Francis Kwilwa v The People (SCZ Appeal No. 33 of 1996) [1998] ZMSC 117 (3 March 1998)

IN THE SUPREME COURT Of ZNBIA HOUJEH AT NDOlA (crt■tnal Jurlsdicttoa) 8 ET V ££I: SCZ APPEAL No.33 OF 199Ei FRMCIS KWILWA MO THE PEOPL.£ APP. EU.. AHT RESPOHDEHT earaa: aiaua; Chirwa and llaZyllDba, JJS 3rd i>ecalber 1997 and :):::'d. Mardl 1998 for the Appellant: S. S. 0ll111Aga. Peter ttlale I Co., for the Respondent: J. tl,anlkatle. Principal St.ate Advocate ~yamba, J. S. daUvered Ule Judgaent of the court. JU O 6 M £HT Tne appellant ~as c0c1victoo ~f ~rjar ~ootrary t~ Section 2UO :lf tht! p,gnal COde. cap i>7 aoo sem;.enc-.'ti ~o Jeat:1. ·fhe ;arc.i~ulars Jf :::1e off~cs ooing that fAANCIS i(WJLWA on rltJ1 ~.;t~r t ~;o at i<i t.~ in t.'16 i<itwe tlistrict of tne Copperoelt Prov~oca of t:1~ .~puoUc of l'1fflb1d Jid murder ETiCnlA RivlOPoot.uS. it1. the appellant said she ;111as 'fhe ;>rosecution case ~as tnat tne a~peHa,1t sas .!fflPloyoo 1,Jy the d~caased as a gardner. On tne fateful ctay around 06.45 hours ?w.2 and 3 went t.o the <Jeceased •s nousa. As ?W.2 ap-proaciled ~,~ d ten.an ,JOor lle met ttl-2 a.wella.nt comi119 oot of tN.! !rouse. When :ld enquired wnere the decc!asad was the kit:nen ~.2 neard deep oreathing ana in twa corridor iie saw trac~s of blood which led him ii1to a bedroO!ll wneta hi! found the decasea in a pool ~, blaoo and tnings scatterf!\l about. N°Th!n ~e saw thi3 he rushed outsid~ &ti<! called ~.3 to assist nira a4)pr!hend w'le Jppe11ant. T,,ey aµpr-enendea hi:;, and took ilim to tne deeeased's riusoaoo 1t 1 butchery ma later to Riverside Police Station. The al)pellant ·~as left there 'llhil~ ?W.2. 3 -ind a ?ol ice i1fficer went to t~ scene of crime. later the appal lant esca;ieu In the r00111 ~herl t.ne dieceasea .1a$ i,illed a :lclir- ,,f but was r--a-arr~stl!d. shoes 1Jelonging ,a tne appellant ,as r::eoverad .. t.he nous,~.. Whil~ .in !n his aef .;nce it.a je,11~0 ;:.i 11 h1g tiw decaas~.. He ,;ai11 cnat . .imar. P~i.;~ aoJ J ','lant l 11to ·::n~ i1oosa cne daceased ,:,as ,J! i va. Tna, ;i-? ,:Hd :lvt. :rn0'..1 ~10 ~ill ~c ;1,~1•. He :1~u ll50 .adr(i.=r uH '•ia,i,; Jti:aci~-aa ;:::>h, ?W.4~ tJartun uJbi:1<.ld t;1dt !~ni211,~s :ht? ;Jppellant Jc1ve dvicenca on J,3to. . . J2 On betialf of the appe. Jlant~ Mr. Chimanga argL:ed one iDain . ' ground of a_opeal that tht:' prosecution did not prove its co.se against "thft appella.'lt beyond all reasonable doubt. He argued that the circu,n stantial evidence relied upon by the prosecution did not remove the CijSe frort the realm of conjecture. That ·tt1e learned trial Judge arred in law by driwing an inference of quilt on the part of the ap~ellant for escaping from· Po!tce custQdy shortly after he had been apprehended for the offence. He further argued that the learned trial Judge d1d not give reasons for preferring prosecution witnesses and rejecting the appellant's defence. In supporting the conviction, Mr • ...,anatakwe argued that the learned trial Judge did not err ln any way.. That the circumstantial evidence against tne appellant was very strong. He argued tnat apart from the appellant escaping from lawful custody ne was seen by PW.2 ctvning from the icitche11 with wet hands and When asked where the deceased was and what had happened to her he said she was in the house and that she was alright but later changed and said he dia not know what had happened to her and when he was interviewed by PW.4, a Police Officer. he said he and the deceased were attackad by thieves. we nave considered the evidenca on record ana the Judgment of the learned trial Judge and also tne argume11ts by both learned Counsel and w,e are unable to find any misdirection on the part of the learned trial Judge. He found as a fact that the appellant escaped fr~u custody and we agree ~1th him that tne ap!)ellant I s -escape from custody a short while after he had oeen apprehended for the offence was a factor to ,)e takan into account in decidi11g the appellant's guilt. It is common cause that the appellant remained at home with the deceased when PW.6 left for He had therefore an opportunity to conmit the offenee. wrl{. The appellant 'ltas also not only seen coming from the ki tcnen '"i th wet hands but a pair of his shoes was found in the room where the deceased was killed and a radio was missing. He had therefore a motive for c0111nitting the men~. In addition he told ,,.,...4 that ile and the decaased were attacked by thieves when infact not. ~ would therefore agree with Ml". Mwanakatwe that the circumstantial evidence c1gainst tne appellant was sufficient to found the conviction. the and we sentence. against conviction appeal we wauld therefore dismiss confirm the death J3/ •••• ',. . .. J3 ••••••••••••••••••• M. S. CHAILA. SUPRS4f COURT JUOO£ • •••••••••••••••• J • .i<. CliUWA SUPREME COURT JUD6E •••••••••••••••••• I.. ;.f. i•iUZ y AMaA saPR£M£ COURT JUDGE