The People v Luckson Tembo and Ors (HPJJ/66/2024) [2025] ZMHC 67 (28 August 2025)

Jl IN THE HIGH COURT OF ZAMBIA HPJJ/88/2024 HOLDEN AT LUSAKA THE PEOPLE V LUCKSON TEMBO JOSEPH ZULU WATSON TEMBO B M JOHN CHANDA S S JOSEPH MWILA WILLIAM MBEWE Before: The Hon. Mrs. Justice T. S. Musonda For the State Mrs. M. M- Chizongo, Senior State Advocate, NPA For the Defence Mrs. K. Nyimbili, Mr. C. Bwalya & Mrs. A. N. Mwale, Legal Aid Counsel, LAB CamScanner J2 JUDGMENT Legislation referred to: ( 1) The Penal Code, Chapter 87 of the Laws of Zambia Cases referred to: (1) Mwewa Murono v. The People, (2004) ZR 207 (2)Woolmington v. DPP, (1935) AC 462 (3) Miller v. Minister of Pensions, (1947) 2 ALL ER 372 (4) Katebe v. The People, (1975) ZR 13 (5) Chileshe v. The People, (1977) ZR 176 (6) David Zulu v. The People, (1971) ZR 157 (7) Peter Yotamu Hameenda v. The People, (8) Saidi Banda v. The People, Selected Judgment No. 30 of 2015 (9) Phiri and Others v. The People, (1973) ZR 47 (10) (11) (12) (13) (14) (15) (16) (17) David Dimuna v. The People, (1988-1989) ZR 119 Bwanausi v. The People, (1976) ZR 103 Kape v. The People, (1977) ZR 192 Maseka v. The People, (1972) ZR 9 Chabala v. The People, (1976) ZR 14 Silungwe v. The People, (1974) ZR 130 Yotam Manda v. The People, SCZ Judgment No. 4 of 1989 R v. Titus Chimwele, A Criminal Review Case of 1933, Vol 1. 1.0 INTRODUCTION 1.1 The accused, Luckson Tembo, Joseph Zulu, Watson Tembo, John Chanda, Joseph Mwila, William Mbewe and children in conflict with the law, B M and S S , were charged with one count of CamScanner J3 Aggravated Robbery contrary to Section 294 (1) of the Penal Code, Chapter 87 of the Laws of Zambia. It is alleged that the accused and children in conflict with the law on the 6tl1 day of March 2024 at Lusaka in the Lusaka District of the Lusaka 1.2 Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown did steal cash amounting to ZMW 1,300.00 and a bicycle valued at ZMW 5,000.00 altogether valued at ZMW 6,300.00, the property of Dennis Bengula and at or immediately before or immediately after the time of such stealing, did use or threaten to use actual violence to the said Dennis Bengula in order to obtain or retain, or prevent or overcome resistance to its being stolen or retained . 1.3 Prior to the commencement of trial, the State discontinued proceedings against B M by way of a nolle prosequi, following his death. 2.0 SUMMARY OF EVIDENCE 2.1 The following is the summary of the evidence adduced by the Prosecution and the Defence. The Prosecution's case 2.2 The events leading to the prosecution of the accused and child in conflict with the law as narrated by the prosecution witnesses are as follows: 2.3 The first Prosecution witness, Dennis Bengula ("Dennis"), testified as follows: 2.4 On the night of 6 th March 2024, between 20:00 and 21:00 hours, Dennis was cycling home from work along the Kaliliki dam route when he reached JICA, an area with shops and individuals seated nearby, throwing stones. 2.5 He paid little attention and continued until a third turn, where he dismounted and began walking. There, he noticed a man standing by a wall, whose presence he disregarded due to the illumination from his bicycle light. As he passed, the man suddenly rushed at him, attempting to mount the bicycle. Dennis moved the bicycle aside, and the man fell. 2.6 Instantly, other male persons, advanced and began throwing stones, breaking the bicycle light and phone stand. They surrounded him and CamScanner ,J4 physically scare e assistance would not arr.ivc, abandoned his bicycle and fled to his house. tm. screamed for help but, realizing h d h . n,· en s D 2.7 2.8 Upon arrival, he placed his phone down, armed himself with a metal bar, and returned to the scene accompanied by his brother, Joe. While they did not immediately locate the assailants, they encountered two male persons. According to Dennis, the two men commented that he had returned and \Vas being stubborn, and · subsequently began running away in different directions when confronted. One of them momentarily turned back, prompting Dennis to strike him on the shoulder before he fled. 2.9 Between 21:00 and 22:00 hours that night, Dennis posted about the theft on the Face book platform "Kalikiliki My Hood," offering a Kl ,000.00 reward for the recovery of the bicycle. On 7t11 March 2024, he reported the loss of the bicycle and his wallet, which contained ZMW 1,000.00, to the police and was issued a medical report. He was not attended to at Kalingalinga Hospital for three days, and on the fourth day was informed the report could not be signed due to the healing state of his injuries. He returned to the police station and explained the matter, after which a docket was opened. On 12th March 2024, he was informed that the bicycle had been recovered in Chibolya compound by Mtendere Police. He and his brother were summoned and both positively identified the bicycle. 2 .10 In court, Dennis further confirmed that the recovered bicycle was indeed the one that had been stolen from him. 2.11 The second Prosecution witness, Joe Bengula ("Joe"), testified that on 6th March 2024, his brother Dennis informed him that he had been attacked and his bicycle stolen. Joe noted that Dennis had blood oozing from his hand and shoulder. 2.12 They both armed themselves with metal bars and proceeded to JICA, calling out "thief, thief' as they moved in pursuit of the assailants. Upon arrival, several male individuals began running in different directions. Joe and Dennis gave chase but were unsuccessful in apprehending one person they pursued. CamScanner JS On their way back, they encountered some individuals who informed them that persons with a bicycle had headed in a particular direction. 2.14 Dennis sub~cqucntly reported the matter to the police. According to Joe, after a span of either two weeks or two months, they were informed that Mtendcrc Police had recovered the bicycle. Both he and Dennis were summoned and each identified the bicycle as belonging to Dennis. Joe f urthcr confirmed in court that the bicycle shown was the same one stolen from his brother, and stated that he learnt it had been recovered from Chibolya compound. 2.15 The third Prosecution witness, Sergeant Tryson Nyirongo ("Sergeant Nyirongo"), testified that on 7 th March 2024, while on duty at Mtendere Police Station, a child suspect named Gift Daka ("Gift'') was brought in for an alleged phone theft. 2.16 The Complainant also reported the loss of a television set and another phone. During questioning, Gift disclosed that he had committed the theft with an individual known as "Savage," identified by a tattoo bearing that name and said to reside in Chibolya. 2.17 A follow-up operation was conducted at the identified house. After knocking without response, the door was forced open, and eight male persons were found asleep inside. They were apprehended and, upon searching the house, officers discovered three laptops, six broken mobile phones, and a locked bicycle. 2.18 All eight suspects, along with the recovered items, were taken to Mtendere Police. There, one suspect, Watson Tembo ("Watson"), was found to have the name "Savage" tattooed on his body. Another suspect identified as the leader of the group was named Joseph Zulu ("Joseph Z"). Sergeant Nyirongo handed the suspects over to the dealing officer. 2.19 He observed that none of the suspects was willing to identify the owner of the house, only stating that he resided there. Joseph revealed that he and others had moved from Kalikiliki to Chibolya after suspicions arose that they had been involved in the killing of a Yango taxi driver. CamScanner J6 All suspects denied ownership of the recovered items, claiming that among the ten individuals who lived there, two had recently left and that they, not the present suspects, owned the recovered property. Although names were disclosed, Sergeant Nyirongo could not recall them. In court, he identified Joseph and Watson, and facially identified five others: Luckson Tembo ("Luckson"), John Chanda ("John Chanda"), S S ("S "), Joseph Mwila ("Joseph M"), and William Mbewe ("Willam"). He also identified the recovered bicycle found at the suspects' residence. 2.21 He stated that after a few days, possibly on 10th March 2024, an individual who had earlier reported a bicycle theft at Kalikiliki Police came to Mtendere Station to inquire about the bicycle. Upon interview, the individual described being attacked in Kalikiliki and the theft of his bicycle. He provided a description and wa:s informed that the bicycle recovered was locked. When asked if he could unlock it, he confirmed, was taken to the exhibit room, and successfully unlo'cked and identified it. 2.22 Sergeant Nyirongo then alerted the dealing officer to the development. On 15th March 2024, the dealing officer and the bicycle's owner visited Mtendere Police Station, and the bicycle was handed over for continued investigations. 2.23 The fourth Prosecution witness, Detective Inspector Nixon Mwamba ("Detective Inspector Mwamba"), stationed at Chibolya Police Station, testified that he took over a docket of Aggravated Robbery on 4th March 2024 while based at Kalikiliki Police Station. The complainant in the matter was Dennis Bengula, whom he interviewed. 2.24 Dennis narrated that on 6 th March 2024, he was attacked by a group of approximately ten male persons, though he could not confirm the exact number. The assailants were armed with stones and stole his bicycle and wallet. Dennis also displayed bruises, which Detective Inspector Mwamba confirmed were visible, and stated that he had posted about the attack and theft on Facebook to solicit information. CamScanner J7 . the interview, Detective Inspector 15111 Ma1·ch 2024 Dennis returned and reported that his Following . t· t mvest1ga ions. n bic cle had been found at Mtendere Police Station. Together, they went _o d that Dennis that station, where the Chief Investigations Officer con irme Y fi ' . Mwamba initiated . had been there and had positively identified his bicycle. 2.26 Detective Nyirongo was called and exp ame recovered on 7th March 2024 during the investigation of a separate case. It I . d th t the bicycle had been a had been found in a house occ_upied by eight suspects, who were subsequently apprehended. 2.27 Detective Inspector Mwamba was presented with the eight suspects, from whom he recorded statements. They all denied knowledge of the bicycle, claiming that it belonged to a friend named "Mije." Mwamba was led to the residence in Chibolya by three suspects: Watson, Lackson and B . He interviewed a woman living nearby, who stated that she did not know the names of the occupants but confirmed that the house was inhabited by many young men, including the three named. She also denied any knowledge of the house's owner. 2.28 Given that the bicycle had been recovered barely a day after its theft, Detective Inspector Mwamba resolved to jointly charge and arrest all eight suspects for the offence of Aggravated Robbery. He testified that the suspects voluntarily denied the charge. He asked them to assist in locating "Mije," but they did not do so. He received further information indicating that the suspects were originally from Kalikiliki and Mtendere Eas·t. He identified several of the suspects in court: by name, Lackson, Joseph Zulu, Watson and S that B was deceased. , and facially, William, John and Joseph P. He stated 2.29 He also produced the recovered bicycle, Dennis's medical report and the suspects warn and caution statement as evidence, which were marked as exhibits "Pl", "P2" and "P3", respectively. Although he acknowledged that the medical report had not been signed by a medical practitioner, he affirmed that the injuries were visible and that, in his view, this sufficed. CamScanner J8 He noted that the woman he had interviewed was not present in court and that attempts to contact her failed as her phone was off. At the close of the Prosecution's case, Luckson Tembo, Joseph Zulu, Watson Tembo, John Chanda, S S , Joseph P, and William Mbewe, were placed on their defence. Of these, Luckson, Joseph Zulu, John Chanda, S S , and Joseph P exercised their constitutional right to remain silent and did not call any witnesses. In contrast, Watson Tembo and William Mbewe elected to give evidence on oath in their own defence, but likewise opted not to call any witnesses. The Defence case 2.32 Watson testified that he had no knowledge of the subject offence or the bicycle alleged to have been stolen. He denied any involvement in the incident and stated that, at the material time, he was inside the house where he was later apprehended, engaged in playing video games. 2.33 According to his account, a person identified as Gift, friend of the deceased B , entered the house inquiring about B 's whereabouts. Watson responded that B had left earlier. Gift then produced ZMW 5.00 to participate in a football video game. Upon completion of his play, Gift departed without indicating his next destination. Watson continued gaming, and B subsequently returned to the house. Watson informed B that Gift had· earlier come looking for him and had left a bicycle at the premises. 2.34 Later in the afternoon, around 17:00 hours, police officers arrived accompanied by Gift. They ordered all occupants to lie on the floor while the house was subjected to a search. At that time, Watson observed several individuals present in the house, including: Lackson, who was betting; an unnamed individual he associated with Lackson; John, who was playing a game; S , whom he recognized from prior interactions at the police station and was awaiting his turn to play; Joseph P, playing a football game with Lackson; B , who had recently returned; and William, accompanied by friends and waiting to play games. CamScanner J9 Watson denied that the alias attributed to him, "Savage", was his street name , though he admitted to having that name tattooed on his body. 2.36 The police proceeded to search the premises and confiscated certain items. Thereafter, all individuals present were escorted to the police station. Watson stated that none of the persons present had arrived with a bicycle, and he did not consider them to be his friends. He further testified that one of the laptops being used for gaming belonged to B and that the bicycle in question had been brought by Gift. 2.37 The second Defence witness was William. He testified that on 6 th March 2024, he was home in John Laing. The following day, 7 th March, he went to play games at a house together with two friends around 14:00 hours. Other people kept coming in to play games. To their surprise, police officers came and apprehended them. They did not know the crime they had committed. They were accused of stealing a bicycle and beaten. 2.38 Th.is was how William was charged with the subject offence of Aggravated Robbery. He denied knowledge of the bicycle and explained that it belonged to Gift. He stated that three people had come with the bicycle, one them Micheal. According to William, among those present were Joseph Z, who was betting, John whom he knew from the police station, was playing a game, S whom he knew from the police station, and Watson who was coordinating activities. Others were waiting to play, while others would come and leave. He added that the charges for playing games were different and depended on time spent. 2.39 William testified that on 6 th March 2024, he remained at his residence in John Laing. On the following day, 7th March, he left his home at approximately 14:00 hours and ·proceeded to a nearby house to play video games with two companions. According to his account, several other individuals entered the premises at various intervals to engage in gaming activities. 2.40 While they were so engaged, police officers arrived unexpectedly and proceeded to apprehend the persons present. William stated that no prior CamScanner JlO indication had been given of any alleged offence, and that he and others were assaulted upon arrest. He was later informed that the charge related to the theft of a bicycle, which he denied. He asserted that the bicycle did not belong to him but rather to an individual named Gift, and that it had been brought by three persons, one of whom was identified as "Michael". 2.41 William further recalled that among the individuals present at the house were: Joseph Z, who was engaged in betting; John, known to him from prior interactions at the police station; S , likewise known from the police station- and Watson whom he described as coordinating activities within , the premises. ' 2.42 He added that other persons were either waiting to play games or arrived briefly before departing. According to William, the charges for accessing the games varied depending on the duration of play. 3.0 SUMMARY OF SUBMISSIONS 3.1 The Prosecution and Defence filed written submissions, which I will not reproduce here, but have duly considered in my analysis. 4.0 THE LAW, ANALYSIS AND DETERMINATION 4.1 Section 294 (1) of the Penal Code provides for the offence of Aggravated Robbery in the following terms: 294. (1) 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 prevent 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 life, and, notwithstanding subsection (2) of section twenty-six, shall be sentenced to imprisonment for a period of not less than fifteen years. CamScanner J 11 Accordingly , in thi s ·use, Lh, followin g cle me nts of lh c offe nce of Aggra vated Robbery und "r Section 294 (1) of the Pe na l Cod e h a ve Lo be p roved by Lh e Pro ulion : (i) The accu sed must be armed wi th an offensive weapon o r, being together with one or more persons; (ii) There must be theft of property; (iii) Use or a threat of actual violence to any per son or property at, immediately before or immediately after the theft, with intent to obtain or retain the thing stolen, or prevent or overcome resistance to its being stolen or retained; and (iv) The accused participated in the robbery. 4.2 As pointed out by the parties in their submissions, 1n determining the above elements, the Court must bear in mind the established principles of law that the burden of proof lies on the Prosecution to prove each element of the offence beyond reasonable doubt (See Mwewa Murano v. The People (1) and Woolmington v. DPP (2)) . 4.3 It is similarly well established that the burden of proof does not shift to the accused. An accused person is convicted only on the strength of the Prosecution's case, not on the weaknesses of his defence . The accused has no obligation to prove his innocence. 4.4 Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent. (See Miller v. Minister of Pensions (3)). 4.5 By their plea of not guilty, t he accused and the child in conflict with the law put in issue each essential ingredient of the offence with which they are charged The Pr osecu ion ears t e onus of proving each of those t· h b · CamScanner 11~111·J l'lll t hl\\1 11I11 1tw1111d11t 1 111111111 ll11 1lJ1 11 It 1'11tt 11 •1111 t1 11 , 11111 hdli,11 111 I l II I I: " t\\ l I l ' •I.ti l t\liw 111rn h1 \'111w 11\-1• wl11 1th , tl\11 1'1nrn1,•1ll l1111 l111t1 ill 1111111,,v ,d 11 11 111111!1 111 t1H1,d11n Hll 11l1·11h·t1lli 111' llu• nll(•tu,, ,,f' A1m111 v11 1, ,t1 nt r1·1w, 11 1llk d,1ull t. l 11JIJl11ttv l11 •y11111 I 1, l rctttm o of un ofl:\uutlvc wuu.poi, 01· p1nH lp1ttlo11 ot 1u11H lt)I pu r-,urn" l1111!lt11u11y 1)1' l)t 111dt1, wl111 11 l1!11 1d 11 11 w1 1 1 'l'lle l't'll,'1'l'lltl1111 l't·lh,d 1lt1 tlH ·l.t> nttnrkrd I)~ *',1 11•1d l11dlvltl11t1!i1 wl111111 l x11<'l 1111111l11'I' l1t P0t tld 110111 tl!'1 t11il1 1, lk \\llH 1'hHlnl 111 till' t11>111'N11 ol' 11111 11r1111111l1, Wlilli 1H, ttpt 11111 111111111M Wll ~i I xlilhll "l'ff';, proviLkd tlw 11:-it-1t•rllt111 nf 11 w11t1p 111t1wl< lr1 c·111 '1'UIH11 •1111 d b an ·xlrud ft-0111 lh1..• m:, u1 ·1·1·111 •11 b1>ok d,11 -id 11111 M111 •1•l1 ~O'. J. I l11dl1 ·11llttH 111111 D ·n11is reporlt'<I li ·in~t 111lul..'IH·d l>y "111rlrnow11 p1·11ph 1, '1'11111 111 l111:1)1JtiltJl<•11I with n i;ol i I II l'Y o HHH ll1111 I. .7 Hi~ ·luim lh11l HLMH'H w •r·t· 111-1<·d I~! ·n:dJl,lo 1111d r1uppo1·t1 d IJ,Y 1111 1111 111< ·xhibil "P5". Un I ·r Soction 4 of lltu l 1e111il 1od1, 11 11trn1 • ·01111Ul11l<: 11111 4.8 off ·nsiv · w npou. J arr·, with th• Pros• ·ulion's sulm1i1:1sio11 tlwt bollJ tlw 1111 • or 1111 off, 1H1lvo w ·apon and Lh · purti ·ipulio11. ur sev ·rul irrdivicluolH In I It o 11ttu ·I< 011 IJcnnhJ have be •n ·J ·orly prov •11 b ·yoncl r ·m:iorrnbl • louut. 2. Theft of property 4.9 The Prosecution o ldu ·eel cvidcm:c Lhut I c:1111is WUH fil'Ht uUuc;l<ccl l>y on e person attem pting to flee wilh hiH bi cycle, f'ollowccl IJy n F(roup llfiHnult during which Dennh; left th· bicyc.;lc a11cJ fled. I le tilHO rc:portcd loBinH tr walJet allegedly containing ZMW 1,300.00. Upon rclLff11ing to the l:f<.:c11 • with his brother Joe, the two sought the as1-1ailf . .lllte:1. 4.10 Joe corroborated Dennis' aecoqnt:, testiJying that Dennis reported the loss of the bicycJe and that they engaged .in a search. Scrgca.nt Nyirongo t(~Htifj d that on 7 th March 2024, a bicycle was recovered from a rc1-1idcncc in Chibolya during unrelated investigations involving, Gift.. DcnniM lf-ltcr identified and unlocked the bicycle at Mtcnderc Police Station. CamScanner J13 Detcclive lnspcclor Mwamba confirmed Dennis' ccJmplainl and the recovery process, further affirming the identification and handover of lhc bicycle. l~xhibit "PS" also shows Dennis reported the theft of the bicycle immediately after the incident. 4.12 Based on this corroborative testimony and physical recovery of the bicycle, I am satisfied that Dennis' bi.cycle was stolen. The Defence submission that Dennis merely abandoned the bicycle is inconsistent with the sequence of events and the totality of the evidence. 4.13 If a person is assaulted and leaves their property behind lo save their life, it would be illogical to argue that no theft occurred. Abandoning property to escape harm does not nullify the unlawful taking. 4.14 In this case, the evidence clearly shows that Dennis was attacked with the intent to dispossess him of his bicycle. His decision to flee for his safety does not negate the theft; rather, the assailants' act of trucing the bicycle after forcing him to flee confirms the theft of the very item they set out to steal. 4.15 Regarding the wallet, however, the Prosecution has not proved its theft beyond reasonable doubt. Exhibit "PS" contains no record of an initial report concerning the wallet or the alleged ZMW 1,300.00. In view of this evidentiary deficit, I am not persuaded that this aspect of the theft has been established. 3. Use or threat of violence in connection with the theft 4.16 Dennis testified to being assaulted with stones, sustaining chest pain and bruises. He was issued a medical report (exhibit "P2"}, though it was unsigned by a Medical Doctor due to the delay in medical attention. Nonetheless, Joe testified that Dennis had visible blood stains and injuries on the night of the attack, and Detective Inspector Mwamba observed bruises. 4.17 Exhibit "P2" recorded complaints of bruises and general body pain, and Exhibit "PS" reflects a contemporaneous report of the assault. Despite the CamScanner J.14 lack of a signed medical report, the consistent and corroborative testimony is sufficient to establish actual violence used to facilitate the theft. Accordingly, I am satisfied that the Prosecution has proved the ingredient under this head, beyond all reasonable doubt. 4. Participation of the accused and child in conflict with the law in the offence and final determination 4.19 In determining the issue of participation, I have examined aJI the evidence closely, bearing in mind the established general rule that an accused person does not have to prove his innocence. And that by putting forward a defence like alibi or any other, an accused does not thereby assume the burden of proving the defence, except in a few exceptional cases provided for by law. This is in line with the Supreme Court's holding in Katebe v. The People (4), wherein it stated: Where a defence of alibi is set up and there is some evidence of such an alibi it is for the prosecution to negative it. There is no onus on an accused person to establish his alibi; the law as to the onus is precisely the same as in cases of self-defence or provocation. 4.20 Accordingly, where a defence of alibi is raised, it is up to the Prosecution to disprove the defence of the accused persons by adducing evidence that shows that, despite the defence, the offence was committed and was committed by the accused persons. 4.21 In this case, I have not found any evidence on any concrete alibi raised by the accused and child in conflict with the law, which the Prosecution should have been obliged to negative. 4.22 It is not in dispute that Dennis never identified any of his assailants, as correctly submitted by the Defence and conceded by the Prosecution. 4.23 However, the Prosecution submitted that there is compelling circumstantial evidence that connects the accused and child in conflict with the law to the CamScanner JlS offence. This wa s circumsta ntia l evidence of recen t possession of stolen property, which only le ft one inference - that it is the accused a nd child in conflict with the la w who attacked Dennis and stole his property. It was submitted that the property was recovered barely a day after Dennis was a ttacked. 4. 24 The Prosecution further submitted that Detec tive Inspector Mwamba testified that he gave the accused and child in conflict with the law an opportunity to explain how Dennis' bicycle came into their possession. 4 .25 Their response was that it belonged to a friend named Mjay or Micheal, who was absent at the time of the police raid. The accused and child in conflict with the law failed to provide information regarding Micheal's whereabouts. 4.26 The Prosecution also pointed to conflicting testimonies from Watson and William regarding how they came into possession of the bicycle. Watson claimed the bicycle was brought by Gift, the late B 's friend, while William claimed it was brought by Micheal and not Gift. 4 .27 Given the contradictory evidence, it was submitted that the contradictions were significant and went to the core of their defence, and severely undermined their credibility. 4.28 The Prosecution found support in their submission in the Supreme Court decision of Chileshe v. The People (5). 4.29 It was submitted further that Watson had been inconsistent in his testimony, rendering his evidence in chief an afterthought. This was due to the position put to the Prosecution witnesses, that it was Micheal who brought the bicycle, yet failed to challenge Sergeant Nyirongo's testimony that it was Gift. 4.30 Furthermore, considering the short interval between the commission of the offence and the recovery of the bicycle, it was highly improbable that the item had changed hands. 4.31 The Prosecution submitted that the accused and child in conflict with the law acted together in common purpose, fulfilling the ingredients of Sections 21(l)(b) and 22 of the Penal Code. It was submitted that the CamScanner JJ6 ommon purpose need n t b . . . . ,· · 0 c established only by direct evidence, but may accused and chlld m conflict with the law were s ecpmg 111 the same house during the raid was submitted as an · . . . · I · b mfi·rr ·d. fhc fact that the found . . md1c tor tha.t they acted in concert. The Prosccu lion . r ·d lh circumslant· 1 • 'd · 1 c ie on David Zulu v. The People (6), submitting that Ia ev1 cnce was so compelling that no other rational hypothesis other than aggravated robbery could be drawn. Countering the Prosecution submissions the Defence submitted that the officer who conducted investigations and interviews in this matter failed to ' 4.32 4.33 ascertain who had actual control of the bicycle for the purpose of imputing recent possession. 4.34 It was submitted that this failure constituted dereliction of duty. Considering that the Prosecution failed to avail this evidence, the matter ought to be resolved in the favour of the accused and child in conflict with the law, resulting in their acquittaJ, pursuant to the Supreme Court's holding in Peter Yotamu Hameenda v. The People (7) and Saidi Banda v. The People (8). This was on the basis of the non-applicability of the doctrine of recent possession, under the circumstances of this case. 4.35 F'urthermore, the Defence submitted that the evidence placed before this Court does not in any way implicate the accused and child in conflict with the law. The Court can therefore not convict the accused and make a finding of guilty in respect of the child in conflict with the law, on the basis of assumptions. This would be contrary to the Supreme Court's direction in Phirl and Others v. The People (9), to the effect that Court's are required to act on the evidence placed before them. 4.36 Further that, it is not the function of Courts to fill gaps in the evidence adduced by the Prosecution. Accordingly, in the face of insufficient evidence to justify a conviction, Courts have no alternative but to acquit the accused. 4.37 On the basis of the failure by the Prosecution to prove its case against the accused and child in conflict with the law, they must be acquitted. CamScanner J17 Having considered th~ competing submissions by the Prosecution and Dcfi n c I must now d t · · . . e ermme whether the evidence adduced by the Prose ution proves the t· • . par 1c1pat1on of the accused and child in conflict with th law beyond reasonable doubt. In th is case, Luckson, Joseph Z, John, S and Joseph P opted to remain silent. It is established that an accused has the constitutional right to remain silent. Where an accused exercises this right, the Court will not hold this against him, as silence is not an indication of guilt (See David Dimuna v. The People (10)). 4.40 Watson and William opted to testify. 4.41 I note the Prosecution's submission that while Watson stated the bicycle was brought by Gift, William maintained that it was brought by Micheal. This evidence was indeed contradictory. 4.42 However, the Defence submission still conveys the consistent position at trial, that although the bicycle was found in the house occupied by the accused and child in conflict with the law, they deny having participated in the commission of the offence. 4.43 The Prosecution insisted that, considering the contradictory evidence and recent possession, the only reasonable inference is that the accused and child in conflict with the law were the perpetrators of the offence. 4.44 In addressing the competing submissions, I am duty bound to consider whether the discovery of the bicycle in the house occupied by the accused and child in conflict with the law compels an irresistible inference of guilt. This evaluative approach has been succinctly pronounced in a number of authorities within this jurisdiction. 4.45 In the case of David Zulu v. The People, cited by the Prosecution, the Supreme Court stated that: It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue, but rather CamScanner Jl8 is proof of facts not in issue but relevant to the facts in issue and from which an inference of the fact in issue may, be drawn. 4.46 And that: It is incumbent on a trial judge that he should guard againSt drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt. 4 47 . I n B · wanausr v. The Peo,nle r (11), 1·t was stated that: Where a conclusion is based purely on inference, that inference may, be drawn only if it is the only reasonable inference on the evidence; an examination of the alternative and a consideration of whether they or any of them may, be said to be rea·sonably possible cannot be condemned as speculation. 4.48 In Kape v. The People (12J, the -Court stated that: When a Court purports to draw an inference of guilt in a case of recent possession of stolen property it is necessary to consider what other inferences might be drawn. 4.49 Notably, the Prosecution cited the case of Donald Fumbelo v. The People in suppor t of the submission that the recent possession of Dennis' bicycle, coupled with the failure to provide a credible and consiste t I n exp ana 10n, t· I · c aims. However, in the same cast doubt on the veracity of the Defence case, the Supreme Court also held: CamScanner Jl9 ··· when the accused person raises his own version for the first . time only during h · d fi . . 18 e ence, 1t raises a very strong presumption that his version · f: 1s an a terthought and therefore less weight is attached to such a version. 4 50 A 1 . h' · PP ymg t 1s authority to the present case, I note that the versions given by Watson and William, that the bicycle was brought by another individual, were not raised for the first time in their testimony. These versions were also put to key Prosecution witnesses, namely Sergeant Nyirongo and Detective Inspector Mwamba, during cross-examination. 4.51 Sergeant Nyirongo was cross-examined on whether Watson had stated that the bicycle was brought by Micheal and Gift, and he confirmed that he had been told so. Detective Inspector Mwamba similarly conceded that Watson had provided that explanation. Although Watson, in his examination-in chief, mentioned only Gift, the corroborative testimony indicating that both names were raised earlier weakens the Prosecution's submission that the account was an afterthought. 4.52 Furthermore, Detective Inspector Mwamba conceded that S informed him the bicycle had been brought by Micheal and Gift. William also named Micheal in his account. Detective Inspector Mwamba confirmed that approximately three quarters of those interviewed mentioned Micheal's involvement. Despite this, he acknowledged that no follow-up was conducted regarding Gift's alleged role. He further confirmed that the accused and the child in conflict with the law did not lead him to Micheal, as they did not know his whereabouts. 4.53 From the evidence, I discern that the Defence version was consistently conveyed to investigators, maintaining that Micheal and Gift, or Micheal alone, brought the bicycle. The Prosecution's submission that the accused and the child in conflict with the law failed to lead Detective Inspector Mwamba to Micheal, is undermined by his own admission that they did not know Micheal's whereabouts. CamScanner 4.54 In Maseka v. The People (13), the Supreme Court held th a t: J20 An explanation which may reasonably be true entitles an accused to an acquittal even if th e court does not believe it; an accused is not required to satisfy the court as to his innocence, but simply to raise reasonable doubt as to his guilt. 4 .55 Similarly, in Chabala v. The People (14), the Supreme Court held that: i) Because guilt is a matter of inference, there cannot be conviction if the explanation might reasonably be true, for then guilt is not the only reasonable inference. It is not correct to say that the accused must give satisfactory explanation. ii) There is no onus on an accused to prove his explanation. iii) The court is required to consider whether the explanation might reasonably be true. 4 .55 Although Sergeant Nyirongo claimed that he found the accused and the child in conflict with the law sleeping in the house, I note that Watson and William gave explanations stating that their presence in the house, along with the others, was connected to playing games. Notably, this position was not raised for the first time during the Defence evidence, but was put to Sergeant Nyirongo during cross-examination. In the circumstances, this account may reasonably be true. 4.56 Consequently, it may reasonably be true that Watson and William, together with the others, were not the individuals who attacked Dennis and robbed him of his bicycle. 4.57 Furthermore, with respect to the remaining accused who opted to remain silent, it would be improper to infer guilt solely from their failure to offer an explanation. In a case where the surrounding circumstances are, on their CamScanner J21 own, insufficient to support such an inference, doing so would amount to relieving the Prosecution of its legitimate burden of proof. 4.58 These evidentiary weaknesses are further compounded by lhe ( Prosecution's failure to call Gift, a person who played a direct role in leading Sergeant Nyirongo to the house where the accused and the child in conflict with the law were found. 4.59 In Silungwe v. The People (15), it was persuasively stated that: ... though the prosecution has no duty to call every possible witness, failure to carry out proper investigations or to call a material witness, might cause serious doubt upon the fairness of the trial to such an extent that it would be unsafe to convict. 4.60 While the Prosecution was not obliged to call every possible witness, Gift's testimony was essential in this matter. He could have shed light on what he knew about the bicycle. Notably, no explanation was rendered for the Prosecution's failure to call him. In the circumstances, I am permitted to infer that Gift's testimony would likely have been unfavorable to the Prosecution's case. 4.61 The next issue is whether, on the evidence, there is an alternative inference that may be drawn regarding the commission of another offence, which I am perfectly entitled - indeed obligated -to consider following the Supreme Court's guidance in YotamManda v. The People (16). The Supreme Court held: We have in those cases discussed the duty which rests upon the trial court to consider the various alternative inferences which can be drawn when the only evidence against an accused person is that he was in possession of stolen property. We have indicated in those cases that unless there is something in the evidence which positively excludes the less severe inferences against the accused (such as that of receiving stolen property, CamScanner J 22 rather than guilt on a major case such as aggravated robbery or murder), the court is bound to return a verdict on the less severe case. 4. 62 In this ca se, the only alternative offence which may be considered is that of receiving s tolen property, contrary to Section 318(1) of the Penal Code. 4.63 Section 318(1) provides : Any person who receives or retains any chattel, money, valuable security or other property whatsoever, knowing or having reason to believe the same to have been feloniously stolen, taken, extorted, obtained or disposed of is guilty of a felony and is liable to imprisonment for seven years. 4.64 From this provision, a person can only be convicted of receiving if he had guilty knowledge at the time of receipt. See R v. Titus Chimwele (17). 4.65 Notably, the presence of any inconsistencies in the testimony of Defence witnesses does not, in itself, warrant an inference of guilt. I am guided by the Supreme Court in Yotam Manda (supra): We have in a number of cases drawn attention of the courts to the fact that accused persons frequently try to exculpate themselves on a dishonest basis: that, nonetheless, does not relieve the trial courts of their own obligations in the matter ... 4.66 Accordingly, I must remain guided by the totality of the evidence and my duty to assess whether the Prosecution has discharged its burden beyond reasonable doubt. 4.67 In this case, the evidence which I have already analyzed does not beyond reasonable doubt prove that the accused and child in conflict with the law had knowledge that the bicycle was stolen. I am not at liberty to draw that CamScanner J23 conclusion merely from the fact thal the bicycle was found in the house they were in. 4.68 Based on the foregoing analysis, I reiterate that I do not find that the ( Prosecution has proved beyond all reasonable doubt that Luckson, Joseph Z, Watson, John, S , Joseph p and William jointly participated in the assault on Dennis and robbed him of his bicycle during the night of 6 th March 2024. 5.0 CONCLUSION 5.1 l have come to the inescapable conclusion that the Prosecution has failed to prove beyond all reasonable doubt that the accused and children in conflict with the law are guilty of the offence of Aggravated Robbery, contrary to Section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia. I accordingly direct that they be released forthwith, unless otherwise lawfully held. DATED THIS 28™ DAY OF AUGUST 2025 CamScanner