Masauso Zulu v People (SCZ Appeal No. 21/2012) [2020] ZMSC 187 (30 September 2020)

,, IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA SCZ Appeal No. 21/2012 (Criminal Jurisdiction) BETWEEN: MASAUSO ZULU AND THE PEOPLE APPELLANT RESPONDENT~ ··•., ' ,, Coram : Phiri, Muyovwe and Lisimba, JJS On 4 t h December, 2012 and 30th September, 2020 For the Appellant: I. Chongwe, Senior Legal Aid Mr. Counsel of Legal Aid Board For the Respondent: Mr. C. Bako of National Prosecutions Authority. JUDGMENT PHIRI, JS, delivered the Judgment of the Court. Cases referred to: 1. Phiri and Others v The People (1973) ZR 47. 2 . DPP v Goodwell Siwale (1981) ZR. 71 3. David Zulu v The People (1977) ZR. 157. 4. Justin Mumbi v The People (2004) ZR, 106 J2 The delay in delivering this judgment is regretted. When we heard this appeal, we sat with Hon . Mr. Justice Lisimba who has since retired. This is an appeal against the judgment of the Hon. Madam Justice G. M. Salasini by which judgment the appellant was convicted for the murder of Tichoke Tembo. The offence was committed on the 21 st August, 2010 at Chi pa ta District of the Eastern Province . He was sentenced to 20 years imprisonment with hard labour on account of drunkenness as an extenuating circumstance. The prosecution evidence was anchored on the testimony of eight (8) witnesses whose evid ence was circumstantial. ip __ ,.p.at\1~e. PWl the deceased's elder sister testified that the deceased left their village, Ndelendele, at 15:00 hours to attend a choir practice at Muchacha village . The deceased never returned to her house. She was killed along the way and her remains were discovered in a ditch which was about ten (10) meters away from the footpath to Ndelendele village. It happened that around about 08:00 hours earlier in the morning of the same day, the appellant borrowed PW2 's bicycle to use. He disappeared with it. PW2 needed his bicycle back I !. l , .., J J3 and made three attempts to retrieve it from the appellant without success. He sought assista nce from the appellant's s ister who a lso failed to retrieve it. PW2 eventually got back his bicycle at about 22:23 hours from Michael Zulu (PW3) who was in the company of Pashane Phiri (PW4) and a n eighbor Aaron Ngoma. According to PW3 a nd PW 4, they were on their way to see a girl friend at Chiyali village around 19 :00 hours in the company of Aa ron Ngoma. As they moved a long a footpath, they came across a bicycle and a pair of s hoes which were lying abandoned. They left t hose items on the same spot as they imagined that the owner was within the surroundings . At about 23:00 hours the t rio were on their way returning from Chiyali village when they s potted t he a b a ndoned bicycle and the pair of s hoes on the same spot they had earlier seen th e i terns. Since they recognized the bicycle as belongin g to PW2 , they took it to h im a t about midnight. La t er, they came to learn that Tichoke Tembo h a d been murdered near the point where PW2's bicycle was recovered togeth er with th e a ppellant's pair of s hoes that was abandone d. The body was identified by PWS Dorika Miti who 1 J , r,r t : A\. J. I \. .•• a lso a ttended the postmortem examination. J4 PW6 and PW7 were the last people to see the deceased alive because the deceased passed by their house on her way back from choir practice before 18:00 hours. The deceased asked for some vegetables which they gave her. The next day, PW6 and PW7 learnt that the deceased never reached her home. PW6, PW7 and two other people then decided to look for the deceased and decided to walk along the route she had taken between Khali village and Ndelendele village. They spotted the d eceased 's h ead dress and some dragging marks on the ground which led them to an anthill. They discovered the deceased's body in a ditch behind the anthill. The d eceased still h ad the plastic bag of vegetables she was given. The killing was reported to the Police who apprehended t h e appellant and charged him with murder. The Police took po.s,sess~on of the bicycle which was identified by PW2 and the p air of shoes which was recognized as belonging to the appellant. The postmortem examination report listed the cause of death as intra-abdomina l bleeding and intracranial hemorrhagia. Her fron tal cerebral lobe had a fractured bone and her spleen was ruptured . . ' I ~ (' I j ,r- JS When put on his d efence, the appellant confirmed that he borrowed and used PW2 's bicycle which he used on his way to drink beer. He cla imed that a long the way, h e was attacked by unknown people who threw som e objects a t him forcing him to a bandon his shoes and PW2 's bicycle at the scene where they were found . He later around 04:00hours attempted to recover those items a t the scene of the attack but did not find t h em. He insisted that h e knew n othing a bout the killing of the deceased. The trial court considered the evidence received a nd disbelieved the a ppella nt's story. The court found the appellant's explanation of ,, I..._. '\...•..&. J I. L l how h e aba ndoned PW2 's bicycle and his own s hoes near the scene of crime while being drunk, to be an afterthought. The trial cour t found the circumsta ntia l eviden ce against the appellant to be strong a nd compelling . Thus , h e was convicted of murder. After the con viction the court invited the a ppella n t's Counsel to mitigate on his behalf. In the mitigation, the appellant was said to be firs t offender, a young man who had b een drinking a ll d ay a nd that th e evidence of drinking s hould b e consider ed an extenuating factor. J 6 The court agreed with the mitigation statement and adjudged that the appellant was entitled to leniency and sentenced him to 20 years imprisonment with hard labour. The appellant was unhappy with both conviction and sentence and appealed to this court canvassing three grounds of appeal couched as fo llows: 1. The learned trial court erred in fact and law when it convicted the appellant for the offence of murder in the absence of cogent circumstantial evidence. 2 . The learned trial court erred in law and fact when it held that the finding of the appellant's pair of shoes and the bicycle near the place where the body of the deceased was found clearly raised a reasonable inference that he caused the death of the deceased. 3. The learned trial Judge misdirected herself when she convicted the appellant without entering a verdict of guilty in respect of the said conviction. In support of the appeal, Mr Chongwe filed written heads of a rguments upon which he relied. In support of gr,qUf"lCJ., c,ni~,.. ~i.s J7 submission was that the evidence against the appellant was neither overwhelming nor cogent to warrant the finding that he was guilty b eyond reason able doubt; th at PW6 the deceased 's sister who last saw the deceased around 18:00 hours was a suspect witness. In respect of ground two , Mr. Chongwe submitted t h at the trial court should have considered and appreciated the fact that the appellant was drunk at the time he abandoned PW2's b,icycle and . .h.is own s hoes after h e was attack ed and that the recovered items alone s hould not have led to the conclusion that the appellant was guilty. ,,. In support of this argument Mr. Chongwe cited the case of Phiri and Others v The People 111• In support of the t hird and last ground of appeal Mr. Chongwe referred u s to page 145 of the record of proceedings where the trial court recorded the following: "I therefore convict him accordingly." Accordin g to Mr. Chongwe, t h ere was failure by the trial court to make a verdict. He cited th e case of DPP v Goodwell Siwale 121 in which we held t h at failure to record a verdict rendered a trial a nullity. JS Mr. Chongwe submitted tha t the trial court in the present case failed to enter t h e verdict a nd , like wise , this render ed the trial a nullity. In response Mr. Baka supported the appellant's conviction. Mr Baka submitted that t h e app ellant was conn ected to the scene of crime by the bicycle and his own shoes which were found a b andoned n ear the deceased's body; that his explanation that h e was attacked by unknown people was an after thought b ecause h e d id not seek help from other villagers. In support of this argument, Mr. Baka referred us to the case of David Zulu v The People'31 • We h ave consider ed t h e three grounds of appeal and th e submission s m a d e. We h ave also examined the judgmen\ ol t_h~Jq;Y,s:;r court. It is clear to us t hat the court below based the con viction on cir cumstantia l evidence triggered by the evidence of PW3 a nd PW4 a nd the finding of incriminating evidence in the form of the bicycle which the appellant borrowed from PW2, and the app ellant's own s hoes, 3 0 meters away from the ditch where the d eceased's body was discovered. We h ave stated it, time and again that strong and compelling circumstan tia l evidence will support a conviction . J9 In the present case, the a ppella nt put h imself at the scene of crime, albeit with an explanation that he was equally attacked by ,, unknown p eople who threw some objects at him. The villagers and t h e Police officers who visited th e scene, n ever found such objects at the scene where the bicycle and the shoes were found. In addition , th ere were other compelling odd coincidences that tend to serious ly implicate the a ppella n t. First, he n ever reported about the abandoned bicycle to PW2 its owner. He never sough t help ,, from other villager s; his s h oes were found 30 meters from the deceased's body; the d eceased's body was dragged from the footpath which she had used a nd the a ppellant h ad a lso used during the same • I night. In our c onsidered view, the d eceased was brutally killed in a carefully planned attack in which the appellant is very connected by circumstantia l evid ence. We do not find any basis for the suggestion tha t PW6, the deceased 's sister was a suspect witness. We agr ee with Mr Bako t h at the circumstantial evidence against the appellant was overwhelming. We find no merit in grounds one a nd two of the appeal. In rega rd to ground three which a lleges t h at t he lower cour t did n ot enter the verdict of guilty in respect of the conviction , we note JlO from page J8 of the judgment that the lower court, after analyzing the evidence, concluded that; " I believe his story is merely a fabrication to conceal his guilt for the death of the deceased ... " " ... I therefore convict him accordingly." It is clear to us that the court convicted the appellant after finding him guilty of the murder of the deceased. We do not find any validity in the complaint that there was no verdict. We equally find no merit in the 3 rd ground of the appeal and we dismiss it. Before we conclude, we note that the trial court did not pass the mandatory sentence of death on the ground that there was drunkenness on the part of the appellant when he committed the offence. In the case of Justin Mumbi v The People l 4 l , we held that: "Drunken c i rcumstances generally attending upon the occasion, suffici ently reduce the amount of moral culpability so that there is extenuation." In the present case apart from the appellant's own claim th~t he drunk beer, there was no evidence of drinking beer or that drunkenness attended the occasion where the deceased was killed. We therefore find that on the facts of this case there was no extenuation. We accordingly set aside the sentence of 20 years . , . ' Jll imprisonment with hard labour and reinstate the mandatory capital punishment. G. S. Phiri SUPREME COURT JUDGE E. C. Muyovwe SUPREME COURT JUDGE