Chilombo v People (SCZ Appeal 61 of 1993) [1993] ZMSC 56 (20 April 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 61 of 1993 HOLDEN AT KABWE (Criminal Jurisdiction) PATRICK CHULU CHILOtCO Appellant VS THE PEOPLE Respondent Coram: Sakala, Chaila and Muzyamba, JJJ. S. 20th April. 1993. For the appellant, in person. For the respondent, Mr. E. Sewanyana, Assistant Senior State Advocate. JUDGMENT Sakala J. S. delivered the judgment of the court. The appellant was convicted of aggravated robbery contrary to section 294(1) of the Laws of Zambia. The particulars of the offence alleged that, the appellant, on 7th June, 1988 at Kabwe, in the Central Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, did rob John Shaw of a motor vehicle namely, BMW Saloon, Registration No. AHA 4890 valued at K100.000 and at or immediately before or immediately after the time of stealing the said property did use or threaten to use actual violence to the said John Shaw in order to prevent resistance to it's being stolen. The prosecution's case was that, on 7th June, 1988 at 1900 hours, PWs 1 and 2, husband and wife, went to visit the stables. At the stables, PW1 remained in the vehicle while PW2 went to see the horses. Whilst in the vehicle, PW1 was approached by a group of about five to six men. They demanded the vehicle and one of them opened the door and dragged PW1 out of his vehicle. One said he had a gun; PW1 hit the man who said he had a gun. PW1 was then knocked to the ground; he woke up, J2. fought them but he was again knocked to the ground. In the fight, PW1 sustained a broken collar bone, rib laceration and broken tooth. According to the evidence of PW2, she shouted at the people who wereattacklng her husband to leave him alone. She was then slapped. Later she rang the Mine Police and were taken to the hospital. She identified the car the following day at the Police Station. PW3, a Mine Police officer testified that on 7th June, 1988 at 1930 hours, he received a report from the complainant that his car a BMW, Registration No. AHA 4890 had been stolen from him at Luangwa Stables. He reported to the Police . In company of PW4, a police officer, they went on patrol. At about 2350 hours they spotted the vehicle being driven along Lusaka/Kabwe road. They gave chase, PW4 fired two warning shots, the driver lost control and overturned. They apprehended the driver who turned out to be the appellant. In his defence, the appellant said he was merely a passenger. The court rejected the defence and convicted the appellant. The appellant has filed numerous grounds of appeal. We have carefully considered the grounds put up by the appellant. The gist of the appellant's grounds is that, PWs 1 and 2 having been the victims of robbery, their evidence of identification could not be relied upon because of the stress of the moment and the short time the robbery took place. The appellant has also in his grounds of appeal attacked counsel who represented him at trial that his performance was below that expected of a qualified practitioner. The appellant has also attacked the evidence of PWs 3 and 4 that the vehicle they were using having been running parallel with the stolen vehicle, it was not possible for them to identify the driver of the stolen vehicle. The appellant submitted that PWs 3 and 4 were not credible witnesses. The appellant also argued that there was a dereliction of duty by the police for having failed to raise finger prints from the stolen vehicle. The appellant 3/*. J3. also argued In his grounds that the doctrine of recent possession could not advance the prosecution's case because he was not found inside the vehicle that over turned but that he was standing outside the vehicle. In support of his grounds of appeal the appellant cited a number of authorities. We have very carefully considered the submissions and the grounds of appeal by the appellant. We have also examined the Judgment of the trial court and the evidence on record. This is a case which centred on the evidence of PWs 3 and 4 who chased the stolen vehicle until it overturned. The learned trial court accepted the evidence of these witnesses. Their evidence clearly showed that the appellant was caught red handed with the stolen motor vehicle very few hours after the theft. The evidence in support of the conviction was in our view overwhelming. We find no merit in the appeal against conviction. The appeal Is consequently dismissed. Turning to sentence,, the appellant was sentenced to the minimum mandatory sentence of 15 years imprisonment with hard labour. The evidence on record shows that the complainant was attacked by a gang. In the attack, he sustained a broken collar bone, rib laceration and a broken tooth. These in our view were serious injuries and the evidence clearly established that there was too much violence in this robbery. This is a case which in our view calls for a sentence above the mandatory minimum of 15 years. Accordingly the sentence of 15 years is set aside for the reasons we have stated. In its place we impose a sentence of 20 years Imprisonment with hard labour with effect from the date of arrest. The appeal against sentence is also dismissed. E. L. Sakala, SUPREME COURT JUDGE. M. S. Chaila, SUPREME COURT JUDGE. W. M. Muzyamba, SUPREME COURT JUDGE.