People v Frazer Sikazwe (3D/21/23) [2023] ZMSUB 15 (14 June 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/21/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) REPU BLIC OF ZAMBIA T HE JUDICIARY • l i+ JUN 2323 ~ MAGISTRATE CLASS I P. O. BOX 420101. MBALA THE PEOPLE AND FRAZER SIKAZWE Before: Hon. Deeleslie Mondoka For the State: Mr. W. Chavula, Public Prosecutor, National For the Accused: In person Prosecution Authority. JUDGMENT Cases referred to: i. ii. iii. 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; iv. Mwango v The People SCZ Appeal No. 171 of 2015; v. Nzala v The People [1976] Z. R. 221; vi. Mourice Mweene V The People CAZ Appeal No. 112 Of 2019; vii. Maseka v. The People (1972) ZR 9 (CA; viii. Haonga and Other v. The People (1976) ZR 200; ix. x. Shawaz Fawaz and Prosper Chelelwa v. The People (1995- 1997) Z. R. 3; David Zulu v. The People (1977) ZR 151; J1 xi. Saidi Banda v. The People SCZ Appeal No. 144 of 2015; xii. Malawo (Male) V Bulk Carriers of Zambia Limited (1978) Z. R. 185 (S. C.); Tembo v. The People [1972] Z. R. 220; and Sumani v. R (1959) (2) R & N 403. xiii. xiv. Statute: i. Penal Code Act, Chapter 87 of the Laws of Zambia. Introduction [1] The accused stands charged with one count of breaking into a building and committing a felony therein, contrary to section 303(a) and 272 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence are that, the accused on 19th April, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did break and enter into the workshop belonging to LOYCE KANYANGA with intent to steal and did steal, take, and carry away, two (2) Makita grinders, the property of LOYCE KANYANGA valued at K7, 700.00. [2] On 26th April, 2023, the accused was made to stand trial, and was arraigned on the charge concisely outlined in the indictment which was read out to him by this honourable court in intelligible fashion; to which the accused plead not guilty. Preliminary consideration [1] As a matter of record– a well-advised magistrate must be attuned to the axiomatic fact that– in criminal cases the onus is squarely on the prosecution to prove their case, as per the Supreme Court’s position in re Mwewa Murono v. The People (2004) Z. R. 207 (S. C.), where it held inter alia that: … “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) J2 [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. [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] Having articulated thusly– it is central to note that the whole enchilada of this case is simply– the abstract of the facts meticulously keyed to the interest of one and all, from the trial proceedings. [5] This matter came up for trial on 10th May, 2023. The prosecution’s case was anchored on the evidence of five (5) witnesses: PW1 through to PW5. And to get a toehold in this case– the prosecution called as its first witness, PW1, LOYCE KANYANGA, a quadragenarian of Chila View, in Mbala in the Mbala district of the Northern province, the complaint in this matter. Who recounted as hereunder. [6] PW1 commented that, on the morning of 20th April, 2023, two of his employees: GERSHOM and JAMES SIKAZWE, came to his home from PW1’s workshop in New Location, and reported that there had been a burgle and that two (2) of his Makita grinders– a mint condition machine and the other a packed-up tool had been pilfered. [7] The cradle of this matter is that– on 19th April, 2023, PW1’s employees after knocking off from the premises, they locked up and went to buy something to eat, but on their way back, they discerned from a distance that the lock(s) to the workshop had been tampered with, and when they inspected inside the atelier it was discovered that the two grinders were missing from where they are usually kept. J3 [8] Enthused by the news– PW1 bustled over to his workshop to evaluate the extent of his loss. And true to the report– two of PW1’s grinders had been appropriated and certainly nowhere to be found, even after fanning out to check for the same. [9] The ordeal gave PW1 pause and fortunately– PW1 had a visceral feeling that the machines in question, had been pinched by FRAZER SIKAZWE (one of my employees), which thought he shared with JORDAN SIWILA. [10] PW1’s suspicion fell roundly on the accused, as according to PW1– only an insider could have successful executed the carrying-on. And to add insult to injury, the accused curiously reported rather tardy for work that day, at about 10:00hrs when he was supposed to have been at work around 07:00hrs, which to PW1 merely served as a testimony to his involvement. [11] While giving a lowdown on his testimony, PW1, identified the defective and decommissioned grinder as: a green, silver, and black tool with a cut black cable and that the same was bereft of brushes. The same was aptly marked as “ID1” for purposes of identification. [12] PW1 related that steps had earlier been taken to bring the said grinder to working order, but they failed. That is how PW1 bought the new machine. [13] During cross-examination it was established that some of PW1’s employees used to sleep in the workshop. [14] The state called PW2, a mere stripling as its second witness, who related that on 19th April, 2023, they knocked off from the workshop at around 17:00hrs; PW2 decided to go to the market in the company of: GERSHOM SIMUZOSHA and JAMES SIKAZWE. [15] PW2 related that, they set out to the market to get some relish. On their return, they were a trifle taken aback to find that the door to the atelier was ajar. They made the beeline for the inside of the edifice– J4 wherein it was discovered that the two (2) grinders were missing. And by PW2’s recollection of the incident, this was around 20:00hrs. [16] They put off going to the inform PW1 of the goings-on until the morning of the 20th day of April, 2023, around 07:00hrs, which was when they visited PW1’s premises in Chila View area to relate the unfortunate news. [17] The matter was then reported at the police on 20th April, 2023. PW1 pursued the matter further and then told PW2 that he had solved the puzzle, and according to his hypothesis– FRAZER SIKAZWE, was suspected of complicity in the purloining of the power tools. [18] [19] PW2 described and identified the grinder, as per PW1’s description. PW2, made referenced to the fact that PW1 at no time did he ever give the accused the grinder. [20] In cross-examination the accused tacked on the idea that, he had been arrested on 18th and 19th of April, 2023, and could not have been the one who stole the items in question. [21] No issues were advanced in re-examination. [22] The state called JORDAN SIWILA, PW3, a peasant farmer of New Location area, whose version of the facts was bound by the events as per the 20th day of April, 2023. [23] By his account– PW1 and PW3, hatched a planned to catch out the accused. And to set the plan in motion– PW3 called the accused at around 11:00rs, who indicated that he knew a guy who was selling a grinder. [24] Consequently, PW3 then met with the accused at around 12:00hrs, who then arranged that they meet the vendor. [25] And acting in cahoots– with PW1, PW3 called the accused at around 12:00hrs and managed to entrap the same in a scheme where PW3 J5 feigned to be feverishly looking for a grinder to procure, which grinder he needed like yesterday. [26] And whipped in a frenzy– the accused fell hook, line, and sinker for it, and at around 17:30hrs the accused took PW3 to the humble hovel of his confederate, a certain JOEL (herein referred to as the vendor), where the faulty grinder was recovered– a deal was struck to have the machine sold at the asking price of K1, 500.00, but when PW3 haggled, the same reduced the price and reckoned K1, 000.00 would do at a pinch; considering the tool was out of whack. [27] Nevertheless, the vendor asked for a deposit guarantee sum of K600.00, which PW3 pretend not to have on his person and PW3 behaved as if he had left the monies at home. When they got PW3’s home, PW3 called PW1, and together they managed to apprehended the accused. And when the vendor was questioned, he gave a disparate response definitively indicating that he had received the grinder from the accused the self-same day and that the machine was not his. [28] The accused then contended that he did not steal the grinder, but had taken it from PW1 a while ago with his blessing. [29] [30] PW1 to PW3 all made a dock identification of the accused during trial. In cross-examination the accused staunchly oppugned the merits of the PW3 version concerning the date of his arrest as he belied– that he could not have been arrested on 20th April, 2023, as the same made himself out to have been in police custody on 18th and 19th of April, 2023, which position the sate found laughably transparent, as could be gleaned from prosecutor’s blasé reaction during trial. [31] In view of the forgoing– the state summoned their last witness, PW5, a Detective Constable, of Mbala Police Post to set the record straight and availing a more veridical account to the case in casu and consequently, J6 persuade the court out of espousing a wrong position– more of PW5’s account anon. [32] The state called as its fourth (4) witness, PW4, a Detective Constable, who recounted as hereunder. [33] On 24th April, 2023, when he reported for work, he was assigned a docket of breaking into a building and committing a felony. PW4 interviewed the accused who was already in custody at the time. PW4 thereafter recorded a warn and caution statement in Bemba, a language the accused understands, to which he denied committing the subject offence. PW4 then put the accused on the charge of breaking into a building and committing a felony therein, contrary to section 303(a) of the Penal Code Cap. 87 of the Laws of Zambia. [34] PW4 had the machine marked “ID1”in his custody, and consequently tendered the same into evidence and was marked for the said purposes as “P1”. [35] In cross examination the accused merely asked PW4 when the date of his arrest was. [36] No questions were advanced in re-examination. [37] As earlier indicated, in its final submission, the state relied on the testimony of PW5, who testified as hereunder. [38] That the daily round of PW5’s job included but not limited to: attending to complaints lodged with the police by the public. Further, he indicated that when a person is placed in police custody, their details are at a glance chronicled in what is styled– Arrest and Prisoners Property Book, or simply– “APP book”. [39] PW5 remarked that, the APP book in question, was opened on 1st April, 2022, and that it had not been replaced since. The prosecution urged this court to take judicial notice that a police station keeps one APP book at any given time. J7 [40] PW5 confirmed that there were two (2) arrests made on the 20th of April, 2023, and FRAZER SIKAZWE, was one of the men arrested on the material date at around 19:27hrs. [41] In the process PW5 described and identified the book in question and was for purposes of identification marked as “ID2”and he asked that the same be tendered into evidence. The book was marked and produced into evidence as “P2”. [42] Further, PW5 contended that the accused was only disposed of on 26th April, 2023, to be presented before this honourable court. [43] During cross-examination the accused made tangential observations and questions, and the accused incorrigibly maintained that he was not in custody on 20th April, 2023. [44] There was nothing in re-examination from the state. Except to apply that the machine in question be returned to the owner, pursuant to section 179 of the Criminal Procedure Code Cap. 88 of the Laws of Zambia. [45] 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 [46] The accused elected to give sworn evidence. The matter came up for defence on 7th June, 2023, and the defence only had one witness, DW1, who testified as hereunder. [47] DW1 related that, he had been in the employ of PW1 since 5th June, 2020. And that, on 5th March, 2023, PW1 availed himself of the service of his brother’s in-law, who to put it mildly were arrantly wet behind the ears. PW1 brought the same for DW1 to initiate into the trade– one JAMES SIKAZWE and GERSHOM– a move DW1 found to be far-out. J8 [48] DW1 related that, in the process of their heuristic acquaintance with the trade, the tyros wrecked the grinding machine. Overwrought that the tool was kaput– DW1 and PW1 urgently, tried to actuate the same, but to no avail. And DW1 not pretending to be an expert on the issue– intoned that, the same be taken to JOEL for fixing and PW1 was more willing than he was loath to give the go ahead. In parenthesis– DW1 hinted that this was right about the time they had received an order to make desks. [49] No later that the occurrence of the tool wreck– PW1 asked for a down payment of K3, 700.00 from the client who had ordered that some desks be made which amount was used to procure the new grinder from Nakonde district. When the machine arrived, DW1 gave PW1 an indication that DW1 was in receipt of the tool. [50] DW1 said that they received another order for building of French doors, which they started working on with PW1’s in-laws. [51] On 18th April, 2023, at around 17:30hrs DW1, PW2 and another knocked off and DW1 instructed the boys to pack up the items along with the machine(s) as was wont to do. [52] Hereupon, on 19th April, 2023, DW1 found the workshop closed and when he called to ask– the indication that DW1 got was that they were in Chila View area. And about 09:00 to 10:00hrs they came to the office. [53] At that time PW1 had just come back from Mbeya, where he had a bereavement. During which time DW1 gave me a K400.00 for maintenance seeing as he had not yet been paid. [54] A few minutes later DW1 received a call from JORDAN (PW3) who indicated that he had a job for DW1 which PW3 did not want his in law PW1 to know about. [55] DW1 thought it wise to proffer an opinion that, they could use the grinder PW1 had allowed DW1 to take to JOEL for fixing, but that they would need a K1, 500.00 to bring it up and running. J9 [56] They got the out of action machine from JOEL and proceeded to PW3’s house. PW3 then called PW1 to come to his place. When PW1 got there they started speaking in Swahili and accused DW1 of having stolen the machine in question. But in his defence, DW1 reminded PW1 that he had given DW1 the grinder to have it fixed by JOEL. [57] PW1 and PW3 insisted that they go to the police, which proposition DW1 declined but later capitulated to the demands of PW1 and PW3. And that is how they left for the police. They reached the Bill around 19:00hrs on the 19th day of April, 2023, DW1 gave his statement. The very day, DW1 insisted that they go to the workshop to confirm if the new grinder was indeed missing because according to DW1 they had been using it, intimated DW1. [58] They put DW1 in a certain room and on the morrow that is when they recorded DW1’s details in the “APP book”. On the same day they decided to bring the packed-up machine to the station. [59] During cross-examination the prosecution was baying for blood; consequently, DW1 got the third degree from the prosecution– at which point DW1 readily volte-face from contending that he was ever in police custody on 18th April, 2023. Further, DW1 incorrigibly denied having been arrested and having been in police custody on 20th April, 2023. DW1 plead ignorance when it was said that his arrest was on the 20th of April, but ventilated incessantly that the arrest was on 19th of April, 2023. [60] Further, DW1 rebutted having heard PW2 say that the arrest was on the 20th of April, 2023. DW1 also refuted that he heard PW3 say that JOEL had said that DW1 told him to sale the tool under the guise of him being the owner of the machine. [61] When asked if DW1 had any evidence of arrest on the 19th of April, 2023, he gave a pat response the CIO would vouch for him. [62] There were no questions and or issues raised in re-examination. J10 Issues not in dispute [63] The herein issues are not in dispute: PW1 paid DW1 a paltry sum of K400.00; and that PW1 was in the employ of DW1. Issues in dispute [64] Considering the whole evidence– I found that the following facts were in dispute: the accused broke into the building and that he purloined the power tools belonging to PW1, LOYCE KANYANGA; that PW1 did not give the accused the grinder in question; that the accused was arrested on the 20th of April, 2023; and that the accused had lawful justification to have in his possession the machine in question. The law establishing the charge in casu [65] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 303(a) constitutes the offence breaking into a building and committing a felony; enacts as follows: Any person who– (a) breaks and enters into any building other than a dwelling house and commits a felony in it; (b) having committed a felony in any building other than a dwelling house, breaks out of it, is guilty of a felony and is liable to imprisonment for seven years; is guilty of a felony and is liable to imprisonment for seven years. (Emphasis mine) [66] Further, the Penal Code Act, Chapter 87 of the Laws of Zambia in section 272 constitutes the offence of theft; enacts as follows: … “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”. Ingredients to Be Established to Prove the Accused Guilty [67] In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i) that the accused broke and entered into the workshop of PW1; (ii) that the accused person did J11 steal the power tools valued at K7, 700.00 belonging to LOYCE KANYANGA; (iii) that the tools are something capable of being stolen; (iv) that the accused dishonestly converted it to his own use other the special owner or general owner; (v) that accused had the intention to deprive the owner permanently; and (vi) that the accused person had no claim of right. Analysis of the law and facts [68] In casu, I am faced with conflicting facts– the prosecution and defence have given disparate testimonies and or facts. [69] 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. 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.” [70] Thus, it is crisp to me that, it is within my province as a trial court to assess 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. [71] 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 J12 cannot reasonably be true. In this case, the DW1 had the opportunity regarding his defence from his apprehension or at the earliest time during trial1..." [72] And as a matter of record– it is the duty of the police to investigate an alibi given by an accused on apprehension or arrest but where there is no evidence to support the alibi or where no sufficient details are given to the police, there is no obligation by the police to investigate such alibi; the accused person has the onus to give sufficient details to enable the police to investigate2. (Emphasis mine) [73] Further, in re Mourice Mweene V The People CAZ Appeal No. 112 Of 2019; the Court of Appeal contended that, an alibi must be properly raised by an accused person at the earliest opportunity and such an allegation can only be investigated if the accused provides details as to witnesses who could vouch for him. When an alibi is properly raised, it is the prosecution’s onus to negative it… The alibi was false and an afterthought. (Emphasis mine) [74] 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 the interview, except to argue tenuously during trial that he had been in custody on 18th and 19th and could not have purloined the power tools in question and that the grinder had been given to him by PW1, prior to the occurrence of the incident in question. [75] To the uninitiated– DW1 had given an iron cast alibi potent enough to dislodge and absolve him of all charges; consequently, engendering reasonable doubt. Unfortunately for him, the argument advanced is a construct devoid merit. [76] More to the point, DW1 when put under the mill of cross-examination quickly recanted and vacated his earlier position and argued implacably that he was never in police custody on the 18th of April, 1 Mwango v The People SCZ Appeal No. 171 of 2015 2 Nzala v The People [1976] Z. R. 221, J13 2023, consequently eroding and whittling away whatever degree of merit which might have attended to his testimony. [77] And speaking on the same– the Supreme Court in Damales Mwansa v. Ndola Lime Company Limited SCZ Appeal no. 201 of 2012, sympathized with the quote by the learned counsel, Lord Mansfield in Grave v. Mills 7 H& N 917, when it was stated that: … “a man shall not be allowed to blow hot and cold - to affirm at one time and deny at another - making a claim on those whom he has deluded to his disadvantage, and founding that claim on the very matters of the delusion. Such a principle has its basis in common sense and common justice - and it is one which the courts of law have in modern times usefully adopted.” (Emphasis mine) [78] In addition, 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”. [79] In re to Haonga and Other v. The People (1976) ZR 200, where the Supreme Court stated as hereunder: where a witness has been found to be untruthful on a material point, the weight to be attached to the remainder of the evidence is reduced. (Emphasis mine) [80] Lastly, in the case of Shawaz Fawaz and Prosper Chelelwa v. The People (1995- 1997) Z. R. 3 we held, inter alia, that: (i) cross-examination cannot J14 always shake the evidence of unreliability of a witness if he is shown to have told an untruth about an important part of his evidence. [81] 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, it ill behoves the bench to wrest an exiguous amount of evidence from no-good facts; lastly, not doing so would fly in the face of judicial economy. [82] With that said– I adopt the prosecution’s version of the facts as the evidence upon which my decision shall be found on– which version is chiefly circumstantial. [83] It is of great moment however– to note that the Supreme Court, has at sundry times maintained 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) [84] 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.” J15 [85] 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 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.” [86] In this case, I grappled with the issue of extracting credibility from the testimony of DW1 as mounted in his defence. [87] Opportunely, the supreme court has made a legion of comments on dealing with the credibility of a witness, case in point, in re Malawo (Male) V Bulk Carriers of Zambia Limited (1978) Z. R. 18 (S. C.)3 and Tembo v. The People [1972] Z. R. 2204. [88] 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 3 … “Where questions of credibility are involved, an appellate court which has not had the advantage of seeing and hearing witnesses will not interfere with findings of fact made by the trial judge unless it is clearly shown that he has fallen into error.” 4 … “The learned trial judge regarded the issue as simply one of credibility, and he appears - at the very least it must be said that the wording of the judgment could be so construed - to have rejected the evidence of the appellant because of the falsehoods it disclosed. When considering the evidence of a witness, and particularly an accused person, who proved to have lied in material respects it is essential to bear in mind that, unless the untruthful portions of the evidence go to the root of the whole story to such an extent that the remainder cannot stand alone, such remainder is entitled to due consideration. The weight of the remainder is of course affected by the fact that the witness has been shown to be capable of untruthfulness, but the remainder must still be considered to see whether it might reasonably be true; it cannot be rejected out of hand”. J16 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. [89] More to the point– DW1 spun a tale that, he had been in custody prior to the premises being burgled on 19th April, 2023, which account: PW2 to PW5 have rebutted and discredited as being– a sham and bereft of any modicum of truth or any evidential, much less for the court pronounce itself on. [90] DW1 cannot then hitch his wagon on the suggestions or allegations made to the persecution’s witnesses, en passant– that he had been in custody prior to the incidence and that PW1 had given DW1 the faulty grinder before the episode in question. In other words, DW1 cannot piggyback on what was suggested or alleged to the prosecution witnesses during and before cross-examination and negate the weightier matter which is chiefly– availing his own testimony and or evidence during or before commencement of trial. [91] At this point, I need hardly say that– the faulty power tool in question was in DW1’s possession, and that the DW1 has hitherto not availed any substratum of evidence to expostulated the prosecution’s evidence. At this point– it is crisp that, the accused through his questionable conduct did intend to permanently dispossess the owner of his property and did indeed appropriate the same to himself. [92] Further, I am persuaded that the prosecution has staked out their position on the charge of the breaking and entering a building and committing a felony therein, and that I fail to see how the employ of exiguous evidence was to the redound of the defence’s case. [93] Therefore, it is safe to infer that: the accused by putting-on the alibi that he had been in police custody on 18th and 19th April, 2023; orchestrating a cunning ploy to sell the faulty power tool with the vendor to PW3 and going further to maintain that PW1 had given the J17 accused the packed-up power tool in question for purposes of having it fixed– proves unimpeachably that the accused did indeed form the requisite animus to permanently deprive the owner of his grinders. [94] To reiterate– when PW1’s atelier was burgled and power tools purloined on 19th April, 2023. The accused person’s subterfuge and much sophistry through his version of the facts, which he unwaveringly maintained as being the facts as they stand– ultimately lent credence to the unshaken belief that– the accused was desirous to permanently deprive PW1 of his property; and that to do so the accused did break into the premises of PW1 without so much as having any legal right. [95] In the premises, the prosecution has painstakingly built an irrefragable case against the defence, and that the defence essayed by the accused was arrantly facile and that his implacable sidelong version of the facts– pitiful to say the least. Verdict [96] Thus, resting on the evidence at my disposal– I am contented that the state has proved its case beyond reasonable doubt and that the offence was committed by none other than the accused person. [97] 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 breaking into a building and committing a felony therein, contrary to section 303(a) and 272 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. [98] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 14TH JUNE, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J18