Sinyangwe v People (Appeal 48 of 1985) [1987] ZMSC 68 (15 September 1987)

IN THE SUPREME, COURT OF ZAMBIA SCZ APPEAL NO, frg OF 1985 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: LEWIS SINYANGWE Appellant and THE PEOPLE K • *• cv Respondent CORAM: Njgulube* and Sakais J J, 8 15 September 1987 For the Appellant tMr, s. K. Munthall, Senior Legal Aid Counsel For the Respondent : Mr* Okafor, Senior State Advocate JUDGMENT ———————————————————————————————————— Sakais, J.5. delivered, the Judgment of the court. > ; • . • .v . - . ; • . .• • ■ -•/ <• .. ............. The appellant who was originally tried on a charge of murder, was convicted of manslaughter and.sentenced tpten years Imprisonment with hard labour. The particulars of. the., offence on the charge of murder glleged that on Qctobpr, 1983 at Kasama, he murdered Jopephat William Chltambl, bis.brother, Thp eye, witness.to the. incident was PWZ whom the learned commlBBlpner accepted as a, witness of truth. Her evidence was to thp effect that, thp deceased complained,^ theiappellant^p drinking habltp* . Thereafter the appellant aspaplted ^hp^ deceased and the deceased managed to rpppue himpelf^^ and left. According tp PW2, the appellant.went In the same direction and then aasaulted the deceaapd* There was evidence from the ppi ice officer* who was PW*», to the effect that when he received the report he wept to the scene and found both the deceased end the appellant unconscious, theywereboth rushed to the hospital. J2 - The appellant gave evidence in hia defence that the death of the deceased was by an accident. as they collided. The learned trial judge did not accept thia evidence. Hg fpgnd that the proaecution had not proved the charge of murder but that of manslaughter, He found the appellant guilty of manslaughter end convicted him accordingly. for the state has properly informed the court that hi was not Advocate, Mr. Okafor, appearing supporting the conviction. Me have looked at the judgment,, We have serloi difficulties in explaining firstly, how both the appellantand.thp riecepsyp were found unconscious, secondly, that ccordlng to the poet mortem the injury sustained by the deceased was at the heck of his Jiaad. It would appear to us that although the deceased* efallmighthave been caused by a blow the Injury at the.back, eguld,not have been caused by a blow. It would also appear to. usthgtths.,explanation given by the appellant that he collided, with the. deceased. . supported by the evidence of the police pfficer whg salp he found both of them unconscious at the aceha. JiJhl.lp; circumstances In the light of the record being defpct^ye* p... complaint properly raised by the appellant, we wouldjjpve ordered a re trial, we do not consider this to be fl proper j&ae tp..^^ a re-trial. Consequently we allow the gppeal. The is quashed and the sentence is pet aside. . < \ . ••••••••••«••• •••••• M. M. S. Ngulube DEPUTY CHIEF JUSTICE ~ ~ ~ B. T. Gardner SUPREME COURT. JUDGE ■ ■ - >4 • 9 • < • 9 9 9 • • • E L ShIc^Xs SUPREME CpUHT. JUDGE f • •