Lufungo v People (Appeal 44 of 2006) [2007] ZMSC 170 (7 June 2007)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 44/2006 HOLDEN AT LUSAKA/KABWE (Criminal Jurisdiction) BETWEEN: ISAAC KAHILU LUFUNGO Appellant - VS - THE PEOPLE Coram: Sakala, CJ. Chibesakunda and Chitengi JJS on 7th November, 2006 and 7th June, 2007. For the Appellant : Capt. F. B. Nanguzyambo, Director - Legal Aid For the People : Mrs. Kombe Deputy Chief State Advocate JUDGMENT Chitengi, JS, delivered the judgment of the court. Case referred to:- 1. Simutenda Vs The People (1975) ZR 294 The Appellant was convicted of Murder by the High Court sitting at Mongu and sentenced to the ultimate penalty of Death. The particulars of the offence alleged that Isaac Kahilu Lufungo, on the 20th day of January, 1998, between Namayanga village and Miulwe area in the Mongu District of : J2 : the Western Province of the Republic of Zambia, did murder Eugene Kalengile Lufungo. The facts of the case are that on 20th of January, 1998 the deceased with his 14-year-old daughter Zenia Mabunga Lufungo (PW1) and young brother Kabunda Kabanda aged 16 years (PW2) were going to a place called Miulwe. On the way, the deceased put down the raincoat he had and told PW1 and PW2 to go ahead saying he would find them later. PW1 and PW2 proceeded as directed by the deceased and when they came to a place where there used to be a village, they waited for the deceased but in vain. Upite Zangiso, (PW3), another brother of the deceased, who was to go to Miulwe village with the deceased, followed the deceased after the deceased had left. On the way, PW3 met the Appellant at a place called Namayanga coming from the direction of Miulwe village. When PW3 asked the Appellant where he was coming from, the Appellant said he was coming from Miulwe and told PW3 not to go to Miulwe but to return to their village Kapita, to see what the Appellant had found. PW3 refused to return to the village and continued with his journey to Miulwe. On the way, PW3 reached a place where he saw marks of something having been pulled from the path into the bush. PW3 followed the marks and to his horror the marks led him to the dead body of his brother the deceased covered with their father’s yellow rain court which the deceased had : J3 : borrowed from their father, Peter Lufungo, (PW4). PW3 then remembered what the Appellant said to him when they had earlier met. On discovering the body of the deceased, PW3 went to Miulwe and informed other people including PW1 and PW2. After this, they all went to the scene and sent for people from Kapita village. When people from Kapita village, who included PW4, came, PW4 uncovered the deceased’s body. The abdomen of the body was ripped across and lungs were lying beside the body. In the meantime, the Appellant had gone to his cousin, one Soneka in the village of Bernard Sinyama Chikama (PW6) with a rolled up reed mat. The villagers were suspicious and they apprehended the Appellant, tied him up and brought to the men’s shelter. When the reed mat was unrolled, PW6 saw a human heart wrapped in some short-sleeved T shirt. Thereupon, PW6 sent people to the Appellant’s village to tell them that they had apprehended the Appellant. Many people including PW3 went to PW6’s village and took the Appellant together with the rolled reed mat to their village. The Appellant’s fingers were blood stained. About 21:00 hours, Yamowa Mwendabai, (PW5), a member of Neighbourhood watch, got a report about this incident and he went to Kapita village where he found a funeral and the ; J4 ; Appellant bound with ropes. PW5 asked for the Appellant’s clothes and was given the clothes and a knife by PW4 and PW5, saw that they were blood stained. PW6 then took the Appellant to Mongu Police Station with the rolled reed mat. When the reed mat was unrolled at the Police Station there was a human heart wrapped in a cloth. The post mortem report, apart from stating incisions in various parts of the body, also stated that there was no heart in the deceased’s body; that the vena cava and the inferious were cut off at their root; two pieces of the trachea were found on the separated heart; the two pieces perfectly closed the two openings on the trachea. The Appellant elected to remain silent and called no witnesses. On this evidence, the learned trial Judge found that the appellant was the person who killed the deceased and convicted the Appellant of murder and sentenced him to death. The appellant now appeals to this court against his conviction. The Appellant advanced one ground of appeal which is that the learned trial Judge erred in law in convicting the Appellant as charged in the absence of blood test. : J5 : Captain Nanguzyambo, the learned Director of Legal Aid, submitted that there were no tests carried out to confirm that the blood stains on the Appellant’s clothes and the other items exhibited to court was that of the deceased. It was Capt. Nanguzyambo’s submission that this was a dereliction of duty on the part of the Police. Further, Capt. Nanguzyambo submitted that there was no evidence to show that the heart found with the Appellant was in fact a human heart and that it was the deceased’s heart. In the circumstances, Capt. Nanguzyambo submitted that the learned trial Judge should not have convicted the Appellant. Mrs. Kombe, the learned Deputy Chief State Advocate, supported the conviction. Mrs. Kombe submitted that the circumstances of this case left no reasonable doubt. She pointed out that when the deceased body was found, it had no heart; the Appellant was seen in the vicinity; the Appellant’s fingers were blood stained; the Appellant had a reed mat containing a human heart; the post mortem shows that two pieces of the trachea found on the heart perfectly closed the two openings on the trachea. It was Mrs. Kombe’s submissions that these findings by the Doctor confirm that the heart was that of the deceased. She said that it would be a strong coincidence that there would be a different heart cut in a similar manner. Finally, Mrs. Kombe submitted that the Doctor’s findings also show that the heart was a human heart J6 as it fitted in the deceased body; and the injuries show that there was an intent to cause death. We have carefully considered the evidence that was before the learned trial Judge, the submissions of counsel and the judgment appealed against. The fact that the deceased died in what we may call a grizzly murder is beyond doubt. The critical issue is who killed the deceased. The learned trial Judge found that on the evidence the only conclusion was that it was the appellant who killed the deceased. Capt. Nanguzyambo criticized the learned trial Judge’s finding on the ground that the evidence did not disclose that the blood stains found on the Appellant were those of the deceased blood and that there was no evidence to show that the heart found with the Appellant was a human heart. We do not accept these submissions. We find these submissions far fetched because they are not based on any evidence. As Mrs. Kombe rightly submitted, the Doctor’s findings in the post mortem report do not only show that the heart found with the Appellant was a human heart but also conclusively show that the heart was that of the deceased. The Doctor’s findings on postmortem examination were that there was no heart in the deceased’s body; that the vena cava and inferious were cut at their root; that two pieces of the trachea were found on the separated heart and that the two pieces perfectly closed the openings on the trachea. In short, when the heart found with : J7: Appellant was put back in the place of the missing heart, it fitted perfectly. There can, therefore, be no doubt, contrary to the submissions by Capt. Nanguzyambo, that the heart found with the Appellant was the deceased’s heart. The critical issue, therefore, is whether the Appellant’s mere possession of the deceased heart leads to the only conclusion that the Appellant killed the deceased. If the Appellant is guilty, it is by inference as there is no direct evidence that the Appellant was seen kill the deceased and take the heart from his body. The Appellant met PW3 on the road on which the deceased’s body was found; the Appellant tried, without success, to persuade PW3 to stop his journey to Miulwe in the direction where the Appellant was coming from; the Appellant did not go to his village but went to the village of PW6 with a rolled reed mat in which the deceased heart was wrapped in a T’ shirt and the Appellant’s hands were blood stained. The Appellant in the face of all this evidence elected to remain silent. Indeed there was no obligation on the Appellant give evidence. But as we said in Simutenda V The People!1), where the accused does not give evidence, the court will not speculate as to the possible explanation of the event in question; the court’s duty is to draw the proper inference from the evidence before it. : J8 In this case, therefore, we cannot speculate as to who could have killed the deceased. Our duty, like that of learned trial Judge, is to draw proper inference on the evidence that was before the learned trial Judge. On the evidence, the only inference to be drawn is the inescaple inference that the Appellant was the person who killed the deceased. The proved facts do not leave any room for conjuncture: In the event we cannot fault the learned trial Judge’s finding that the Appellant is the person who killed the deceased. Before we leave this matter we wish to note that the learned trial Judge accepted the evidence of PW1 and PW2, children of tender age, without conducting a voire dire. However, we do not consider this omission to be fatal to the prosecution case because the evidence of PW1 and PW4 is of no consequence to the conviction. We find no merit in this appeal and we dismiss it. E. L. SAKALA CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE PETER CHITENGI SUPREME COURT JUDGE