The People v Fredrick Silungwe (HK/89/2019) [2020] ZMHC 387 (17 August 2020)

IN THE HIGH COURT FOR ZAMBIA HK/89/2019 ✓ ~ ~J c.... S C ::::,J AT THE DISTRICT REGISTRY HOLDEN AT KITWE (Criminal Jurisdiction) BETWEEN: THE PEOP vs INAL REGI ox 20135, FREDRICK SILUNGWE Before the Hon. Madam Justice Abha Patel, SC. On ~ February, 2020. A '-' J L,._ ~ r- ' 7 , For the State: Mrs. M. G. K. Ngulube, Acting Principal State Advocate & Ms. M. I Mwala, Acting Senior State Advocate of Messrs National Prosecutions Authority For the Accused : Mr . D. Mazumba and Ms. Mwemba of Messrs Douglas Mazumba & Associates JUDGMENT } Legislation referred to : ... •·· ~ .. * s • • , ·· p. 1. 2 . The Penal Code, Chapter 87 of the Laws of Zambia Criminal Procedure Code, Chapter 88 of the Laws of Zambia Cases referred to: 1. 2 . 3 . The People vs Davies Chanda Luba (2012) ZR Vol 2 p334 Mwewa Murono vs The People (2004) ZR 2017 Bwalya vs The People (1975) ZR 227 .· .. ◄ 4. Illunga Kabala ad John Masefu vs the Peopl e (1981) ZR 5 . The People vs Mary Ngalasa, Fred Mupelepeto & Others (2013) ZR vol 1 at 64 Mambwe vs The People, Appeal No . 113 of 2012, Chimbini v The People (1973) Z . R 191 (CA) Charles Lukolongo & Others v the People (1986) ZR 115 Mkandawire & Others v The People (1978) ZR 46 Lipepo and Others vs The People SCZ No. 20 of 2014 Nyambe vs The People (1973) Z. R 228 Kombe vs The People (2009) Z. R 282 Henry Tawanda Mutanuka vs The People Appeal No. 123 of 2018 Director of Public Prosecutions v Risbey(1977) Z. R 28 Kabukala Abu Tambwe and Shafiko Hachi v The People ( 1 987) Z . R . 15 (S . C. ) Hockings v Ahiquist Brothers Limited (1944) K. B 120 Bright Katontoka Mamabwe v The People (Appeal No. 8 6. 7. 8. 9. 10 . ll . 12 . 13 . 14 . 15 . 16. 17. of 2014) Intro duction 1 . Fredrick Silungwe , t he Accused person herein, stands charged with one count of aggravated robbery contrary to section 294 (1) of the Penal Code, Chapter 87 of the Laws of Zambia. 2. The p a rticulars of the offence allege that Fredric k Silungwe on the 5 th day of February 2019 at Chingola District of the Copperbelt Pr ov ince of the Republic of Zambia, and whilst -J2- acting together with others unknown whilst armed with axes and metal bars did steal 4 shaving machines, 1 DVD, assorted clothes, 4 blankets, 1 home theatre and Kl,900.00 cash the property of KELVIN CHIPANGO and at or immediately before or immediately after the time of such stealing, did use or threatened to use actual violence to KELVIN CHIPANGO in order to obtain, retain, prevent or overcome resistance to it being stolen. The accused pleaded not guilty on the charge. The Prosecution's Evidence 3 . PWl, TRINAH KASUBA, (hereinafter referred to as PWl), testifi ed that on the fateful day, she and her husband, KELVIN CHIPANGO were asleep in their house when she heard a noise at the bedroom door. She described that they used wooden blocks to hold the door closed. She woke up to the sound of an intruder and described him as a male person, who was naked. She confirmed that there was adequate light from a battery operated light which was facing the door. She further testified that the intruder was wearing a black face mask. She said he held a metal bar in one hand and an axe in the other. -J3- She said he then leaned the iron bar against the wall and remained with the axe in his left hand. 4. It was her evidence, that the intruder removed his face mask and gestured to her to keep silent by placing a finger on his lips. She said she tried to wake her husband up, while screaming out for Pastor Bupe, who was their immediate neighbour. She testified that the intruder axed her husband on his head and also hit her on her head with the axe. He then dragged her outside and held her face down and put the axe on the ground. She said he pulled her tongue to stop her from making noise and she narrated that she must have passed out at this stage and when she woke up, she was at the Police Station. She testified that she saw her husband lying on the floor at the Police station with blood pouring down his face and that she too was bleeding. She said she had been dressed by someone as she was wearing a dress at the Police station. She described Pastor Bupe's house was about 10 metres from their house. 5. At the Police Station, she said they were both given a medical report and taken to Nchanga Hospital where both her and her husband received medical attention. PWl narrated that she spent 2 days there and was then sent to -J4- Kitwe Central Hospital where she spent another 2 days. She said they were then discharged and given a document for further tests to their head wounds, but that they could not do those tests due to financial challenges. 6. On her return to the house, she discovered some missing items such as the TV, DVD, beddings and clothing. 7. Although she confirmed having had a look at the face of her attacker as he had removed his face mask, she failed to identify him in Court. Despite cajoling her into pointing at her attacker if she was afraid to approach him, or b eing asked several different questions, PWl fail ed to make a positive identification of the Accused. She d e scribed him as a male of average size , medium hei ght and dark but not very light complexion. When pressed for an identification, she said a lot of time had passed and it had taken long. 8 . She we n t on to describe the axe and the metal bar, whic h were eventually produced and marked as ID 2 a nd ID3. She also described the medi cal report a nd gave some of its descriptive features, and the report was then tendered in as part of her evidence and marked Pl. 9. Under cross- examination, PWl c onfirmed that the house s in the area had no light and that her husband awoke after he had been axed on his -JS- head and when she was shouting for him and for the neighbour, Pastor Bupe. She was also questioned as to the discrepancies in her statement to the Police and her evidence in Court. Defence Counsel read out her statement which said that she had been raped but that her evidence did not make such disclosure. She responded by saying that she had passed out and was not aware of what had happened to her after the attacker dragged her outside to the foundation, which was about 5 metres away. 10. She also confirmed that her husband was out of a job at the time and she was engaged in a small business and could make up to K200 per d ay . She stated that he had opened a barber shop and tha t he had some money in his pocket, but she could not be sure of the amount. She said as the attacker dragged her outside, she did not see h i m take anything else from the house . She also confirmed that an i den t ific ation parade had not been done. 11 . PW 2, KELVIN CHIPANGO (hereinafter referred to as PW2 ), testified that in the early hours of the morning of 5 th February, 2019, between 01: 00 and 02:00 hours, he was sleeping with his wife, PWl, and that there was only one door to the bedroom. He testified that he was awakened by the sound of his wife calling his name, and suddenly he was axed on his head and as he bent -J6- down to look for his wife; he noticed she was not there. 12. He described the light in their house as a battery operated light with about 36 LED bulbs and that the neighbour on the left hand side, also had lights in his yard from an MTN source. According to his testimony, he saw a man carrying his wife on his shoulder while holding an iron bar and an axe in his left hand. He confirmed that the man was naked and had on a mask which reached up to his forehead. He said his wife had slept naked and that is how she was carried outside. He said he reached the man and started to punch him at which stage, he dropped his wife (PWl) and starting swinging the axe towards him. He testified that he managed to grab the axe away from him at which time the assailant picked up the metal bar and tried to strike him with the metal bar. 13. It was his evidence that as he struggled with the attacker , and tried to get the attention of his neighbor, Pastor Bupe, someone else attacked him with the axe and hit him on top of his right eye and left leg. He said the attackers ran away and that he had remined struggling with the first assailant for about 15 to 20 minutes. 14. He said he had known the first attacker from his barber shop and d escribed that there was a -J7- bar near his barber shop from where he had seen the attacker in the company of his friends. He knew him as 1Fred'. He said he chased him for a couple of minutes until he went back to look after his wife. He said he found her still unconscious where he had left her and he heard Pastor Bupe ask some women to find clothes for her. He said he carried her into the house, and noted that all the clothes were missing, along with 4 shaving machines, 4 blankets, 1 home theatre, 1 DVD player and Kl, 900 in cash, altogether valued at Kl4,900. 15. He said with the help of his neighbours, they dressed his wife and looked for transport, which they could not find, and he together with Pastor Bupe took her to the Chingola Police station. He said with the help of the torch on Pastor Bupe's phone, they saw that he too had sustained deep cuts on his head. 16. At the Police station, they were issued with medical reports and taken to Nchanga Hospital where they were both admitted for 3 to 4 days. His wife was subsequently referred to Ki twe Central Hospital, while he stayed there, as his condition was quite bad. He testified that he was discharged on 11th February 2019 and they were advised to have both the medical reports signed at Chawama Clinic. -JS- 17. On the same day, he gave a report at Lulamba Police Post and told the Police that he knew the assailant. He testified that around 23:00 hours, he together with the Police, led them to the Accused's house in the Loop area, and that his house was about 500 metres from PW2's house. He said they found him at home and he confirmed to the Police that this was the same person who had attacked him, at which point the Police apprehended him and took him to the Police Station. He also testified that the Police had gone to the house and retrieved the 2 weapons used in the attack, while he was in the hospital. PW2 made a positive identification of the Accused in Court. 18. He went on to describe the medical report that he was given by identifying its features and thereafter produced it as part of his evidence marked ID4. He also described the metal bar and the axe and pointed out the sharp axe head and the length of the metal bar. Both exhibits had been marked ID2 and ID3. He testified that they used a big bag, known commonly as an ukwa bag to wedge the door and used the chain to act like a stopper. 19. It was further his evidence that he used to work for Avie International and had stopped work. He said on 4th February 2019, he received a message that Avie was paying salaries and -J9- • that is how he collected K2,000 at about 16:00 hours. He then went back to his barber shop and later returned home that evening with Kl,900.00. 20. Under cross examination, he was asked why his statement to the Police was different to his evidence before the Court. He responded by saying that his evidence was the same as his statement. He was also questioned on the use of ukwa bags to close the door, while his wife, PWl had testified that they had used blocks to close the door. He was also questioned on his evidence that he saw the assailant holding both weapons outside, while his wife's evidence was that he had placed the metal bar on the ground in the bedroom. He was further questioned as to the fact that there appeared to be 2 assailants , one who axed him from behind, and the one who held his wife and with who he had a struggle outside near the foundation. He was also asked if the Accused carried away any of the goods from their house to which he responded in the negative. He was also asked if any of the items were found in the accused's house, to which he responded in the negative. He confirmed that he knew the house of the Accused, because it was near a bar, and also confirmed that during the struggle with the Accused, he had come to see his face clearly -JlO- due to the long time spent in the struggle and as there was adequate light from Pastor Bupe's house. 21. In re-examination, he described the lighting in the area and confirmed his evidence before the Court. 22. PW3, Bupe Mwape, (hereinafter referred to as PW3)was 37 years old, was a Pastor at Living Winners Word Church in Chingola, and a neighbour to both PWl & PW2. He testified that in the early hours of 5 th February 2019, he was awakened by the voice of his neighbour, PWl, and he peeped through his door and saw PW2, say that they had been attacked. He confirmed that there was a security light outside and that he had known PWl and PW2 as husband and wife for about 9 to 10 months. He got dressed and quickly came out to see PW2 and a man locked in a struggle about 3 metres away. He saw the man was armed with an axe and he started calling out for help from the other neighbours. He then saw a naked woman on the ground and as he went closer, he saw it was PWl and she appeared to be unconscious. He went to look for other women to help her and started shouting and by this time a lot of people appeared. He said PW2 then came back from chasing the criminal and lifted his wife from the ground -Jll- and took her inside their house while other women assisted to dress her. 23. He said he then noticed the injuries suffered by PW2 which were also intensive and that he together with other neighbours helped carry PW1 to the Chingola Police Station, where they were given medical reports and then rushed to Nchanga Hospital. He said the Police Officers had asked for his telephone number as he was part of the group that escorted PWl and PW2 to the Police Station. He also testified that at about 04: 00 hours, he got a call from the Po li ce asking for directions to the house. He said 2 Offi c ers came to the scene and he led them there. He s a i d they discovered the axe and the metal bar about 5 metres form the house. He also said he was called back _ to make a statement 2 days l ater and that he could easily identify the axe a nd the metal bar, as he was the one who p ic ked them and put them in the Police vehic l e . He described the two items and made a pos i tive identification of ID2 and ID3. 24 . Under cro s s examination, he said the light at h i s house i s power ed by red pay powered by solar MTN s e rvice. He said he observed a struggle about 20 metres away, and that the male assailant had a head scarf but that he could not see if the man was dressed or naked. He also maintained that he did not know what -Jl2- property had been stolen from the house of PWl and PW2. 25. PW4, Inspector Kennedy Nyirenda, (hereinafter referred to as PW4) of Chingola Central Police. He testified that on the 5th day of February 2019, between midnight and 05: 00 hours, he received a call from the Officer in charge, one Inspector Mpanza to rush to the office for an emergency being a case of aggravated robbery. He narrated in his evidence that he rushed to the Office, and met the Officers on duty, Detective Sergeant Nasilele, who was the CID on duty. He received a brief of the incident that had taken place and also saw PWl at the Police Station. He said they rushed her to Nchanga General Hospital as she was bleeding fr om a cut on her head and said her husband had already been taken to the same hospital. They then proceeded to the Chikola Loop Area and were in touch with one of the neighbours, PW3,who gave them directions to the house. He said he was in the company of Detectives Nasilele and B Mwape. He said the light was coming from the neighbour's house and they noted the door was closed. They observed blood stains near the entrance by the door and signs of a struggle. They followed the blood drops, which led them to a distance of about 15 to 20 metres behind the house, where they found an -Jl3- axe on the ground and also discovered a metal bar which was about 1 metre long and had a pointed edge. He said they took the 2 weapons as exhibits, and on 11th February 2019, handed them to Inspector Mbalo, the Officer in charge of the Lamba Police Post as Chikola was within the Lamba Area. The witness described the 2 weapons and later they were shown to him as ID2 and ID3. 26. Under cross examination, he stated that the chain which was used to lock the door had been disturbed, and it was put to him that there was discrepancy in the evidence of PWl, PW2 and himself, to which he responded by saying they had arrived after the incident and his evidence was based on what he observed. He also confirme d that he did not conduct any interviews with PW1 and PW2 but was able to identify the Accused as he had seen him in custody when he went to deliver the two exhibits to Lamba Police Station. He also confirmed the distance between Chikola Loop Area to Chingola Police Station is about 3 to 4 kilometres and may take an hour to walk that distance. 27. PWS, Inspector Mparo, (hereinafter referred to as PW5),was an Inspector at Lamba Police Post and Officer in Charge. He testified that on 10 t h February 2019, he received a report of -J14- • aggravated robbery from male Kelvin Chipango and his wife, Trinah Kasuba of Chikola Loop Area in Chingola. He described the nature of the attack and listed the items that were said to have been stolen. He also testified that PW2 said he could identify their attacker as he knew him from the area in which they operated, and also knew where he lived. He testified that the following day, PW2 led a team of Police Officers, totaling seven in number to the house of the suspe c t. He confirmed that the accused was found in the house with his uncle, his siste rs and other occupants. He said they refused to answer questions as to the whe reabouts of t he accused on the night of the atta c k, and became hostile . 28 . Th e wi t ness iden t ified the iron bar and axe and also described the injuries sustained by PWl a nd PW2 and i dentified the medical reports p roduced and mar ked as IDl and ID4, which were then submitted a s part of their evidence and which had been i n the custody of the arresting officer . The me d ical rep orts were produced and marked Pl and P4 b ei ng the medical reports for PWl and PW2 respec tiv ely. The witness also produced the iron bar and axe as pa r t o f their evidence, and these were admitte d and marked P2, the iron bar and P3, the axe. -J15- 29. In cross examination, PWS confirmed that they had not searched the house of the Accused, as it was not his house and also confirmed that no stolen property was found on him, nor indeed was he seen with any of the i terns allegedly stolen when he was reported to have fled from the scene. This marked the close of the Prosecutions case. I found that a prirna facie case had been made against the accused and placed him on his defence in accordance with section 207 (1) of the Criminal Procedure Code. The Evidence for the defence 30 . The defence called three ( 3) witnesses. The first wi tness was the accused, Fredrick Silungwe DWl. His evidence before Court was tha t ordinarily a resident of Kitwe, at the ma te rial time, he was in Chingola visiting his f ather, ( the young brother of his father) . It was hi s evidence that he went to Chingola on 22 January 2019 and lived with his uncle and his family at House No. 20 Chikola Loop Area in Chingola. He testified that his uncle operated a shop and a bar and that he worked from the bar. According to his evidence, he used to open the bar at 09: 00 hours in the morning and close it at 20:00 hours. He stated -J16- that after closing the bar, he used to stay at home, as he was new to the area and had no friends. It was his evidence that on 4t h February 2019, after cleaning the bar, he went to Gondwe's shop to order more alcohol for the bar and returned at around 16: 00 hours and continued his usual pattern. He recalls that on 11 t h February 2019, he was asleep at home and heard knocking on the door. He said he woke up and came out and saw that there were 4 people in the house. He said this was between 01:00 to 04:00 hours in the morning. They were Police Offi c ers and asked for Fred. He identified hims e lf a nd they searched his room and the whole hou se. He said they started to beat him and were looking for a panga and a tazer and said that he had stolen things from somebody. He was apprehended and taken to Chiwenpala Police Station where he was detained for 4 days and that not even the arresting officer came to see h im . It was his evidence that he did not kn ow t h e Complainant or his wife and that he had n ot g one out on the night of the 4th Februa ry 2 01 9 and that he had remained at home after clos ing t h e bar. 31. Under cross e xamination, he admitted to being in the Chingola Loop Area from 4t h February 2019 afte r 20:00 hours till 05:00 am the following morning and that he had not told the Court who -J17- he was with during the specified time. He had no answer to why he may have . been falsely implicated by the complainant, and confirmed that they called out to him as 'Fred'. He could not answer how PW2 knew his house, where he lived and that the Police referred to him as Fred. He confirmed that he had heard the evidence of the complainant who said that the Accused would go to his barber shop and drink with his friends, and that is how the complainant had come to know the accused. His response was that many people knew him, although he did not know them. He said he had visited his uncle in April of 2014 and t hen this visit in January 2019. He confirmed that the house was searched on 11th February 2019. He also confirmed that he had not told the Court about his alleged beating at the hands of the Police , or shown the Court where he was beaten. He was not re-examined by Counsel. 32 . DW2 was Francis Mwarnba, the 44 year old uncle of 7915 Chikola Loop Area of Chingola. He confirmed that the accused was his sister-in law's son and that he lived with him in February 2019. He said that he had a make-shift stall know as a 'Sido' from where he sold groceries such as buns, sugar, cooking oil. He confirmed that he was married and had children. His evidence was that on a normal day, he would -J18- • leave home at around 05:00 am in the morning to go for work till 19:30 hours, after which he would help the accused in the Sido, and carry out a stock-take and that they would close the shop at 20:00 hours, as the area was notorious for crime. It was his evidence that he would lock all the doors and kept the keys and that it was not possible that the Accused would have gone out any night without him knowing about it. He testified that on the night of 10th February 2019, he did the usual stock take with the accused, and that after everyone went to sleep , he locked the house and barricaded the door with a fridge and chairs, in addition to the locks and then went to sleep. Around 02:00 am, he heard knocking on the door and upon asking who it was, he was told it was Police office rs and the CCPU. He recalls asking them for a Warrant but that they were hitting the door with batons and forced the door open. It was his evidence that after they broke open the main door, they proceeded to break the door of the room where the accused was sleeping and started beating him and overturned furniture and were generally aggressive. He said they were looking for a tazer and a panga and that they told him the accused had attacked somebody. They took him to the Police station and that he later heard what -Jl9- he had been charged with. He maintained that the accused was a good person and that is the reason he called him to Chingola. 33. Under cross examination, he explained that both he and the accused stayed at the same house in Chingola, although they had both offered different addresses in Court. He said that he got along well with the accused although he had never stayed with him before this visit. When asked if the Accused had visited him in 2014, he denied that. He also denied that the accused was running a bar and that he was actually managing the grocery stall. He also confirmed that he would leave the house for work at 05:00 hours and return around 19:30 hours and that he may not always know where or with who the accused was. 34 . He also confirmed that he went to sleep on the night of the 4th February 2019 at about 23:00 hours and awoke at 05:00 hours the following morning . When cross examined about the events on the night of the 11 th February 2019, and the discrepancy between his evidence and that of the Accused, he stated the Accused may have been lying. 35. DW3 was Iness Nailungwe, the mother of the accused. It was her evidence that the Accused, her first born son, went to stay with his Uncle in Chingola in January 2019. She narrated that -J20- she received a telephone call on 12 th February 2019 to tell her that he had been apprehended by the Police at Chingola. According to her testimony she went to the Police Station and was told by the CIO, Mr Chanda, that the accused had been apprehended for an offence and that she met the complainant and his wife outside the Police Station. She confronted them and PW2 confirmed the attack by the accused, although the wife, did not say anything conclusive. She further narrated that PW2 offered to not take the matter further if the accused returned the sum of Kl,900, a DVD Player and a plasma TV. It was h e r evidence that PW2 rang her and was angry at her tel ling the Police that he had offered to settle the matter in return for the allegedly stolen items. She later discovered that the matter had been sent to Court. Under c ross examination, she confirmed that she was not in Chingola at the material time and could not know where the accused was at the time of the commissi on of the offence. It was also put to her that it was common to try and resolve matters by returning the property of the complainant and the indictment was read out to her. She also confirmed that she had not given the Court the telephone number from which PW2 -J21- was supposed to have called her or the time he made that call to her. This marked the close of the case for the defence. 36. The Prosecution and defence Counsel have filed written submissions which the Court has duly considered, and the Court extends its gratitude to Counsel on record, for their industry and diligence in this matter. Submissions For The Accused 37 . The defence has relied on the case of Mwewa Murono vs The People to reiterate the principle that in criminal cases, the standard of proof is h igh and that t he c ase must be proved beyond all reasonable doubt. If at the end of the day, I harbor any doubt as to the guilt of the a ccused person , I must grant him the benefit o f that doubt and acquit him. This Court has been besee c hed by t he Defence to find that no e v i d e n ce has been led to prove the essential element of the alle ged offence, and that no reasonable t ribun al could safely convict the a c cused on the e vidence that has been placed befor e this Court . 38. It has also bee n submitted for the accused that to prove a c harge of aggravated robbery -J22- • in terms of section 294 of the Penal code, it is necessary for the Prosecution to show that violence was used in order to obtain or retain the thing being stolen. 39. The Defence has also beseeched this Court not to rely on the identification by a single witness, in this case, PW2, and have relied on the case of Bwalya vs The People, to submit that the possibility of an honest mistake has not been ruled and that it is not safe to rely on the identification of PW2. They have also referred to the case of Illunga Kabala ad John Masefu vs the People where it was held: ' ' the s o le object o f a n identific ati on pa r ade is to test the abil i ty of an i dentifying witness to pick out a person he claims to have previously seen on a specified occasion .'' 40 . The defence has urged the Court to find that the goods alle ge d to have been stolen were not a c t u al l y stol e n by the accused as there was no e vidence of the assailant running away with any of the sto len property . 41 . The De f e n ce has also urged this Court to e x e r cise c aution about drawi ng inferences from c irc ums tantia l evidence, unless suc h circumstantial evidence has take n the case out of the realm of conjecture. They also submitted that where two or mo r e inferences are possible, it has always been a cardinal princ iple of c riminal law tha t the Court will adopt one -J23- • which is more favourable to the accused, if there is nothing in the case to exclude such inference. In support of these submissions, they rely on the case of The People vs Mary Ngalasa, Fred Mupelepeto & Others. Submissions for the Prosecution 42. The Prosecution has placed reliance on the authority of the case of Mambwe vs The People, wherein the Supreme Court has held that in order to prove the offence of aggravated robbery, there must be proof that theft was committed and that actual violence or the threat to use actual violence was used to obtain or retain the thing stolen. Additionally the accused must have been armed with an o ffensive weapon or must have been with one person or more. 43 . It has also been submitted by the Prosecution that section 4 of the Penal Code defines the te rm '' offensive weapon'' as follows: '' means any article made or adapted for use for causing or threatening any injury to the person, or i ntended by the person in question f or such use, and includes any knife, spear, arrow, stone, axe handle, stick or similar article.'' They have submitted that the i terns produced and marked P2 and P3 are offensive weapons. Analysis of the Offence charged -J24- • 44. As a starting point, I caution myself that the burden of proof is on the prosecution to establish the charge against the accused, and the standard of proof which must be attained before there can be a conviction is such a standard as satisfies me of the accused's guilt beyond all reasonable doubt. 45. The offence of Aggravated Robbery is set out in Section 294(1) of the Penal Code, which reads: ' any person who, being armed with any offensive weapon or instrument , or being together with one person or more, steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property to obtain or retain the thing stolen or to pre vent or overcome resistance to its being stolen or retained, is guilty of the felony of aggravated robbery and is liable on conviction to imprisonment for li fe, and, notwithstanding s ubsec tion (2) of section twenty six, s hall be sentenced to imprisonment for a period of not less than fifteen years.' 46. Thus, the prosecution must satisfy the Court that the following elements exist: -J25- • i. that something was stolen by the accused; and ii. that actual violence was used on or threatened to be used on any person immediately before or during or immediately after the time of stealing; and iii. that the use or threat of actual violence was employed to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. 47. I warn myself and am guided by the holding in the case of The People vs Davies Chanda Luba, that in criminal cases the burden of proving the guilt of an accused lies from beginning to end on the prosecution. They must prove each element of the offence charged beyond reasonable doubt. 48. I have care fully considered the evidence on record and the submissions by both parties. From the facts on record the following are my findings of fact : 1 . That PWl and PW2 were the victims of aggravated robbery while they were asleep in their home on the night of 5 th February 2019. 2. That during the robbery, there were at least two attackers, and one of the assailants attacked and wounded both PWl and PW2. -J26- 3. That the medical reports produced and marked Pl and P4, confirmed the extent of their respective injuries. 4. That the duration of the struggle between the accused and PW2 was between 15 to 20 minutes. 5. That the accused was not identified by PWl, but was identified by PW2. 6. That the light that was available in the area, was sufficient lighting, as confirmed by PW1,PW2 and PW3. 7. That the two items used in the attack, namely the axe and the iron bar, produced in Court and marked P2 and P3 respectively, are offensive weapons as defined by the law. 8. That PW2 knew the accused from prior interaction and was able to lead the Police to his house and also knew his name as Fred. 9 . That the accused was in the Loop area at the time of the attack . 10 . That the Accused has no alibi and none of his family members were able to vouch for his whereabouts at the material time . 11. That the stolen items were not recovered or produced in Court. Application of the Law to the facts 4 9. The evidence of PWl, was that as she was sleeping on the night of 5 th February 2019, with her husband, PW2, a man broke into their house, armed with an axe and an iron bar. It was her evidence that the assailant, a naked man, -J27- • struck her husband three times on the head, with the axe and subsequently struck her on the head and carried her outside where the attack continued. 50. It was the evidence of PW2 that on the fateful night, as he and his wife, PWl were sleeping, he heard his wife call his name and as he was awaking, he was axed on the head three times. He subsequently discovered that his wife was , not in bed and he saw a man, who was naked, carrying her on his r i ght shoulder out of their house. It was his further evidence that he called out to his neighbour for help, and in the ensuing struggle, which lasted for between 15 to 20 minute s, he managed to get a good look at his assailant, who was armed with an axe and an metal bar . The assailant managed to flee from the scene , after another assailant came to his rescue , and together they ran away. PW2 carried his still unconscious wife, PWl, back into their h ouse and noticed that several property a nd c ash in their house was missing. 51 . This Cou rt h a s heard evidence and has noted the p r oduction of t he medical reports issued to PWl and PW2, ma rke d Pl and P4, and has noted that they are consiste nt with the evidence of PWl and PW2 as to the extent of the attack, and the injuries sustained by them both. The injuries were also confirmed by the independent evidence of PW3, -J28- Pastor Bupe. The Court has also noted the axe and the iron bar have been identified and produced marked P2 and P3 respectively and that these items were also identified by PW3, PW4, and PWS. All the witnesses gave independent evidence of there being adequate light coming from Pastor Bupe' s house allowing PW2 and indeed PW3 to see clearly. 52. Having made the findings of fact, I warn myself that the duty to discharge the burden of proof is on the prosecution and that the burden of proof is beyond all reasonable doubt as articulated in the case of Mwewa Murono v The People referred to by the defence. With respect to the offence of Aggravated robbery the Supreme Court in the case of Kabukala Abu Tambwe and Sha£iko Hachi v The People the Supreme Court held as follows: " Robbe ry by a person on his own i s not aggravated r obbe ry unless he is armed with an offensive weapon o r i n s trument and ... I n consequence the appellant can only be convicted of a g gravated robbery i f he was in the company of a n oth er person or persons.n From the h o lding of the Supreme Court in this case the ingredients of the offence of Aggravated Robbery to be e stablished by the prosecution before this Court are: 1. That the accused person did rob the victim in this matter; -J29- 2. That the accused was armed with an offensive weapon or instrument and used or threatened actual violence on the victim; or 3. That the accused was in the company of another person or persons when he robbed the victim. I have similarly noted the case of Bright Katontoka Marnabwe v The Peop1e where it was held as follows: "It must be established that a person stole something capable of being stolen whilst armed with an offensive weapon or instrument or being together with one person or more using or threatening to use actual violence to any person in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained . " 53 . The issue for my determination is whether the accused was one of the perpetrators of the crime that befell PWl and PW2. The question that I must answer is this: Is there any evidence linking the accused to the crime charged? 54. I find this to be an opportune time to consider the law and general principles that are relevant to cases involving single identifying witnesses. The law as it stands stems from the bedrock case of Chimbini v The Peop1e where the Court of Appeal, (being the -J30- original forerunner to the existing Supreme Court), made the following statement: "it is always competent to convict on the evidence of a single witness i f that evidence is clear and satisfactory in every respect; where the evidence in question rela tes 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." identification there is to The Court of Appeal went on to set down the factors that must be considered in determining the reliability of a witness's identification of the accused. The Court stated as follows: "Many factors must be taken into account, such as wh e t her it was daytime or night-time and, i f the la tter, the state of the light, the opportunity of the wi tne s s to observe the appellant, the circumstances i n which the observation was alleged to have been made (i . e . whether there was a confused fight or scuffle or comparatively wh ether stationary). " parties were the 55 . The Court also singled out the most important factor to be whether the witness knew the accused prior to the incident. In their words: "there is the greatest difference between recognising someone with whom you are familiar, or at least whom you have seen b efore , and seeing a person for the first time and attempting to recognise and identify him later from observations made in circumstances whi c h are no doubt charged with stress and emotion." The Chimbini case was later validated by the Supreme Court in the case of Bwa.lya v. the Peop.le, where the Court had this to say: -J31- "We have pointed out that the honesty of the witness is not the issue; the court must be satisfied that he is reliable the possibility of honest mistake has been ruled out.n in his observation and that 56. More significantly, the Supreme Court expounded that the possibility of honest mistake cannot usually be ruled out in the case of an identification by a single witness save where there is a resounding connecting link between the accused and the offence. The Court stated as follows: "Usually in the case of an identification by a single witness this possibility cannot be ruled out unless there is some connecting link between the accused and the offence which would render a mistaken identi fication too much of a coincidence, or evidence such as distinctive features or an accurately fitting description on which a court might properly decide that it is safe to rely on the identificationn 57 . I also call to mind the words of the Supreme Court in the case of Charles Lukolongo and Others v the People that: ''According to the principle formulated in the case o:f R v Turnbull and Another, evidence of identification ought to be treated with caution before it can be relied on as foundi ng a criminal conviction." 58. A similar approach was taken by the Zambian Supreme Court in Mkandawire & Others v The People where the Court, adopting the words of Lord Widgery, C. J, in R. v Turnbull stated that: -J32- "Odd coincidences can, if unexplained, be supporting evidence. " In the case of Lipepo and Others vs The People the Supreme Court held that 'the evidence of a single identifying witness can properly warrant any competent court to convict upon it provided it is reliable.' 59. I am alive to the holding in the case of Nyambe vs The People where it was held that some of the factors to be considered when testing the identification are the circumstances in which the accused was observed and the opportunity for observation. It was also stated in the case of Chimbini vs The People, in determining whether a witness's account was reliable, is whether the witness knew the accused prior to the incident . 60 . With the above authorities in mind, I turn to analyse the evidence before the Court and ask myself the critical question: Is it safe to convict on the evidence of a single identifying witness? In other words, do the facts and evidence support the identification of the accused by PW2? 61. In the case of Director of Public Prosecutions v Risbey, it was held that: where the issue is one of credibility and inevitably reduces itself to a decision as to which of two conflicting stories the trial -J33- court accepts, an appellate court cannot substitute its own findings in this regard for those of the trial court" In this case, the trial magistrate found Jacob Muleya's account of what transpired more credible than that of the appellant. Having examined the record and the judgment in particular, we find no basis on which we can fault him. 62. Having analysed the demeanour and having heard the evidence of PW2, I found his evidence to be credible, consistent and factual when he (PW2) identified the Accused as the person who attacked and stole from him and his wife PWl, whi lst acting together with persons unknown. This Court has noted that PWl failed to identify the accused in Court and appeared to have been extremely nervous, scared or hesitant when called upon to identify the Accused. However , PW2 offered credible and consistent evidence of the events of the night in question. The defence have attempted to argue that in his medical report, he has stated that he was assaulted by 'unknown people'. 63. However, from the evidence placed before the Court, PW2 confirmed that he knew the accused prior to the incident, as the accused used to patronize his barber shop, and knew him as 'Fred', and further that PW2 led the Police to -J34- the residence of the Accused on 11 th February 2019, where the Accused was found and arrested. This was confirmed by the independent evidence of PWS, Inspector Mparo. 64. I therefore find as a fact that PW2 made a positive identification of the accused as he knew him from before, knew his name, knew where he lived and had the opportunity to see him clearly for long enough while they were tied in a struggle. To this extent, and for the reasons above, I am of the considered view that it is safe to rely on the identification of the accused by a single eye witness, namely PW2. 65 . The Court has taken into account the duration of the struggle which lasted for between 15 to 20 minutes, between the accused and PW2, the confirmation of good light and therefore the ability to see clearly in the area, was long enough for PW2 to make a positive identification, and upon his testimony that he knew the Accused as Fred, from the area he operated in, the Court is satisfied that, and does find that PW2' s identification of the accused is reliable. The Court has also noted that none of this evidence was challenged at all by the Defence. 66. The Court has also noted that the evidence of PW2 is corroborated in material respects by the evidence of PWl, PW3, PW4 and PWS. -J35- 67. The defence to the contrary, offered contradictory evidence on most material facts of the case, the Accused in his evidence said he had visited his uncle, DW2, in April 2014, and then at the material time of the incident, in February 2019. DW2 however said that the accused was visiting him for the first time. He also said that the accused, his nephew, was running a makeshift grocery store, known as a ''Sido,'' from where he sold cooking oil, sugar and buns. The accused however, testified that he managed a bar and bottle store for his uncle, DW2, and for whom he would go to procure more beer and stocks. This was his explanation as to why people knew him in a place where he was relatively new. Further the narrations of the accused , and DW2 differed significantly in the manner in which the Police arrived at their house on the night in question. 68 . DWl, the accused, said the Police entered the house, and asked for him by his name, Fred. DW2 countered that the Police forced their way into the house, threw their belongings around, and threw the accused off from where he was sleeping, and were generally aggressive. When cross examined as to the discrepancies, DW2 maintained that the accused was lying. The Court has further noted that the accused made no efforts to cross examine any of the -J36- Prosecution witnesses when they tendered evidence, he did not deny that he may have known PW2 from his barber shop, and did not challenge PW2's evidence when he said that the accused, with his friends, used to drink from his barbers shop. He also confirmed his presence in the loop area on the fateful night, and further confirmed that the Police called out to him by his name, Fred, the night they apprehended him from his house. He could not answer the question why PW2 would falsely implicate him, if indeed he was not his assailant. 69. To the extent of the contradictions cited in the evidence of the Accused and DW2, the Court is of the considered view that their evidence is unreliable and lacks credibility. Further the Court has noted the demeanor and evidence of DW3 and finds that her evidence lends no weight whatsoever to the fate of the accused. From her own evidence, she has admitted to not knowing what the accused may have been doing on the fateful night and indeed she confirms that she was not with him at the material time. 70. As stated, for the offence of aggravated robbery under section 294(1) of the Penal Code, to be established, the prosecution must prove in casu that the accused person whilst armed with an offensive weapon or instrument or being -J37- with one person or more, stole properties of the complainant and at or immediately before or after the time of such stealing used or threatened to use actual violence so as to retain the thing stolen or to prevent or overcome resistance from it being stolen or retained. This Court has found as a fact from the evidence before it that the accused while armed with an offensive weapon did use actual violence to retain the things stolen or overcome resistance from it being stolen. 71. This Court has already found that the prosecution have established the necessary i ngredients to sustain a sound conviction on the f a c ts before it. The defence have submitted that on t he evidence of both PWl and Pw2, the accused was not seen carrying any of the stolen property, neither was it discovered in his ho use at t he time when he was apprehended. 72. I am guided by the Court of Appeal who cons i dered this issue in the case of Henry Tawanda Mutanuka vs The People. In submitting on the 2nd ground of appeal, Mrs. Bah-Matandala referred to the case of Bookings v Ahiquist Brothers Limited' 1944 K. B 120 and submitted that even if the phone was not produced in evidence, the trial judge was entitled to consider the testimony of the prosecution witnesses' reference to it. The Court in considering the ground of appeal of the effect of not producing stolen phone were of the considered view that if they were to accept Ms. Marebesa's submission that without the phone, Frank Sikutwa' s evidence that he got it from the appellant should not have been received, it would follow that in a theft related charge, no conviction would lie if the stolen property is not recovered. They stated as follows: ' ' We don't think that should be the case. The recovery and production of stolen property in the course of a trial, only goes to support the testimony of a witness. In cases where the testimony of a witness requires corroboration, the production of such property, may, provide the corroborative evidence. In our view, it is competent for a court to accept the testimony of a witness o n an ar t icl e that was not produced in court, i f the witness is fo und t o be credible.'' 73 . In the circumstances, this Court too is left with no option but to decide on whether the properties listed as stolen from the house of PWl and PW2 were stolen by the accused. Having found the evidence of PW2 was factual, consistent and credible, and having noted the presence of at least 2 assailants, which was confirmed by the evidence of . P~, PW2 and indeed PW3, and on the basis of the credibility of their accounts, the Court makes a finding of fact of the stolen items. -J39- Conclusion of the Court 7 4 . As a consequence of my findings above, and the analysis of the Law and authorities quoted above, the Court comes to the inescapable conclusion that the law is not static, the Prosecution witnesses have no motive to falsely implicate the accus~d, .· a b ct. that it is safe to rely on the evidence implicating the accused, as per the guidance ·of the Supreme Court in the case of Kombe vs The People. I therefore find that the prosecution has proved their case against the accused person beyond reasonable doubt. In the circumstances, I find the accused, Fredrick Silungwe, guilty on one count of aggravated robbery contrary to section 294 (1) of the Penal Code, and I convict him accordingly. Delivered in Open Court at Kitwe; thisl7day o f~ ' ti:.. _k.,.__'j=r IRA. 202 0. -{b L~ P ()J ~ __.., ABBA N. PATEL, SC. (Mrs . ) HIGH COURT JUDGE -J40-