Pelekelo Tumbama v the People (APPEAL 161/2018) [2019] ZMCA 324 (20 August 2019)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT NDOLA APPEAL 16 1/20 18 (Criminal Jurisdiction) BETWEEN: PELEKELO TUMBAMA vs THE PEOPLE 0 AUG 2019 - __,. 'EGISlR ~ ' , , APPELLANT RESPONDENT CORAM: Chisanga JP, Kondolo and Majula JJA On 26th March, 2019 and 20t h August, 2019 For the Appellant For the Respondent Ms. M. Marebesa, Senior Legal Aid Counsel Mr. P. Mutale, Deputy Chief State Advocate. JUDGMENT MAJULA JA, delive red the judgment of the court. Cases referred to: 1. 2 . 3 . 4 . 5. 6. 7. Emmanuel Phiri and Others vs The People (19 78) ZR 79 David Zulu vs The People (1977) ZR 157 Dorothy Mutale and Another vs The People (1979) SJ 51 (SC) Chitalu Musonda vs The People (SCZ Appeal No. 138/ 2014) Yokoniya Mwale vs The People SCJ, Appeal No.285 of 2014 R vs Saunders (1 573) 2 Plowd 4 73 R vs Latimer (1886) 17 QBD 359 Legislation referred to: Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION J2 1.1 On 31 st August, 2017, the appellant, Pelekelo Tumbama, was found guilty and convicted by the High Court of murdering his wife Ruth Kanshimba, (hereinafter called the deceased) and sentenced to suffer the mandatory death penalty. His appeal before this court is against conviction and sentence. 1.2 The facts established by the prosecution are that in the early hours of 3 rd March, 2017, the appellant woke up, Matildah Kanshimba (PW2) the deceased's young sister to go and see her sister in the kitchen. Matilda rushed to the kitchen and found her sister Ruth Kanshimba lying on the floor facing upwards with her eyes dilated. 1.3 When she asked the appellant what had happened to her sister, the appellant told her that the deceased had touched an electric cable which he had set up as a trap for his son Muyota Tumbama, who was locked outside the house. Ruth then saw a small black cable just below the cooker switch running through the window pane to a key on the door. 1.4 There was also evidence that the appellant had a frosty relationship with his son who was in a habit of going home at awkward hours after drinking alcohol. 1.5 Other evidence came from Muyota Tumbama, (PWS) the appellant's son who testified that on 2 n d March, 2017 he left for the market around 1 7. 00 hours to go and play pool and drink J3 alcohol. When he went home between 23:00 hours to 24:00 hours, his father chased him and told him to go back to where he had come from as it was late . 1.6 He left and on his return between 24:00 hours to 0 1 :00 hours and a few m etres from the house, he heard his mother scream that she was dying. Muyota then rushed home and found the deceased lying on the floor, unconscious . Fearing the father 's wrath, he proceeded to his bedroom and in the corridor, he m et the appellant who said to him, "see what you have caused." 1.7 Transport was subsequently arranged and the deceased's body deposited at Mukinge Mission Hospital Mortuary. A postmortem examination conducted by (PWl) Dr. David John Friend, revea led that the state of the body and of the internal organs were consistent with electrocution as the cause of death. 1.8 In his defence, the appellant denied setting up an electric trap for his son which resulted in the deceased being electrocuted . His version was that on 3 rd March, 201 7, his son went home late around midnight and he told him to go back to where he had come from. 1.9 Later after h e had gone back to sleep, he was awakened by a loud bang on the door. He then went there with the deceased who stood near a switch in the kitchen. The appellant then heard another bang whereupon the deceased screamed a nd fell to the floor . J4 1.10 He tried to wake her up but she did not respond. He then went to wake PW2 who was sleeping in another bedroom so that they could combine efforts and resuscitate the deceased. 2.0 TRIAL COURT'S FINDINGS 2.1 After examining the evidence before her, the learned trial Judge accepted the prosecution evidence that the deceased died of electrocution after touching electricity. She ruled out any dangers of fa lse implication from prosecution witnesses who were related to both the appellant and the deceased. The court considered that by setting up an electric trap for his son, PWS , the appellant intended either to cause death or grievous harm to this person. She was of the view that there was t ransferred malice and accordingly convicted the appellant of murder and sentenced him to undergo the d eath penalty. 3.0 GROUND OF APPEAL 3.1 The appellant was dissatisfied with the judgment of the lower Court and h as canvassed one ground of appeal before us. This is as follows: - "The learned trial court erred both in law and fact when it convicted the appellant despite guilt not being the only reasonable inference from the circumstantial e vidence of witnesses with an interest to serve. " 4 .0 APPELLANTS ARGUMENTS JS 4.1 In support of the sole ground of appeal Ms. Marebesa, placed reliance on the written heads of argument, and submitted that the evidence of PW2, Matilda Kanshimba, and PW3 , Stanford Kanshimba, who are relatives of the deceased, puts the case in the ambit of circumstantial evidence which was weak and lacking in something more required by the law. We were referred to the case of Emmanuel Phiri and Others vs The People 1 where the Supreme Court held as follows: "Something more must be circumstances which though not constituting corroboration as a matter of strict law, yet satisfy the court that the danger that the accused is being falsely implicated has been excluded.'' 4.2 Ms. Marebesa went on to stress that Matilda and Standford being sister and father to the deceased respectively, fall in the category of witnesses with a possible interest to s erve whose evidence required corroboration. Citing the case of David Zulu vs The People 2 counsel observed that it is incum bent on a trial court to satisfy itself that the circumstantial evidence at its disposal has taken the case out of the realm of conjecture before it can feel safe to convict. 4.3 Counsel noted that the evidence of the prosecution witnesses was further weakened by the contradiction from PWS, Muyota Tumbama, who testified that he tried to open the door before he went back but found it locked. According to Ms. Marebesa, if J6 indeed the door was ignited, it would have electrocuted the son at this point. 4.4 Counsel emphasized that considering that the post mortem report was inconclusive on the cause of death, it is possible that the electrocution could have been caused by lightning. It was contended on behalf of the appellant that the doubts highlighted above ought to be resolved in favour of the appellant as guided by t he Supreme Court in the case of Dorot hy Mutale and Another vs The People3 • 5.0 RESPONDENT'S ARGUMENTS 5.1 In opposing the appeal, the learned Deputy Chief State Advocate Mr. Mutale submitted that the law has been refined particularly against those who are relatives of the deceased. Counsel observed that it is incumbent on a trial court to consider the circumstances of each case in determining whether the evidence is suspect and to what extent. For this proposition we were referred to the case of Chitalu Musonda vs The People4 . 5 .2 Counsel stated that the trial court was therefore on firm ground when it evaluated and accepted the evidence of Ma tilda and Stanford. In the alternative, Mr. Mutale submitted that the evidence of PW2 and PW3 was corroborated by PW7 the arresting officer, who testified that immediately after the incident on the fateful night, the appellant went to the police and reported that his wife had been electrocuted. Counsel said J7 that at this point there was no suggestion from the appellant that the electrocution was as a result of a lightning bolt. 5.3 Mr. Mutale further referred us to the evidence of PWl David John Friend, the pathologist who ruled out lightning as a cause of the electrocution. It was contended that the issue of weak circumstantial evidence does not therefore arise. 5.4 We have carefully considered the evidence on the record, the ground of appeal and the arguments presented before us . A reading of the ground of appeal raises two issues i. e. whether the trial court was on firm ground to rely on the circumstantial evidence presented by the prosecution witnesses, some of whom were relatives of the deceased and the appellant respectively. The other issue was whether the evidence that was before the trial court met the threshold to sustain the conviction. 6.0 EVIDENCE IN THE TRIAL COURT 6.1 The damning evidence against the appellant is that received from his sister in law, Matildah Kanshimba and his son, Muyota. Matilda testified that after she had been woken up by the appellant to witness her sister's condition as she lay on the floor, upon inquiring into what had transpired the words that fell from the appellant's mouth were that the deceased had touched an electric cable, a trap he had set up for his son who was outside. Matildah observed a small black cable which was connected to the stove and passing through a key and a window. J8 6.2 Muyota explained that when he initially arrived home he was chased by the father as he was late. He did as instructed, and upon his return between 24. 00 hours to O 1. 00 hours h e heard his mother screaming and uttering the words 'I am dying'. Upon entering the house, he found his mother lying down on the floor in the kitchen. He was gripped with fear of his father and headed straight to his bedroom with a view of going to sleep. However, he heard his father call out to him saying come and see what you have caused. 7.0 POSSIBILITY OF BIAS 7.1 We have considered the relationship of Matildah, Muyota and the appellant in as far as they are related to the extent that might they have had motive to falsely implicate the appellant. The relationship between Matilda and the appellant was described as okay. We do not conceive any motive to falsely implicate the appellant since the relationship was not strained. 7.2 As regards the relationship between father and son, it was problematic. The father was displeased with the son's conduct as he had taken to drinking. On the material day the appellant was so incensed that he chased him. 7.3 It is clear to us that the trial Judge inferred from the actions of the appellant that he was so bitter that he was driven to hatching a plan to deal with his son. The plan unfortunately resulted in the death of his wife. J9 7.4 The trial Judge refuted the version of the appellant that he was not the one that set the trap. The appellant suggested that he was framed. The trial Judge ruled out the possibility of bias on the part of the star witness and rightly so in our view. In the case of Yokoniya Mwale vs The People, 5 the Supreme Court stated as follows: routinely therefore " ... . We ought to however) stress that these authorities did not establish, nor were they intended to cast in stone, a general proposition that friends and relatives of the deceased, or the victim are always to be treated as witnesses with an interest to required serve and whose evidence corroboration. Were this to be the case, crime that occurs in family environments where no witnesses other than the near relatives and friends are present, would go unpunished for want of corroborative evidence. Credible available evidence would be rendered insufficient on the technicality of want of independent corroboration. This, in our view would be to severely circumscribe the criminal justice system by asphyxiating the courts even where the ends of criminal justice are evident. The point in all these authorities is that this category of witnesses may, in particular circumstances, ascertainable on the evidence, have a bias or an interest of their own to serve, or a motive to falsely implicate the accused. Once this is discemable, and only in those circumstances, should the court treat those witnesses in the manner we suggested in the Kambarage case. A conviction will thus be safe on the if it is based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or the victim provided the court satisfies itself that on the evidence before it, those witnesses could not be said to have had a bias or motive to falsely implicate the accused, or any other interest of JlO their own to serve. What is key in our view, is for the court to satisfy itself that there is no danger of false implication." 7 .5 In considering all the evidence, the trial Judge was on firm ground in ruling out any motive to falsely implicate the appellant. There was equally no evidence for concluding that there was bias or a motive on the part of Matilda and Muyota, to falsely implicate the appellant. The only person who could have set the trap was the appellant. 7.6 The trial Court dismissed the assertion that the decea sed could have been struck by lightning on the basis of the medical evidence of Dr. Friend (PWl). We agree with this finding because Dr. Friend categorically stated that he established the cause of death to be consistent with electrocution and there were no abnormal findings. When suggested to him that lightning was the cause of death, Dr. Friend indicated that lightning has a very high voltage and could cause a variety of different burns. On the basis of his observation, he ruled out the possibility that lightning could have been the cause of death. We are satisfied there was no basis for the trial Judge not accepting this evidence, and that it was rightly received. 8.0 MALICE AFORETHOUGHT 8.1 Another ingredient required to sustain a charge of murder is that the perpetrator had malice aforethought. This element was considered b y the trial court. The Judge found that malice aforethought was also proved in that by setting up an electric Jl 1 trap, the essence is that the appellant intended or at least knew that this might cause death or grievous bodily harm to his son, although unfortunately the wife was the one who was murdered. Transferred intent (or transferred mens rea, or transferred malice, in English Law) is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible. 8. 2 The doctrine of transferred malice was considered in R v Saunders6 and R v Latimer7 • In R vs Saunders, the defendant gave his wife an apple which he had poisoned with arsenic. He wanted to kill her so that he could marry another woman. The wife took a bite from the apple then gave it to their daughter. The daughter died. It was held as follows : ((the defendant was liable for the murder of his daughter. His intention to kill his wife was transferred to the daughter. " 8.3 In R vs Latimer, the facts were that the defendant a soldier, hit a customer in a pub with his belt after an attack by another person. The belt rebounded off the first victim and hit a woman, cutting her face open in the process. The court h eld that the mens rea from the first attack could be transferred to the second offence. In applying the doctrine of transferred malice to this case therefore, the trial Judge cannot be faulted. 9.0 CIRCUMSTANTIAL EVIDENCE J12 9.1 We can at this point review the evidence on which an inference of guilt can b e drawn. This is the medical evidence proving the deceased's death as due to electrocution. There is evidence of her son, Muyota to whom the appellant uttered the words "see what you have caused." Further evidence was received from Matilda who was awoken to witness her sister lying on the floor. The appellant at this critical point said to her that his wife Ruth had touched an electric cable, a trap he had set for his son. 9.2 By process of elimination the other occupants of the house were children, 8 and 10 years old respectively, these are obviously incapable of setting up such an elaborate scheme and were in actual fact fast asleep. Apart from the appellant the only other adult was Matilda and there is no motive for her to devise the death trap. Muyota was outside the house on a drinking spree and only came to the murder scene shortly after electrocution had occurred. This leaves only one culprit, the appellant who does not dispute that the cable was his but simply denies being the one who set up the trap and wants the court to believe that the wife died by being struck by lightning. 9.3 The explanation tendered by the appellant was correctly rejected by the trial court. The Supreme Court has guided in the case of David Zulu vs The People that a trial Judge must guard against drawing wrong inferences from the circumstantial evidence. They further observed that the Judge must be satisfied that the circumstantial evidence has taken the Jl3 case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilty. 9 .4 The circumstantial evidence in the preceding paragraphs points to the appellant as being the perpetrator of this heinous crime. The evidence has taken the case out of the realm of conjecture and only an inference of guilt can be drawn from logical deduction of the evidence placed before the court. 9.5 Having considered the evidence that the trial Judge rested his findings on, we cannot fault him because his findings are supported by the evidence on record. 9 .6 In light of the foregoing, we find the appeal to be bereft of merit and dismiss it accordingly. We uphold the conviction of murder and death sentence. C- .......... ...... ~ ......... . F. M. Chisanga JUDGE PRESIDENT .c?.: ... ~ ... .. ....... ~ ... ...... ... . M. M. Kondolo, SC COURT OF APPEAL JUDGE ••• • • • • • L~~••••••• • •• • •••• ~, B .°i;?Majula COURT OF APPEAL JUDGE