Kaumba v People (SCZ 66 of 2006) [2008] ZMSC 132 (6 June 2008)

IN THE SUPREME COURT OF ZAMBIA SCZ NO. 66/2006 HOLDEN AT KABWE/LUSAKA/NDOLA (Criminal Jurisdiction) BETWEEN: PRINCE KAUMBA AND THE PEOPLE Coram: Chirwa, Mushabati, JJS and Kabalata, AJS On the 7th November, 2006 and...6th June 2008 For the Appellant: Mr. Kelvin Bwalya, KBF and Partners For the Respondent: Mr. Patrick Mutale, Principal state Advocate JUDGMENT Kabalata, AJS., delivered the judgment of the Court Cases referred to: 1. Libuku vs. The people (1973) ZR 345 2. Bikiton Tembo vs. The People (1972) SJZ 93 This is an appeal against conviction on a charge of murder contrary to Section 200 of the Penal Code Cap. 87 of the Laws of Zambia. The particulars of the offence alleged that the Appellant, on the 13th day of May, 2005 at Choma in the Choma District of the Southern Province of the Republic of Zambia, did murder Esnart Sakala. The evidence in support of the charge was given by two witnesses, namely Fatness Sakala, the deceased's sister, and her daughter Salome Sakala. Both gave evidence that the Appellant and the deceased were husband and wife and lived with them in the same house. The Appellant and the deceased had their own bedroom in the same house. The two had been married for a long time. At the time of the death of the deceased, the Appellant had two wives. The cumulative effect of their evidence is that on the fateful day which was Thursday, PW2 heard a noise of the Appellant and the deceased fighting. She awakened PW1 who entered their room and saw them fighting. She observed that the Appellant was holding the deceased by the throat. PW1 then called PW2 to assist her stop the fight. When PW2 entered the room she saw the Appellant pushing the deceased's head against the wall, and squeezing her throat. They managed to stop the fight and they all went to sleep. The next morning before PW1 and PW2 left for the market, PW1 saw the deceased. She later complained of pain in the chest and appeared swollen on the left cheek. They returned home in the evening around 1930 hours. They found the Appellant with the deceased. The deceased told PW1 and PW2 that she was not feeling well. They observed that she was swollen on the face and on the throat and was unable to see. Her eyes were blood stained. They asked her what had happened. The deceased told them that after they left, the Appellant beat her again; that if they fought when PW1 was at home she would have rescued her. PW1 asked the Appellant why he beat the deceased like that. He answered that she was troubling him. PW1 observed that the deceased could not talk any more, the condition appeared serious. PW1 then asked the Appellant to fetch a taxi and when he did they rushed the deceased to the hospital. At the hospital, the nurses tried to put a drip of water on the deceased but in vain. Whilst the Appellant and PW1 were waiting for the doctor to arrive, the deceased died around 0100 hours. The death of the deceased was reported to the Police. PW1 testified further that the Appellant disappeared from the funeral and did not attend the burial of the deceased which took place in Monze. He was found two weeks later at Tooters in Monze. He was however apprehended by the Police. Detective Constable Siwale of Choma Police Station told the lower court that during his investigations of the case, he interviewed the Appellant. Under warn and caution, the Appellant stated that the person he killed was his girl friend; that he did not mean to kill her; and that they just fought after coming back from drinking. Subsequently Constable Siwale arrested the Appellant for the subject offence which the latter denied. In his defence on oath, the Appellant raised an alibi, his position being that on the alleged date of the assault he was away in Pemba. Secondly, it is a total denial of the offence. That he was not married to deceased and he did not beat her as alleged by the witness. He claims that he is a victim of false accusations because upon his return on Friday 13th May, he assisted PW1 to take the deceased to the hospital. The above is the brief summary of the evidence on the record. In her findings of fact, the learned trial judge found that the Appellant and the deceased were married and that they lived together in the same house. She also found that on Thursday 12th May, 2005 the Appellant assaulted the deceased in the house by holding the deceased on the throat and hitting her head against the wall. She also found as a fact that the Appellant had beaten the deceased again. She rejected the accused's defence and consequently found the Appellant guilty of murder and convicted him accordingly and sentenced him to death. The Appellant now appeals to this court against conviction and sentence of the court below. The Appellant filed written heads of argument containing three grounds of appeal which are as follows:- (i) The learned trial judge erred and misdirected herself in believing the testimony of PW1 and PW2 when they stated that the Appellant had assaulted the deceased on the 11th and 13th of May 2004 at Choma (ii) The learned trial judge in the court below misdirected herself at Law when she failed to hold a trial within a trial after the accused had informed the court that he never gave a statement to the Police but was forced to sign a statement he did not make. (iii) The learned trial judge erred in law when she held that the accused was guilty of the offence of murder. Further, the learned trial judge erred in law when she held that the accused had malice aforethought and this was evidenced from the injuries sustained by the deceased as testified by PW1 and PW2 whom the court found to be credible witnesses. The judge was in error as the judge had not seen any evidence to confirm her decision neither by way of photos of the deceased nor by doctor's testimony which doctor would have treated the deceased nor by a postmortem. In his submissions, Mr. Bwalya, on behalf of the Appellant, stated that although he had filed three grounds of appeal, certain matters have been conceded and on instructions of his client, he shall modify those grounds of appeal. He then informed the court that that his instructions are to concede on certain facts which seemed disputable in the court below. Those instructions are that the Appellant accepts the finding of the learned trial judge that he and the deceased were lovers. The Appellant further concedes that he did live with the deceased at the material time and in the same house, there lived PW1 and PW2 an aunt and sister. Counsel went on to any say that from the evidence of PW1, PW2 and PW3, it is apparent that there was a fight. The difficulty according to him, is whether or not during that fight malice aforethought could be inferred. He submits that on the evidence before court, the nature of the injuries sustained by the deceased were described as injuries to neck, throat and swelling on the left cheek and red shot eyes. However, it was not clear as the nature of the diagnosis is not known. There is evidence that there was a nurse who tried to put the deceased on drip but this failed. Mr. Bwalya further submits that the deceased died at a hospital and although it is accepted at law that absence of a medical report as to the cause of death is not fatal, he contends that there was an element of dereliction of duty on the part of the investigating officer for failure to call the doctor or the nurse who attended upon the deceased. It is further submitted that the Appellant was drunk but this evidence was not brought in examination in chief. Mr. Bwalya then stated that the Appellant has conceded that the domestic fight had some bearing on the death of the deceased. However, the gravity of the injuries suffered by the deceased is blurred. Because there was a fight which led to the death of the deceased, Mr. Bwalya submits that this was a case of manslaughter and therefore there should be a substitution of conviction as there was no intention on the part of the Appellant to kill the deceased. On the other hand, Mr. Mutale, the Principal State Advocate, submitted that the evidence before the court does establish that the Appellant did have malice aforethought at the time he inflicted injuries on the deceased. There is evidence that the Appellant was battering the deceased against the wall. During the fight, the deceased was held on the throat by the Appellant and therefore the Appellant must have intended to kill or cause bodily harm accordingly. Mr. Mutale submits that malice aforethought was established. He therefore urges this court to uphold the conviction of murder. We have carefully considered the evidence on record, the judgment of the learned trial judge and the submissions by both Counsel. Since it is conceded by the Appellant that there was a domestic fight between him and the deceased and that this fight had some bearing on the death of the deceased, this means therefore that ground one and two of the grounds of appeal fall away. In our view, the only ground of appeal left for consideration is whether the death of the deceased was caused by malice aforethought on the part of the Appellant. In fact, Mr. Bwalya submits that this was a case of manslaughter as the gravity of the injuries suffered by deceased is blurred. Before we come to that, we wish to comment on the issue submitted by Counsel for the Appellant that the Appellant was drunk at the time the fight occurred between him and the deceased. In our considered view, we find that the submission of drunkenness on the part of the Appellant cannot be sustained as there was no evidence before the lower court to sustain such a defence. Had there been such evidence, what we said in Libuku vs. The People1 would apply. In that case, we held that evidence of drinking, even heavy drinking, is not sufficient in itself to give rise to a defence of intoxication under Section 14(4) of the Penal Code. In yet another case of Bikiton Tembo vs. The People2 where when considering the evidence necessary to give rise to a defence of intoxication under Section 14(4) of the Penal Code we observed: "It is thus clear that evidence of drinking, even heavy drinking, is not sufficient in itself:../' However, what is paramount in this case is that there was a fight between the Appellant and the deceased and that the deceased died from injuries sustained from the said fight. It is equally clear that no weapon was used in the said fight. However in the absence of a postmortem report which would have clearly shown the nature or gravity of the injuries suffered by the deceased, the conviction of murder against the Appellant cannot stand. We entirely agree with Mr. Bwalya's submission that this was a case of manslaughter and accordingly we set aside the conviction of murder and substitute it with a conviction of manslaughter contrary to Section 199 of Penal Code. The appeal therefore succeeds for that reason alone. We therefore impose a sentence of 10 years imprisonment with hard labour with effect from 16th day of June 2006. D. K. Chirwa SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE