Davies Mwaba v People (SCZ Appeal 42 of 2000) [2000] ZMSC 93 (5 September 2000)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 42 OF 2000 HOLDEN AT NDOLA (Criminal Jurisdiction) DAVIES MW A BA APPELLANT VS THE PEOPLE RESPONDENT Coram: Sakala, AG. DCJ., Chirwa and Lewanika JJS. 5th September, 2000. For the Appellant, In Person. For the State, Mr. D. B. Mupeta, Senior State Advocate. Sakala, AG. DCJ., delivered the judgment of the court. JUDGMENT i he appellant was sentenced to 15 years imprisonment with hard labour following upon his conviction for the offence of aggravated robbery contrary to section 294(1) of the Penal Code. The particulars of the offence alleged that the appellant, on 12th August, 1998, at Ndola in the Copperbelt Province of the Republic of Zambia, robbed Ruth Mwewa of her various properties valued at K816,000 and at the time of stealing, he used violence or threatened to use actual violence in order to steal or retain the said properties. The fact that the complainant was robbed the items the subject of the offence was not in dispute. The prosecution evidence was that, on 12th August, 1998, at 11.00 hours, the complainant was confronted by a person who was carrying two bags. That person, who had earlier entered the house through the kitchen door, viciously attacked the complainant, tied her hands, legs and neck with an electric cable. An hour later, PW2 apprehended the appellant after pursuing him following a report from the complainant, PWl. The appellant was apprehended carrying the items identified as stolen from the complainant’s house. He was infact wearing the trousers of the complainant’s husband stolen an hour later. The whole incident, as found by the learned trial judge, happened in broad day : J2 : light. The appellant, who appeared in person, attacked PWl's evidence, in particular for failing to produce ffe cable allegedly used to tie her. He also criticised PWl’s evidence for having failed to inform the police that he, the appellant, was apprehended while wearing her husband’s trousers. He generally criticised the evidence of the complainant. On behalf of the State, Mr. Mupeta has informed the court that he does not support a conviction for aggravated robbery under section 294(1) of the Penal Code but that he supports a conviction for robbery under section 292 because the appellant was alone during the attack and was not armed. We have considered the submissions from the appellant as well as from the State Advocate. This is one of the cases in which it can safely be said that the appellant was caught red handed. The identification of the complainant by PW1 was amply supported by the appellant’s possession of the stolen items just an hour after the robbery. While we have no problem in upholding the conviction, the evidence accepted by the learned trial judge established that although the appellant used violence, he was alone and not armed. For this reason, we set aside the conviction for aggravated robbery under section 294(1) but in its place we find the appellant guilty of robbery under section 292. The maximum sentence under that section is 14 years imprisonment with hard labour. We therefore set aside a sentence of 15 years imprisonment with hard labour imposed by the learned trial judge. In its place, we impose a sentence of 14 years imprisonment with hard labour with effect from the date of the appellant’s arrest. To that extent the appeal succeeds. E. L. Sakala, D. K. Chirwa, D. M. Lewanika, AG. DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE SUPREME COURT JUDGE