People v Martin Mulenga and Anor (3D/11/23) [2023] ZMSUB 10 (2 June 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/11/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: M GISTRATE CLA,. ~ 0101, M " P. O. I30X THE PEOPLE AND MARTIN MULENGA ISAAC SIMPANJE Before: Hon. Deeleslie Mondoka For the State: Mr. W. Chavula, Public Prosecutor, National Prosecution Authority. For Accused (A1): For Accused (A2): In person In person JUDGMENT Cases referred to: i. ii. iii. iv. v. vi. Mwewa Murono v. The People (2004) Z. R. 207 (S. C.); Saluwema V The People (1965) ZR 4 (CA); Miloslav v. The People (Appeal No. 049/2013); Haonga and Other v. The People (1976) ZR 200; David Zulu v. The People (1977) ZR 151; Steven Kalibuku v. The People SCZ Appeal No. 56 of 2015; J1 vii. viii. ix. x. Donald Fumbelo v The People SCZ Appeal No.476/2013; Simutenda vs. The People (1975) ZR 294; Sumani v. R (1959) (2) R & N 403, and Machipisha Kombe vs. The People Judgment No. 27 of 2009. Statute and other sources: i. ii. The Penal Code Act, Chapter 87 of the Laws of Zambia, and Magistrate’s Handbook; 6th Edition (1991); E. J. Introduction 1. The accused MARTIN MULENGA and ISAAC SIMPANJE (hereinafter referred to A1 and A2 respectively) stand charged with one Count of stock theft, contrary to section 275 (1) of the Penal Code Chapter 87 of the Laws of Zambia. 2. The facts in this matter are that, the accused on 24th March, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, jointly and whilst acting together did steal two (2) goats belonging to ALICK SINKONDE, aggregating to K4, 700.00 in value. 3. On 29th March, 2023, the accused persons were made to stand trial, and were arraigned on the charge succinctly delineated in the indictment which charge was expediently read to them by this honourable court in intelligible fashion; to which the accused plead NOT GUILTY. Background facts Prosecution’s case 4. The facts surrounding this matter are by and large– a conspectus of the facts established at trial. J2 5. On 25th April, 2023, the prosecution called as its first witness, PW1, one ALICK SINKONDE: aged 37 years, a yeoman of Mindolo village, who gave his testimony on oath. 6. The onset of the matter being that, on 23rd April, 2023, I was astir around 06:00 in the morning; I discovered to my dismay– that two (2) out of the ten (10) goats I own were missing. A black billy goat with a white spot on its brow and a brown nanny goat. 7. I made the abortive attempt of conscientiously trailing the animal tracks left on the ground. Opportunely, I received a call from a certain PASCAL SINKOMBE, around 14:00hrs, who advised that I check at Zambia Compound (Maround) Police station concerning my missing goats. 8. While at the police station, I reported the incidence and was disheartened to learn that my goats had been slaughter. Fortunately, I was able to identify what was left of the beasts– the black hide and white spot on the brow for the billy goat, and brown hide of the nanny goat. 9. Remarkably, PW1 was nonplus during cross examination and maintained that– he only reported the incidence to the police upon receiving the indication from PASCAL. 10. However, the Accused persons’ contention was simply couched in an interrogatory– why did you not bring the goats that had been the subject of this complaint before this honourable court? 11. On the self-same day, PW1, made a dock identification of A1 and recognised A2, as he had known him for the better part of six (6) years. 12. No questions were advanced in re-examination. 13. On 3rd May, 2023, the matter came up for continuation of trial. The state summoned as its second witness PW2, a tricenarian by the name J3 of BLESSINGS MUSUKUMA, of Overspill compound in Mbala, who recounted vociferously as hereunder. 14. On 24th March, 2023, I set off to my field situated near Lucheche stream escorted by my friend. On our way, we happened upon two (2) men in the company of two women, with slaughtered goats: one of which was still being skinned and the other was already skinned; cut in twain and placed deftly in a bucket. 15. When asked where they got the goats, they said that they had procured the same from Tanzania near Kasesha area– we then sent for the head man of Overspill area, who quick joined us. 16. Burdened with suspicion, I then decided to call a police officer from Maround Police Post. In haste, the police officer descended on the scene– conducted tentative interrogations, to which no satisfactory rejoinder was given by either A1 or A2. Consequently, one NDALA, the police officer decided to book A1 and associate. 17. The accused– A1 and A2 were made to fetch and carry the goats in a bucked and sack to the police station where further inquiries would be made. 18. During cross-examination, PW2, maintained that he found them dressing and cleaning the goats. He described the goats as having– a brown hide, and another a black hide with a white spot on its brow. 19. And when PW2 was asked by A1 as to who the owner of the beasts in question was, he referred unflinchingly to PW1 as the owner. A1 then went off on a tangent in his interrogation. 20. There were no questions in re-examination. 21. The matter came up for continuation of trial on 10th May, 2023, and the state called as its third witness PW3, a constable by the name of NDALA NDALA, 39 years old of New ZESCO compound in Mbala, who related as hereunder. J4 22. On 24th March, 2023, at around 11:00hrs in the morning whilst on duty, at Maround Police Post, I received a call from one of the Community Crimes Prevention Unit (CCPU) personnel, by the name of BLESSINGS that, he had found two (2) men with two slaughtered goats which he suspected to have been stolen. 23. Roused by the report, I booked out of the station to the scene to investigate the goings-on. And true to the account, I found the two who had been reported to have stolen the items on site. 24. I then engaged them, but they gave me a glib and unconvincing reply that– they had bought the same near Kasesha, but I was not persuaded. Thus, I took the same into police custody. 25. The accused were interviewed at the station and maintained that; they had procured the goats near Kasesha area. 26. And to further ferret out where the beasts in question were procured, I called one of my informants at the border, who indicated that there was no one selling goats, but that a certain ALICK SINKONDE, of Mindolo Village, had lost two (2) goats, referring to PW1. 27. Providentially, when PW1 arrived at the police station, he intimated that he had been directed to come to Maround Police post by someone from Kasesha. PW3 accented the facts that– prior to taking PW1 to the room where the carcasses of the goats were being kept, he described the goats as having been: one brown nanny goat and the other, a black billy goat with a white spot on its brow. 28. At the police station A1 and A2 made expiation of their wrong, and besought PW1 not to place any charges against them, but PW1 reamed them out, and was altogether intransigent and dismissed their empty pleas. During which time, PW1 recognised A2 as having been an autochthon of Mindolo village; albeit infamous for being a person of questionable character. J5 29. I requested A1 and A2 to lead me to where they had bought the goats, alas, all they did was finger point each other. 30. Consequently, I jointly charged them with the offence of stock theft contrary to section 275 of the Penal Code, CAP 87 of the Laws of Zambia. A warn and caution was administered to the accused in bemba, a language they fully understand, wherein the accused offered a voluntary statement to which they gave a flat refusal to having committed the subject offence. 31. In the finally analysis, PW3 submitted that he wished that the disposal form marked “ID1” be tendered into evidence. The document was marked and produced as “P1”. 32. During cross-examination the accused insisted that the goats be brought to court as opposed to the disposal form. There was no re- examination on the part of the state. The prosecution subsequently closed its case. 33. At the close of the prosecution’s case, the court then found the accused with a case to answer and put the same on their defence pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. The Defence’s case 34. The accused persons elected to give sworn testimonies. 35. The defence called three (3) witnesses who took up the cudgels to disavow the allegation that they had stolen the goats in question. A1 stood in the witness box as DW1 and gave sworn evidence with his particulars as per the record. 36. In his defence on 19th May, 2023, he related that– it was on 22nd March, 2023, when he and A2 purchased the two goats– one black billy goat with a white spot on its brow; the other a brown nanny goat, from one J6 MUTALE SINYANGWE, an autochthon of Ntenda at an aggregated sum of K1, 500.00 for both beasts. 37. He related that in order to legitimize the transaction A1 and A2 contended that, they impressed upon the seller to draft an instrument which would be signed by a headman of the area. They could not find any such person in Ntenda, but manage to procure a signature from a headman from Mwambezi village; thus, the transaction was consummated. 38. The following day– on 23rd March, 2023, we assigned our children to take the goats for grazing before the same could be slaughtered, so as to enliven the animals. 39. On 24th March, 2023, we took the beasts from the grazing area to the stream where we butchered them. 40. DW1, argued that– we took the animals to the stream, as there was sufficient running water, seeing as we had a water challenge on that day and could not skin and or clean animals from our area owing to the same. 41. In the process of skinning the animals– we were buttonholed by two men who asked– “is this where you have moved, the abattoir? “With a vein of suspicion. 42. At this point– one of them called the headman to intervene in this matter. Much to our amusement, it was the headman from our area, who charmingly inquired, en passant, why we were cleaning tripe at the stream, instead of the community, as he would have liked to procure some of it. 43. After a while, the three of them were in conference at a distance– called the police, who descended on us a few minutes later and made us carry the chevon in a bucket and a sack to Maround Police Post. J7 44. At the station we were roughed up by the police; asked by the same for a K5, 000.00 as pay off if we did not want the matter to be taken to court, but we refused. Later the same day– we were consigned to Mbala Police post. 45. In cross-examination, the state in teasing out the truth drummed the idea that there was not much chop to the story by DW1, but that the same was but a mere end-run to underwhelm the apparency of their crime. When asked who the headman of Mwambezi was, DW1 remarked definitively– SIMWINGA. 46. No questions or clarifications were put forth in re-examination. 47. The defence called DW2 as its second witness. DW2 rehearsed his fact to the tee, and at one with that of DW1, except to augment as hereunder. 48. That the arresting officer NDALA was in the company of SINDANO, a CCPU. He also presented before this court a document dated 22nd March, 2023, evincing the transaction and or sell of the goats in question, signed and witnessed by J. BWEMBYA, the secretary and JOHN SIMWINGA, senior Mwambezi Senior Headman Chief Tafuna. 49. Which document was marked for purposes of identification oddly as DW1. 50. The prosecution played hardball during cross-examination. The prosecution questioned the legitimacy of the document adduced into court as being fictitious. And that the same only came into existence during the life of the trial and not as purported by the accused. 51. But when queried, DW2, gave a pat response that the same was executed on 22nd March, 2023, before the complaint was ever lodged at the police. 52. No issues were raised in re-examination. J8 53. The defence called as its last witness, DW3, DAVISON CHUUNGU, an octogenarian; a senior headman of Mwambezi village in Mbala. 54. Interestingly, DW3’s initial testimony comported admirably with that of DW1 and DW2, until he had scruples about misleading the court concerning the legitimacy of the document adduced in court, as evincing the transaction by DW2. 55. Interestingly, before cross-examination DW3 seemed entirely without artifice until under the strain of cross-examination he admitted that he a trifle fudged the issue and further contended that the document tendered by the accused persons was specious– he then enjoined the court to consider the same with caution as it had spurious information. 56. DW3 went on to argue that, there was no headman in Mwambezi area by the name of JOHN SIMWINGA, as had been contend by A1 and A2. 57. In re-examination DW1 merely accentuated the fact that the earlier account he had given was not factual. 58. And that marked the close of the defence’s case. Facts in dispute 59. This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: the accused persons disputes having stolen the two (2) goats from ALICK SINKONDE; that the document evincing the consummated transaction was specious; and that the stock in the accused persons possession were taken from the complainant. The Law Establishing the Charge in Casu 60. The Penal Code Act, Chapter 87 of the Laws of Zambia in section 275(1) constitute the offence of stock theft: (1) If the thing stolen is any of the following, that is to say: a horse, mare, gelding, ass, mule, camel, ostrich, ram, ewe, J9 whether, goat or pig, or the young of any such animal, the offender is liable: (a) in the case of a first offence, to imprisonment not exceeding fifteen years; (b) in the case of a second and subsequent offence to imprisonment for a period of not less than seven years and not exceeding fifteen years. 61. Ingredients to Be Established to Prove the Accused Guilty 62. In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused persons unlawfully procured the goats of one ALICK SINKONDE; (ii) that the accused persons dishonestly converted the stock to their own use other than the special owner or general owner; (iv) that the accused had the intention to deprive the owner permanently; and (v) that the accused persons had no claim of right. 63. As a result, the accused are entitled to give and or call evidence or say nothing at all and if they elect 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. Analysis of the Law; Facts and Determination 64. From the outset, 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 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) J10 65. Consequently, if the accused persons 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. 66. 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). 67. In casu, I am straddled with the burden of resolving conflicting facts, as there is a stark contrast between the prosecution and the defence’s testimony. And that I will need to make a proper finding of fact for me to appositely apply the law to the facts in the wake of the two conflicting testimonies. 68. Thus, in teasing out the truth, I ask the question – when should the accused persons’ defence be raised? Well. Swarbrick, in the Magistrate’s Handbook; 6th Edition (1991), quotes a passage in re of Ballard v The Queen (1958) Cr. App. Rep. 1, decision by the Privy Council, which say: … “the accused (person) must raise the defence by sufficient evidence fit to go to the jury, in other words, the evidential burden is on him… the (prosecution) is not called upon to anticipate such a defence and destroy it in advance. The accused, by the cross-examination of the prosecution witnesses or by evidence called on his behalf, or by a combination of the two must place before the court such material as makes the defence a live issue fit and proper to be left to the jury. But, once he has succeeded in doing this, it is then for the (prosecution) to destroy that defence in such a manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion.” J11 69. Opportunely, the Supreme Court in Steven Kalibuku v. The People SCZ Appeal No. 56 of 2015, sympathised with the foregoing excerpt when it held 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) 70. 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) 71. I light of the foregoing, I am of the considered view that– the version of the facts by DW1, DW2 and DW3 is to say the least– out of the question! The net result of this being that, the defence’s version of the facts is discounted, seeing as the same is not a fit and proper defence, not merely on account of being dodgy, but that the same is J12 most unconventional and plainly incredible when viewed as a whole. Why? Well, the version of the facts by the accused is to say the least an afterthought, as no such explanation was given to the police by DW1 and DW2 nor did they in cross-examination challenge PW3, constable NDALA for not including the version of the facts relayed to him. 72. I call to aid the case of 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) 73. In the premises, I am persuaded that; the accused’s version of the facts is materially amiss– DW1 and DW2’s version of the facts is that, the goats were bought in Ntenda village. And that the instrument legitimizing the said transaction was signed by the headman, a certain JOHN SIMWINGA in the presence of J BWEMBYA, a secretary in Mwambezi village. 74. As a rider– in re Simutenda vs. The People (1975) ZR 294, the Supreme Court held as follows: “There is no obligation on an accused person to give evidence, but where an accused person does not give evidence, the court will not speculate as to possible explanations for the event in question; the court's duty is to draw the proper inference from the evidence it has before it.” (Emphasis mine) 75. However, to reiterate and expand– it is the solemn duty of the court to consider all the evidence before it, so that it can pronounce itself on an issue judiciously. 76. More to the point, the testimony of DW3, DAVISON CHUUNGU, the village headman of Mwambezi, militated against the testimony of DW1 and DW2, when he contended that as far as he is concerned– the J13 testimony involving the veracity of the instrument in question is materially amiss. 77. The defence’s witness, DW3, further enjoined this court against holding the instrument relied on by DW1 and DW2, as having any trace of probative value. DW3 in his testimony unambiguously discounted the existence of SIMWINGA as the headman of Mwambezi village and the secretary as per the document purporting to legitimize the transaction. 78. It is for the reasons hereinbefore highlighted that I have adopted the prosecution’s version of the facts as the evidence upon which my decision shall be based– which version is mainly circumstantial– and the underlying facts and testimonies of the witnesses in this case as set forth hereinbefore fundamentally speaks to the same. 79. Principally, the law with respect to circumstantial evidence has been reiterated many times by the Supreme Court of Zambia; which is 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) 80. By way of emphasis, I echo the cautionary note that was sounded by the apex court in re 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 J14 of the realm of conjuncture so that it attains such a degree of cogency which can permit only an inference of guilty.” 81. Furthermore, the Supreme Court of Zambia 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." 82. In this case, I was grappled with the issue of extracting credibility from the testimony of DW1 and DW2, as mounted in their defence. 83. What is interesting is this that, when PW2 testified that the accused persons bought the goats from Tanzania, near Kasesha area; conveniently, echoed by PW3– DW1 and DW2 did not challenge this version of the facts during cross-examination as being inaccurate or at any earliest possible time before their defence. 84. But in expostulation– DW1 and DW2 conveniently spun a tale that– they bought the beasts in question from Ntenga village; consummated their transaction at Mwambezi village by an instrument dated 22nd March, 2023, which instrument was executed in the presence of JOHN SIMWINGA and J BWEMBYA. 85. Unfortunately for them– they failed to anticipate the potential chink in their amour, being DW3, decrying and discounting their version of the J15 facts, along with the instrument evincing the transaction as being both fake and specious to say the least. 86. Having adopted the prosecution’s version of the facts– what boggles my mind at this point are the following pertinent inquiries– (i) Could it be an odd coincidence that, the accused persons were in possession of the two goats: of the colour and point on description as has been rendered to the police by PW1? (ii) Or is the version of the account by DW1 and DW2 as aptly established herein merely fanciful? 87. I am persuading that the herein odd coincidences indeed establish something more, and consequently leads to the inevitable corollary that the accused is indeed guilty of the charge in question. (Machipisha Kombe vs. The People Judgment No. 27 of 20091) 88. This I say, upon solemn appraisal of all the available evidence– why? It is incorrect to consider the accused persons’ testimony in isolation and then conclude that it may be reasonably possible– their testimony must be considered on the totality of the available evidence. Therefore, when all of the evidence is taken into account, it overwhelmingly points to nothing but the guilt of the accused persons. 89. At this point, it is a foregone conclusion that the slaughtered beasts found in the possession of the A1 and A2, i.e., the black billy goat with a white spot on the brow and the brown nanny goat, are objects which can be stolen and were indeed stolen. And that A1 and A2 did intend to permanently dispossess the owner of his property and did indeed appropriate the same to himself. 1 Wherein the Supreme Court held inter alia that: … “Odd coincidences constitute evidence of something more. They represent an additional piece of, evidence which the Court is entitled to take into account. 'They provide a support of the evidence of a suspect witness or an accomplice or any other witness whose evidence requires, corroboration. This is the less technical approach as to what constitutes corroboration”. J16 90. This I say on account of the accused persons conjuring up so much sophistry through their afterthought version of the facts, which they obdurately maintained as being the facts as they stand– which ultimately lends credence to the fact that the accused were desirous to deprive the owner of his stock permanently; without so much as having any legal claim of right. 91. In the main, the prosecution has painstakingly built an irrefragable case against the defence, but the defence in obstinate refusal has advanced all their arguments with might and main, but in the end the same came to naught, as they have not credibly expostulated with the prosecution’s witnesses and or evidence. 92. In conclusion, the state has proved its case beyond reasonable doubt and that there is no lingering doubt that the offence was committed by none other than the accused persons, herein being A1 and A2. 93. I find the accused persons GUILTY as charged for the offence of stock theft, contrary to section 275 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT them accordingly. 94. IRA WITHIN 14 DAYS. Verdict JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 2ND JUNE, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J17