Bwalya v People (SCZ Judgement 29 of 2010) [2010] ZMSC 13 (2 November 2010)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 43/2010 (635) SCZ JUDGMENT NO. 29 OF 2010 HOLDEN AT KABWE (Criminal Jurisdiction) IN THE MATTER BETWEEN: NELSON BWALYA APPELLANT AND THE PEOPLE RESPONDENT Coram: Sakala, CJ., Chibesakunda and Chibomba, JJS 10th August, and 2nd November, 2010. For the Appellant: Ms. M. Tresha of C. L. Mundia and Company. For the State: Ms. S. M. Kundachola, Senior State Advocate. JUDGMENT Sakala, CJ., delivered the Judgment of the Court. (636) Cases referred to: 1. Fawaz and Chelelwa V The People SCZ No. 21 of 1995. 2. Haamenda V The People (1977) ZR 184. 3. Moola V The People (2000) ZR 148. 4. Chishimba V The People Appeal no. 17 of 1999. The Appellant was sentenced to suffer death by hanging following upon his conviction for the offence of murder, contrary to Section 200 of the Penal Code, Cap 87 of the Laws of Zambia. The particulars of the offence were that, Nelson Bwalya, the Appellant, on 10th May, 2008, at Serenje, in the Serenje District of the Central Province of the Republic of Zambia, murdered Lameck Shupa Chisenga. The fact that the deceased died as a result of the injuries he sustained was not in dispute. The question for determination was whether it was the Appellant who murdered the deceased. The case for the prosecution centered on the evidence of two witnesses, PW1 and PW2. The evidence of PW1, the mother-in-law of the Appellant, was that on 6th May, 2008, the deceased came to her house to collect money from the people the deceased had treated. The deceased explained to her that he was going to use (637) her house as a base centre for collecting money from the people whose wives he had treated. PW1 testified that many people came and paid the money to the deceased. Subsequently, the deceased sent one, Haring son Mambwe, to call the Appellant. Later, PW1 saw the Appellant running with an axe handle. When the Appellant reached her house, he asked for the deceased. According to PW1, when she asked the Appellant why he was looking for the deceased, the Appellant explained that he wanted to kill him because he had killed his wife. PW1 testified that she advised the Appellant against killing the deceased as it was going to be a serious offence; that if he killed the deceased, she too would be implicated or involved; but the Appellant explained that she will not be implicated or involved as he was going to be the one going to kill, but she still pleaded with him not to kill the deceased. According to PW1, she shouted for the deceased to run away as the Appellant was going to kill him, but the deceased, who was then sick failed to run away. The Appellant ran towards the deceased, PW1 followed and continued pleading with the Appellant not to kill the deceased; but the Appellant insisted that he was going to kill the deceased. PW1 explained further that she saw the Appellant striking the deceased with an axe handle. She (638) then ran away and hid herself behind her Kitchen. Subsequently, she heard sound of beatings. The Appellant then told her that he had killed the deceased. She told him that what he had done was very bad; but the Appellant told her that he was going to bury the deceased himself. He took the body and buried it near the village. The Appellant told PW1 that he was not going to run away; that if the neighbourhood watch members came; she should tell them that he was at his home with his wife. According to PW1, the incident happened around 17.00 hours. In cross-examination, PW1 explained that a woman came when she shouted for help; but found that the deceased had already been killed. PW1 explained under cross-examination that there was no quarrel between the deceased and the Appellant; and that she did not witness the burial of the deceased. According to PW1, the Appellant looked drunk, when he came to her house and run towards the deceased. PW2, a Detective Sergeant, testified that on 11th May, 2008, he received a report of murder. He went to the scene. He found that the Appellant had already been apprehended. Upon interviewing the Appellant; he told him that he had killed the deceased because he bewitched his wife. Thereafter, the Appellant led him to a shallow grave, where he had buried the deceased. The deceased’s body was exhumed. He noticed big cuts on the head. (639) On 12th May, 2008, he recorded a Warn and Caution Statement from the Appellant in which he again admitted killing the deceased because he bewitched his wife. In Cross-examination, PW2 repeated that the Appellant told him that he had killed the deceased because he had bewitched his wife. At the end of the prosecution case, the court found the Appellant with a case to answer and put him on his defence. The Appellant elected to give evidence on oath. In his evidence in defence, the Appellant testified that on 10th May, he was at home with his wife making fish traps for fish. Around 17.00 hours, a Mr. Haringson Mambwe came and told him that the deceased wanted to see him. He went to PWTs house, where he found the deceased. The deceased then asked for K200,000.00 from him for assisting his wife to have a child. He told the deceased that the money and the pig were kept by somebody, who was looking after the child. Thereafter, he left the deceased and returned to his house leaving the deceased with other people. The Appellant explained that at around 03.00 hours, the neighbourhood watch came to his house and found him asleep (640) with his wife. They told him that they had come for him. He left with them. After walking for a distance, they told him that the deceased had died. In his defence, the Appellant denied carrying an axe handle to kill the deceased. He denied telling the Police Officer that he had killed the deceased because he had bewitched his wife. He denied taking PW2 to a place where he had buried the body of the deceased. He explained that he never differed with his mother-in-law and he does not know why his mother-in-law lied against him. He denied carrying the body of the deceased. In cross-examination, he admitted going to the deceased’s house for the deceased to assist his wife to have a child; that he did not suspect the deceased to have killed his wife; and that his wife died on 4th January 2008. He testified that his mother-in-law lied against him. He denied burying the deceased’s body in a shallow grave; that what he had told the court was what he told the arresting officer. The learned trial Judge reviewed the evidence and found as a fact that the deceased was killed; that PW1 narrated the incident as to how the deceased was killed; that PWl’s evidence was not challenged; that there was also the evidence of PW2, the Arresting Officer, to whom the Appellant admitted having killed the deceased and led the Police to a shallow grave from where the body of the deceased was exhumed. The learned trial Judge (641) accepted the evidence of PW1 that it was the Appellant who killed the deceased with an axe handle. The Court found that the Appellant’s evidence was largely denial that he left the deceased well sitting in the shelter with other people; but that PW1 was not cross-examined on this vital issue. The Court dismissed the Appellant’s explanation as a pack of lies. The Court found that the Appellant’s denial that he did not quarrel with the deceased; and that he did not suspect him to be a wizard responsible for the death of his wife took away the Appellant’s belief in witchcraft. The court was satisfied on the evidence that the Appellant killed the deceased with malice aforethought and convicted him of murder, contrary to Section 200 of the Penal Code, Cap 87 of the Laws of Zambia. On sentence, the court observed that although PW1 and PW2 alluded to Appellant’s belief in witchcraft, the Appellant in his evidence repudiated that belief that he did not believe that the deceased killed his wife through witchcraft. The Court was satisfied that there were no extenuating circumstances to persuade it to pass a different sentence. The court then sentenced the Appellant to death by hanging. The Appellant appealed against both conviction and sentence. Two alternative grounds of appeal were filed; namely: that the (642) learned trial Judge erred in both law and fact when he relied on the evidence of PW1 and PW2 that the Appellant murdered the deceased; and alternatively that learned trial Judge erred in law and fact when he did not consider witchcraft as an extenuating factor before sentencing the Appellant. On behalf of the Appellant, Mrs. Tresha filed written heads of argument, augmented by brief oral submissions based on the two grounds. The gist of the written heads of argument on ground one is that PWl’s evidence was that she saw the Appellant strike the deceased on the cheek, then she ran away to hide; that the Medical Report did not even make mention of any effect on the cheek or any cutting or bruise; and that PW1 did not see the Appellant inflict any other wound. It was also argued that the evidence of PW1 cannot be relied upon as she lied on a material point, when she said she shouted for help and a neighbor came and found the dead body; that this statement was later changed in cross examination that none of the neighbours saw the dead body. In support of the arguments, the case of Fawaz and. Chelelwa V The People1 was cited in which this court held that: (643) “Cross examination cannot always shake the evidence of an untruthful witness in every respect, it is sufficient to show the unreliability of a witness if he is shown to have told an untruth about an important part of his evidence. ” It was submitted that PW1 ’s evidence left a lot of doubt as to the quality of her evidence. On the evidence of PW2, it was contended that the document, where PW2 recorded the admission of the offence by the Appellant was not produced; while the Appellant denied admitting the offence and denied having led PW2 to the grave site. It was submitted that if the document had been produced; it was going to be in favour of the Appellant; and that it would also be assumed that probably no such statement was ever taken, which was also a dereliction of duty on the part of the police which ought to be interpreted in favour of the Appellant. The case of Haamenda V The People2 on dereliction of duty was cited in support of the submissions on the evidence of PW2. The summary of the written heads of argument on the alternative ground two relating to failure by the trial Judge to consider witchcraft as an extenuating factor before sentencing is that the evidence of PW1 and PW2 clearly revealed the Appellant’s belief in (644) witchcraft. It was submitted that in the alternative on sentence, should this court confirm the conviction, the sentence should be disturbed on the ground that there were extenuating circumstances, which should render the death sentence inappropriate. The case of Mbomena Moola V The People3 was cited in support of the submissions on ground two. It was submitted that to the extent that the evidence of PW1 and PW2 is to the effect that the Appellant killed the deceased because he believed that the deceased killed his wife through witchcraft, it must be believed. The brief oral submissions on behalf of the Appellant which related to ground two only were that there were extenuating circumstances in that PW1 and PW2 were firm in their evidence that the Appellant admitted killing the deceased because he believed that the deceased killed his wife because of witchcraft; that the court having rejected the Appellant’s evidence, then PW1 and PW2 must be believed. On behalf of the State, Ms. Kundachola informed the court that she supported the conviction. She pointed out, however, that had the Appellant elected to remain silent in his defence, the trial court would have found extenuating circumstances based on the evidence of the prosecution. (645) We have considered the evidence on record, the Judgment appealed against and the submissions by both learned counsel. The arguments on ground one of appeal are essentially a criticism of the evidence of PW1 and PW2, In case of PW1, the criticism is that although she testified seeing the Appellant strike the deceased on the cheek with an axe handle and then ran away to hide; the Postmortem Examination Report did not reveal any cutting or bruise on the cheek; and that PW1 did not see the Appellant inflict any wound on the deceased. PWl’s evidence has also been criticized on the ground that she was unreliable as she lied on a material point that when she shouted for help a neighbor came and found a dead body and yet in cross- examination she testified that none of the neighbours saw the dead body. We have examined the evidence of PW1. First, we take note that PW1 is the mother-in-law of the Appellant. Secondly, the incident took place at her house. The evidence of PW1 in relation to the incident reads as follows:- (sic) “Shupa sent Haringson to call Nelson they did not come together. Nelson came with an axe handle he came running when he reached he asked for Shupa I asked him why he was looking for him he said he wanted to (646) kill him as he had killed his wife. I advised him not to kill Shupa as it will be a serious offence. I pleaded with him as I too will be implicated or involved. He said he will not get me involved as he was the one who was going to kill. He said I should feel free and not to be afraid as he was going to hill him. I pleaded with him very much I shouted for Shupa to ran away as he was going to be killed because Shupa was sick he failed to run, he only sat up on a reed mat. Nelson ran towards him I also followed I continued pleading with him not to kill him he insisted that he was going to kill him. He struck him with an axe handle on the cheek he fell down then I ran to hide behind the kitchen I heard the sounds of the beatings later he came to tell me that he had killed Shupa Lameck Chisenga. I told him that he had done a bad thing then he said he was going to bury him. He took the body and buried it near the village he said he was not going to run away if the neighbourhood watch members came they will find him with his wife and that is what happened.” While PW1 only saw the Appellant hit the deceased once, she testified to hearing sound of “beatings,” while she was hiding. (647) Above all, she saw the Appellant take the body of the deceased to bury it. In addition, the evidence of PW2 was that when the body was exhumed, it was found with big cuts on the head. On PWl’s evidence, we are satisfied that the deceased died at the hands of the Appellant, who subsequently buried the body of the deceased, In our view, PW1 was a reliable and a credible witness, who did not lie on the material point. Whether when PW1 shouted, neighbours came or not, is, in our considered view, irrelevant. The material evidence of PW1 is that she saw the Appellant, her son-in-law, with an axe handle strike the deceased. Later, while in hiding behind her kitchen, she heard sounds of beatings. Subsequently, she saw Appellant carry the body of the deceased for burying. This evidence was not shaken. The criticisms of the evidence of PW2 is that he did not produce a document on which the confession statement of the Appellant was recorded and that this was a dereliction of duty. In his evidence, PW2 stated: "I interviewed the accused who told me that he had killed male Chisenga because he bewitched his wife. He led us to a shallow grave where he had buried the deceased, the body was exhumed it was found with big cuts on the head” (648) There was no objection taken to this evidence. Later in cross- examination, PW2 stated: “The accused told me that he killed the deceased because he bewitched his wife.” This was evidence in cross-examination by the Defence Counsel. The failure to produce a document on which a confession is recorded cannot amount to dereliction of duty. Dereliction of duty is failure to do something. Above all, a confession statement can be written or oral. And both are admissible evidence if not objected to. We find no dereliction of duty on the part of PW2. We, therefore, find no merit in the whole ground one. We dismiss it and uphold the Appellant’s conviction for murder contrary to Section 200 of the Penal Code. The alternative ground of appeal relates to sentence based on extenuating circumstances. The trial Judge in dealing with the issue of extenuating circumstances had this to say: “Although PW1 and PW2 alluded to Accused person9 s belief in witchcraft, the accused in his evidence on oath repudiated that belief categorically that he did not (649) believe the deceased killed his wife through witchcraft. I am therefore satisfied that there are no extenuating circumstances to persuade me to pass a different sentence. It is therefore the sentence of this court that you NELSON BWALYA, shall in terms of Section 303 of the Criminal Procedure Code, cap 88 of the Laws of Zambia be hanged by the neck until you die.” The approach of the trial Judge in dealing with the issue of extenuating circumstances was a contradiction and a misdirection. In the first place, the trial court noted that the Appellant’s evidence was largely a denial of having killed the deceased as he left him well. The court dismissed the Appellant’s explanation as a pack of lies. Secondly, the court convicted the Appellant of murder based on the evidence of PW1 and PW2, whose evidence established that accused believed that the deceased killed his wife through witchcraft. Whether the accused had remained silent or not in his defence the trial court should still have addressed its mind to the issue whether there were extenuating circumstances on the evidence adduced. Indeed, we have said in a number of cases such as in the case of Chishimba V The People4 and Mbomena Moola V The People3 (650) that a belief in witchcraft, though unreasonable, is prevalent in our communities and that such a belief is an extenuating fact in cases of murder. There was ample evidence in the instant case that the killing of the deceased was done because the Appellant believed that the deceased killed his wife through witchcraft. Thus^ the trial Judge, having dismissed the evidence of the Appellant in defence, remained only with the evidence of the prosecution, which evidence clearly established extenuating circumstances. This factor should have been taken into account in sentencing the Appellant. For the foregoing reason, we set aside the death sentence; and in its place we impose a sentence of 15 years Imprisonment with Hard Labour with effect from the date of the Appellant’s arrest. To this extent only, the appeal succeeds. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE /rmc H. Chibomba SUPREME COURT JUDGE