People v Bright Chileshe (3D/71/2023) [2023] ZMSUB 16 (2 October 2023)

FOR THE MBALA DISTRICT IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/71/2023 ~~•-•v--~-~-----, I I H E..2._~~ Cl A R y Ilk~: OCT 2:2; i MAGISTRAT E C LA S S I \ t •. -- --~------,_J ~ P. O . BOX 420 1 0 I, MBAL (Criminal Jurisdiction) HOLDEN AT MBALA 1'ic. F u 6LIC OF ZA MBIA [ THE PEOPLE AND BRIGHT CHILESHE Before: Hon. Deeleslie Mondoka For the State: Mr. E. Mwanza, Public Prosecutor, National For the Accused: In person Prosecution Authority. JUDGMENT CASES REFERRED TO: i. ii. iii. iv. v. vi. vii. MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.); SALUWEMA V THE PEOPLE (1965) ZR 4 (CA); LUCKY DUBE, RONNIE MAFULO AND FRANK MOLOSI V. THE PEOPLE CAZ APPEAL NO. 48, 49 AND 50 OF 2017; ATTORNEY GENERAL V. KAKOMA (1975) ZR 21; STEVEN KALIBUKU V. THE PEOPLE SCZ APPEAL NO. 56 OF 2015; DONALD FUMBELO V THE PEOPLE SCZ APPEAL NO.476/2013; ELIAS KUNDA V. THE PEOPLE (1980) ZR 100; viii. MWANGO V THE PEOPLE SCZ APPEAL NO. 171 OF 2015; ix. x. MASEKA V. THE PEOPLE (1972) ZR 9 (CA; DAVID ZULU V. THE PEOPLE (1977) ZR 151; J1 xi. xii. SAIDI BANDA V. THE PEOPLE SCZ APPEAL NO. 144 OF 2015; AND SUMANI V. R (1959) (2) R & N 403. STATUTE: i. PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA. INTRODUCTION [1] The accused stands charged with one count of theft, contrary to section 272 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence herein are that: the accused on 23rd July, 2023, at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did steal 1 casual jacket and three (3) trousers, all together valued at K380.00, the property of one KEDRICK SINYANGWE. [2] On 4th August, 2023, the accused was made to stand trial, and was arraigned on the charge concisely outlined in the indictment; to which the accused pled not GUILTY. PRELIMINARY CONSIDERATION [1] It is a demonstrable fact that––a well-advised magistrate must be attuned to the axiomatic fact that––in criminal cases the onus is squarely on the prosecution to prove its case, as per the Supreme Court’s position in re MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.), wherein it held inter alia that: … “in criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from beginning to end on the prosecution… The standard of proof must be beyond all reasonable doubt”. (Emphasis mine) [2] However, if the accused's case is ‘reasonably possible’, although not probable, then a reasonable doubt exists, and the prosecution cannot be said to have discharged its burden of proof. J2 [3] And if upon considering the evidence adduced there is reasonable doubt on the mind of the court as to the guilt of the accused, the court will return a verdict of NOT GUILTY. SALUWEMA V THE PEOPLE (1965) ZR 4 (CA). BACKGROUND FACTS: PROSECUTION’S CASE [4] [5] The facts hereinafter are––the abstract of the facts meticulously keyed to the interest of all, from the trial proceedings. The prosecution’s case was anchored on the evidence of three (3) witnesses: PW1 through to PW3. And to get a toehold in this case––the prosecution on 15th September, 2023––called as its first witness, PW1, BRIGHT CHILESHE, a quadragenarian of Old Location, in Mbala in the Mbala district of the Northern province, the complainant in this matter, who recounted as hereunder. [6] PW1 observed that, on 23rd July, 2023, at about 17:00hrs, PW1’s wife brought out some clothes to wash, among the bunch was: a pair of denim pants; two dress pants and a casual jacket. [7] At around the same time PW1 went out, and a few hours later––PW1 made tracks to his abode at around 20:00hrs, only to find his wife sitting in the living room awfully possessed with silence and probably concerned at that––PW1, gripped with concern teased out into the wife’s––(a) penny for her thoughts. [8] PW1’s wife hastening apace gave the lowdown on what had transpired between 18:00hrs and 19:00hrs in dramatic fashion. [9] On 26th July, 2023, between 10:00hrs and 11:00hrs at ‘old mbulu market’, PW1 saw someone who was wearing a jacket akin to his own, the same was in the company of his colleague. PW1 them mustered the courage; bore down on the accused and when he put the accused J3 through the wringer about the jacket which he had on his person, the accused left without (so much as) a backward glance, PW1 then gave chase on foot to the accused while bellowing––thief! [10] PW1 with the aid of concerned citizen did apprehend the accused and his associate. PW1 had the two consigned to Maround police post, but the post was closed and had the same taken to Mbala police post. Alas and alack––in the process, the associate to the accused ran away. [11] PW1 identified the jacket in court as being a blue and white bomber, torn on the left and right shoulders, devoid of a zipper; with a torn lining on the inside and pockets. The item was marked appositely as “ID1” for purposes of identification. [12] During cross-examination, nothing of note was advanced and there was nothing advanced in re-examination. [13] The state called PW2, a vicenarian of Old Location––PW2’s testimony well-matched that of PW1 to the tee, except to complement as hereunder. [14] PW2 intimated that when PW1 fund her perched in the sitting room gripped with silence, PW1 was vexed by the fact that PW2 was remis for not sending word to him as soon as she noticed that the clothes in question were missing from the clothesline. [15] Nothing was deployed in cross-examination and re-examination. [16] The state summoned as its last witness, PW3, a detective inspector, who related as hereunder. [17] On 31st July, 2023, at 07:40, PW3 was assigned a docket of theft to deal with and investigate, wherein complainant male, KEDRICK SINYANGWE, reported that male, BRIGHT CHILESHE, did steal 1 jacket and 3 pairs of trousers all together valued at K380.00. [18] Acting on the docket, PW3 ascertained that the accused was in police custody. And upon proper investigation, PW3, thereafter recorded a J4 warn and caution statement in Bemba, a language the accused understands, to which he denied committing the subject offence. PW3 then proceeded to charge the accused with theft, contrary to section 272 of the Penal Code Cap. 87 of the Laws of Zambia. [19] PW3 tendered into evidence the clothes herein marked as “ID1” and as a consequence the same was marked “P1” upon production of the same. [20] In cross examination the accused merely asked PW3 when the date of his arrest was. [21] With this said––the prosecution rang down the curtain on its case, at which point, I then found the accused with a prima facie case to answer and put the same on his defence pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. THE DEFENCE’S CASE [22] [23] The accused elected to give sole; sworn evidence, as DW1 herein. The matter came up for defence on 22nd September, 2023, the accused, DW1, testified as hereunder. [24] On the 26th of July, 2023, PW1 found DW1 at ‘old market’ donned in the jacket in question. It was DW1’s testimony that PW1 beckoned him while he was on the phone. PW1 had some people slap DW1, and thereafter had his phone wrested away from him, and was informed by PW1 that he had identified the jacket he was wearing as his own. [25] A dispute ensued, between PW1; DW1 and associates. It was maintained by DW1 that he was roughed up and in the process the pockets to his jacket and inner lining of the jacket that he had bought in Mpulungu were torn. J5 [26] Further, DW1 indicated that PW1 them booked a motor bike and had DW1 consigned to Mbala police post where he was detained until his appearance before this honourable court. [27] During cross-examination, DW1 got the third degree from the prosecution––at which point DW1 readily acquiesced to the fact that it was an afterthought, when he asserted that the jacket was ruptured during the process of being roughed up by PW1 and associates. It was further contended and unimpeachably so, that he had no conventional evidence to prove that the jacket was his own, thus, his argument went belly up! [28] There were no questions and or issues raised in re-examination. And that marked the close of the defences case. ISSUES NOT IN DISPUTE [29] The herein issues are not in dispute: (i) that the jacket in question was blue and white with its lining torn; (ii) that PW1 apprehended DW1 at ‘old mbulu market’; (iii) that PW1 apprehended DW1 with friend in tow and that DW1’s friend on the material day ran away. ISSUES IN DISPUTE [30] Considering the whole evidence––I found that the following facts were in dispute: (i) that the accused (DW1) stole the jacket belonging to one KEDRICK SINYANGWE, which jacket was on his clothesline; (ii) that DW1 bought the clothes from Mpulungu and that PW1 was not the owner of the jacket that DW1 had on his person. THE LAW ESTABLISHING THE CHARGE IN CASU [31] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 272 constitutes the offence theft; enacts as follows: J6 … “Any person who steals anything capable of being stolen is guilty of the felony termed "theft", and, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, is liable to imprisonment for five years”. Furthermore, section 265 (1) of the same act provides that: … " A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing”. INGREDIENTS TO BE ESTABLISHED TO PROVE THE ACCUSED GUILTY [32] In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i) that the accused (DW1) did steal a jacket, which jacket he had on his person on the 26th day of July, 2023; (iii) that the jacket in question was something capable of being stolen; (iv) that DW1 dishonestly converted the same to his own use; (v) that the accused had the intention to deprive the owner permanently; and (vi) that the accused (DW1) had no claim of right. ANALYSIS OF THE LAW AND FACTS [33] In casu, I am faced with conflicting facts––the prosecution and defence have given disparate testimonies and or facts. [34] Case in point, on the one hand PW1 claims that the jacket found on DW1’s person, was stolen from a clothesline at PW1’s abode along with 2 dress pants and 1 denim pant. On other hand, DW1 contends that he picked up a real bargain for the jacket on sale in Mpulungu, from someone hitherto unknown. J7 [35] Following from the same, in re LUCKY DUBE, RONNIE MAFULO AND FRANK MOLOSI V. THE PEOPLE CAZ APPEAL NO. 48, 49 AND 50 OF 2017, it was held inter alia that: it is the duty of the trial court to make findings of fact in respect of conflicting evidence. (Emphasis mine) Which position the Supreme court earlier espoused in re ATTORNEY GENERAL V. KAKOMA (1975) ZR 21 wherein it was stated that: … “a court is entitled to make findings of fact where the parties advance directly conflicting stories and the court must make those findings on the evidence before it and having seen and heard witnesses giving that evidence.” (Emphasis supplied) [36] Thus, it is crisp to me that, it is within my province as a trial court to scratch beneath the surface of the evidence before me and make findings of fact. While ascription of probative value to evidence of witnesses is pre-eminently the business of the trial court, there is in my reverential view, no obligation on the part of the trial magistrate to bear evidence out that is plainly extraneous to the issue in question. [37] Further, I lend countenance to the notion that, “a person accused of an offence and on trial begins to build his or her defence right from the time of apprehension and from the first prosecution witness by asking questions in cross examination. Where an issue or defence is only raised when the accused is on the stand, the court cannot be faulted for treating it as an afterthought and an explanation which cannot reasonably be true. In this case, the accused had the opportunity regarding his defence from his apprehension or at the earliest time during trial1...” 1 MWANGO V. THE PEOPLE SCZ APPEAL NO. 171 OF 2015 J8 [38] Further, the Supreme Court in re STEVEN KALIBUKU V. THE PEOPLE SCZ APPEAL NO. 56 OF 2015, it was held inter alia that: … “for an issue to be fit and proper to be left to the jury, such issue must not necessarily have to be introduced through cross- examination of the prosecution witnesses. The issue may arise from the first-time during evidence called on behalf of the accused. While it is accepted that, in some cases, the failure to lay the ground for an issue during cross-examination of the prosecution witnesses must lead to the conclusion that the issue is merely an afterthought, that is not always the case: the evidence when taken as a whole will determine whether the issue has been sufficiently raised”. (Emphasis mine) [39] Furthermore, in re DONALD FUMBELO V THE PEOPLE SCZ APPEAL NO.476/2013, the Supreme Court held inter alia that: … “where an accused person does not contradict Prosecution witnesses during cross examination, he is likely to be disbelieved when he brings up his own version of the story for the first time during his defence.” (Emphasis mine) the Supreme Court went further to assert that: … “when the accused person raises his own version for the first time only during his defence, it raises a very strong presumption that his version is an afterthought and therefore less weight is attached to such a version”. (Emphasis mine) [40] In re ELIAS KUNDA V. THE PEOPLE (1980) ZR 100, it was inter alia held that: … “there can be no conviction if an explanation given by the accused, either at an early (such at the police) or during the trial, might reasonably be true”. (Emphasis supplied) J9 [41] Therefore, in the present case––it is my finding(s) of fact that, the accused (DW1) ––had not availed a credible explanation to the Police at the time of his arrest and interview, except to advance a none too cromulent and up to snuff argument that––he could not have purloined the jacket in question, but that he did indeed buy the same from an unknown character in Mpulungu. [42] Curiously, DW1 herein only availed the fact that the jacket was ruptured as a consequence of being manhandled by PW1 and associates, which fact he did not make apparent prior to being put on his defence. [43] More to the point, DW1 when put under the mill of cross-examination DW1 did at a rate of knots tacitly; not in so many words capitulated to the fact that the assertion that––the jacket was torn as he was being hustled by PW1 and associates, was indeed an afterthought. [44] In re MASEKA V. THE PEOPLE (1972) ZR 9 (CA, it was held that: … “An explanation which might reasonably be true entitles an accused to an acquittal even if the court does not believe it; an accused is not required to satisfy the court as to his innocence, but simply to raise a reasonable doubt as to his guilt. A fortiori, such a doubt is present if there exists an explanation which might reasonably be true; for the court to be in doubt does not imply a belief in the honesty generally of the accused, nor in the truth of the particular explanation in question. An accused who is shown to have told untruths in material respect is in no different position from any other witnesses; the weight be attached to the remainder of his evidence in reduced, but it is not rendered worthless”. (Emphasis supplied) [45] Therefore, I find DW1’s version of the facts to be materially amiss and as a consequence I discount the same, for reasons not limited to–– firstly, that it ill behoves the bench to wrest out an exiguous amount of J10 evidence from no-good facts; lastly, doing so would not be in the interest of judicial economy. [46] With that said––I incline to the facts as deployed by the prosecution, which version is chiefly circumstantial. [47] It is of great moment however––to note that the Supreme Court, has at sundry times and in diverse way––maintained most prodigiously that, in order to convict based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the accused's guilt. (Emphasis mine) [48] I reiterate the cautionary note that was sounded by the apex court in the case of DAVID ZULU V. THE PEOPLE (1977) ZR 151 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 is proof of facts not in issue but relevant to the facts in issue and from which an inference of the facts in issue may be drawn. It is incumbent on a trial judge that he should guard against drawing wrong inferences from the circumstances 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 the realm of conjuncture so that it attains such a degree of cogency which can permit only an inference of guilty. (Emphasis supplied) [49] Into the bargain––the Supreme Court in SAIDI BANDA V. THE PEOPLE SCZ APPEAL NO. 144 OF 2015, sympathized with the case of SUMANI V. R (1959) (2) R & N 403, wherein Beadle J. asserted that: … “It is not sufficient to say that the explanation, so far as it purports to establish the accused's complete innocence, is manifestly false, and that therefore his entire explanation must J11 be rejected and the case treated as if no explanation at all had been given. The main parts of an explanation might be manifestly false, but there may nevertheless be other parts which might reasonably be true, even after making due allowance for the falsity of the rest of the explanation. In such a case those parts of the explanation which might reasonably be true are entitled to due consideration and should not be rejected along with the rest.” (Emphasis mine) [50] And upon solemn appraisal of all the available evidence––I am roundly persuaded that it would be improper for me to consider the accused person’s testimony in isolation and then conclude that it may be reasonably possible––thus, his testimony must be considered on the totality of the available evidence, which evidence I have properly assessed––and when all the evidence is taken into account, it overwhelmingly points to nothing but his guilt. [51] Further, I am persuaded that the prosecution has staked out its position on the charge of theft, and that I fail to see how the employ of the exiguous assertion, without an iota of evidence lead, i.e., when DW1 indicated that he procured the jacket in question in Mpulungu from an unknown person, was to the redound of the defence’s case. [52] Therefore, it is safe to settle that: the accused by spinning the tale that ––the jacket he was donned in was torn owing to PW1 and associate while being hustled on allegations of theft and that he (the accused) got the jacket in question at a bargain in Mpulungu does intimate that– the accused did indeed form the requisite animus to permanently deprive the owner of his jacket. [53] And at this point is patently clear that the article of clothing in question, being the blue and white casual jacket with torn pockets and diaphanous like inner lining was indeed capable of being stolen, seeing J12 as the accused herein did appropriate the same and on 26th July, 2023 was seen donning the said piece of clothing. VERDICT [54] Thus, resting on the evidence at my disposal––I am satisfied that the state has proved its case beyond reasonable doubt and that the offence was committed by none other than the accused person herein. [55] I find the evidence sufficient to sustain the charge, and in the interest of justice, I find the accused person GUILTY as charged for the offence of theft, contrary to section 272 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. [56] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 02ND OCTOBER, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J13