Kampinda and Ors v The People (SCZ Appeal Nos. 75-77 of 1993) [1993] ZMSC 137 (8 December 1993)

IK THE SUPREME COURT OF ZAMBIA SCZ Appeal Kos. 7S-H of 1993 HOLDEM AT HQQLA (Criminal Jurisdiction) 1. 2. 3. MULESGA KWINDA HWAMSA MPIWU CHRISTOPHER WO) vs THE PEOPLE Appellants Respondent CORAM; Sakai a, Chatla and Chinua <WJ. S. 6th September 1993 and 08/12/93 For the Appellant : Mr. S. K. Munthall, Principal Legal Aid Counsel For the Respondent : Hr. S. S. Twuaasi, Assistant Senior SUU Advocate nOGPEST Chai la, J. S. delivered the Judgment of the court* The appellants were prosecuted on four counts of murder and were convicted. Initially they were charged with five more others who were acquitted. The particulars of the first count wore that they murdered 3emard Malionkaulwa In Luanshya on 10th September 1991* The particulars of the second count were that they murdered on 11 th September, 1991 in luanshya Danny Kalunga. The particulars of the third count were that on 12th day of September 1931 at Luanshya murdered Oason Lukonde. The particulars of the fourth count were that they murdered on I3tn September 1991 Edward Hamaind®. They were sentenced to death on al! four counts. Briefly the prosecution's case was that between 10th and 13th September 1991 at Luanshya on the Copperbelt, the deceased persons mentioned in the particulars of the offence had disappeared. Th# relatives made reports to the police. The Investigations revealed that tn# deceased had been killed and had been buried in the house in Walale compound. The investigations proved that the /2....house was nouse was being occupied by the aopoilents and the bodies of the deceased persons were exhumed from that house* Investigations further revealed that the clothes and some items belonging to the deceased persons were recovered either from the house or farm and other places with the help of the appellants. After a lengthy trial the learned trial judge found that the prosecution had proved the case against the appellants. Ho found that the prosecution cess was weak In respect of the other five accused and ha acquitted the other five. He convicted the three accused persons and Imposed a mandatory death sentence. The appellants have appealed against both convictions and sentences. Mr. Hunthall on behalf of the appellants has submitted one major ground of appeal. The ground is that the learned trial Judge misdirected himself in convicting the appellants by drawing Inference of guilty from the circumstantial evidence which was manifestly weak. The counsel has argued that the appellants were convicted on murder basically on circumstantial evidence* There was no evidence according to his argument to show where* when and by whose hands the deceased met their deaths. He has argued that the prosecution did particularise the dates whan the deceased persons died but there was no evidence on the dates of deaths. He has argued that the evidence did not show how and when the appellants killed the deceased persons. He has further attacked the conclusion of the learned trial judge that the three appellants ware in occupation of the house number 436 of Walale compound. He has argued that the learned trial judge erred in drawing the Inference that since the three appellants were in occupation of the house they were all guilty of the offence. The counsel has submitted that the learned trial judge on occupation of the house relied on the evidence of PWs 1, 3 and 9. Ha has submitted that the evidence of all three witnesses on the occupation of the house was very weak and that It was wrong for the learned trial judge to rely on that evidence since PHI never wade any mention of the number of the house. The counsel further submitted that PWt himself had said in his evidence that he had not been taken to the named house before. The learned counsel wondered how the learned trial judge could rely on the evidence of such a witness. The learned counsel submitted that W3 did not mention the number of the /3...house. - J3 - house, Mr. Munthail further submitted that ?W9 did not mention the number of the house. Mr. Muntnall has argued that in his judgment the learned trial judge partially relied on the evidence of the witnesses Ws 5 and 9. in his Judgment the learned trial judge rejected some of their evidence In respect of some of the accused persons who were scout ted* He submitted tnat It was dangerous for the learned trial Judge to rely on their evidence which implicated the three appellants. The learned counsel further submitted that the appellants in their defence have denied occupying that house. He has argued that A2 was staying at the farm, she used only to co»e to the house occasionally* Mr. Muntheli argued that it was wrong for any trial Judge to accept that the three appellants were occuplng the house* it was wrong further for information to talk about specific dates since there was no evidence tnat the appellants were in ..occupation^of the house?, Mr. Hunt hall then dealt with specific appellants. He started with the third appallant. He has argued that the third appellant was convicted on the ground that he was seen pushing a wheelbarrow and that he was putting on shoes of one of the deceased Mr. Chikonde. He has argued that that contradictory evidence of the recovery of the wheelbarrow came from PW5 and PW7. He has argued that they were talking about the wheelbarrow which was found out side the house. On the shoes Mr. Munthall submitted that the shoes were too small for Mm and ne was asked to try ttwa on tn court and were found to be too small. It was therefore wrong for the learned trial judge to have drawn the inference of guilt from those facts. As regards the second appellant Mr* Muntnaii talking on the evidence of Ws $ and 12 whose evidence on which the learned trial Judge based Ms conviction, the evidence was that PW3 and PW12 had gone to Chltwi farm with Ai and A2 where some property was recovered* The appellant denied having accompanied PW3 and W. He has argued that tit® appellant maintained that it was Bernard Less who took the police to Chitwi farm. He has argued that the evidence linking A2 and A3 was very shaky for the learned trial Judge to draw an inference of guilt* He has argued that evidence of PM4 ought to have been dismissed. He further argued that tne evidence of PW9 should have been totally disagreed with by the /4...learned trial - 44 - learned trial judge. He further argued that the prosecution failed in Its duty in not holding the identification parade. Mr. Munthatl further argued that the learned trial judge should have not rolled on the evidence of Ptfl 2 on the recovery of the items and should have not drawn the inferonco of guilt from the evidence of PU12 in respect of Al and A2. The learned Assistant Senior State Advocate Mr. TwHii supported the convictions on the ground that the evidence against the three appellants was overwhelming. On the house in Halale compound the learned counsel submitted that it was clear that the three appellants were in occupation. The evidence to that effect was provided by PWs 1* 3, 7, and 3. The evidence of these witnesses in a nut shell was that they knew the occupants of the house in question and that the appellants were staying in that house and were known by the witnesses. Hr. Twumas! submitted that the evidence of ?W9 a neighbour, knew the occupants of the house since he had stayed with the second appellant for three years. Mr. Twumasi further submitted that when the Incident happened the witness knew which house they were talking about, even if they did not mention ths house number. Th© witnesses spoke only about one house tn Walale compound from where the bodies were exhumed. Hr. Twuaasi then dealt with individual appellants. As regards Ai the learned counsel argued that the appellant was at the house where the bodins were exhumed. The first appellant went round and picked the keys to the room where the bodies were exhumed. He picked the keys which used to open the house. The counsel wondered if he was not staying at the house, how was he going to know where the keys were being kept. There was further evidence on the behaviour of the first appellant when he was asked by the police about conducting a search in the house. The first appellant knew that there was something wrong in the house. He knew there was something terrible which had taken place Inside the house. The first appellant's behaviour, the learned counsel argued, clearly showed that Al knew what was inside the house. The learned Counsel referred to the question of leading the police to the fans. Mr. Twumasl argued that the first appellant led the police to the fans where properties which belonged to the deceased persons were recovered. 75... As regards As regards the second appellant. t4r. Twumasi submitted that the evidence was vary clear. The second appellant was the owner of the house where the bodies ware exhumed. Tn addition the second appal lent was found hiding at the farm, Jeter she lad the nnilce to the recovery of the iteas particular? the identity card, Mr. TwwMsi further argued that it was not true that the police were led to the fane by a person called Sesa. The police were led to the fam by Al and A2. On A3 Mr. Twuaasi argued that the evidence which connected tM third appal lent was the question of shoes and wheelbarrow. A3 was seen coming with a wheelbarrow carrying a 25kg bag. That wheelbarrow was identified as belonging to one of the deceased persons. Mr. Twaasl submitted that PWf? had testified in the lower court that it was A3 who was coming with the wheelbarrow. That wheelbarrow was exhibited. It was the wheelbarrow which was seen with A3. On the shoes Mr. Twvmasl argued that A3 was seep with the shoes although they were tight. He submitted further that there was a pair of khakhl trousers found with A3, these trousers belonged to one of the deceased persons. Mr. Fwwmi in his final submission urged the court not to dismiss the evidence of MM. He maintained that the evidence of PW4 which was not challenged clearly brought out more mode of what the appellants were doing. Mr. Twumasl maintained that the evidence of !*W4 clearly made circumstantial evidence very strong. The evidence showed that the deceased persons were strangled. The postmortem reports showed that the deceased parsons were strangled. That is what PMC’s evidence showed. Me have considered the evidence in the court below. We have considered the submissions of both the Principal legal Aid Counsel Mr. Munthaii and the Assistant Senior State Advocate Mr. $. G, TwuiMst. We have further considered the judgment of the learned trial judge. Mr, MunthaH has complained that the prosecution had not particularised the dates when the deceased persons died. He has argued that there was no evidence to show the dates on which deaths occurred. Th© prosecution led evidence on how the deceased persons mentioneo tn tn© four counts disappeared. asports were made to the police. After the police made investigations the deceased bodies were found buried in a house In Malaio. The bodies /6...were exhuawd - J6 * were exhumad anti were identified later by tha relatives. The snetfical reports showed that those deceased persons died as a result of Pein# strangled. The evidence was not in dispute that those people had gone missing and were found buried in the house. The bodies war® exhumed. The postmortem reports proved that they had been strangled. Th® prosecution therefore proved that the deceased persons suffered violent deaths after disappearing from their homes and their deaths ware not natural. Hr. MunthalPs argument therefore falls. The dates whan the deceased persons disappeared were known and their bodies were finally exhumed from the house in Walale compound and the medical reports proved that they had died of violent deaths. The prosecution evidence further proved that the house where bodies were exhumed belonged to A2 and that A2 and A3 were persons who had been staying there. The prosecution witnesses who testified about the house in WaUle compound had known the three appellants for a long time and had seen them staying In the house whore bodies were exhumed. Mr. Munthali argued that none of the witnesses Mentioned the number of the house, but the evidence of the prosecution witnesses showed that there were only talking about one house where the bodies were exhumed and that house was occupied by At. A? and A3. Apart from the occupation of the house there Is evidence connecting each of the appellants. The first appellant when confronted by the police knew where the keys were. He picked the keys to th® house and to the room where the bodies were exhumed. When the police wanted to search the nouse the behaviour of Ai showed that he knew that there was something wrong In the house. There 1$ the evidence of him leading the police to the farm where some properties belonging to the deceased persons were recovered. As regards A2 the evidence proved that the house belonged to A2. She led the police to recover some items including a national registration card belonging to one of the deceased persons. There was also evidence of A2 leading the police to the farm where some goods belonging to the deceased parsons were recovered. There was evidence in the lower court to connect A3. He was seen carrying a wheelbarrow belonging to one of the deceased oersons. He was further seen wearing shoes although they were proved to be tight which belonged to one of th* deceased persons. He was further //...found with a • J7 - found with a pair of trousers belonging to one of th® deceased persons. Considering all the pieces of evidence, we are satisfied that trw circumstantial evidence adduced by the state had only produced one Inference end this inference Is that the three appellants were part of the people who committed the crime. The circumstantial evidence Is sc strong that It has Uken the matter out of Rare conjecture and has left us to draw only one inference of guilt. The learned trial judge considered the circumstantial evidence before him and he concluded that the three appellants were guilt of the offence. We agree wtth his conclusion. The appeals gainst conviction are dismissed. As regards sentences there ware no mitigating circumstances. The appeals against sentences are hereby dismissed. £. L. Sakala $#»*£*£ cmmr juose W. S. ChaiU SUPREME COURT JUDGE »»»•»•«»*« law* toot ««'om O. K. Chirwa SUPREX COURT . WOGE