People v Goodson Sichinga (3D/18/23) [2023] ZMSUB 13 (16 May 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/18/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) THE PEOPLE AND GOODSON SICHINGA REPUBLIC OF ZA~!BlA THE JUDICIARY . - · · " · MAn1r.r P. . Before: Hon. Deeleslie Mondoka For the State: Mr. W. Chavula, Public Prosecutor, National For the Accused: In person Prosecution Authority. JUDGMENT Cases referred to: Mwewa Murono v. The People (2004) Z. R. 207 (S. C.); Saluwema V The People (1965) ZR 4 (CA); Andine Ali Tembo v. The People (2011); and David Dimuna v. The People 1989 S. J. SC. i. ii. iii. iv. Statute: i. Penal Code Act, Chapter 87 of the Laws of Zambia. J1 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 facts in this matter are that, the accused on 15th April, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did steal one (1) phone valued at K560.00, the property of JONATHAN MWANSA. 2. On 18th April, 2023, the accused was made to stand trial, and was arraigned on the charge succinctly delineated in the indictment which was expediently read out to him by this honourable court in intelligible fashion; to which the accused plead not guilty. Background facts: Prosecution’s case 3. Having articulated the foregoing, I now consider the evidence before me. 4. This matter came up for trial on 2nd May, 2023. The prosecution called as its first witness, PW1, JONATHAN MWANSA: aged 34 years of Mwambezi Village, a farmer, who gave his testimony on oath upon swearing on the bible in Bemba. 5. By my own account– what transpired on 15th April, 2023, was that the accused person came to my place around 10:00hrs when I was in the company of my siblings and father, remarked PW1. 6. I left the accused in the company of my sister and parents at home so that I could wet my whistle at a local drinking joint with my cronies. Unsuspecting as I was, I left my Itel phone and did not bother to pick the same from the charger connected to a solar charging source. J2 7. Whilst drinking the accused brought the phone to me, but I was too inebriated to even discern what was obtaining. Regrettably, someone disabused him of the idea to hand me the phone considering the state I was in, as I would risk losing the property in question. 8. When I had sobered up, my younger sibling came looking for my memory card. Who I then instructed to go fetch my phone from the accused, the accused told my sibling that he had lost the phone when he was emotional and tired from carousing and swilling beer the previous day. 9. Disillusioned with the news, I scuttled off in the company of my wife to a police station situated within accessible proximity to my area to register my complaint. 10. Acting on the report filed, the police pulled the accused in without incident and subsequently charged him, for the blatant infraction of the law– which law creates a sure network of obligation which binds everyone bar none. 11. PW1 maintained that the accused did not have any lawful justification for picking and or holding onto his phone. During trial the PW1 gesticulated that the accused was seated in the accused dock. 12. There were no questions advanced in both cross and re-examination. 13. When the matter came up for continuation of trial on 10th May, 2023, the state called as its second witness PW2, a constable by the name of SIAME SUNGANANJI, a vicenarian of ZESCO compound in Mbala. The same being au courant with the case recounted as hereunder. 14. I do recall very well that it was on 17th March, 2023, around 07:45hrs when I reported on duty. And whilst on duty I was allocated a docket on theft, where a male JONATHAN MWANSA, age 33, of Mwambezi village reported that, male GOODSON SICHINGA, of New Abercon village appropriated his Itel phone with the estimated value of K560.00. J3 15. The incidence arose on 14th April, 2023, around 12:00hrs in Mwambezi village. 16. While acting on the same I ascertained that the suspect was already in police custody. On the material day I took the accused to the CID’s office where he was questioned in connection with the misdeed. 17. After getting a statement, I proceeded to warn and caution the accused, in bemba, a language he understands well, and the same gave a voluntary reply, refuting the alleged charge. 18. I then charge the accused with theft, contrary to section 272 of the Penal Code Act, Chapter 87 of the Laws of Zambia. This I did in line with our laws. 19. During the course of trial PW2 made a positive ID of the accused in the dock. 20. There were no questions in both cross and re-examination. At the close of the prosecution’s case, the court then found the accused with a 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 21. The accused elected to remain silent and called no witness to either exculpate and or expostulate with the prosecution’s witnesses. Consequently, there were no questions in cross and re-examination. 22. This marked the close of the defence’s case. Matters not in dispute 23. This was the gist of the evidence before me, considering the whole evidence, I found that the following facts are not in dispute: That the phone belong to PW1 and that the accused had the phone in his possession. J4 The Law Establishing the Charge in Casu 24. The Penal Code Act, Chapter 87 of the Laws of Zambia in section 272 constitutes the offence 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”. 25. 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 26. In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused person did steal the phone valued at K560.00 belonging to JONATHAN MWANSA; (ii) that the phone is something capable of being stolen; (iii) that the accused dishonestly converted it to his own use other the special owner or general owner; (iv) that accused had the intention to deprive the owner permanently; and (v) that the accused person had no claim of right. Analysis Of the Law; Facts and Determination 27. In limine, I cautioned myself that– in criminal cases the onus is squarely on the prosecution to prove their case, as per the Supreme Court’s position in 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 J5 guilt of the accused lies from beginning to end on the prosecution… The standard of proof must be beyond all reasonable doubt”. (Emphasis mine) 28. And speaking on the stance taken by the accused. It is crucial to note that the accused is entitled to give and or call evidence or say nothing at all and if he elects to remain silent this does not in any way shift the burden from the prosecution to prove the guilt of the accused to the required standard as herein articulated. 29. Therefore, 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. 30. 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). 31. Having established the facts hereinbefore, I now apply the said facts to the law. I ask myself a question that– did the accused person commit the alleged offence? The evidence in this matter is tending to implicate him that, he is the one who stole the Itel Phone. 32. What evidence is there? Well. There is undisputed evidence from PW1 that the accused picked the phone from the charger, brought it to PW1 and kept it on his person on account of the PW1 being too drunk. And when required to hand back the phone the accused merely made oblique references– compounded by him keeping mum about the issue during trial. 33. In my view, the accused’s rather cavalier attitude in this matter leaves much to be desired, seeing as it is not in dispute that the same had in his custody the phone in question. Therefore, his sheer obscurantism J6 in this case is questionable to say the least. (See the case of David Dimuna v. The People 1989 S. J. SC1) 34. Be that as it may, the onus is not however on the accused to prove his innocence but it lies on the prosecution from beginning to the end as fortified further in Mwewa above. 35. This being a case of theft, I am persuaded to believe that the accused had no claim of right to the property in question and as such I am guided by the case of Andine Ali Tembo v. The People (2011), wherein it was held inter alia that: "The defence of bon fide claim of right is not confined to those cases where an accused person believes the property in question was his or has become his; it is applicable also in those cases where the accused has a bona fide belief that he has the right to keep, or deal with somebody's property." 36. However, there is no evidence in this case that the accused was owed by PW1, thus, this here case is not a proper case for him to get the phone to recover anything as such the last element of no claim of right is satisfied. 37. Furthermore, the Itel phone in this instance valued at costs K560.00, is something capable of being stolen, it also has PW1 as the special owner and thus, the accused getting the phone illegally and or bringing it to the owner who at the time was in a drunken stupor and choosing to 1In this respect, in the course of the trial, when the learned trial judge found that there was a case to answer and put the appellant on his defence, he explained the courses open to the appellant and said “you may elect also to remain silent but you have to understand that is an unwise course to take because at this point in time. I have evidence from the prosecution and I do not have anything from your side”. There is nothing improper in a judge's commenting on the fact that an appellant has remained silent. Whilst a court must not hold the fact that an accused remains silent against him, there is no impropriety in comment that only the prosecution evidence as available to the court. J7 keep the phone and thereafter electing to give no explanation on the whereabouts of the phone is inexcusable, and thus it can be logically construed that, he intended to deprive the owner permanently by converting it to his own use. 38. And as such the state has fulfilled the requirement as per Mwewa Murono v. The People (2004) Z. R. 207 (S. C.) Verdict 39. Therefore, in the circumstances before me, I find that the state has proved the case beyond reasonable doubt and that there is no lingering doubt that the offence was committed by none other than the accused himself, thus, I find the accused guilty as charged for the offence of Theft C/S272 of the Penal Code, Chapter 87 of Laws of Zambia, consequently I CONVICT him accordingly. 40. IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 16TH MAY, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J8