Edward Kasongo v the People (APPEAL 198/2020) [2022] ZMCA 169 (17 November 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA AND NDOLA (Criminal BETWEEN: Jurisdiction) ---,-::--,:c::--,-._ ylJ?,UC OF lAMs ~R10FAP~ APPEAL 198/2020 EDWARD KASONGO AND THE PEOPLE .i& 1 7 NOV 2022 ~ MINAL REGIST 0 50067, ell APPELLANT RESPONDENT CORAM: Mchenga DJP, Majula and Muzenga JJA, On 15TH June 2021 and 17 th November 2022. For the Appellant: M. Makayi, Legal Aid Counsel, Legal Aid For the Respondent: M. Kapambwe-Chitundu, Deputy Chief Board. State Advocate, National Prosecution Authority JUDGMENT Mchenga, DJP, delivered the judgment of the. Court. Cases referred to: 1. Nyambe v The People [1973] Z. R. 228 2. John Mkandawire v The People [1978] Z. R. 46 3. The People v Chisata [1969] Z. R. 171 4. Madubula v The People [1993-1994] Z. R. 91 5. Joe Muleya and others v The People CAZ Appeal No. 92 93 94, and 95 of 2018 6. Francis Mayaba v. The People, SCZ Judgment No.5 of 1999 Legislation referred to: Jl 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1. INTRODUCTION 1.1. The appellant appeared before the High Court (Sunkutu, J.), jointly charged with another person with the offence of Murder, contrary to Section 200 of The :Penal Code. 1. 2. They denied the charge, and the matter proceeded to trial. 1. 3. At the end of the trial, they were both convicted for committing the offence. 1. 4. The appellant was condemned to suffer capital punishment, while it was directed that his co accused, who was a juvenile, be detained during the President's pleasure. 1. 5. The appellant has appealed against his conviction. 2. CASE BEFORE THE TRIAL COURT 2.1. On the 16 th of November 2016, just at about midday, scores of residents of Mwabu Village in Chiengi, gathered at the "Chiengi Junction". This J2 was after word went around that Senior Chief Puta, had sent some of his subjects to bring down Sub Chief Mwabu's palace. 2.2. Benson Kafwanka, of Chasheke Village, who was , going to visit a friend in that area, found himself at that junction. So, did Nelson Chela, of Chipungu Village, who was on his way to the market. 2.3. Around midday, two vehicles arrived at the junction. Peter Muswe, Senior Chief Puta's retainer, and other persons, disembarked from one of them. 2. 4. They advanced towards the palace of Sub-Chief Mwabu' s Palace, but they were attacked by the mob. Some of the members of the mob where armed with machetes, spears, bows and sticks. 2. 5. According to Benson Kafwanka, the appellant, who was part of the mob, struck Peter Muswe with an arrow which he fired from a bow. 2. 6. Peter Mus we fell to the ground. Thereafter, the appellant's co-accused and others, assaulted J3 him with sticks and machetes. They only stopped when he had died. 2. 7. However, Nelson Chela's narration of what happened was different. 2. 8. He said it was the appellant's co-accused, who struck Peter Muswe with the bow and arrow, before the mob joined in, and attacked him. He said the appellant was part of the mob, but carrying a stick. 2.9. On the 18 th of November 2015, Dr. Francis Zulu conducted a post-mortem on the body of Peter Muswe. 2.10. He found that he had sustained "multiple lacerations on the head the head with an open skull fracture". He broke it down to "multiple lacerations on the parietal sides of the head" and "another laceration on the chin". 2 .11. The doctor concluded that that Peter Muswe died because he suffered severe head injuries. J4 2 .12. In his defence, the appellant denied being part of the mob that attacked Peter Muswe. 2.13. He however admitted being in the vicinity, a fact that was confirmed by his witnesses. 3. GROUNDS OF APPEAL 3. 1. Two grounds have been advanced in support of this appeal. 3.2. The first ground is that the identification evidence incriminating the appellant was not satisfactory. 3.3. The second ground of appeal, is that common purpose, essential to a charge of murder, where more than one person is involved in the killing of a person, was not proved. 4. ARGUMENTS FOR AND AGAINST 1 st GROUND OF APPEAL 4. 1. In support of the 1 st ground of appeal, Mrs. Makayi submitted that on the evidence before her, the trial Judge should not have . ruled out the possibility that the appellant may have been mistakenly identified, because the two witnesses JS who placed him at the scene, gave conflicting evidence. 4.2. She referred to the cases of Nyambe v. The People 1 and John Mkandawire v. The People2 , in support of the proposition and pointed out that one of the witnesses said he is. the one who shot the bow, while the other one claimed that he was carrying a stick. 4. 3. In response to the 1 st ground of appeal, Mrs. Kapambwe-Chitundu submitted that the trial Judge was entitled to rule out .the possibility of an honest but mistaken identification, because the attack was in broad day light and the witnesses saw what happened. 4.4. She also referred to the case of The People v. Chisata3 and Madubula v. The People4 and submitted that the quality of the identification was not compromised by the "minor discrepancies" on who struck Peter Muswe. She argued that both witnesses placed the appellant at the scene. 5. CONSIDERATION OF 1 sT GROUND OF APPEAL J6 5. 1. In this case, the two eyes witnesses are agreed on the fact that the appellant was part of the group that attacked and killed Peter Muswe. They are also both agreed on the fact that he was armed, what they differ on, is what he was armed with. 5.2. In the case of Madubula v. _ The People 4 , the consequences of conflicting evidence given by prosecution witnesses, was considered. 5.3. The appellant, with four others were convicted for being in possession of government trophy (rhino horns), without a certificate of ownership. Although the horns where found in his car, which he was driving, he denied knowledge that they were in the car, when he was apprehended. 5. 4. During the trial, evidence that he knowingly failed to stop at a road block, was the basis for the trial Magistrate drawing an inference that he knew he was carrying illegal trophy. J7 5.5. On appeal it was argued that the trial Magistrate should not have found that there was a roadblock, because the prosecution witnesses gave conflicting evidence on its existence and in particular, how far it was from a named shed. 5.6. Delivering the judgment of the court, Gardner J. S, stated as follows: "We have considered the discrepancies in the evidence of the three relevant witness as to the distance at which PW3 was short of the road block. PWl when he first gave evidence · said that the distance was 500 metres. When he was recalled he said i t was 400-500 feet PW2 said the distance was about 100, metres and PW3 himself said that he was about 250-300 metres from the barrier. Despite the discrepancies in this evidence all the witnesses agreed that PW3 was some considerable distance ahead of the road block barrier, and the discrepancies suggest only that the witnesses estimated the distance differently, not that the evidence was untruthful in its essential content, namely that there was a road block with a barrier and signs, and that PW3 was some distance beyond the road block. Apart from the discrepancies to which we have referred and which we find do not go to the root of the evidence, we are satisfied that the learned magistrate did not misdirect herself in any way when accepting the evidence of the prosecution JS witness that there was a barrier half way across the road, a police sign, a permanent sign erected by the Fisheries Department, and that PWl was standing in the road, waving his arms to stop the appellant's vehicle. 5. 7. From the foregoing, it is clear, that where there is conflicting evidence in the testimony of witnesses, the prosecution's case can only be taken to be to have been discredited, if the differences go to the root of the charge(s) against the accused person. 5. 8. In this case, the trial Judge acknowledged that Benson Kafwanka and Nelson Chela's testimony, was conflicting on whether it was the appellant who shot at Peter Muswe with the bow and arrow or was only carrying a stick during the attack. 5. 9. In the face of that disparity, she considered the fact that the witnesses may.have mistakenly identified him, but ruled it out. She ruled out the possibility of an honest but mistaken identification, after considering the fact that the attack was in broad daylight, and that the two J9 witnesses had a good opportunity to see what was going on. 5.10. Given the time of the attack and its duration, we are satisfied that the trial Judge was entitled to arrive at the conclusion that the appellant was part of the mob that attacked Peter Muswe. 5.11. Consequently, we take the view that there was a basis for the trial Judge ruling out the possibility of the appellant being mistakenly identified as being part of the group that attacked Peter Muswe. The evidence that he was at the scene, and part of the mob that lynched Peter Muswe, was unshaken. 5.12. In the circumstances, we find no merit in the 1 st ground of appeal and we dismiss it. 6. ARGUMENTS FOR AND AGAINST 2 nd GROUND OF APPEAL 6 .1. Coming to the 2nd ground of appeal, Mrs. Makayi referred the case of Joe Muleya and Others v. The People 5 and submitted that since the role that each member of the mob was not identified by the JlO evidence, the appellant should not have been convicted of the offence of murder. 6. 2. Mrs. Kapambwe-Chi tundu' s response, was that the threshold in section 22 of The Penal Code, was met as the evidence of Nelson Chela and Benson Kaf-wanka, proved the role that each one played. 7 . CONSIDERATION OF 2 nd GROUND OF APPEAL 7 .1. The doctor conducted the post-mortem on Peter Muswe' s body concluded that he died because he suffered severe head injuries. He also observed that Peter Muswe suffered multiple lacerations on the head with an open skull fracture. 7.2. The prosecution evidence was that after he was struck with an arrow, he was assaulted with machetes and sticks by persons, other than the appellant. 7. 3. In the case of Francis Mayaba v. The People 6 , the Supreme Court pointed out that a charge of murder cannot stand against an accused person Jll where a mob is involved, unless the evidence shows that he delivered the blow that caused the death. 7. 4. Although the evidence that was before the trial court established that the appellant was part of the group of people who assaulted Peter Muswe, it does not point at him inflicting the "fatal blow". 7. 5. This being the case, it is our view that the trial Judge erred when she convicted the appellant on a charge of murder. 7. 6. We therefore find merit in the 2~ ground of appeal, and we allow it. 8. VERDICT 8. 1. Having allowed the 2~ ground of appeal, we set aside the appellant's conviction for the offence of murder. In its place, we convict him for the offence of manslaughter contrary to Section 199 of The Penal Code. 8. 2. We also set aside the sentence imposed on him and its place we impose a sentence of 7 years • Jl2 imprisonment, with hard labour. The sentence will run from the 17 th of January 2017. r, ............ ~ ............ . B. M. Majula COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE