Kingstone Ng'ona and Anor v People (APPEAL NO. 17, 18/2018) [2018] ZMCA 618 (27 September 2018)

J1 IN THE COURT OF APPEAL OF ZAMB NO. 17, 18/ 2018 HOLDEN AT KABWE /~-\>" r-._ (CRIMINAL JURISDICTION) : ! I BETWEEN: KINGSTONE NG'ONA JOSEPH MATAFWALI AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM: MULONGOTI, SICHINGA AND NGULUBE, JJA On 22nd , 24th May, and 27th September, 2018. For the Appellants: H. M. Mweemba, Principal Legal Aid Counsel, Legal Aid Board. For the Respondent: W. Siame, Senior State Advocate , National Prosecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Ambrose Mudenda vs. The People (1991) ZR 174 2. Hamfuti vs. The People (1972) ZR 2 40 3. Kasuba vs. The P eople (1975) ZR 274 4 . Abel Banda vs. The People (1986) ZR 105 5. Belemu vs. The People (1973) ZR 41 6. Edward Kanyama Kasali and Others vs. The People Appeal Number 140, 141 , 142 of 2017 Legislation referred to: J2 The Penal Code, Chapter 87 of the Laws of Zambia The appellants were charged with one count of the offence of Murder, contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars of the offence were that the appellants, on an unknown date, between 17th and 18t h July, 20 15 at Lusaka in t he Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together, murdered John Lungu. The appellants wer e also charged with three counts of the offence of Aggravate d Robbery, contrary to section 294(1) of the Penal Code. In the first count, the particulars were that the appellants, on 4 th October, 2014, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, and being a rmed with machetes and knives, stole from CZ, one black berry 8320 cell phone, one chinese phone and five hundred kwach a cash , altogether value a t Kl,850-00, the property of CZ, and at or immediately before or immediately after the time of such stealing, used or threatened to use actual violence to the said CZ in order J3 to obtain, retain, prevent or overcome resistance to the said property being stolen. In the second count, the particulars were that the appellants, on an unknown date, but between the 17 t h and 18th July, 2015 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, j ointly and whilst acting together with other persons unknown and whilst being armed with machetes, toy pistols and knives, stole from John Lungu a Toyota Corolla, registration number ABR 1078 and a samsung galaxy cell phone , altogether valued at K39,000=00, the property of John Lungu and at or immediately before or after the time of such stealing did use actual violence to the said John Lungu in order to obtain or overcome resistance to the said property being stolen . In t h e third count, the particulars were that, the appellants, on an unknown date but between the 17th and 18th of July, 2015 , at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown and whilst armed with machetes and knives stole from DM, one handbag, three hundred and fifty kwacha cash , and one black berry phone, altogether valued at Kl,620=00, the property of DM, and at or immediately before or after such stealing used actual violence to the said DM in order to obtain or overcome resistance to the said property being stolen. The appellants were also charged with two counts of the offence of Rape, contrary to section 132 of the Penal Code, Cap 87 of the Laws of Zambia. The particulars of the first count were that the appellants, on 4 th October, 2014, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together, h a d unlawful carnal knowledge of CZ, without h er consent. The particulars of the second count were that the appellants, on 17th July, 2015, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together, had unlawful carnal knowledge of DM without h er consent. The appellants were also charged with one coun t of the offence of Attempted Rape, con trary to section 134 (a) of the Penal Code, Cap 87 of the Laws of Zambia. The particulars were that the appellants, on 4 th October , 2014, a t Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambiajointly and whilst acting JS together, attempted to have unlawful carnal knowledge of EP, without her consent. In brief, the evidence of the prosecution at trial was that CZ, the first prosecution witness was returning home from church on 4Lh October, 2014, at about 0400 hours in the morning in the company of the second prosecution witness and Joyce . She testified that as they walked through Garden Compound, they were confronted by two men who wore masks. CZ testified that the men demanded what they were carrying and got a phone from CZ's friend. Thereafter, the men took them to a makeshift store where they threatened her and grabbed her blackberry phone, which was worth K450=00. While there, one of the men took CZ behind a house and raped her. She stated that the second man subsequently raped her as well and that as it became day light, she was able to see what her assailants wore. She stated tha t the tall man had green and white shorts on with black shoes. He also wore a blue jersey, which she later identified in Court and was marked exhibit P4. CZ also identified a green mask, exhibit P2 as the mask that the tall man wore on the material night. J6 CZ testified that the short man wore a pair of trousers and had dark hands. After her ordeal, she was taken to Chipata Compound clinic where she received treatment and was issued with a medical report, which she identified in Court and was marked exhibit Pl. She maintained that she was raped inspite the fact that the medical report indicated that she suffered no injury. The second prosecution witness, EP's testimony was essentially similar to that of CZ, as they went to attend overnight prayers at church together and retuned home on 4 th October, 2014 at about 0400 hours in the morning when they were attacked by two m en , one of whom was tall. EP testified that one of the men took her behind the house where he attempted to rape her but upon noticing that she had a pad on, he stopped and told her that he would have raped her if he had condoms. EP testified that she saw the two men rape CZ and thereafter they let CZ and her go. They went home and later proceeded to Mandevu Police Station where they r eported the matter. EP's testimony was that the tall man wore a blue jersey which she identified in court as exhibit P4, and a dark green mask, which she identified in court as exhibit P2. J7 EP testified that the short man wore blue trousers and a blue mask, while the tall man carried a m ach ete, which she identified in court and was duly marked exhibit P5. The third prosecution witness, Gertrude Phiri's testimony was that she was in the company of CZ and EP when they returned home from overnight prayers in the early hours of 4 th October, 2014. She stated that they met two men on the way who offered to escort them. As they walked along, the men grabbed phones from EP and CZ. They also took CZ away and after a while they proceeded home where the witness learned that CZ was raped. The fourth prosecution witness, SZ's testimony was that on 3 rd October, 2014, h er daughter CZ left home and went to church. She returned at a bout 0500 hours the fo llowing morning, in a distressed state. When she inquired what the matter was, her daughter's friend told SZ that CZ was raped on th eir way home. She stated that she ch ecked her daughter's private parts and found semen. They subsequently went to the clinic and were referred to the Unive rsity Teaching Hospital. SZ's testimony was that the Police later traced h er d au ghter 's phone using its serial number. She learn t th at it was found with someone in Mtendere Compound. J8 SZ further testified that when the ' First Accused was apprehended, she went to the Police station to see him and upon being asked if he recognized her, h e stated that he knew her as she was his sister's landlord. He further stated that he did not know that CZ was her daughter. She testified that the Second Accuse d told h er that they did not know where she would place them as it had already happened. SZ stated that she had known the First Accused for three years prior to the incident as he rented where she lived. In cross-examination, SZ stated that when h er d a ughter returned home and she learnt that she was raped, she checked her and found that she had no underwear on. The fifth prosecution witness, DM's testimony was that on 17th July, 2015, she knocked off from work at about 2000 hours and as she walked h ome on Kasangula Road, she was offered a lift in a motor vehicle. She stated that she went to Garden site 5 and Bank 4 with the man who gave her a lift, where they had drinks. They left at about 2200 hours and she was driven back home to Garden Compound. As she was about to open the door of the motor vehicle, she saw three m en who a ttacked h er and the driver. They put her at the back of the motor vehicle and b eat h er up. DM J9 testified that she could not identify any of the men as they made h er fac e downwa rds. Sh e stated that they were armed with an axe and a knife. They put the driver in the boot and when he starte d cou ghing, they stopped the motor vehicle and beat him up. She testified that thereafter, they continued driving and the n ext time they stopped, they took h er out of the vehicle , tied her face and made her walk for a distance. She stated that sh e found herself behind a toilet and was threatened with a mache te . She was th en undressed and r a ped by a ll the three m en in turn. The m en subsequently left and she ran to a nearby house to seek h elp. DM discovered that she h ad b een left in Chipata Compound and was later taken to the hospital where she was examined . The m e dical report confirmed that she was raped. She testified that while she was with h er mother a t the hospital, she r eceived a call and was informed that h er bag h ad been found in a motor vehicle. DM identified exhibit Pl2 , t h e axe, exhibit Pl3 , the knife, and exhibit PS the m achete, as weapons that h er assailants were arm e d with on the material night. The s ixth prosecution witness, Simon Njovu's testimony was that on 17th July 2 01 5, he was in Lusaka on duty. He stated that his brother, John Lungu picked him up from the lod ge wh er e h e was JlO staying, driving a motor vehicle, Toyota Corolla registration number ABR 1078 and was in the company of the fifth prosecution witness, DM. He testified that they went to have drinks together at 2000 hours and his brother took him back to the lodge before 2200 hours. The following morning, John Lungu 's wife called and informed him that her husband had not returned home the night before. At about 1600 hours, she called him and stated that John Lungu h ad been hospitalised. At midnight, he learnt that his brother h ad died at the hospital. The eighth prosecution witness Leo Lungu's evidence was that on the 18 th of July, 2015 he received a call from the seventh prosecution who informed him that John Lungu, his younger brother had not r eturned home. In the evening, he received a call from his niece who informed him that his brother, John was in the Intensive Care Unit at University Teaching Hospital. Upon getting to th e h ospital, he found his bother with a swollen head and stitches at the back of the head. Two hours after leaving the hospital, he was informed that his brother had died. He later learnt that his late brother's motor vehicle had been recovered , with the battery and the radiator missing from it. Jll The ninth prosecution witness was John Lungu's grandson whose testimony was that his grandfather had a Toyota Corolla motor vehicle registration number ABR 1078. He testified that on the 18th of July, 2015, he received information that his grandfather was admitted at the University Teaching Hospital and that he died later that day. The witness testified that he subsequently learnt that the Police at Emmasdale Station had recovered some b atteries. He was invited to go to the Police Station where he identified two batteries, which he later identified in court. One was black, which was marked exhibit Pl8 while the other was green and was marked exhibit Pl3. He testified that he identified the batte ries because they were familiar to him as he used to see them when he would clean his grandfather's motor vehicle. The green battery was kept in the boot while the black one was the one that was used to run the motor vehicle. The evidence of the eleventh prosecution witness, Lillian Phiri was that the Second Accused person went to her house and told her that he had a battery for sale. She stated that he borrowed thirty kwacha from h er and left the battery as security. The witness testified that two weeks later, the Second Accused p erson went to • J12 her house with Police Officers from Emmasdale Police who demanded for the battery. She identified the battery in court as exhibit P18 . The twelfth prosecution witness, Kingsely Tembo's testimony was that between June and July, 2015, the First Accused took two phones to him for sale. These were a blackberry phone, which he also identified in court as exhibit P20 and a samsung galaxy phone which he identified in court as exhibit P2 l . The witness testified that he bought the phones from the First Accused. In cross examination, he stated that he kept the two phones as security for the five hundred and forty kwacha that he lent to the First Accused. The eighteenth prosecution witness was Detective Inspector Moola Lipimile of Emmasdale Police Station whose testimony was that on the 5 th of August, 2015, h e was involved in the apprehension of a suspect in a murder and rape case who he later came to know as the First Accused. The nineteenth prosecution, witness Detective Constable Kamba Lamba's testimony was that on 2 1st July, 2 01 5 he attended a post- J13 mortem examination that was conducted on the body of John Lungu at the University Teaching Hospital by Dr Victor Telendy. The twentieth prosecution witness, Sergeant Masauso Phiri of Zambia Police Headquarters gave evidence to the effect that on 18th July, 2015 at about 0530 hours, he was informed by an anonymous caller that there was a man lying unconscious along Katima Mulilo road in Garden Compound. The witness stated that he went to the scene where he found a man lying on the ground with multiple injuries and blood stains on the head. He picked the man up and took him to the University Teaching Hospital. On his way back, the witness was informed that an abandoned motor vehicle had b een discovered in Chazanga Compound. He testified that he went to Chazanga Basic School where he found a Toyota Corolla, silver in colour, registration number ABR 1078 and upon searching it, h e found that the radio, battery and radiator were missing. He stated that h e also saw blood stains in the boot and found a small piece of paper with the phone number 0977580402 on it. He called the number and spoke to a woman who said she was at the University Teaching Hospital with her daughter who was robbed and raped the previous night. J14 The witness testified th at h e also found documents in the motor vehicle with the name John Lungu written on them as well as some phone numbers. He called one of the numbers and confirmed that the vehicle belonged to John Lungu, the head driver at the School of Agriculture at the University of Zambia. The witness testified that subsequ ently, John Lungu 's relatives identified the motor vehicle at Emmasdale Police Station. He stated that he also met the fifth prosecution witness at University Teaching Hospital who identified the handbag that was found in John Lungu's motor vehicle as hers. The twenty-first prosecution witn ess, Detective Sergeant Conrad Andeleki's testimony was that h e was handed over a docket of Rape, Aggravated Robbery and Attempted Rape to investigate on th e 6 th of October, 2014. In the course of his duties, the witn ess learnt that two phones were stolen . He applied for search warrants from MTN and Airtel and subsequently obtained a print out from Airtel relating to the stolen phones. He discovered that after the robbery, the sim card that was inserted into the phone was that of Elijah Simwinga whose mobile number was 097629008. The witness contacted the said Elijah and investigations subsequently led him to the First Accused person. He testified that on 5 th JlS August, 2015 , Police laid an ambush and apprehended the First Accused at University Teaching Hospital. He led them to the apprehension of three other accused persons. The witness testified that the First Accu sed apologised to the fourth prosecution witness stating that he did not know that the first prosecution witness was h er daughter. The witness testifie d tha t the First Accused led th e Police to his house in Kabanana Compound where a mask, exhibit P2 , a claw bar, exhibit P3, a blue jersey exhibit P4 and a m achete, exhibit P30 were recovered . The witness stated that h e also recovered a toy pistol exhibit Pl 2 and four leather coats, exhibit P37 from the First Accuse d 's house. The witness testified that the Second Accused le d the Police to his house where a black m achete, exhibit PS was r ecovered. The Second Accuse d also led t h e Police to th e eleven t h prosecution witness wh ere the battery, exhibit Pl 7 was recovered. The witness also produced a copy of the m edical re port, exhibit Pl as well a s a copy of the lab report, exhibit P32 in court. The twenty -second prosecu tion witness, Detective George Bwalya's testimony w as to the effect that on 20 t h J u ly, 2 015 , h e was handed J16 over a docket of Ra pe, Murder and Aggravated Robbery to investigate. The witness stated that h e was part of the team of Police Officers that a pprehended the First Accused p erson from University Teaching Hospital. It was the witness's testim on y that the Second Accused led the Police to the r ecovery of one of the batteries that was stolen from John Lungu . The First Accused, in his defence denied h aving taken part in th e commission of the subject offences. He s tated that he went to the University Teaching Hospital to visit his nephew and was apprehended by th e Police th ere. He however admitted leading the Police to the appreh en sion of the Second Accused. The First Accused stated that at th e Police Station, h e was beaten up and forced to apologise to th e fourth prosecution witn ess for raping her daughter. In cross-examination, th e First Accused a dmitted knowing the first prosecution witness and h er m oth er, the fourth prosecution witness. He stated that although the Police search ed his house, they only got sofas, clothes and a mach ete. He d enied stealing the first prosecution witness's phone and selling it to Shadreck Banda. He stated that the Police m er ely gave fal se evidence against him in court, and that the m ask came from Matero Police Station. J17 The Second Accused, testifying in his defence stated that he went to Chipata Compound big market grounds to meet the First Accused but was apprehended by Police officers. He stated that the Police beat him up into apologising that he raped the fourth prosecutions witness's daughter. He stated that he sold a battery to a lady sometime between January and February 2015 when he moved into an electrified house. He further stated that although he led the Police to the lady he sold the battery to, the Police picked a different one out of the many batteries that were at the scene and exhibited it in Court. He denied borrowing money from the eleventh prosecution witness and maintained that the Police did not recover anything from his house. He stated that when he was lined up on the identification parade, no one identified him. The learned trial Judge, having considered the evidence found that the prosecution had proved its case against the two appellants for the offences of Aggravated robbery, Rape and Attempted rape. The court found that the first and second prosecution witness were attacked by two men who stole their phones in the early hours of 4 th October, 2014. The Court further found that it was not in dispute that the two men attempted to rape the second prosecution witness. The Court found that the medical doctor who examined • J18 the first prosecution witness made an inconclusive finding on whether she was raped that fateful morning. The Court was of the view that the mere fact what the medical examination did not find semen or injuries on the first prosecution witness did not mean that she was not raped. The court found that the first prosecution witness's testimony that she was raped was corroborated by that of the second prosecution witness who saw her being raped. The court accordingly found that the first prosecution witness proved that she was raped. The Court found that the evidence implicating the First and Second accused persons relating to the commission of the Rape was that which was given by the fourth prosecution witness, whose testimony was that the two accused person confessed to raping her daughter at the Police Station. The court stated that although they stated that they were beaten by the Police and forced to confess to the Rape, they in fact made the confessions to the fourth prosecution witness. The court further found that it was not a coincidence that the two accused persons knew where the first prosecution witness stayed. The Court accepted the prosecution evidence that the pangas, machetes and head socks were recovered from the two accused persons and were not planted on • J19 them by the Police. The Court went on to conclude that the prosecution had proved beyond all reasonable doubt that on 4 th October, 2014, the first and second accused persons raped the first prosecution witness. The Court accepted the fourth prosecution witness's testimony that the two accused persons apologised when she asked them why they raped her daughter. The Court found that the prosecution had also proved that accused one and two stole one blackberry phone, one Chinese phone and K500 cash from the first prosecution witness after threatening her with violence. The Court formed the view that the men who raped the first prosecution witness also attempted to rape the Second prosecution witness. The Court found that the First and Second accused persons acted in concert as the Second Accused kept watch while the First Accused attempted to rape the second prosecution witness. Regarding the third, fourth, fifth, six and seventh counts, that the accused persons murdered John Lungu between 17th and 18th July, 2015, stole his Toyota Corolla registration number ABR 1078 as well as his samsung galaxy phone and that the two accused persons robbed the fifth prosecution witness of her handbag, K350 cash, a blackberry phone and raped her on the material night, the J20 Court found that three men assaulted John Lungu and raped the fifth prosecution witness. The Court further found that John Lungu died from the assault. The Court found that the persons who stole John Lungu's motor vehicle must have been the ones who also assaulted him. The Court found that the First Accused was not linked to the theft of any of the batteries and he was accordingly acquitted of the charges in counts four, five, six and seven. Regarding the Second Accused, the Court found that he led the Police to the recovery of a battery, exhibit P18 which he left with the eleventh prosecution witness as security for a loan. The Second Accused however denied taking exhibit P18 to the eleventh prosecution witness' house and stated that the court picked a different battery and took it to court as an exhibit. The Court concluded that exhibit P18 belonged to John Lungu as it was on his motor vehicle when it was stolen. The Court found that it was the Second accused who took the Police to the eleventh prosecution witness's house to recover the stolen battery. The Court acquitted the second accused of the offences of murder and aggravated robbery, in respect of John Lungu but found that the Second Accused received stolen property, this being the battery J21 exhibit P18. The Court then acquitted the Second Accused person of the offence of raping the fifth prosecution witness DM, and robbing her of her handbag, K350 cash and a black berry phone. The Court convicted the First and Second Accused persons on count one, for robbing the first prosecution witness of one blackberry 8320 cell phone, one chinese phone and KSOO cash. The Court further convicted the First and Second accused of raping the first prosecution and further convicted Accused one of attempting to rape the second prosecution witness. The Second Accused person was convicted for receiving the battery that was stolen from John Lungu's motor vehicle. The First and Second accused persons were acquitted of the offence of robbing the fifth prosecution witness of a handbag, K350 cash and a black berry phone. They were also acquitted of rape of the fifth prosecution witness. In count four, were acquitted of the murder of John Lungu and of stealing his motor vehicle during an aggravated robbery. On count one, the First and Second accused were sentenced to fifteen years imprisonment with hard labour. On count two the two accused persons were sentenced to thirty years imprisonment with J22 hard labour. On count three, the two accused persons were sentenced to fifteen years imprisonment with hard labour. On count four, the Second Accused person was sentenced to six years imprisonment with hard labour. All the sentences were with effect from the 5 th of August, 2015. Being dissatisfied with the Judgment of the Court below, the 1st and 2nd appellants raised the following grounds of appeal- 1. That the learned trial judge erred in law and in fact when he failed to conduct a trial within trial in the presence of evidence of a confession that was involuntarily obtained. 2. That the lower court erred in law and fact when it convicted the appellants on counts one, two and three on insufficient evidence. Mr Mweemba, Principal Legal Aid Counsel argued the two grounds simultaneously as they were interrelated. Counsel submitted that with respect to counts one, two and three, the victims of the purported aggravated robbery, the rape and the attempted rape, stated that they could not identify their assailants. Counsel further submitted that the link connecting the appellants to the J23 comm1ss10n of the offences emanated from the evidence of Detective Sergeant Andeleki, the eighteenth prosecution witness. His testimony was that he took the fourth prosecution witness to the cells where the appellants allegedly apologised to her for raping her daughter which conduct is totally against the rules. The learned Principal Legal Aid Counsel contended that the Court did not conduct a trial within trial to determine the voluntariness of the alleged confession. Counsel referred to the case of Ambrose Mudenda vs. The People1 on how courts ought to treat confessions that may have been obtained involuntarily, that a trial within trial must be held to ascertain this. Counsel went on to refer to the cases of Hamfu.ti vs. The People2 and Kasuba vs. The People3 , to emphasise this point and contended that in the matter in casu, the confession was made to the fourth prosecution witness in the presence of Police officers while the witness was at the cells. Counsel submitted that the lower court misdirected itself by allowing the confessions to be placed on record as clearly, they were obtained involuntarily. He prayed that the court orders a retrial before another Judge in the interest of justice. • J24 On ground three, Counsel submitted that there was insufficient evidence against the appellants to warrant their convictions for the rape, attempted rape and aggravated robbery charges. Counsel contended that the First Appellant vehemently denied leading the Police to the recovery of the exhibits such as the masks, machetes which were allegedly used during the robbery. Counsel submitted that the evidence against the appellants was purely circumstantial as there is no evidence of identification that connects the appellants to the commission of the offences noting that the offences were committed in October, 2014 but the appellants were only apprehended a year later, in September, 2015. Counsel contended that the circumstantial evidence could not raise an inference of guilt as the only reasonable inference. He prayed that ground two of the appeal succeeds and that the appellants be acquitted and set at liberty as there was insufficient evidence connecting them to the commission of the offences. In reply, the Learned Senior State Advocate, Mr Sikazwe submitted that the learned trial Judge did not err in law and in fact when he did not conduct a trial within trial in the presence of a confession that was made voluntarily. J25 Counsel submitted that the appellants confessed to the fourth prosecution witness in responding to a question that she asked them. It was submitted that the witness was not a person in authority and as such there was no need of holding a trial within trial. Counsel referred to the case of Abel Banda vs. The People4 which he submitted sets out who a person in authority is. It was submitted that the fourth prosecution witness had no duty to investigate this case and that all she wanted to do was to see the appellants. Counsel submitted that the appellants' confessions properly graced the record and the trial court was on firm ground when it considered the said confessions and convicted the appellants accordingly. Counsel referred to the case of Belemu vs. The People5 which the Court of Appeal cited with approval in the case of Edward Kanyama Kasali and Others vs The People6 on testing the voluntariness of a confession. Counsel prayed that ground one of the appeal be dismissed for lacking merit. In arguing ground two, Counsel submitted that there was overwhelming evidence on record that led to the connection of the appellants for the subject offences. Counsel submitted that the evidence of the first and second prosecution witnesses properly J26 connected the appellants to the commission of the said offences in count one, two and three as these offences arose out of the same incident on 4 th October 2014. Counsel submitted that the question of identity was resolved by the evidence of leading by the First Appellant who led the Police to the recovery of masks, machetes and ajersey which were identified by the first prosecution witness. Counsel submitted that there was overwhelming evidence that proved the offences of rape, attempted rape and aggravated robbery in respect of both appellants which warranted the said convictions. On the Second Appellant's conviction for the offence of possession of stolen property, Counsel submitted that the battery, exhibit Pl8 was found in the Second Appellant's possession. It was established that the said battery was taken out of the Toyota Corolla that was robbed from John Lungu. Counsel submitted that the Second Appellant led the police to the recovery of the said battery. It was submitted that in light of this piece of overwhelming evidence against the Second Appellant, the court was on firm ground when it convicted him for the said offence of possession of stolen property. He prayed that the appeal be dismissed for lack of lUL • d . ment an that the accordingly· J27 convictions and sentences be upheld we have const below' the ar . dered the appe ' al the evidence a guments av d anced and the au d . the court dduce in thorities cited. f eal on the issue o . "'"'d insufficient The appe Uants have raise the voluntariness o . f the con ess1on f . d two grounds of app t · statemen s =· evidence to warr . of the voluntar1nes ant their convictions. We shall address the issue s of the confessions that the appellants made to the fourth prosecu 10n t . witness first. ln the case of Abel Banda vs. The People, the Supreme Court held that a village headman is not a person in authority for purposes of administrating a warn and caution before interrogating a suspect, as his normal duties do not pertain to investigating crime. In the matter in casu, the two appellants alleged that they were beaten by the Police before they forcibly confessed to raping the fourth prosecution witness' daughter. It is settled law that a warn and caution statement which is taken in compliance with the Judges Rules can only be excluded in the exercise of the trial judge's discretion, if its admission would operate unfairly against \ J29 We uphold the reasoning of the learned trial judge, that the appellants made voluntary confessions to the fourth prosecution witness who was not a person in authority. We therefore do not see why the Court would have held a trial within trial under the circumstances. There was no inducement or impropriety prior to the appellants making the said confession statements. We do not find merit in this ground of appeal and it is accordingly dismissed. Regarding the issue of whether there was sufficient evidence to warrant the appellants convictions, the evidence that further connects the First Appellant to the commission of the offences, apart from the confession statements is that of the first prosecution witness. She stated that a black berry phone and a Chinese phone were stolen from her on the material night. The witness described what her assailants wore and identified a blue jersey, exhibit P4 and the green mask, exhibit P2 which she said the tall man wore during the attack. The evidence of the thirteenth prosecution witness was that he bought a black berry 9320 phone from Humphrey sometime between October and November, 2014. When the Police made inquiries about his use and possession of the phone, he led them to the said Humphrey who sold him the phone. • J30 The twenty-first prosecution witness, Sergeant Conrad Andeleki's evidence was that he traced the phones that were stolen from the first prosecution witness using their serial numbers and phone records at Airtel and MTN. After following a trail, it led him to the conclusion that the First Accused sold the blackberry phone to Shadreck Banda who sold the same to Humphrey Kapila. The phone was then sold to the thirteenth prosecution witness. Having analysed the evidence highlighted above, we are of the view that the blackberry phone 9320 that was stolen from the first prosecution witness was traced back to the First Accused as the person who sold it at Katondo Street soon after the robbery. Further, the recovery of the blue jersey exhibit P4, and the mask exhibit P2 from the First Appellant which the first prosecution witness identified as having been worn by one of her assailants places the First Appellant at the scene of the rape, attempted rape and aggravated robbery, respectively. These pieces of evidence corroborate the evidence of the confessions that the appellants made to the fourth prosecution witness. The Second Accused led the Police to the recovery of a machete, P5 from his house, which the first prosecution witness stated was used in the commission of the offences. We form the J31 view that there was sufficient evidence beyond all reasonable doubt to warrant the conviction of the two appellants for the subject offences. From the evidence on record we are satisfied that the trial Judge was on firm ground when he convicted the appellants for the offences of Rape, Attempted Rape and Aggravated Robbery. The exhibits that were recovered from the apP.ellants' houses as well as the blackberry phone that the First Accused sold at Katondo Street provide the connecting link to the appellants' commission of the offences, as well as their confession statements. We do not find merit in grounds one and two of the appeal and they accordingly fail. The net result is that the two grounds of appeal having failed, this appeal is dismissed for lack of merit. We uphold the convictions and the sentences that were meted out by the lower court. J. Z. MULONGOTI COURT OF APPEAL JUDGE R Cb P. C. M. NGULUBE COURT OF APPEAL JUDGE D. L.y.s1c -~T OF AP