Wilima v People (Appeal 128 of 1993) [1994] ZMSC 154 (18 January 1994)

1; i t . - ■ • - ' ■ IN THE SUPREME COURT OF ZAMBIA APPEAL HO. 128 OF 1993, HOLDEN AT LUSAKA . (Criminal Jurisdiction) \ EUVINIA NILINA Vs THE PEOPLE Appellant Respondent Corami Sakala, Chirwa and Muzyambal JJJ. S. :> ( . ' ■ 1 18th January,1994, . .■ .. ■■ ...... ■ ;;.v " • •. .. ■ • "■■ ■■■ . • ■. .v Mr. S. W. Chirambo, Senior Legal Aid Counsel, for the appellant. Mr. S. A. G. Twumasi; Acting Senior State Advocate* for the respondent. JU06M&HT squill <1$ delivered the judswnttf . ■ ■ . ■ • . ' ' The appellant was charged with two others with murder contrary to Section 200 of the Penal Code Cap 146 of the laws of Zambia* .' ,' ■ ■ .. . • • . .■■ ■■ ■ The particulars of the offence alleged that the appellant with the two others on unknown date but between 21st and 22nd August,1998, at Lundazi in the Lundazi District of the Eastern Province of the Republic of Zambia,, jointly and whilst acting together did murder Yosini Jere. The first oaccused ^s. found, with no case to answer and was accordingly acquitted and the second co*accused was acquitted after a trial. The death of the deceased was not in dispute. The evidence connectingthe appellant with the offence was her own warn and caution statement which was admitted after a trial-wlthin~a-trial and her own evidence on oath. In her evidence on oath while being cross examined the appellant, among other things, had this to say: “I know why I am here, 1 have a case of killing him. i had power,’ j Mr. Jere was commltlng adultery with my daughters. He spoiled two daughters but he married the third. He married one and had four 4#' >• J2 children. Jere was coming from a and playing cards. I knew he had gone for beer, I went alone, it was village where he had been drinking during the night. I met him. I used my hands, nobody assisted me. When I left him he wa% breathing. I went home. It was still at night, my husband did jot ask me as to where I had gone. I did not tell my daughter'as to what I had done. The following morning, I went to cut grass. When we^went to hunt for the body it was not at the place I left it. At bundasi police I told the police what I am now saying. Court: Are you all right? , Accused: Yes I am all right. I am not admitting the case because of fear. I am telling court the ruth We have not had chance to discuss this case with my son the co-accused I am very free here, I am not afraid, I am here admitting the case because what I did was bad. Yes, I considered his conduct very seriously. He was destroying my daughters, I talked to Jere, my husband was not aware. Yes, I beat Jere alone. He was very drunk. I used my hands, when I left him he was still breathing, I thought he would come home, I did not know he would die. I was sure he would come. I beat him up, 1 wanted to kill him, I wanted to te^hhim a lesson to stop destroying my daughters. At the police station in the warn and caution statement what 1 said implicating the others is not true. I was alone on assaulting Jere.“ y On her own confession the court found her guilty of murder but the court also found that there were extenuating circumstances and accordingly sentenced her to ten years imprisonment with hard labour. The appellant has appealed against sentence only. • -X On behalf of the State, the learned acting senior state advocate has indicated that he does not support the conviction for murder but would support the conviction for manslaughter. We agree with him, on the facts of this case, we are satisfied that the appellant had no Intention to kill the deceased* In our view the facts of the case support an offence of manslaughter. Accordingly. we set aside the conviction for murder and in its place* we substitute a conviction for manslaughter and sentence the appellant to five years imprisonment with hard labour with effect from the date of arrest* namely 26th August* 1989.