July Silumbwe v The People (APPEAL 33/2024) [2025] ZMCA 24 (26 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) APPEAL 33/2024 BETWEEN: JULY SILUMBWE AND THE PEOPLE O FZA OF APPEA .~t - G \- _ I 3 PPELLANT '- \M!Ni'IL REGl.51 Box soo67. \..: .-J / J ,... / RESPONDENT Coram Mchenga DJP, Ngulube and Chembe JJA On 18th February 2025 and 26 th February 2025 For the Appellant Mrs. K. K. Kombe - Legal Aid Counsel, Legal For the Respondent Aid Board Mr. K. I. Waluzimba - Deputy Chief St ate Advocate, National Prosecution Authority JUDGMENT Chem be JA delivered the Judgment of the Court Cases referred to: - 1. Yokoniya Mwale v The People SCZAppeal No . 2 85/20 14 2 . Kambarage Kaunda v The People SCZ Judgment No. 1/ 1992 3. Nkutisha v the People (19 79) ZR 261 4. Phiri v The People (1973) ZR 47 (CA} 5. Dorothy Mutate and Richard Phiri v The People (199 7) SJ (SC} 6. Saluwema v The People (1965) ZR 4 7. David Zulu vs The People ( 1977) ZR 151 8 . Vincent Phiri v The People SCZ Appeal No. 329/ 2013 9. Haamenda vs The People (1977) ZR 184 (S. CJ J2 1 0. Saidi Banda v The People SCZ Judgment No 144 of 2015 11. Edward Sinyama vs The People (1993-94) Z. R. 16 1.0. INTRODUCTION 1.1 The appellant was convicted on one count of Murder contrary to section 200 of the Penal Code chapter 87 of the Laws of Zambia and sentenced to death. 1.2 He was convicted by High Court Judge Honourable Mrs. Justice C. Lombe and sentenced him to death . 2.0. THE EVIDENCE IN THE COURT BELOW 2.1 The prosecution 's case was that on 14 th May, 2018 , the appellant, who was the deceased 's husband, went to the salon where the latter worked around 19 hours. Around that time, PW 1 who also worked at the salon heard the sound of someone being slapped. The deceased later informed her that the Appellant had slapped her. It was her evidence that the Appellant later entered the salon and dragged the deceased away. Around 04 00 h ours the following morning, the Appellant called h er and informed her that the d eceased person had died. 2.2 PW2 , who was a neigh bor to the Appellant, testified that around 19 00 hours he heard the deceased crying and J3 shouting inside the house. There were people gathered outside the yard , including the Appellant's mother who run into the house. La ter around 03 00 hours , PW2 heard the deceased shouting that the Appellant had pricked her with a syringe. Curious to see what was h a ppening, PW2 rushed to the deceased's house and observed that the d eceased was being given milk to drink by some ladies. He was informed by the deceased's mother that the deceased had drank a pesticide called doom. 2.3 . PW2 then called Mary Banda (PW3) who rushed into the deceased's house and came out with a syringe . It was PW2's testimony that the syringe contained a substance which appeared like termidine. It was the prosecution 's further evidence that earlier on that m a terial day, the Appellant h a d bought a syringe from PW4 who worked a t a pharmacy. 2.4 The postmortem examination report disclosed that the deceased died as a result of poisoning by pesticide as traces of the poison were found in her blood and urine. Further evidence adduced by the prosecution was that the syringe obtained from the Appellant's house was subjected for examination at the Food and Drug Laboratory and the results revealed that the syringe h a d a strong smell of an unknown J4 substance. 2.5 Following the investigations carried out by PW7 , the Appellant herein was charged with the subject offence. 2 .6 In his defence, the Appellant testified that on the material day wh en he knocked off from work he passed through the deceased's salon between 18:00 and 20:00 hours. He asked her why she was still working at that time and the deceased slapped him. An altercation broke out and the Appellant forced the deceased to go home by dragging h er. According to the Appellant th e argument continued at home and the d eceased threatened that she would commit suicide. 2.7 The Appellant retired to bed and was only woken up by noise from outside his house . He went to check what was happening and found the deceased lying on the ground surrounded by other women. The Appellant immediately arranged for the deceased to be rushed to the clinic in the company of his mother (DW2) and Bupe. At the clinic the deceased was pronounced dead and th e Appellant returned to his house where he was apprehended by police officers. The Appellant denied s la pping the deceased or buying the syringe from PW4. He however admitted to dragging the deceased home and maintained that the deceased had JS wanted to commit suicide. 2 .8 DW2 testified that that on the fateful night, the deceased asked her for water and collapseci. behind the house. She observed that the deceased was foaming around her mouth. DW2 attempted to make the deceased vomit by pushing her fingers down her throat but that unfortunately failed. She then tried to force the deceased to drink milk. However that too proved futile . The deceased was rushed to Bauleni Clinic where she died. DW2 further testified that the deceased had informed her that she would commit suicide because she was being forced to live with the Appellant. 3.0 THE DECISION OF THE TRIAL COURT 3. 1 After considering the totality of the evidence, the trial Judge established that the case was based on circumstantial evidence. The learned Judge found that PW2's evidence that he heard the deceased cry out that the Appellant had injected her with something amounted to res gestae. The trial court after evaluating the testimonies of PW 1 and DW2 made a finding that the utterances made by the deceased were contemporaneous, dramatic and traumatic. 3. 2 The learned Judge further considered the evid ence of PW2, J6 PW3 and PW4 and made a finding that the Appellant h aving bought a syringe earlier in the day t he deceased met her fate created an odd coincidence on which an inference was drawn that it was the Appellant that injected the deceased with an unknown poisonous substance. She concluded that the killing was premeditated . 3.3 The trial court rej ected the Appellant's version of events and refused to accept the explanation that throughout the period the deceased was shouting, the Appellant was asleep. The learned J udge found th e Appellant's explana tion s as lies crafted to mislead the Court. She was satisfied that the prosecution had proved th e case of murder beyond reasonable doubt a nd convicted the Appellant. 4.0 GROUNDS OF APPEAL AND ARGUMENTS IN SUPPORT OF THE APPEAL 4.1 Dissatisfied with the decision of th e Cdourt, th e Appellant laun ched the present appeal fron t ing one ground of appeal as follows: The trial court below erred in law and fact by convicting the Appellant on circumstantial evidence which had not taken the case out of the J7 realm of conjecture so as to permit only an inference of guilt as there were other inferences to be drawn. 4.2 In the arguments 1n support of the appeal, the Appellant submitted that the evidence of PW2 and PW3 required corroboration as they were witnesses with an interest of their own to serve. It was contended that their evidence was different from that of other witnesses who were present. There was therefore need for independent witnesses. Reference was made to th e cases of Yokoniya Mwale v The People 1 and Kambarage Kaunda v The People 2 where adjudicators were cautioned to warn themselves on the dangers of false implication when dealing with suspect witnesses . 4.3 The Appellant submitted that the trial court should have disregarded the uncorroborated eviden ce of PW2 and PW3. We were referred to the case of Ninkutisha v the People 3 in which it was held that where doubt is cast upon the evidence of a witness, further evidence is required to remove the doubt. 4.4 The Appellant also challenged the evidence of PW4 on the ground that h e did not properly identify him. It was submitted that his evidence also ought to have been corroborated. 4.5 Regarding the evidence of PW6, the Appellant charged that JS he did not corroborate the eviden ce of PW2 and PW3 that h e injected poison into the deceased 's body . It was argued tha t the finding by the trial court that it was the Appellant who injected the deceased with the poisonous substance that led to her death was not supported by eviden ce . It was submitted that the trial judge was not at liberty to infuse its own inferences which are not supported by evidence. The cases of Phiri v The People4 and Rhesa Shipping Co. SA v Edmunds (no citation provided) were cited in support of the above argument. 4.6 Relying on the case of Dorothy Mutale and Richard Phiri v The People5 , it was submitted that from the facts established there were other inferences that could b e drawn. It was also submitted that the tria l judge should not have rej ected the Appellant's explanation which was reasonably possible as held in th e case of Saluwema v The People 6 . We were urged to allow the appeal. 5.0 RESPONDENT'S ARGUMENTS 5.1 In response to the Appellant's arguments, the Respondent maintained that the trial court was on firm ground, on the authority of David Zulu v The People 7, when it convicted the J9 deceased as the circumstantiaJ evidence was so cogent that it could only permit an inference of guilt . 5.2 Regarding the argument that PW2 and PW3 were witnesses with an interest to serve, the Respondent submitted that the trial judge a ddressed the issue in her judgment and accepted that they were credible witnesses. It was also contended that PW2 and PW3 were not suspect witnesses and their testimonies did not require corroboration. The Respondent submitted further, citing the case of Vincent Phiri v The People 8 that there was no obligation on the prosecution to call all witnesses. 5.3 The Respondent argued further that there was no need for the evidence of PW4 to be corroborated as h e was an independent witness whose testimony was accepted by the trial court. 5.4 On the lack of m edical proof that the p01son entered the deceased's body through being injected, it was submitted that the court accepted the evidence that the deceased h a d stated that the Appellant had injected her with a poisonous substance . 5.5 The Resp ondent denied th at there were other inferences th at JlO could be drawn from the facts on the totality of the evidence a dduced . It was submitted that the issue of suicide was carefully crafted by the Appellant to mislead the tria l court as the evidence did not support the issue. 5.6 We were urged to uphold the conviction and dismiss the appeal. 6.0 HEARING 6 . 1 At the hearing of the appeal both parties relied on the written arguments . 7.0 CONSIDERATION AND DECISION 7 .1 We have car efully considered the arguments by both sides and the judgment appealed again st. In the matter before us no witness saw the Appellant inject the deceased with the poisonous sub stance believed to have been a pesticide. The prosecution 's case was therefore anch ored on circumstantial evidence. 7 .2 The Appellant h as argued that the circumstantia l evidence was not strong as other inferences could be drawn from the facts presented. It has also been submitted that th e evid en ce of the m a in prosecution witnesses required corrobora tion as Jl1 th ey fell into the category of witnesses wh o may h ave a motive to falsely implicate th e Appellant. The issue for consideration in this appeal is whether the fact s establish ed before the trial court could lead to only one inferen ce that the Appellant murdered the deceased. 7 .3 Th e leading authority on cir cumstantial evidence is th e case of David Zulu v The People 7 in which the Supreme Court set out the p arameters of circumstantial eviden ce as follows; (i) "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 fact in issue and from which an inference of the fact in issue may be drawn. (ii) It is incumbent on a trialjudge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he canfeel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt." 7.4 It is also a settled principle in law that for a Court to safely con vict on circumstantia l eviden ce, the evidence must be so cogent and compelling that n o r ational hypothesis other than that the offence was committed by the accused could be J12 ascertained from the facts. 7.5 The Appellant argues that the evidence of PW2 and PW3 required corroboration as they were related to the deceased and could therefore have a motive to falsely implicate the Appellant. The Record of Appeal shows that the trial Judge addressed this issue and made a finding that at page J21 that they were credible witnesses. She ruled out the danger of false implication after considering that the Appellant did not suggest any motive during the trial. 7.6 In the case of Yokoniya Mwale v The People (supra), the Supreme Court clarified the position of witnesses who are rela tives to the deceased when it held that the issue is whether the witnesses can be said to have a motive or bias to falsely implicate the accused . It follows therefore that m erely being related to the deceased does n ot automatically make one to b e a suspect witness. The evidence must reveal some facts which suggest a motive to falsely implicate the accused. In casu , such facts were not establish ed. We therefore cannot fault the trial Judge for accepting the uncorroborated evidence of PW2 and PW3. 7.7 The Appellant also argues that the evidence of PW4 ought to Jl3 h ave been corroborated because it was insufficient. We a re of the considered view that there is no requirement for corroboration of evidence of an independent witness. The argument by the Appellant in this regard is misguided. 7 .8 In relation to the argument that the tria l judge's finding that the Appellant injected the deceased with a poisonous substance which led to h er death was perverse, we are of the view that finding was based on the facts that were established by the prosecution. The prosecu tion evidence established that the Appellant had a physical a ltercation with th e deceased which continued from the salon to their home. 7.9 There was evidence that the couple was heard fighting in the evening. In the early hours of the following day, the deceased was heard screaming that the Appella nt had pricked her with a syringe and shortly th ereafter she was seen forming from the mouth. She died and the cause of death was found to be a poisonous substance in h er body. A syringe was recovered from the Appellant's house and PW4 testified that the Appellant had purchased a syringe the day before. 7.10 The trial Judge found that the above facts revealed odd coincidences. In the case of Haamenda vs The People9 , the Supreme Court h eld that odd coincidences may be J14 corroborating evidence. 7 .11 In our view, the only inference that could be drawn from the above facts was that it was the Appellant who injected the deceased with the poisonous substance. In the case of Saidi Banda v The People 10 , the Supreme Court guided that a staged approach should be taken when dealing with circumstantial evidence. The evidence should establish facts from which an inference can be drawn. We, therefore , do not agree that the trial judge drew a wrong inference from the facts established. 7.12 A further argument by the Appellant, is that the trial Judge should h ave accepted his version of events as it was reason ably possible as h eld in the Saluwema case. The evidence r egarding how the deceased died was overwhelming. Whilst there was evidence by the Appellant and his mother that the deceased committed suicide by ingesting poison, the evidence that the Appellant purchased a syringe which was recovered from his house and that the deceased had stated that the Appellant had injected her with some substance m a de it impossible for the Appellant's version of events to be . reasonably possible. The Saluwema case where there was an JlS issue of who struck the fatal blow can be distinguished from the present case. In any event, the Appellant failed to give a reasonable explanation on why h e bought a syringe which was found in his h ouse. 8.0 CONCLUSION 8 . 1 We are satisfied that the circumstantial evidence herein was so overwhelming th at the trial Court could only infer that the Appellant murdered the deceased. We find no basis of interfering with the conviction. We uphold the decision of the trial court and dismiss the appeal. ~ P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE