Patrick Banda v The People (APPEAL NO. 41/2024) [2025] ZMCA 29 (24 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 41/2024 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: PATRICK BANDA APPELLANT AND THE PEOPLE RESPONDENT CORAM: MCHENGA, DJP, NGULUBE AND CHEMBE, JJA. On 18t h February, 2025 and 24t h February, 2025. For the Appellant Ms. S. F. Bwalya, Senior Legal Aid Counsel Legal Aid Board For the Respondent : Mr. S. Siafwa, State Advocate National Prosecution Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Cou rt. Cases referred to: 1. David Zulu vs The People (1977) ZR 151 2 . Abraham Mwanza and 2 Others vs The People (1977) ZR 221 3 . Chabala us The People (1976) ZR 4 4. Saluwema vs The People (1965) ZR 4 (CA) 5. Mwape Kasongo vs The People - CAZ Appeal No. 36 of 2016 1.0 INTRODUCTION 1. 1 The appellant was convicted of the offence of Murder by Mweemba, J at the Chipata High Court on 27 July, 2023 and was sentenced to life imprisonment. 1.2 The particulars of the offence were that the appellant, on 23 February, 2021 at Lusangazi in the Lusangazi District of the Eastern Province of the Republic of Zambia murdered Boniface Banda. The appellant denied the charge and the Court proceeded to conduct a full trial. 2 .0 CASE FOR THE PROSECUTION 2.1 The prosecution called six witnesses in support of their case. PW 1, Edna Lungu was the appellant"s wife. Her testimony was that on 22 February, 2021 at about 06:00 hours, she and the appellant left the village and went to the farm to do some work. Prior to their departure, she took their son, a baby who was aged one year ten months to his grandmother's home, Beatrice Banda (PW 4). -J2- 2.2 She stated that at the time, the baby was in good health and when PWl and her husband arrived at the field , they had an argument which escalated with the appellant beating up PWl. She ran back to the village and the appellant followed her. 2.3 He packed her personal effects and told her to return to her village and beat her up a second time. She managed to escape and sought refuge at the appellant's cousin (PW2), Mabvuto Mwale's house. She asked the appellant's cousin, Beauty Mwale (PWS) to pick the baby up from the grandmother's home but Beauty returned without the baby. She told PWl that after she picked up the child, she met the appellant on the way and he got the child from her. 2.4 The next day, PWl and PW2 went to the appellant's house at about 06:00 hours but they did not find him there. PW2 went to look for the appellant and returned to inform PWl that he found PW 1 's baby dead and that the body of the child was lying in a field about 400 meters away from the appellant's house. PWl went to the field and found the baby lying there, non responsive and only dressed in a short. -J3- 2. 5 The evidence of PW2 (Mavuto Mwale) was that the appellant was his younger cousin. On 22 February, 2021 the appellant's wife (PW 1) went to his house to seek refuge as she had been beaten by the appellant. She spent the night at PW2's home and the following morning, PWl and PW2 went to the appellant's house but they did not find him there. PW2 left PWl at the matrimonial home and then went to look for the appellant. When he found the appellant, his trousers were wet and his gum boots were muddy. 2.6 The appellant told PW2 that he spent the night at his brother's field with the baby. PW2 went to the field to see the baby but found that the child was dead. By then, the appellant had already run away and left PW2 at the field. When he earlier met the appellant, he gave PW2 the impression that the child was asleep in the shelter at the field . The appellant did not show PW2 the route that h e took when he walked from the village to the field with the child. 2 .7 The evidence of PW3 , Machulu Miti was that on 23rd February, 2021 h e woke up early at about 06:00 hours and as he was going to the field , h e met the appellant coming from his field . -J4- They exchanged a greeting and PW3 observed that the appellant's clothes were wet. He was informed la ter that morning that the appellants son had died . 2.8 The evidence of PW4 Beatrice Banda was that she gave the appellant's child to Bea uty Mwale so that she could take the child back to his parents. The following day in the morning, PWl went to inform PW4 that h er baby h a d died . 2.9 PW5, Beauty Mwale confirmed that after she picked up the baby from PW4's house, she was on her way when she met the a ppellant. He insisted that he wanted to be with his baby and he took him away from PW5. She did not know why the appellant would want to harm his biological son. 2 . 10 PW6 , Detective Chief Inspector Thomas Mutota was the arresting officer. On 23 February, 2021 h e received a report while at Petauke Police Station that a child h a d been murdered in the village. The child, Boniface Banda was aged one year ten months. 2 . 11 The body was picked up from a field and h e noticed th at the head was swollen. He established that the a ppellant was the la st person who was with the child. A postmortem examination -JS- that was conducted on the body of the child revealed that the cau se of death was severe head injury and multiple fractures. 2. 12 PW6 stated that he saw the path that the appellant could have used as he walked to the field with the child and he observed that the path was smooth. 2.13 In h is defence, the appellant stated that on 23 February, 2021 he woke up early, put his son on his shoulders and headed to the field. As he walked on the path, he fell because the road was rough and in a damaged state. The child fell and suffered an inju ry on the head. He stated that the child's death was accidental as h e suffered injuries after he fell. He maintained that he did not kill his child. The child sustained 1nJunes because he fell into a trench as he walked to the field . 3 .0 THE LOWER COURT FINDINGS AND DECISION 3 1 The trial Court made the fallowing findings of fact- 1. That the appellant and his wife had been married for over one year when the baby died -J6- 2. That on 22 February, 2021 when the couple went to the field, they had a fight and PWl fled from her husband and sought refuge at PW2 's house. 3. The appellant got his baby from PWS on the way home and told her that he would look after his baby overnight as the mother (PWl) was still at PW2 's house. 4. When PWl and PW2 went to the matrimonial home the following morning, they did not find the appellant there. PW2 eventually found the appellant at the field and he later discovered the body of the baby in a makeshift shelter. 5. The Court found a number of coincidences which led to the conviction of the appellant for the commission of the offence. 6. The Court found that the appellant did not show any grief or remorse and did not act as a reasonable fat her would when PW2 found the body of the child at the field. 3.2 The Court found that there were inconsistencies 1n the appellant's testimony. It also found that the appellant failed to tell PW2 his older cousin about the death of his child. 3 .3 The Court found that the evidence against the appellant was circumstantial and that the appellant caused multiple and -J7- severe injuries on the child as per the postmortem report. That the child also had bruises to the face and the neck 3.4 The Court rejected the appellant's defence that the child fell accidentally and concluded that the appellant acted with malice aforethought when he caused the death of the child. 3. 5 The Court did not find any extenuating circumstances and convicted the appellant for the murder of his son. He was sentenced to life imprisonment. 4.0 THE APPEAL 4.1 The appellant was dissatisfied with the conviction and sentence and appealed to this Court advancing two grounds of appeal couched as follows- 1 . The trial Court erred both in law and fact when it convicted on circumstantial evidence that did not take the case out of the realm of conjecture. 2. The learned trial Court erred both in law and fact when it held that the Appellant had failed to sufficiently explain the odd coincidences which were connecting him to the commission of the offence. -J8- 5.0 APPELLANT'S HEADS OF ARGUMENTS 5. 1 The two grounds of appeal were argued together. It was submitted that the evidence against the appellant was circumstantial evidence as there were n o eye witnesses t o the events that led to the death of the child. The case of David Zulu vs The People1 was referred to. 5.2 It was argued that the guilt of the a ppellant was not the only r eason a ble inferen ce that could be drawn from the evidence in the lower court. Although the appellant was the last p erson who was seen with the child and was the p erson who showed PW2 where the body of the child was, the Court did not establish that h e was guilty of the murder of the child. 5.3 It was contended that the lower Court's conclusion that the appellant got the child with the intention to cause him h arm was not supported by the evidence on record because PW l 's testimony was that th e appellant h ad a good relationship with his son. The learned Defen ce Counsel submitted th at the Court refu sed to accept the appellant's explanation that th e child sustained the fatal injuries when h e fell from the appellant's -J9- shoulders. It was contended that the doctor who conducted the postmortem examination should have been called to testify whether a child who falls from a height of about two metres into a trench with stones could have sustained injuries such as the ones that were found on the child's body as per the postmortem report. The case of Abraham Mwanza and Two others vs The People2 was referred to in this regard . 5.4 It was submitted that the appellant's explanation that he slipped and fell was a reasonable explanation on how the child died which was not discredited by the prosecution witnesses. The case of Chabala vs The People3 was referred to where the Court stated that- " . . . there cannot be a conviction if the explanation might reasonably be true, for then guilt is not the only inference. It is not correct to say that the accused must give a satisfactory explanation." 5 .5 Counsel argued that the odd coin ciden ces could n ot be said to be supporting evidence as they were explained by the appellant. It was submitted that the app ellant ran a way after h e showed -JlO- his dead child to PW2 because he was overcome with fear and was in a state of confusion. 5.6 Counsel argued that the trial Court misdirected itself when it held that the appellant failed to sufficiently explain the odd coincidences because the appellant explained how the child died. It was submitted that the appellant's explanation need not be true but must be reasonably probable. The case of Saluwema vs The People4 was referred to. 5.7 Counsel argued that the child sustained fatal injuries when he fell from the appellant's shoulders into a trench full of stones. It was contended that the appellant did not cause the death of the child with malice aforethought and that the lower court should have convicted the appellant of the offence of manslaughter in the circumstances. We were urged to quash the conviction and sentence. 6 .0 RESPONDENT'S HEADS OF ARGUMENT 6.1 It was submitted that the circumstantial evidence took the case out of the realm of conjecture and that the lower court was entitled to rely on the circumstantial evidence to draw the -Jll- inference that the appellant was guilty. The case of David Zulu vs The People (supra) was referred to in this regard. 6. 2 Further, the case of Mwape Kasongo vs The People5 was ref erred to, where we stated that- "A court may only rely and consequently convict based on circumstantial evidence if it is overwhelming such that the only, probable inference is the guilt of the accused person. " 6.3 It was submitted that in drawing an inference based on circumstantial evidence, the inference drawn must be consistent with all the proved facts and the said facts should be such that they exclude every other inference apart from the one that the court draws on the evidence. 6.4 It was argued that the fact that the appellant did not seek help after his child died, until PW2 got to the field , was an odd coincidence which pointed at the appellant as the person who caused the death of the child. 6 .5 After the appellant showed PW2 where the child lay in the makeshift shelter, h e ran away from PW2 without givin g any explanation. It was contended that the injuries that the child -J12- suffered, as per the postmortem report, such as the severe head injury and multiple fractures with bruises on the face and neck could not have been attributed to a fall as the appellant claimed. 6.6 The Court was urged to conclude that the appellant caused the death of his child as the evidence on record took the case out of the realm of conjecture to permit only an inference of guilt. We were urged to uphold the conviction and sentence and dismiss the appeal in its entirety for lack of merit. 7 .0 HEARING OF THE APPEAL 7. 1 At the hearing of the appeal, Counsel from both sides entirely relied on the heads of arguments filed into Court. 8 .0 CONSIDERATION AND DECISION 8.1 We have prudently considered the Judgment appealed against, the grounds of appeal and the parties' arguments. The appellant's contention was that the case was anchored on circumstantial evidence that did not take it out of the realm of conjecture. 8 .2 It is not in dispute that PW2 found the appellant alone on the road leading to the field. He inquired about the child and when -J13- the appellant led PW2 to where the child lay and examined him, h e realized that the child was dead. 8.3 The appellant m er ely s howed PW2 where the body of the child was and ran away. In his defen ce, the appellant stated that h e ran away because he was filled with fear and was in a state of confusion. 8.4 It is our considered view that the evidence against the appellant though circumstantial is cogent and compelling and meets the threshold established in the case of David Zulu vs The People (sup ra). Though the a ppellant claimed that the deceased 's death was accidental, a closer examination of the evidence reveals a more sinister narrative. 8 .5 The a ppellant h ad control of the deceased after taking him from PWS. He spent the night with him, providing ample opportunity for harm. Further the post-mortem report r evealed a sever e h ead injury, multiple fractures and bruises on the deceased 's n eck and face. Learned Counsel for th e appellant contended that the prosecution ought to have called the medical doctor who condu cted the post mortem examination to assist the Court on the conclu sions to b e drawn from the facts and opinions -J14- stated in th e report. Cou nsel relied on the case of Abraham Mwanza & 2 Others vs The People (supra) for this position. We have had occasion to address ou r m in ds to the guidance of the Su preme Court in that case. The Cou rt held as follows: "Neither the trial court nor this court could say from this statement of facts precisely what was the nature or the severity of the injuries inflicted on the deceased. We point out to those responsible for prosecutions that this information is essential to a proper consideration of the question of sentence, and may in some cases be essential on the question of verdict. There may be cases in which the medical report will be sufficient to supply this information without it being necessary to call the doctor, but our experience is that medical reports usually require explanation not only of the terms used but also of the conclusions to be drawn from the facts and opinions stated in the report. It is therefore highly desirable, save perhaps in the simplest of cases, for the person who carried out the examination in question and prepared the report to give verbal evidence in court; certainly the doctor should have been called in the present case." -JlS- 8.6 The above authority clearly demonstrates that there may be cases in which the m edical report will be sufficient to supply m edical information without it being necessary to call a doctor. It is also desirable to call the person who carried out an examination and prepared a m edical report to give oral evidence, except in simple cases. 8 .'7 In the present case, a careful examination of the post-mortem report and the evidence presented reveals that the injuries sustained by the deceased are entirely consistent with the report's findings . The r eport details severe head injury, multiple fractures, and bruises on the n eck and face . The prosecution witnesses, including PW2, testified observing a swollen h ead and the post mortem details injuries inconsistent with a simple accidental fall. 8 .8 Given the consisten cy b etween the post-mortem report and the eyewitness accounts, it is unlikely that the doctor's evid en ce would h ave a dded any m aterial insights. 8 . 9 Further, the a ppellant's Counsel, h as not demonstrated how the doctor's evidence would h ave been relevant to the appellant's guilt or innocen ce. The appellant's claim that the child fell from -J16- his shoulders and sustained fatal injuries on a slippery path is implausible. The severity of the injuries suggests a more violent and intentional act. In light of these considerations, we find that the prosecution's decision not to call the doctor who authored the post-mortem report did not prejudice the appellant's defence 8. 10 Furthermore, the appellant failed to immediately disclose the deceased's alleged accident to his cousin (PW2) but provided false information. This undermined the credibility of his defence. 8.11 Additionally, the appellant's actions after the child's death, including fleeing the scene after PW2 saw the body of the deceased and providing false information that the child was sleeping in the shelter, demonstrates a consciousness of guilt. His evidence that he and the deceased spent a night in the shelter at the field because he was afraid that p eople would descend on him after assaulting his wife, did not assist him. This is because after the fight with his wife , the appellant was able to go to PW2's house, 600 metres away from his house, to check for his wife (PWl). The appellant also went into the village -Jl 7- and chatted with his friend around 18:00 hours without fear of being descended on for assaulting his wife. It is therefore our considered view that there is no alternative inference that could be drawn from the circumstances of the case apart from an inference of guilt. 9. 0 CONCLUSION 9.1 In light of the foregoing, we do not find merit in the appeal and it is accordingly dismissed. The conviction and sentence of the lower Court are upheld. DEP f&U P. C. M. NGULUBE Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J18-