Musenge v People (Appeal 68 of 2006) [2007] ZMSC 162 (7 June 2007)

IN THE SUPREME COURT HOLDEN AT LUSAKA (Criminal Jurisdiction) FOR ZAMBIA Appeal No. 68/2006 MUSOLE MUSENGE APPELLANT Vs. THE PEOPLE RESPONDENT Coram CHIRWA, MUMBA, SILOMBA , JJS 17th October, 2006 and 7th June, 2007 For The Appellant: Mr. A. C. Nkausu, Principal Legail Aid Counsel For The People: Mr. Janies Mwanakatwe, Chief State Advocate JUDGMENT Mumba JS, delivered the Judgment of the Court. Cases referred to: Noon vs. Smith 1964 3 All ER 895 2. David Zu|u v The People [1977] ZR 151 This is an appeal against conviction and sentence. The appellant was convicted on one count of murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The particulars being that the appellant on 22nd June, 1999 at Nashilungu Village in Mongu District of the Western Province of the Republic of Zambia did murder one Dennis Soondo. The appellant was sentenced to the mandatory death sentence. - J2 - Briefly, the facts as found by the court below were that on 22nd June, 1999, the appellant, the deceased, his young brother and others met at a beer party where they participated in drinking beer. This was at the village of PW2, Irene Kambungo. Whilst there the deceased asked appellant about his credit to which appellant retorted that it was the deceased who was owing appellant some money. Upon the insistence of the deceased a fight broke out. PW2 and others separated the two by pushing appellant into one thatched house whilst the deceased stood at the door intending to attack appellant. Later, appellant broke out of the grass house!, the two started fighting again, appellant ran off to the fields pursued by the deceased and his friends. Appellant was seen with an iron bar daring anyone and saying that he would strike anyone who would challenge him. Later appellant left, leaving the deceased at the village, the deceased also left and PW2 went to bed. At about 22 hours, PW2 was alerted by some people who told her that they had found the deceased lying down on the ground near Nasikundu village. She accompanied those people to the scene where she found the deceased lying down injured with I blood oozing frqm his head, his clothes were blood stained. The deceased was still alive he was later taken to hospital. . The next day she was informed that the deceased had died. PW3, Kahflu Kayombo testified that on 20th June, 1999, he was returning home at about 23 hours when he met the appellant who was drunk, and who told him that there was a man who was lying down very drunk. The appellant told PW3 to go and have a - J3 - look, after which PW3 in the company of other people saw the deceased lying down on his back, he realized that the deceased was actually injured. The matter was reported to the village headman and eventually to the Police. Later PW3 saw the appellant with a. metal bar cariying it over his shoulder. The appellant told PW3 that he was returning from the Police where he had reported that he, appellant, had assaulted someone. PW5, Sub-Inspector Jasat Mwanza testified that, he had interviewed the appellant who led him to his house where the witness recovered the metal bar which was hidden in a shrub at the house of the appellant. PW5 visited the scene where he found bloodstains on a path near the tree which had been ripped off and that the same stuff from the tree was attached to the metal bar which was identified and produced in court. The postmortem report showed that the deceased died of a fractured skull. The injury found on the deceased was consistent with a heavy blow. Mr. Nkausu, the learned Principal Legal Aid Counsel for the appellant, submitted that although there were three grounds of appeal filed in cburt, he had decided to rephrase them and confine the appeal to two grounds only. The first ground of appeal was that the learned trial Judge in the court below misdirected himself when he considered exhibit Pl, the iron bar produced in court allegedly recovered from appellant’s house as being the instrument that caused the death of the deceased. - J4 - Counsel submitted that although admittedly appellant had armed himself with an iron bar and subsequently an iron bar was recovered from his house, there was no evidence from any eyewitness present at the fight to suggest that the appellant had used that iron bar to strike the deceased; when the iron bar was recovered it had no blood stains. Counsel submitted that PW5, the arresting officer, told the court below that all he had found with the iron bar was the green stuff from a bark of a tree, that could have happened by directly hitting on a tree; there was no evidence to support the proposition that that particular iron bar was used on the deceased. It was further submitted that PWl’s evidence was to the effect that he heard something hit something, Counsel submitted that if that something that was hit was a human being he would have cried out at least once and that the fact that the iron bar had green stuff on it, that suggested that what was hit could have been a tree. Counsel went on to say that it was not even clear whether appellant was near or far away from the scene of crime. Passing alone and hitting a tree, which PW1 considered was an expression of anger by appellant would not necessary lead the court to draw the inference that the appellant had hit the deceased. Counsel submitted that the appellant might have been annoyed by events that took place at the drinking place where he was attacked; even when PW1 said that he had heard the appellant say “Ya I have hit you”, those words alone cannot lead to the inference that the appellant was referring to the deceased especially given the fact that the appellant was drunk, he may have been referring to the bushes he hit on the way, as there was evidence that he had been drinking. - J5 - The second ground of appeal, was that the learned trial Judge misdirected himself when he held that there was corroborative evidence connecting the appellant to the crushed skull. Counsel submitted that he had difficulty as to which assault the Judge was! referring to; that if the learned trial Judge was referring to the assault on the first fight then there is no evidence that an iron bar was used on the deceased during that first fight. If the learned trial Judge was referring to the second assault at the scene of murder, the fact that appellant and the deceased had fought earlier on cannot be the basis for drawing the inference that the appellant must be the one who later crushed the skull of the deceased. Counsel opined that if the court was insinuating that those were coincidences, the two fought at a drinking place; appellant armed himself with an iron bar and that the appellant was seen in the night passing by before the body was discovered, if these were odd coincidences, they cannot be odd coincidences that would lead to the only inference that the appellant was the one who hit the deceased. There was no corroborative evidence at all. Counsel submitted that the court should accept both grounds of appeal and quash the conviction. - J6 - When asked by the Court whether he would make any submissions on sentence in the event that the appeal against conviction failed, Mr. Nkausu submitted that the Court should consider the circumstances which led to the attack of the deceased such as the evidence of drinking by the appellant and the fight over the K400 debt which the deceased was asking the appellant about. He submitted further, that there was evidence that appellant had attempted to disengage from the fight by running into a house and leaving the drinking place leaving the deceased behind, although it was not clear whether the two met again and fought. The learned Chief State Advocate, Mr. Mwanakatwe, on behalf of the State, supported the conviction. On the first ground of appeal he submitted that there was overwhelming evidence against the appellant. He submitted that the learned trial Judge carefully analysed the evidence presented and concluded that it was indeed the appellant who brutally killed the deceased. Mr. Mwanakatwe pointed out that there was evidence from PW1 which the court below accepted, that PW1 had heard the appellant utter some words after assaulting the deceased. Mr. Mwanakatwe conceded, however, that there was no direct evidence and that the case for the prosecution relied on circumstantial evidence. He insisted, however, that appellant was seen near the crime scene; that PW1 testified that he was able to see the appellant as there were no other men around and he was a person known to him. From this evidence Mr. Mwanakatwe submitted that it can safely be inferred that it was the appellant who inflicted the injury from which the deceased died. He submitted finally that there was evidence that the deceased and the appellant were involved in an altercation earlier on; there was evidence from PW3 that the appellant was armed with an iron bar and, the medical evidence was that the deceased had a fractured skull, this was consistent with being hit with an iron bar. Mr. Mwanakatwe submitted that although there was no direct evidence that the deceased was struck with this same iron bar, it cannot be a coincidence that the appellant was seen with an iron bar and the deceased was found dead; appellant was seen in the vicinity where the body was discovered; appellant uttered words which suggested that he was referring to the deceased. Mr. Mwanakatwe submitted that appellant was connected to the offence as there was evidence that after the deceased was discovered, the appellant had said that the deceased was pretending to be dead, how did the appellant know that the deceased was dead? According to Mr. Mwanakatwe, all these were “coincidences” which the appellant did not explain away. There being no direct evidence how the injury was inflicted, it is clear that someone must have attacked the deceased Mr. Mwanakatwe concluded. f On the second ground of appeal, Mr. Mwanakatwe submitted that there is evidence on record which shows beyond reasonable doubt that it was the appellant who killed the deceased; PWl’s evidence connecting the appellant to the crime was not challenged by the defence. Mr. Mwanakatwe submitted further that the court had the opportunity to observe the demeanor of the witnesses, the - J8 - court accepted the evidence of prosecution witnesses and rejected the appellant’s evidence. The evidence of prosecution witnesses was cogent and compelling such that the only inference that could be drawn was that the appellant was the culprit. Under the circumstances, Mr. Mwanakatwe submitted, the appellant was properly convicted of the offence of murder and that the appeal should be dismissed. Mr. Nkausu, in reply, - submitted that the fact alone that appellant was seen with an iron bar and that he had earlier on fought with the deceased without there being any evidence that he had used that metal bar on the deceased, the court cannot be called upon to infer guilt purely on that basis alone, that appellant was the one who hit the deceased to his death; even the evidence of PW3, that he saw the appellant with an iron bar, is not clear whether he saw the appellant before or after the deceased had been struck. Counsel contended that it was possible to suggest that appellant was coming from the police station having gone there to report the earlier altercation with the deceased. Counsel submitted that there was no basis at all for the court to conclude that the only inference that could be drawn was that the appellant was the one who hit the deceased. Counsel conceded that the injury was so severe, it must have been caused by a heavy instrument; somebody must have hit the deceased, ' but Mr. Nkausu submitted that there was no evidence that it must have been the appellant and the appellant alone. - J9 - We are grateful to both Counsel for their spirited submissions. We shall deal with the two grounds of appeal together as they overlap. We have looked at the evidence on record, it is clear that there was no direct evidence of the actual attack on the deceased by the appellant. The prosecution case rested on circumstantial evidence. We have to find whether relevant facts were proved in order to be able to draw an inference of guilt against the appellant. In cases of cirqumstantial evidence, the circumstances must be such that the only inference that can be drawn is that of guilt and that alone. On finding relevant facts that may support a conviction we refer to what was discussed in the case of Noon vs Smith(l). Although that was a case of larceny, the principles on criminal liability for purposes of conviction in cases where only circumstantial evidence is available to the court, are applicable to this appeal. It is trite law that evidence of facts from which any reasonable person can draw an inference that a particular crime was committed is sufficient to support a conviction. In this appeal the relevant facts are those facts which show that it could not have been any other person other than the appellant who struck the deceased and caused the fatal injury. Relevant facts which show motive, opportunity and means, are essential. There may also be evidence of some act by the accused in form of preparation for the attack on the deceased. Subsequent conduct of the appellant should also be taken into account. - J10 - The learned trial Judge in the court below made findings of fact which were amply supported by evidence. The record shows that there was evidence of an earlier altercation over a debt between the appellant and the deceased, there was evidence of a fight between the two with two other persons joining the fight siding with the deceased. There was evidence that prior to the fight both parties had been drinking. After the initial fight was stopped, appellant ran away into a thatched house. Upon being pursued by the deceased and two other persons, the appellant broke out of the thatched house and was seen later on the same day with an iron bar. There was evidence that PW3 met the appellant who told him that he had reported the matter to the Police and that he, the appellant, had seen the deceased lying down pretending to be dead. PW1 had heard the appellant utter offensive words which indicated that the appellant had assaulted somebody. PW5’s evidence was to the effect that the metal bar collected from the house of the appellant had some green stuff which was from the bark of a tree at the scene of crime, that is, the place where the deceased was found lying down in a critical condition shortly before death. All these facts point to the appellant having had the motive, opportunity, and the ineans to attack the deceased. The postmortem examination report on the deceased shows a fractured skull which, according to the doctor, could have been caused by a blunt weapon used with force. There was evidence that the appellant had told PW3 that he had met the deceased who was lying down and who appeared drunk. Thus, the appellant was - J11 - in the vicinity of the crime shortly before the deceased was found fatally injured. These relevant facts prove beyond reasonable doubt the guilt of the appellant. We refer to what we stated in the case of David Zulu (2), that: “It is competent for a court to convict on such evidence as it is to convict on any other type of admissible evid,ence. However, there is one weakness peculiar to circumstantial evidence; that weakness is that by its very nature circumstantial evidence is not direct proof of a matter at issue but rather ia 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......... It is therefore incumbent on a trial judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The judge, in our view must, in order to feel safe to convict, 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.” Thus, in our view, the learned trial Judge, in the court below cannot be faulted for finding that it was the appellant who struck the deceased on the head with an iron bar, causing the fatal injury. The learned trial Judge rejected the evidence of the appellant given on oath. We find no basis to fault him. We find no merit in the appeal against conviction, it is - J12 - dismissed. ✓ On the appeal against sentence, we are persuaded by the findings of fact in the court below that the appellant and the deceased had been drinking and that when the appellant fled from the drinking place, he was pursued by the deceased and others. We agree with the submissions of learned counsel for the appellant, that such a scenario presents evidence of extenuating circumstances which we accept should ameliorate the sentence. We allow the appeal against sentence, the sentence in the court below is set aside. A sentence of 15 years imprisonment with hard labour is imposed, effective 23rd June, 1999. D. K. CHIRWA SUPREME COURT JUDGE F. N. M. MUMBA SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE