People v Osward Sichangwa (3D/112/23) [2023] ZMSUB 9 (13 November 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/112/23 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: REPU6LIC OF ZAMBIA THE JUDICIARY I 1 3 NOV nJJ;j;; i • MAGISTRATE CL ASS~ P. O. BOX 420101, MB.\ ~ THE PEOPLE AND OSWARD SICHANGWA 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. iv. MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.); SALUWEMA V THE PEOPLE (1965) ZR 4 (CA); BENSON NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14; SHAWAZ FAWAZ AND PROSPER CHELELWA V. THE PEOPLE 1(1995-1997) Z. R. 3; J1 v. 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; LUBENDAE v THE PEOPLE (1983) Z. R. 54 (S. C.); JEREMIAH MUKONDYA v THE PEOPLE SCZ APPEAL No. 8 of 2019, AND SIMUTENDA V THE PEOPLE (1975) ZR 294 AND TEMBO V THE PEOPLE vi. vii. viii. ix. (1976) Z. R. 332 STATUTE AND OTHER SOURCES: i. ii. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA, AND CROSS ON EVIDENCE 6TH EDITION (1985). INTRODUCTION [1] The accused stands charged with one count of Burglary with intent to commit a felony contrary to section 301(a) of the Penal Code Chapter 87 of the Laws of Zambia. The facts in brief are that––on 1st October, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, during the night the accused herein did break and enter the dwelling house of GRACE MUSONDA with intent to commit a felony therein. [2] On 4th October, 2023, the accused was made to stand trial, and was arraigned on the charge succinctly delineated in the indictment which charge was expediently read to him by this honourable court in intelligible fashion; to which the accused pled NOT GUILTY. BACKGROUND FACTS PROSECUTION’S CASE [3] The prosecution made short thrift of the matter in that on 9th October, 2023, the same summoned two (2) witnesses to testify on the self-same day––PW1 and PW2. J2 [4] PW1, the complainant herein––GRACE MUSONDA, of New ZESCO compound gave a deep-dish testimony on oath––and much to her credit, PW1 did so without padding out the same with an avalanche of extraneous words. [5] It was PW1’s testimony that, she and two other persons in the house were in the land of nod, when the accused at a crepuscular hour sometime between 23:00 and 24:00hrs did break and enter the house and PW1 being sentient perceived with certainty what appeared to be some noise emanating from the dining area, whereat she kept a 50kg bag of kapenta. [6] PW1 then scurried out of bed and exited the bedroom to investigate what was happening––she gingerly made her way to the room in question where she found the accused wincing the bag of kapenta, which kapenta was value at K3, 250.00 all told. [7] In parenthesis––PW1 testified that the accused ingressed the room through the part of the house where a window was supposed to be inserted, but that the said part provisionally had bricks covering the spot in the windows stead, which bricks the accused had knocked down. [8] PW1 then grabbed the accused from the back and adhered to the same without letting go. The accused dropped the bag of kapenta in the process and managed to counter PW1’s hold and placed his hands on PW1’s neck and throttled her, during which time the accused threatened PW1 that, he would kill her prompting her to bellow out for help from ESTHER MUSONDA, PW1’s daughter. [9] PW1 asserted that ESTHER came; then aided PW1 in restraining the accused. The yells further attracted the attention of CHILESHE MANDONA, who was let into the house by ESTHER through the main J3 door secured by bars and a lock. And with the help of CHILESHE the accused was apprehended and then taken to the police station. [10] Nothing was advanced in cross-examination and re-examination. [11] And to barrack for PW1––the prosecution summoned PW2, a vicenarian of New ZESCO compound, who testified much in the manner of PW1 except to augment as hereunder. [12] PW2 related that while resting and enjoying the comparative tranquillity of his home––he was roused from his sleep by what he perceived to be a bawl of distress along with pronounced ejaculations by PW1 and daughter. [13] PW1 screwed up his courage and bustled into the tenebrous night to the aid of PW1 and company––alas, the door to PW1’s abode was outfitted with a locking mechanism and corresponding implements, whose mechanism was secured from the inside. Fortunately––PW1’s daughter came on apace and with no time to lose unlocked the same and allowed PW2 to gain access into the house, wherein the accused was collared and subsequently consigned to Mbala police station where he was detained awaiting court appearance. [14] Nothing was advanced in both cross-examination and re-examination. [15] On 16th October, 2023, the prosecution summoned PW3, its third and final witness to brace PW1 and PW2’s testimonies. PW3 recounted as hereunder regarding the charge herein. [16] It was PW3’s testimony that on 3rd October, 2023, around 10:00hrs in the morning, PW3 whilst on duty, at Mbala Police in the CID’s office was allocated a docket relating to a charge of Burglary, where the complainant one, GRACE MUSONDA of New ZESCO compound wrote the accused up for breaking and entering her house. J4 [17] Acting on the report, PW3 came to learn that the suspect was before now in police custody––the same was brought by the complainant, with PW2 in tow. [18] It was PW3’s testimony that the accused reported that he was drunk on the material date. And that while the same was coming from UNINGI village regaining to his house. the accused passed through PW1’s abode whereat he was arrested. PW3 intimated that he did warn and caution the accused, who in turn gave a voluntary riposte denying the charge, and that the accused was thusly booked for the charge of burglary contrary to section 301(a) of the Penal Code Cap. 87 of the Laws of Zambia. [19] During cross-examination it was categorically established that the accused did at the material time deny the charge. Nothing was advanced during re-examination on the part of the state. The prosecution consequently closed its case. [20] 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] On 8th November, 2023, the accused took the stand and made his defence and testified, as DW1. Curiously, DW1 did not call any witnesses, and elected to give unsworn testimony. [22] I must say here that––DW1 was unwittingly mindful of the limited judicial resources of this court when he mounted his testimony which was in the vicinity of: DW1 on the night in question was out on the razzle and as a consequence, the same was inebriated and had no J5 recollection of the event, but that DW1 was taken aback to find himself in police custody at Mbala police station after taking a pasting. [23] Further, DW1 asserted that on the 1st of October, 2023, the same set out in searching of land he could rent for purposes of cultivation. [24] That marked the end of the defence’s case. FACTS IN DISPUTE [25] This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: (i)that the accused was in PW1’s house on the night in question; (ii)that the accused did break into the abode of PW1; (iii)that the accused intended to steal from PW1; and (iv)that the accused winced a 1 x 50kg bag of kapenta. THE LAW ESTABLISHING THE CHARGE IN CASU [26] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 301(a) constitute the offence burglary, and enacts as follows: Any person who- (a) breaks and enters any dwelling house with intent to commit a felony therein; or (b) having entered any dwelling house with intent to commit a felony therein, or having committed a felony in any such dwelling house, breaks out thereof; is guilty of the felony termed "housebreaking" and is liable to imprisonment for seven years. If the offence is committed in the night, it is termed "burglary" and the offender is liable to imprisonment for ten years. (Emphasis mine) INGREDIENTS TO BE ESTABLISHED TO PROVE THE ACCUSED GUILTY [27] In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused person J6 did break and enter the dwelling GRACE MUSONDA with intent to commit a felony; and (ii) that the accused person had no right to enter upon the premises of PW1. [28] As a result, 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. ANALYSIS OF THE LAW; FACTS AND DETERMINATION [29] I will preface my thoughts herein with the immemorial position espoused by the Supreme Court (hereinafter referred to as ‘the court’), in re MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.), where 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) [30] Thusly, 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. [31] 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). [32] Firstly, permit me at this point to take a fleeting hiatus and address the accused election to give unsworn evidence––it is crucial to note that when it comes to giving unsworn evidence––our courts have invariably followed the words by Conroy, C. J, in re BENSON NGUILA V. THE J7 QUEEN (1963-1964) Z. AND N. R. L. R. 14– in this case he referred to unsworn testimony in the following terms: … “The court may attach what weight it chooses to the contents of such statement. The balance of opinion seems to be that an unsworn statement is evidence in the case, but is of less weight than sworn testimony, which can be tested by cross-examination”. (Emphasis mine) [33] On cross-examination, the learned authors of CROSS ON EVIDENCE 6TH EDITION (1985) state that: “the object of cross-examination is two- fold, first, to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross- examination is conducted, and secondly to cast doubt upon the accuracy of the evidence-in-chief given against such party”. (Emphasis supplied) [34] Notwithstanding, in re SHAWAZ FAWAZ AND PROSPER CHELELWA V. THE PEOPLE 1(1995-1997) Z. R. 3 the court held, inter alia, that: Cross- examination cannot always shake the evidence of untruthful witnesses in every respect; it is sufficient to show the unreliability of a witness if he is shown to have told an untruth about an important part of his evidence. (Emphasis supplied) [35] In SHAWAZ FAWAZ AND PROSPER CHELELWA the court emphasized the value of cross-examination of a witness– that it brings out any untruth in a witness' evidence. It is a test of the witness' evidence and it is up to the opposing party to question the witness and possibly discredit that witness. [36] Following from the hereinbefore position at law, it is safe to settle that unsworn evidence as tendered by the accused person herein is exiguous and of little weight. J8 [37] Secondly, I am faced with conflicting facts in this matter, as there is a stark contrast between the prosecution and the defence’s testimony. On the one hand, the prosecution through its witnesses (PW1, PW2 and PW3) seem to hold the view that, the accused herein did break and enter into the abode of PW1 and did intend to commit a felony therein, i.e., according to PW1, DW1 was wincing a 1 x 50kg bag of kapenta when he was apprehend by PW1. On the other hand, DW1’s testimony is in the vicinity of––DW1 being tired and emotional, and as a result was found on the PW1’s premises, as he was regaining to his house. [38] 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 court earlier championed 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) [39] In view of the foregoing––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. J9 [40] Further, touching the issues of intoxication, section 13(4) of the Penal Code, chapter 87 of the Laws of Zambia, enacts as follows: … “(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.” (Emphasis mine) [41] The Supreme Court in re LUBENDAE v THE PEOPLE (1983) Z. R. 54 (S. C.) heavy drinking, even to the extent affecting the co-ordination of reflexes insufficient in itself to raise question of intent unless the accused person's capacities were affected to the extent that he may not have been able to form the necessary intent. (Emphasis mine) [42] Further, the supreme court has in a legion of cases, i.e., in re JEREMIAH MUKONDYA v THE PEOPLE SCZ APPEAL No. 8 of 2019; SIMUTENDA V THE PEOPLE (1975) ZR 294 and TEMBO V THE PEOPLE (1976) Z. R. 332 maintained that: … “It is not enough that the accused person was drinking beer for him to benefit from the defence of intoxication under section 13(4) of the Penal Code; there must be evidence showing that as a result of such drinking, the accused person’s capabilities were so affected that he may not have been able to form the intent to kill or cause grievous harm.” (Emphasis mine) [43] In view of the above––and in light of the accused assertion and or testimony that, he did not have any recollection of the happenings in question owing to the fact that he had been intoxicated––I submit that the truth is in my view otherwise. Why do I say so? Well––assuming that what the accused said was the truth––I do not see how beneficial it was for the accused to hold off expostulation of the prosecution’s testimony at any point during trial only to mount a tenuous defence that, I was drunk and had no recollection of the event leading to the J10 charge herein. I find DW1’s failure to oppugn the testimony by PW1, PW2 and PW3 that the same was in PW1’s house with a bag of kapenta in his hands very curious! [44] That being said, I am therefore inclined to believe the prosecution’s evidence as deployed by its witnesses. More to the point––even though the defence of intoxication was raised before the accused was put on his defence the same was not a prelapsarian argument, seeing as the accused did not gainsay the testimony of the prosecution’s witnesses with convincing clarity during his defence nor did he ward off any inculpating allegations, i.e., the fact that he was in PW1’s abode without PW1’s leave and the fact that he almost made off with a 1 x 50kg of kapenta. In the premises––I find the version of the facts by DW1 to be improbable and I have as a consequence discounted DW1’s version of the facts, seeing as the same has not given a simon-pure lowdown of the facts; thus, making DW1’s version of the facts plainly incredible when viewed in the round. [45] Further, I will assert unequivocally here that––the testimony by DW1 threw me for a loop when he asserted that the same had no recollection of the spree in question, and that the same was nonplussed when he found himself at the police station where he was detained. I wish to iterate and unapologetically state that DW1’s testimony was bereft of all the trappings that make for credibility at law, and as a consequence this court cannot abide such a testimony. Why? The argument deployed herein by DW1 is tenuous and not worth its weight in gold. [46] in the premises––I have meticulously weighed the evidence of the accused, and I can roundly assert that, upon diligent scrutiny––I find the evidence by the accused wanting in material fashion. J11 [47] In summation, I find that the accused had no lawful justification to burgle the premises of PW1. The inevitable corollary of my find is that, I am persuaded that the state has fulfilled the requirement as per the herein case of MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.). VERDICT [48] I find that the facts herein advanced indeed connect the accused to the offence and that there is sufficient evidence by the prosecution’s witnesses inculpating the accused, and that the accused has not credibly expostulated with the prosecution’s witnesses. [49] Additionally, the accused did not in any way discredit the prosecution’s evidence in material fashion except to employ sophistry to exculpate and explain himself away. [50] Therefore, on the evidence before me, I find that the state has irrefragably borne out its case beyond reasonable doubt and that there is no lingering question that the offence was committed by none other than the accused––thusly, I find the accused GUILTY as charged for the offence of burglary with intent to commit a felony, contrary to section 301(a) of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT the same accordingly. [51] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 13TH NOVEMBER, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J12