that the appellant in whose house the box had been found was not falsely implicated. The learned trial judge found that the box was found in the appellant’s house after 1? hours after it has been stolen and the learned trial judge was sati$fi°d that the appellant was apong the people who stole and convicted him of the offence. The appellant has advanced a number of grounds. In his arguments against the conviction the main oround is that the learned trial judge erred in accepting the evidence in respect of warn and caution statement and without the original copy being tendered in court. The other ground is that the learned trial judge erred in drawing the inference of guilty from the alleged possession without considering other possible Inferences. He has further argued that the evidence of the prosecution was not satisfactory. Ine learned Senior State Advocate hr. John Hwanachongo in supporting the conviction has argued that the carton box was identified by ?ws 1 and 2 because of the calculations written on the side of the box. He has further argued that there was no need to take finger­ prints from the box because the carton box was recovered from the appellant’s house and that failure to lift finger-prints was not a neglect of duty by the police. We have considered the arguments put forward by both the appellant and the learned Senior State Advocate. There is no doubt that the box which contained cigarettes was recovered from the appellant’s house in his presence. There Is no doubt that ths? carton box contained some red debris which was similar to the one found inside the house of the complainant and his wife, We agree that failure by the police to lift finger-prints was not. neglect of duty by the police. We further agree with the submission that the box was sufficiently identified by PW1 and ?W2. This box which contained some red debris was amono the items stolen when pws 1 and 2 were attacked. The appellant was found in possession of the box barely 12 hours after the robbery. The learned trial judge in our view properly considered the evidence before him and properly drew the right inference that the appellant was among the oeoole who robbed PW1 /4....and PU?.................. and PW2. For the reasons we have just given the appeal against conviction is dismissed. As with sentence the complainant’s house was blown up by very powerful explosives and we do not think the sentence of 20 years imprisonment with hard labour for such a case has come to us with a sense of shock. The appeal against sentence is also dismissed. M. S. Ngulube ACTING CHIEF JUSTICE B. K. Bweupe ACTING SUPREME COURT JUDGE M. S. Chai la ACTING SUPREME COURT JUDGE