Salikaya and Anor v People (SCZ Appeal 35 of 2003) [2005] ZMSC 48 (4 October 2005)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 35a AND 35b OF 2003 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN SILUMESIF. SALIKAYA NAMAKAU SILUMESI -Vs- THE PEOPLE 1st APPELLANT 2nd APPELLANT RESPONDENT CORAM CHIRWA, CHITENGI AND SILOMBA, JJS. On 15th July, 2003 and 4th October, 2005. For the Appellants: Mr. N. Chanda, Nicholas Chanda and Associates For the Respondent: Mr. C. F. R. Mchenga, Chief Sate Advocate JUDGMENT Silomba, JS, delivered the judgment of the Court. Cases referred to:- 1. 2. Zulu -Vs- The People (1977) ZR, 151. Banda (Kalebu) -Vs- The People (1969) ZR, 169. This appeal is against both conviction and sentence. The two appellants were convicted by the High Court in a judgment delivered on the 28th of February, 2003. The first appellant was handed the death sentence while the 2nd appellant was sentenced to serve simple imprisonment for life. The duo were charged with the felony of murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws. The particulars of the offence were that the duo, between 15th and 16th of April, 2001 at Kambule area in Mongu in the Mongu District of the Western Province of Zambia jointly and whilst acting together did murder Mukela Sikute. J2 The facts of the case are that the deceased was a school teacher at Kambule High School in Mongu; that on the morning of the 16th of April, 2001 his body was discovered by pupils of Kambule High School; the body was found dumped in water in Kambule stream. Consequently, PW1, Akayombokwa Kusiyo, the head-teacher of the school, went to the home of the deceased where he was told by the 2nd appellant, the wife of the deceased, that the deceased had been missing from home for three days from the 13 th of April, 2001. With this information from the wife, PW1 was convinced that the deceased was his teacher. The shoes and the shirt that were beside the body were those of the deceased. According to PW1, the body was naked except for the under-pant and there were injuries on the face. PW1 reported the incident to the police. The further evidence of the prosecution was that on the morning of 15th of April, 2001 the 1st appellant was at his home when his wife, PW3, went to church. Upon her return from church, around 12.45 hours, PW3 did not find her husband and upon making inquiries from her children she was told that the 2nd appellant had called him to her house. According to PW3, the 1st appellant was the father of the 2nd appellant. The 1st appellant did not return home until after 02.10 hours on 16th of April, 2001 when PW3 heard a knock on the window. PW3 opened the door for him to come in. While in the sitting room, he told PW3 how he had been to the home of the 2nd appellant to check on the sick child and later to Imwiko to check on a daughter who was reported to be very sick. PW3 told the trial court that after the 1st appellant had taken a bath his son came and told him that the husband of the 2nd appellant had died. While he was preparing to go for the funeral, PW3 told him to take off his shirt because it was looking dirty and had blood- stains. PW3 also told him to take off the trousers as it had mud and blood stains. The shirt and trousers were later washed by a servant on her instructions. In cross-examination PW3 told the court that she seriously differed with the 2nd appellant when the latter accused her of not looking after the 1st appellant when he was sick in hospital. The 2nd appellant also accused PW3 of having used the bigger portion of the 1st appellant’ pension benefits. However, when she requested to be reconciled with the 2nd appellant her father did nothing. With regard to the shirt and trousers that the 1st J3 appellant wore on the night the deceased died, PW3 told the court that if she had known that the matter would come up in court she would not have washed the clothes. She testified that although they were washed, there were spots which remained but which had been removed by cutting off the affected parts. She also testified that the 1st appellant had washed the “bombasa” he was wearing on that day and later wore it while it was wet as he left for the funeral. On the allegation that she had a grudge against the 2nd appellant, PW3 told the court that she had nothing against her as she was the one who had been taking food to the prison for the two of them. The further prosecution evidence of PW4, the son of the deceased, was that they had lunch and supper together with the deceased on Saturday. They even watched TV together until 23.00 hours when his father went to sleep. The following morning, a Sunday, PW4 asked the 2nd appellant whether his father was around. According to PW4 the 2nd appellant told him that the deceased had walked out of the house during the night to go and drink beer leaving the door open. PW4 testified further that around 10.00 hours the 1st appellant came to their home and he was there briefly. Around 13.00 hours, they had lunch and according to the witness (PW4) the 1st appellant came back to the house and had tea after which he left for SIDO. At 14.00 hours the 2nd appellant also left the house for the unknown place. At 17.00 hours the 1st appellant returned to the house, this time with herbs. PW4 testified that they were together with the 1st appellant until 22.00 hours when he ordered them to go and sleep, alleging that if they remained awake for a long time they would be dull. At that juncture, all the siblings of PW4 went to sleep while he remained behind watching TV. Later, the 1st appellant announced his departure and the 2nd appellant escorted him. On her return, the 2nd appellant collected the TV set and PW4 went to sleep. On this particular day, a Sunday, PW4 did not see his father, the deceased. The following morning, a Monday, around 07.00 hours neighbours came to ask the 2nd appellant the whereabouts of her husband. According to PW4, the 2nd appellant told neighbours that her husband might have gone to drink beer; that when he is out to drink he was in the habit of staying out for two to three days. However, when the neighbours told her that her husband’s body was in the stream with his shoulder hacked he started to cry. J4 In cross-examination, PW4 told the trial court that when the 2nd appellant escorted the 1st appellant out of the house she did not stay out for a long time, it was about a minute. He also told the court that the 2nd appellant had a sick child whom she was taking to the hospital. PW4 agreed with the questioner that the 2nd appellant, as a step­ mother, was looking after him and his siblings well. PW6, a police officer at Mongu police station, testified that on the 15th of April, 2001 the 2nd appellant made a report to the police that her husband had been missing for three days prior to the 15 and that the family had no mealie meal. She was issued with the “call - out” requiring her and her husband to report to the victim support unit but she and her husband never went back to the police. The evidence of PW7, a house servant of PW3, testified that on the 15th of April, 2001, a Sunday, he woke up in the morning and started to clean dishes and sweep the floor of the house of PW3. Later, he went to water the vegetables and while there, he saw the 2nd appellant coming out of their place. His evidence was that the 2nd appellant was well known to him as she used to come to the house of PW3 to see her father, the 1st appellant. He testified that the 2nd appellant asked him if the 1st appellant was at home. When she was told that he was not there, the 2nd appellant left a message with PW7 to inform the Ist appellant that her child was sick. When the 1st appellant returned to the house, PW7 told him about the sickness of the child of the 2nd appellant. The further evidence of PW7 was that when the 1st appellant received the message it was around 10.00 hours. He immediately left for the house of the 2nd appellant. The 1st appellant did not have lunch and supper at PW3’s home and by 22.00 hours when PW7 went to bed the 1st appellant had not returned home. His evidence was that he saw the 1st appellant the following morning on the 16th of April, 2001. The further evidence of PW7 was that the 1st appellant took off the shirt he was wearing and gave it to him to hang it on the line in order for it to dry. The 1st appellant was given food that was kept for him the previous night and as he sat to eat the food his son came to inform him that his son in law had died. In cross-examination, PW7 told the court that the 1st appellant had washed the shirt himself and only gave him to put it on the line so that it could dry. He admitted that he did not see the 1st appellant wash the shirt. J5 The other evidence of the prosecution, through PW8, was that the body of the deceased had a wound on the right hand of the face and the throat was completely cut. The back of the body had bruises as if it had been pulled from somewhere. PW8, the scenes crimes officer of Zambia Police Service, visited the scene where the body was and took pictures. He later saw a trail of blood or marks which led him to the house of the deceased about 300 metres, away. He examined the ground and it was as if something was being pulled. It had blood marks. The blood marks or trial led him through a field of maize and in the process PW8 collected a maize stock which had blood stains. The witness continued to follow the blood trail or marks and passed through a mango tree and finally the blood trial or marks led him into the house of the deceased. When he entered the house, he thoroughly checked the house; in the course of checking he saw some clotted stuff on the wall that appeared to be like blood. PW8 collected the stuff. The kitchen door was stained with some reddish stuff, which appeared like blood and he collected the stains. In the bathroom, there were stains that could be seen even though it had been mopped; he collected the stains. When the witness went into the pantry, he found two sacks which had stains and he collected them. He then proceeded to the bedroom of the deceased where he found some reddish stains on the edge of the bed and he collected the stuff. The floor of the bedroom had some reddish stuff and the witness collected a swab of the same. He then asked the 2nd appellant; as wife of the deceased, over the same stains, which looked like blood; she told him that that could be her blood because she was bleeding. The witness then proceeded to the house of the 1st appellant because he had information that he had been to the house of the deceased the night preceding the day the deceased was found dead. There he asked him for the clothes he was putting on when he visited the deceased’s house and he was given a brown trousers and a floral short-sleeved shirt. Upon checking the two items, he discovered that the trousers had been washed but had stains that looked like blood. He then called upon the 1st appellant to explain the presence of the stains on the trousers who told him that they were from something he had in the pockets. Coming to the shirt, the witness discovered that it had stains, though it had been washed. Both the trousers and shirt were collected. J6 During postmortem, at Mongu General Hospital, PW8 requested for some blood from the body of the deceased and the doctor conducting the postmortem gave him. He then requested for blood from the 2nd appellant, who had earlier told the witness that the blood stains in the house could be hers because she was bleeding; the blood was collected from her and given to PW8 by the same doctor who conducted the postmortem. The evidence of PW8 was that all the specimens outlined above were taken to the public analyst at the UTH, Lusaka, for examination and analysis. In cross-examination this witness told the trial court that he visited the scene of the crime twice; that on the 16th of April, 2001, when he followed the blood trial or marks from the stream to the house of the deceased he was with the 2nd appellant; that later when he went to collect the samples or specimens the 2nd appellant was not there. The evidence of PW9, the arresting officer, was a summary of the evidence of PW8 whom he worked very closely with during the investigations; he also summarized the evidence of other witnesses we have already covered. However,: when the 2nd appellant was asked if she knew anything about the death of her husband her response, according to PW9, was that she had not seen her husband for the past three days. At the close of the prosecution evidence the two appellants were put on their defence whereupon they elected to give evidence on oath. The 1st appellant told the trial court that he last saw the deceased on Thursday, the 12th of April, 2001 when he followed his wife, the 2nd appellant, to the hospital. He later met the couple on the same day when the 2nd appellant complained to him that the deceased was not spending nights at home. The 1st appellant consequently advised the deceased, as his son in law, to lessen beer drinking. His evidence was that on the 15th of April, 2001 a Sunday, he visited their home when he heard their child was still sick. The purpose of the trip was to deliver some herbs for the child but he did not find the deceased at home. The 1st appellant had supper at the 2nd appellant’s home and only left the place around 19.00 hours; he arrived at his home around 22.00 hours and found his wife, PW3, still awake. He went to bed and the following morning, between 7.30 and 8.00 hours, his son arrived from Kambule to inform him that his son-in-law had died and that his body was in Kambule stream. J7 His evidence was that he was very surprised and shed some tears. He changed his trousers and wore a black one. When PW3 asked him why he was changing the trousers as it was still clean he told her that he preferred to wear a black trousers because he was going for a funeral. The 1st appellant testified that when he reached Kambule he was surprised to see a group of police officers searching the house. The police did not get anything from the house and the appellant thought it was a normal check up. After burial the appellant was picked up by PW9 and taken to Mongu police station. While at Mongu police station, he was asked about the blood stained trousers and shirt and the he told PW9 that he did not know anything; he said that he did not realize that the blood stains were from some concoction. He denied the evidence of PW4 that the deceased was in the house when he was there on Sunday, the 15th of April, 2001. The 1st appellant also denied that he left the deceased’s home around 22.00 hours and reached his home around 02.00 hours. He further denied that his clothes were soiled and that he gave PW7 (house servant) a shirt to wash. On his relationship with the deceased, the 1st appellant stated that it was sound. In conclusion, he stated that no blood was collected from him. In cross-examination, the 1st appellant stated that his clothes were collected in his absence. He, however, agreed that his clothes had stains but did not know where the blood stains came from; he thought they were herbal stains since he had carried the concoctions in his pockets. The 1st appellant testified that he did not injure himself. With regard to the relationship between the 2nd appellant and the deceased, the 1st appellant testified that it had problems because the latter had taken to beer drinking and was usually sleeping out of the matrimonial home. He denied that he assisted his daughter (2nd appellant) to kill her husband. The evidence of the 2nd appellant, a nurse at Lewanika General Hospital, was that she was on night duty on the 12th of April, 2001; when she knocked off she discovered that her husband did not spend the night at home. Her evidence was that they were together with her husband on Thursday, but he disappeared again on Friday, the 13th of April, 2001 and never came back until Saturday around 13.00 hours. They had lunch together. During the evening, the 2lld appellant went to sleep early and was joined by the deceased around 23.00 hours. He asked for money because he wanted to go and drink J8 and the 2nd appellant gave him K5,000 and told him not to come back the following morning. He left during the early hours of Sunday and the 2nd appellant did not know where he had gone to drink. On Sunday morning the 2nd appellant went to the 1st appellant to ask for medicine for the child and because he was not there he left the message with PW7. According to her testimony the 1st appellant brought medicine between 17.00 and 18.00 hours. She confirmed that that they had supper together with the 1st appellant who left after the 19.00 hours news. After his departure, they all retired to bed. The following morning she was told by a neighbour that the body of her husband was found lying in Kambule stream. She did not go to the stream and around 8.00 to 9.00 hours she saw police officers come to the house; they entered the bedroom, searched the whole house but found nothing. According to her testimony, she was asked by the police why the floor in the bedroom was dirty compared to other rooms and she told them that she had not mopped the bedroom after the children had been bathing there. The 2nd appellant asked the police officers, PW8 and PW9, to show her the blood stains and according to her they showed her something like blood on the door. The two police officers also showed her blood outside at the corner of the house; they also showed her swabs from a briefcase, which they said had blood collected from the scene of crime but when she looked at the swabs they had dirt from the bathroom and not blood. She testified that she saw a maize stock and when she asked them where they got it from they took her to a mango tree in a neighbour’s garden where there was maize. According to her evidence, all this happened on Monday, the 16th of April, 2001. After burial of the deceased, she was picked by police and put in cell where she found the 1st appellant. Later, she was taken back to the house because the two police officers (PW8 and PW9) had found two sacks with blood stains on their bedside and the floor. She testified that she saw something that looked like blood on the bed and on the floor. She was taken to the hospital where blood was extracted from her to ascertain whether the blood found at the scene of crime was hers or was for the deceased. In cross- examination, she told the trial court that even though they had differences, because the deceased was in the habit of drinking beer and sleeping out, she had no reason to kill him. J9 The learned trial Judge considered the evidence of both the prosecution and the defence in some detail. On the evidence before her, the learned Judge decided the case involving the two appellants on circumstantial evidence. The learned trial Judge believed the evidence of PW3 and PW4 that the 1st appellant returned to his house around 02.00 hours on the 16th of Aprill, 2001 with soiled trousers and shirt and looking tired. She accepted the evidence of the 1st appellant that he had been to the home of the deceased and the 2nd appellant on Sunday the 15th of April, 2001 where he had supper but rejected his testimony that he left the home immediately after the news at 19.00 hours and reached his home at 22.00 hours. As far as the learned Judge was concerned, the 1st appellant had told a lie on the timings. She also rejected the evidence of the 1st appellant that PW3 (his wife) had a grudge against the two appellants especially in the light of the unchallenged evidence that she was taking food to the prison for her husband and the 2nd appellant. She further rejected the evidence of the 1st appellant that PW9 was out to fix him in the light of a failed marriage relationship with his cousin. The learned Judge observed that if there was any substance in this, PW9 should have been cross-examined on the alleged marriage interference by the appellant but was not. She thought the evidence was an after thought by the 1st appellant. On the allegation by the 2nd appellant that the blood was planted in the house by the police two weeks after the murder, the learned Judge ruled out the allegation as being untrue in view of the public analyst’s evidence that she received the samples or specimens from the police on 20th of April, 2001, which was four days after the murder was reported. On the reported missing of her husband (deceased) from the matrimonial home for .three days, beginning with Saturday, the 14th of April, 2001, the learned trial Judge opined that if indeed he was missing what explanation can the 2nd appellant give for the presence of her husband’s blood on the edge of the bed and under the bed if he did not return to the house. The learned Judge posed this question in reference to the public analyst’s evidence and findings at page 129 of the record of appeal. J10 As far as the learned trial Judge was concerned the 2nd appellant was implicated in the murder of the deceased because of the blood of the deceased that was found in the house and her defence that he was missing from the matrimonial home, implying that other people might have killed him, was rejected. As for the 1st appellant, the learned Judge found that the clothes he was wearing on the eve of the day the body of the deceased was discovered in Kambule stream, had blood stains of the same group as that of the deceased. He concurred with counsel for the 1st appellant that there was dereliction of duty on the part of the police for not collecting blood from the 1st appellant for examination by the public analyst. But she posed the question that supposing the lsl appellant had the same blood group as the deceased what explanation would there be for the blood of the deceased being found in his bedroom, on the maize stems in the maize field belonging to his daughter, the 2nd accused, and on his shirt and trousers? As far as the learned Judge was concerned the facts as outlined strengthened the circumstantial evidence, particularly that the 1st appellant was at the home of the deceased on the eve his body was discovered and the fact that he never returned to his home until in the early hours of the day the deceased was found dead. In conclusion, she threw out both appellant’s defence of complete denial and convicted them on the basis of very compelling circumstantial evidence, which took the evidence out of the realm of conjecture leading to the only reasonable inference that the two appellants connived to kill the deceased. There are five grounds of appeal that were advanced before the court. Ground four was not argued in order to avoid repetition. The five grounds are as follows:- 1. 2. The learned trial Judge erred both in law and fact when she rightly observed that the only evidence available was circumstantial evidence, but went ahead to apply circumstantial evidence wholesomely on both appellants in the absence of evidence directly linking both appellants. The learned trial Judge erred both in law and fact when she convicted the appellants purely basing her findings on circumstantial evidence especially that of Blood Stains which evidence was speculative and or too remote or in the absence of credible evidence with such manifest cogency especially in light of contradiction as to when the Blood Stains were found and difference in results from same blood in one scene of crime, the effect of failure by investigating officer in taking blood test of Al. JI 1 3. 4. 5. The learned trial Judge misdirected herself both in law and fact when she based heavily her convictions on Blood which was evidence of Police Officers, but which testimony and or evidence was not cogently supported by PW4 who was present on the scene thereby giving credence to an inference that blood could have been planted. Not argued. The learned trial Judge erred in law by arriving at an inference of guilty to murder by the duo based on presumptive inference without taking into account A2’s explanation of there being no blood in the house after the first search apart from the blood stains which emerged after 14 days. Mr. Chanda, counsel for the appellants, has submitted very detailed heads of argument and we are grateful to him. The thrust of his argument, on the first two grounds, was that in the absence of eyewitnesses’ accounts the conviction of the appellants by the trial court was based on circumstantial evidence. Mr. Chanda submitted that the only circumstantial evidence relied on by the lower court was the blood allegedly found in the house of the 2nd appellant and on trousers won by the 1st appellant and questioned how such evidence proved the charge of murder beyond reasonable doubt. As far as he was concerned, the evidence of PW3 was unreliable. Counsel stated that this was the witness who at first said that she washed the shirt of the 1st appellant and did not observe any dirt on trousers won by the 1st appellant. PW3, according to counsel, later changed her evidence and said she did not wash the trousers and shirt. He submitted that PW3 had first encounter with the 1st appellant and according to her the trousers he was wearing was clean and there was no mention of blood on the trousers. Counsel suspected that the police might have planted the mud on the trousers to look like he participated in the crime. With regard to the murder of the deceased, counsel stated that the murder was allegedly committed in the house; the deceased was dragged from the house up to the stream; the blood picked on the route was that of the deceased. With such evidence, he wondered why the blood found on the floor of the house was found to be not for a human being. As if to contradict himself, counsel submitted that the floor of the house was mopped, which fact made the blood diluted. By analogy, he said that if the trousers was washed the blood allegedly found on the trousers of the 1st appellant could not have been human. JI 2 On grounds 3 and 5, Mr. Chanda submitted that on the day the deceased’s death was reported to the police, the house of the 2nd appellant was searched and according to the arresting officer (PW9) they found blood. He submitted that two weeks later, the police went back and retrieved two sacks stained with blood. He submitted that if the murder was a single transaction the sacks should have been found on the first day the arresting officer searched the house and the blood on the sacks should have been human. Coming to the heads of argument, counsel has submitted that on the day the murder was reported, the police did not see two big sacks. However, when the 2nd appellant was detained the police went back two weeks later and collected the two sacks, which had blood stains. As far as counsel was concerned the evidence was enough proof that the blood on the sacks was planted by the police in order to connect the 2nd appellant to the murder of her husband. In response, Mr. Mchenga, then Chief State Advocate, stated that according to the evidence the public analyst (PW5) got the blood specimens on the 20th of April, 2001 and as far as he was concerned the allegation that the blood samples were obtained two weeks later was false. He accordingly relied on the finding of the learned trial Judge who ruled out the allegation that the police planted blood two weeks later and urged us to accept the evidence of the public analyst that she received blood samples from the police on 20 of April, 2001. On circumstantial evidence, Mr. Mchenga submitted that the evidence was quite strong leading to the only inference that the two appellants murdered the deceased. He submitted that there was evidence of blood being found on the drag route or track which belonged to the deceased. He also submitted that there was evidence of blood being found in the house and on the shirt of the 1st appellant, which belonged to the blood group of the deceased. Further, that there was a false report by the 2nd appellant of the deceased missing for three days prior to the discovery of the body. He accordingly urged us to dismiss the appeal because it had no merit. We have carefully considered the evidence contained in the record of appeal upon which the judgment of the court below was based. We have also considered very carefully the submissions of counsel and the authorities cited to us in the heads of argument filed by counsel for the appellants. It is not in dispute, and the learned trial JI 3 Judge so found, that the deceased was murdered between 15th and 16th of April, 2001; that the body of the deceased was discovered at Kambule stream. Further, it is not in dispute that the deceased was seen at his house on Saturday, the 14th of April, or in the early hours of 15th of April, 2001 when he left for beer drinking. We also agree with the learned trial Judge that the 2nd appellant reported to the police on the 15 of April, 2001 that the deceased had been missing from home for three days when this was not true. In this appeal, we intend to deal with all the grounds of appeal together and not separately. There is one important feature in this appeal and this is that this appeal was decided on the basis of circumstantial evidence. At page 119 of the record of appeal, the learned Judge gave an indication of the nature of the evidence before her when she said and we quote “The evidence against both accused is circumstantial. The 2nd accused who is the wife of the deceased has been implicated in this case because of the blood found in the house. The 1st accused’s clothes were found to have blood stains of the same group as that of the deceased There was no eyewitness to this murder and the prosecution has brought circumstantial evidence to their aid ” At page 120 of the record of appeal, after quoting a passage from the case of Zulu -Vs- The People, (l)the learned trial Judge had this to say:- “In this case, I find that circumstantial evidence has taken the case out of the realm of conjecture and the evidence is so cogent that the only reasonable inference that I can come to is that the two accused persons connived to kill the decease. Otherwise, how does one explain — the deceased’s blood being found in the house of the deceased, the deceased’s blood being found on the 1st accused’s clothes, the 1st accused arriving home at 02.00 hours with soiled trousers and washing his shorts in the night ” J14 The appellants have argued, through counsel, that there was too much reliance on evidence of blood being found on the 1st appellant’s trousers and shirt, as well as, in the house of the deceased when the blood could have been planted by the police who went to collect the trousers and shirt and other blood specimens, respectively from the 1st appellant’s and the deceased’s homes in the absence of the appellants two weeks after the crime had been committed. Our understanding of the argument is that it does not hold water apart from being speculative. A reading of the learned trial Judge’s judgment will show that the same matter was raised in the court below and was rejected on good evidence. According to the evidence, the body of the deceased was discovered on the morning of Monday, the 16th of April, 2001. The investigations by the police commenced immediately the murder was reported. As per the evidence of PW8 and PW9, both the 1st and 2nd appellants were interviewed on the same day. The 2nd appellant and the two police officers (PW8 and PW9) combed the entire house; they followed the drag route up to where the body was lying. All blood stains both inside the house and on the route were shown to her. When she was asked about the blood in the house she said that it could be her blood because she was bleeding. The 1st appellant was asked to explain why the trousers had stains and his response was that he had herbal concoctions in his pockets which could have stained the trousers. All this happened on the 16 of April, 2001. The police collected blood specimens and if the same were delivered to the public analyst (PW5) on the 20 of April, 2001 then the specimens must have been collected within two or three days from the date the body was discovered. Considering the distance between Mongu and Lusaka we can say that the 20th of April, 2001 was entirely devoted to travelling and handing in the specimens to the public analyst, PW5. On the basis of our reasoning we can, in agreement with the learned Judge, say that the blood was not planted in the house, on the drag trail, trousers or shirts because the appellants had been interviewed and made aware of the blood stains. Further, we would, in agreement with the learned Judge, state that the specimens were not collected after two weeks but promptly on the basis of the evidence of PW5, PW8 and PW9. J15 It cannot be denied that circumstantial evidence was built around the blood stains that were found in the house, on the route leading to where the body was and on the trousers and shirt won by the 1st appellant on the day the deceased was brutally murdered. The house in which blood was found belonged to the 2nd appellant and the deceased. According to PW5’s report at page 129 of the record of appeal, the blood stains on the edge of the bed and under the bed were identified as group ‘0’ positive (see items 8 and 9 of the report) belonging to the deceased whose blood group was also group ‘O’ positive. In contrast, the 2nd appellant’s blood was group ‘0’ negative, thereby eliminating the allegation that the blood stains in the house were hers because she was bleeding. The report further states that, the blood on the drag route belonged to the blood group of the deceased. As for the 1st appellant no blood was taken from him to determine his blood group and yet the blood stains on his shirt and trousers were, according to the public analyst’s report, found to belong to group ‘0’ positive, the blood group of the deceased. Contrary to the finding of the learned Judge, we want to point out that the fact that the police did not take blood from the 1st appellant, like they did with the 2nd appellant, did not amount to a dereliction of duty. There is clear evidence that the 1st appellant was at the home of the deceased on Sunday, the 15th of April, 2001. His evidence was that he left the house immediately after the news at 19.00 hours and arrived at his house at 22.00 hours. This evidence was contradicted by the evidence of PW4, the son of the deceased, who testified that the 1st appellant walked out of their home at 22.00 hours. The evidence was further contradicted by PW3, the wife of the appellant, who told the trial court that he arrived home around 02.00 hours, looking tired and dirty. The evidence of PW3 and PW4 was accepted by the learned Judge who also rejected the evidence of the 1st appellant. When the 1st appellant was cross-examined, he agreed that his clothes had stains but did not know where the stains came from, as he was not injured. He thought that the stains were herbal stains since he had carried some concoctions in his pockets. In the circumstances of this case there was no need of taking blood from the 1st appellant as he was not injured and, therefore, there was no allegation to disprove as the stains were not from his blood. In the case of the 2nd appellant she said she was bleeding and so the JI6 police took her blood samples to determine her group and whether it matched the blood that was in the house. In the case of Banda (Kalcbu) -Vs- The People (2) this is what we said:- “In obvious cases, for instance, the emerging from a stolen motor vehicle and thereupon apprehended, or the man caught in the very act of sexual assault where there are independent witnesses whose evidence can reasonably be regarded as being very strong, it cannot seriously be argued that failure to take finger prints or have the complainant medically examined is a dereliction of duty; but usually independent eyewitness evidence of such weight will not exist and it is then most certainly the duty of the police to search for evidence which will confirm or refute the allegation —. ” In the final analysis, we are of the strong view that this is a case that could not be decided conclusively on any evidence other than circumstantial evidence. The presence of blood in the deceased’s house linked his murder to the wife, the 2nd appellant. The blood stains belonging to the deceased found on the trousers and shirt of the 1st appellant strongly suggested that the 1st appellant had, in concert with the 2nd appellant, murdered the deceased. In view of the foregoing linkages and considering that the 1st appellant was at the home of the 2nd appellant up to 22,00 hours and must have remained in the vicinity until the deceased returned from his drinking spree, where upon they set upon him, and: killed him and dragged his body to the stream where it was dumped, it cannot be denied that the circumstantial evidence was so strong that it took the case out of the realm of conjecture leading to the only reasonable inference that the two appellants connived to kill the deceased. J17 The appeal is dismissed for lack of merit. D. K. Chirwa, SUPREME COURT JUDGE- SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE.