Sitali Susiku v the People (Appeal No. 001/2022) [2022] ZMCA 175 (23 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 001/2022 BETWEEN: SITALI SUSIKU AND THE PEOPLE p\. JHIC OF cO\iRl OF Appellant •i _ 2-3 AUG 2022 ~ AL REGISTRY I 50067, LI. J5/•S .. 1>-· Respondent Coram: Mchenga DJP, Sharpe-Phiri and Muzenga JJA On 15th June 2022 and 23 rd August 2022 For the Appellant: Mr. E. Mazyopa, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. N. Munkombwe , State Advocates, National Prosecution Authority JUDGMENT Sharpe-Phiri, JA, delivered the Judgment of the Court Legislation referred to: 1. The Penal Code, Chapter 87 ofthe Laws of Zambia Cases referred to: 1. Mwewa Murano vs The people (2004) ZR 207 (SCZ) 2. Zulu vs The People (1977) ZR 155 3. Dorothy Mutale & Another vs The People (1977) SJ 51 4 . Kashenda Njunga and others vs The People (1988-1989) ZR 1 (SCZ) 5. P. L. Taylor & others vs R 21 CR. Appeal R 20 6. Maketo & 7 others vs The People (1979) ZR 23 (SCZ) 7. Zonde and others v The People (1981) ZR 337 8. Saidi Banda v the People - SCZ Selected Judgment No. 30 o/2015 J 1 ___ l. O _ INTRODUCTION 1. 1 This is an appeal against a judgment of Chinyanwa Zulu, J of the High Court at Mongu delivered on 21 st October 2021. 1.2 The background of the matter is that the appellant stood charged with one count of the offence of Murder contrary to Section 200 of the Penal Code 1 . 1.3 The allegations being that he did on 21st July 2020 at Sikongo in the Sikongo District of the Wes tern Province of the Republic of Zambia, jointly and whilst acting together with Sichechani Linyeta did murder Litumbo Simasiku ('the deceased') . 1.4 The appellant denied the charge and the case proceeded to trial. After hearing the matter, the learned Judge in the Court below found the appellant guilty of Murder contrary to Section 200 of the Penal Code and convicted the appellant accordingly. Having been found not guilty, the co-accused Sichenchani Linyeta was acquitted accordingly. 1.5 Following the conviction, the appellant was sentenced to death to be hung by the neck until pronounced dead. 1.6 This is an appeal against both conviction and sentence. J 2 • 2.0 PROSECUTION CASE 2.1 The evidence in support of the prosecution's case was led by 4 witnesses which was to the effect that on 21 st July 2020, the deceased left home at Minguli Village in Sikongo District heading to Namilumeshi Village. Although she had informed her husband, PWl that she would not take long at the other village, she did not return home that evening. 2.2 The following day, PWl immediately made inquiries into her whereabouts, wherein he was informed by his grandchild Katoti and the deceased's daughter PW3 that she had left in the company of her son-in-law, Sitali Susiku (the appellant) and Sichechani Linyeta. 2.3 After receiving this information, PWl later went to the home of the appellant to inquire about the whereabouts of the deceased, wherein the appellant admitted to PWl that he had left their village with the deceased to Namilumeshi Village, but on route, the deceased had diverted elsewhere and said she would catch up with him. 2.4 After further inquiries with his other children and failing to locate his wife, PWl returned to the appellant together with Wamunyima, Silume, Susane and Sililo to inquire from him exactly where he had left the deceased. J 3 • 2. 5 The further evidence revealed that whilst heading to the appellant, on the way, PWl and the others met the appellant with others. The appellant had an axe in his possession, which belonged to the deceased and which she carried on the day she left home. The axe was identified by PWl and others. 2.6 The evidence also revealed that the appellant informed PWl that his wife was dead and requested them to follow him to where her body was recovered. PW l's evidence was that he discovered the lifeless body of his wife at the location where the appellant had led them. He also described the injuries he observed on the deceased's body as a broken neck, multiple body injuries, scratches, and missing teeth in her upper jaw. He also observed gumboot footprints and struggle marks at the scene of the cnme . 2.7 The evidence of the prosecution witness PW2 was that on 21 st July 2020, he had attended a ceremony in Namilumeshi Village. He had observed the appellant arrive at the ceremony well after midnight carrying an axe, and that the appellant had narrated to them how he had travelled with two other people, including the deceased but that along the way, she had diverted into the bush. He stated further that he had followed the deceased to alert her that she was going in a wrong direction, but she insisted that he continue without her. However, when he returned to the road, A2 had left hence his arriving alone. J4 2.8 His further evidence was that A2 arrived at the ceremony the following morning, telling them that he got lost in the bush. PW2 also confirmed that PWl had come to Namilumeshi Village to inquire from the appellant as to the whereabouts of the deceased and that the appellant had reiterated the earlier story, he had given them. The further evidence of PW2 was that PW 1 had requested the appellant to take them to the area where he had separated from the appellant. Following this request, PW2 confirmed that the appellant and A2 led them to an area and while enroute , the appellant intimated that the deceased was at the same place that he left her. 2.9 PW2 further testified that the appellant led them to the exact point where the body of the deceased was located. At the scene of the crime, he observed struggle marks, blood stains , a plastic bottle, gumboot footprints and the body of the deceased lying face down. They also observed that the deceased had a broken neck, swollen head, and broken teeth. PW2 also recalled that the appellant was wearing gumboots when he arrived at the ceremony. 2.10 The evidence of PW3 , the wife of the appellant also confirmed that her mother's axe was found on the appellant. She also confirmed the injuries she observed that her mother had sustained which included a fractured neck and deep cut on her head. J 5 2. 11 PW 4 testified that he had investigated the matter and examined the body of the deceased where he also observed the injuries that the deceased had sustained. He arrested the appellant and A2 who led them to the bush, the scene of the crime. He also observed the struggle marks and the footprints , which he compared to the boots that the appellant was wearing on the day in question. He discovered that the pattern and size of the boots of the appellant matched the footprints found at the scene. His investigations also revealed that the appellant was drinking from the bottle found at the scene. 2 . 12 The testimony of PW 4 was to the effect that his investigations revealed that the appellant and A2 had travelled with the deceased to Namilumeshi, but on the way, the deceased went into the bush and the appellant had followed her. Further that A2 had heard the deceased shouting and requesting the appellant to stop what he was doing. However, he left the area and proceeded to the ceremony leaving the appellant with the deceased in the bush. 2 . 13 The further evidence of PW 4 was that A2 had confirmed that the deceased body was found at the place where the deceased and the appellant had branched off, and following his investigations , he had proceeded to charge both the appellant and A2 with the offence of murder. J 6 3.0 THE DEFENCE 3.1 The appellant testified on his own behalf before the lower Court narrating that he had on 21 st July 2020 gone to a ceremony at Namilumeshi Village and had left his wife PW3 with her mother, the deceased at his home drinking methylated spirits. 3.2 On 23 rd July 2020, PWl had made inquiries with him in Namilumeshi Village about the whereabouts of his wife, but that he had inf armed PW 1 that he had not seen her. After this, he went with other people to the bush where they located the body of the deceased. They notified the police of her death and arranged for her body to be transported to her home. 3.3 The appellant further testified that he had seen a bottle of methylated spirit at the scene of the crime and that he had also observed that the deceased had vomited the methylated spirit she had been drinking. He stated that the body of the deceased had no physical injuries. He stated that he and A2 were arrested by the police. He insisted that at the time, he wore tropical slippers which he had also worn to the ceremony. He denied any knowledge of the gumboots or the axe ref erred to. J 7 4.0 DECISION OF THE TRIAL COURT 4.1 Upon analyzing the evidence before her, the learned trial Judge found that the deceased had not died from natural causes. That there was no direct evidence as to who was seen to have caused her death and that all the evidence was circumstantial. 4.2 The trial Court accepted PW l's evidence that on 21 s t July 2020, the deceased and the appellant left for a divination ceremony in Namilumehsi Village. This evidence was corroborated by PW2 who said on arrival at the ceremony, the appellant informed him that he had earlier traveled with the deceased but that he arrived alone because the deceased diverted into the bush and told him to proceed without her. 4. 3 The trial Court further considered PW3 's testimony that when her mother left with the appellant and A2 for the ceremony, she was carrying a small axe which she described as having white beads, a description which was also given by PWl and PW2. PW 1, PW2 and PW3 all testified that the unique axe the deceased was carrying was found with the appellant. PW2's evidence was also that the appellant arrived at the ceremony with the axe. PW2 further said that when A2 arrived at the ceremony at 5am, he said he got lost in the bush hence arriving late for the ceremony. J 8 4.4 The trial Court further took into account that PWl had followed the appellant and A2 to the divination ceremony to inquire into the whereabouts of his wife, where PW2 requested the appellant to lead them to the place where they separated with the deceased. The Court considered the evidence of PW 1 that the appellant and A2 led them to the scene of the crime to the exact point where they found the body of the deceased, about 120 to 150 meters away from the main path. 4.5 The further evidence of PWl that on the way to the location, the appellant informed them that the deceased was at the place where he had left her, which utterances PW2 confirmed had been made and which shocked him. 4. 6 The trial Court noted that PW 1, PW2 and PW3 all confirmed that upon inspecting the deceased's body, they observed that she had a broken neck, from its flexibility and swinging from side to side. They also observed multiple injuries on her body, broken teeth in her upper jaw and a swollen head. PW3 's evidence was that she had observed a bleeding nose and that it was later discovered that the deceased's private parts had been mutilated. The evidence given by PWl and PW2 was corroborated by PW4 the arresting officer who went to the village the same day the deceased's body was found. PW4 examined the body of the deceased and noted that she had sustained injuries on her head, face, back, arms, nose, and mouth. J 9 4.7 PWl, PW2 and PW4 all verified that there was struggle marks at the scene of the crime. There was blood stains, a cut plastic bottle, bare feet footprints and gum boots footprints. PWl, PW2 and PW4 corroborated that the gum boots footprints found at the scene of the crime matched the boots that the appellant was wearing. PW 4 the arresting officer confirmed that his investigations revealed that both the appellant and A2 were wearing the same boots, which he had checked, and it was his finding that the gum boot footprints at the scene were the same in pattern and size as those worn by the appellant. 4 .8 It was PW4's further evidence that during the interviews at the police station, A2 narrated that on the material day, he left for the divination ceremony in Namilumeshi Village with the appellant and the deceased but that the deceased excused herself on the way to go into a nearby bush and the appellant followed her. That A2 heard the deceased shouting aloud to the appellant to stop what he was doing. The trial Court noted that this piece of evidence was never challenged or discredited by the defence. The appellant had merely denied going to the ceremony with the deceased and A2. 4 . 9 The trial Court determined that the above facts taken individually do not prove the guilt of the appellant and A2. However, a combination of these facts establishes that on the fateful day, the deceased left for N amilumehsi Village to attend J 10 a divination ceremony with the appellant and A2; that the appellant arrived at the ceremony without the deceased; he was carrying the deceased's axe when he arrived; the appellant later led the prosecution witnesses to the scene of the crime in the bush approximately 120-150 meters off the main path where the body of the deceased was found; the appellant had conceded on his way there that he knew the deceased was still where he had left her; that the appellant's utterances made one wonder how he was able to tell that the deceased was still at the place where he left her at such a distance in the bush with the body lying down on the ground. The Court found that the appellant could only have known this if at the point he left the deceased, she was already dead there by making him so sure that there is no way she could have moved, since she was dead. 4.10 The Court further noted that all the prosecution witnesses saw the appellant wearing gum boots, which they identified as matching the gum boots footprints at the scene. The Court noted that PW 4 the arresting officer determined that the gum boots footprints at the scene of the crime were those of the appellant's; that there were struggle marks at the scene of the crime showing that a fight had ensued between the deceased and her attacker; and that the deceased sustained a broken neck and other body injuries. The learned trial Judge was satisfied that this circumstantial evidence before her had taken this case out of the realm of conjecture. J 11 4 . 11 From the analysis of the evidence before the learned Judge, she was satisfied that the appellant attacked the deceased in the bush on the way to the ceremony in N amilumeshi Village causing her to sustain severe injuries which caused her death. 4 . 12 The learned Judge found the evidence of PW 1, PW2 and PW3 credible and discounted the appellant's version of events. She believed the accused's friend, PW2; wife, PW3 and father-in-law PWl would not falsely implicate the appellant and lie that they had recovered the deceased's axe and the boots from him. 4 . 13 The learned Judge found the appellant guilty of murder of Litumbo Simasiku contrary to Section 200 of the penal Code and convicted him accordingly. The appellant was sentenced to death, the lower court found A2 not guilty of murder and acquitted him accordingly. 5. 0 THE APPEAL 5 . 1 Being dissatisfied with the judgment of the trial Court, the appellant appealed advancing one ground of appeal that the learned trial Judge erred both in law and fact in convicting the appellant on circumstantial evidence when an inference of guilt was not the only reasonable inference which could be drawn from the facts. J 12 6.0 APPELLANT'S SUBMISSIONS 6.1 In the appellant's heads of argument filed on 9 th June 2022, it was argued that the trial Judge erred both in law and fact in convicting the appellant on circumstantial evidence when an inference of guilt was not the only reasonable inference which could be drawn from the facts. 6 .2 The evidence upon which the conviction was based was purely circumstantial as no-one had seen the appellant committing the offence in casu. The appellant contended that the trial court had noted this in its judgment on page 105. 6.3 The appellant argued that the prosecution bears the burden to prove the case against him beyond reasonable doubt, and that he did not need to prove his innocence. The case of Mwewa Murono vs The People 1 was cited to support this contention. 6.4 The further argument was that the evidence of PW3 that the appellant went to Namilumeshi Village in the company of her mother and Sichechansi Linyeta lacks corroboration and raises a doubt, which must be resolved in favour of the appellant. 6.5 The appellant submitted that the circumstantial evidence in this matter did not meet the required standard as adumbrated in the case of Zulu vs The People. 2 J 13 6.6 It is incumbent on a trial Judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The Judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt. 6. 7 The appellant's explanation was a logical one and was not rebutted, and it was an unwarranted inference that the scratches on the appellant's body were caused in the course of committing the offence at issue. 6 . 8 They argued further that the appellant told the trial Court that he never went with the deceased to Namilumeshi Village, but that he went alone. However, the learned trial Court placed a high burden of proof upon the appellant when it said on page 110 from line number 4 paragraph 2: 'In his evidence in court told the court that the road he used to go to the ceremony was not a busy road and that 2 to 3 days could pass without someone using it. He insisted that he was the only one that used the said road during that period as he was the only one that went to the ceremony from his area and that other attendees came from different areas.' J 14 6 . 9 Counsel for the appellant argued further that the trial Court discounted every other piece of explanation of the appellant. Also , that most of what the witnesses said in Court except PW3 is said to have been told by the appellant, which he denied in court and gave his version of the events. In searching for reasons not to accept the appellant's explanation, the trial Court relied on these witnesses, even when the appellant said he did not go with the deceased to N amilumeshi Village for a divination ceremony. 6 . ~O The appellant submitted that PW3's testimony lacked corroboration in that other witnesses versions were given to them by the appellant and therefore creates a doubt. The test that, 'could the explanation of the appellant be reasonably true?' should not elude the appellate court. If his explanation might reasonably be true then no conviction can be sustained. 6 . ~ 1 Counsel for the appellant argued that it is possible that the deceased was attacked by a different person unknown to all, or she fell and injured herself out of drunkenness , or she died out of intoxication. These were possible inferences that could be drawn from the evidence on record. PW3 had also admitted under cross examination that she did not know the footwear of people in the area. J 15 6. 12 Further, there was no axe, boot and or pictorial evidence produced before Court to link the appellant to the offence . The appellant had also explained how he was dressed when he went to the ceremony. 6 . 13 Counsel cited the case of Dorothy Mutale and another vs The People3 where the Supreme Court held that: 'Where two or more inferences are possible, it has always been a cardinal principal of the criminal law that the court will adopt one which is more favorable to an accused if there is nothing in the case to exclude such inference.' 6.14 The appellant argued that there were several inferences which are possible in this case. The inference that it was not the appellant who killed the deceased is more favourable to the appellant and must be arrived at by the appellate. PW 1 had concluded that his wife was dead before he said the appellant confirmed it. The appellant denied leading the people to where the deceased was found. 6. 15 They argued that no postmortem was conducted to indicate what the cause of death was . The Court sought guidance from the Kashenda Njunga v The People4 wherein the court held: 'It is not necessary in all cases for medical evidence to be called to support a conviction for causing death. Except in borderline cases, laymen are quite capable of giving J 16 • evidence that a person has died. Where there is evidence of assault followed by death without the opportunity for Novus actus interveniens, a court is entitled to accept such evidence as an indication that the assault caused the death.' 6.16 The appellant argued that there was no witness who told Court that they saw the appellant attacking and assaulting the deceased as the trial concluded. The Kashenda Njunga case would fit well where there is direct evidence of a witness seeing the appellant inflicting injuries on the deceased who later died from the said injuries. 6. 1 7 Further, in the case of P . L. Tylor & Others vs R 21 Cr5 , Lord Heward, Chief Justice of England said: 'It has been said that evidence against the appellant is circumstantial; so it is, that circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned circumstance, is capable of proving a position with the accuracy of mathematics.' 6.18 Counsel argued that even the much talked about small axe was recovered by PW 4 at Keletwa village which village the deceased had visited before she was found lying dead. J 17 6. 19 Further, that the learned trial Court ref erred to some information which PW4 allegedly obtained from the appellant who was an accused and had not been cautioned yet. The Court was ref erred to page 108 paragraph 2 . 6.20 Counsel argued that the appellant had denied going with the deceased to the divination ceremony. He denied saying what PW4 stated A2 told him. Also, it was pointed out that A2 was an accused person at the time and the law is clear when the court has to place reliance on an ex-curia statement made by one accused person incriminating a co-accused. 6.21 Further, that PW4 was merely narrating to court what A2 allegedly told him before he was warned and cautioned. The trial court ought to have noted that such a statement could only be accepted as evidence against its maker, and not against his co accused. They sought guidance on this position of the law by the case of Maketo & 7 others vs The People 6 wherein the court held: 'An extra excuria confession made by one accused person incriminating the other co-accused is evidence against himself and not the other person unless these other persons or any of them adopt the confession and make it their own.' J 18 6.22 Counsel opined that it was a misdirection for the learned trial court to place reliance on this piece of evidence to convict the appellant. What is clear is that A2 is an accomplice and thus could have been making false implications against the appellant. 6.23 It was their final submission that the circumstantial evidence in this case did not help to prove the case against the appellant beyond all reasonable doubt to warrant a conviction. Counsel urged this Court to acquit the appellant accordingly. 7.0 RESPONDENT'S SUBMISSIONS 7.1 The respondent filed their heads of argument on 13 th June 2022 in support of the decision of the trial Court to convict and sentence the appellant. They argued that PW3 's testimony that the appellant left the village with the deceased was confirmed by PW2. The evidence at page 33 line 16 of the Record of Appeal reveals the evidence of PW2 who testified that he heard PW 1 asking the appellant of the whereabouts of the deceased as he had left Keletwa village with her. The further evidence was that the appellant confirmed that he was with the deceased and that the said evidence was never challenged in cross examination. J 19 • 7.2 The respondent referred to the case of Joseph Mulenga, Albert Joseph Phiri v the People in which the Supreme Court held that: 'During trial parties have the opportunity to challenge evidence by cross-examining witness and the Court is entitled to act on evidence if it goes unchallenged.' 7. 3 The Respondent further argued that the assertion by the appellant that he did not set off the journey with the deceased was an afterthought. They relied on the case of James Mwango Phiri v the People in which the Supreme Court held that: 'When an issue or defence is raised when the accused is on stand the trial Court cannot be faulted in treating it as an afterthought and an explanation which cannot be reasonably true.' 7 . 4 It was further argued that the trial Court could the ref ore not be faulted for discounting the evidence of the appellant regarding not leaving Keletwa with the deceased because his version of events only arose at defence and it must therefore be agreed that PW3 's evidence to that effect was corroborated. J 20 7.5 The respondent also rebutted the appellant's argument that the trial Court had placed a high burden upon the appellant to prove his innocence, stating that this was not the correct position. The respondent argued that the trial Court instead convicted the appellant on the circumstantial evidence and the odd coincidences that was before it. It was argued that on this basis, the trial Court discredited the appellant's evidence that he left Namilumeshi village alone. 7.6 The respondent emphasized that the trial Court had no reason to discredit PW2 's evidence against the appellant regarding what he had heard the appellant telling PWl of how he had left Keletwa with the deceased. Further, that the appellant and PW2 used to enjoy a cordial relationship before the case in casu and that this evidence was also confirmed by PW3 who said the appellant had left Keletwa with the deceased. 7. 7 The respondents also argued that it cannot be inferred that the deceased could have been attacked by a different person unknown to all, or that she fell and injured herself out of drunkenness or that she could have died out of intoxication. This was because page 58 of the Record of Appeal showed that there were only two foot prints at the scene which are the bare feet of the deceased and the gum boots identified as that of the appellaht. J 21 7. 8 It was further argued that the state witnesses testified that the appellant was wearing gum boots on the material day and the said evidence was equally not challenged, hence the detailed explanation given by the appellant to the trial Court regarding what he wore was a mere afterthought. 7 . 9 The respondents also submitted that the evidence of the appellant possessing the deceased 's axe when he arrived at N amilumeshi village around midnight was corroborated and possession of the axe and the presence of gum boot prints at the scene of death only point to one reasonable inference that it was the appellant who murdered the deceased. 7 . 10 Counsel for the respondent referred to the Supreme Court case of Zonde and others v The People 7 where it was established that: "the doctrine of recent possession applies to a person in the absence any explanation that might be true when found in possession of the complainant's property barely a few hours after the complainant had suffered an aggravated robbery." J 22 8.0 THE HEARING 8 . 1 The appeal came up for hearing on the 15th June 2022. Counsel for the appellant and the respondent were in attendance and opted to rely on the Heads of Arguments filed before Court. The appellant submitted, and the respondent did concede that it was improper to call PW3 to testify without the appellant's consent as she was his wife. The respondent maintained that even without the evidence of PW3, there was sufficient evidence from other witnesses to prove the Appellant's guilt beyond reasonable doubt. 9.0 THE DECISION OF THIS COURT 9.1 We have considered the sole ground of appeal which contends that the trial Court was in error to convict the appellant on circumstantial evidence when an inference of guilt was not the only reasonable inference which could be drawn from the facts. The appellant stood charged with one count of Murder contrary to Section 200 of the Penal Code. The trial Court determined that the appellant was guilty and convicted him accordingly. 9.2 The unchallenged yet corroborated facts are that the appellant was found with the axe belonging to the deceased, that two foot prints were found at the scene of the crime where the deceased's body was found and these were the footprints of the deceased J 23 and the gumboot foot prints which matched the appellant's gumboots, that the appellant led PWl, PW2 and PW3 to the scene of the crime where the deceased's body was found and when they were a few meters away from where the body was found, the appellant confirmed that the deceased was at the same place she was when he had left her, a fact which confirms that he was sure that the deceased had died when he had last seen her. 9.3 The only fact that the appellant had disputed in the trial Court was that he had not left Keletwa Village with the deceased. This fact was contrary to the corroborated evidence of PW2 with whom he enjoyed cordial relations prior to the case in casu who confirmed that when the appellant arrived at Namilumeshi village around midnight on 21 st July 2020, he informed him that he had left Keletwa in the company of the deceased and A2. This fact was also confirmed by A2, who testified that he had left Keletwa with the appellant and the deceased. 9.4 From the analysis of the evidence before the learned Judge, the Court was satisfied that the appellant attacked the deceased in the bush on the way to the ceremony in N amilumeshi Village causing her to sustain severe injuries which caused her death. J 24 9. 5 The learned Judge found the evidence of PW 1, PW2 and PW3 credible and discounted the appellant's version of events. She believed the accused's friend, PW2, wife PW3 and father-in-law, PW 1 would not falsely implicate the appellant and lie that they had recovered the deceased's axe and the boots from him. 9.6 Though the evidence linking the appellant to the death of the deceased is circumstantial, we do not subscribe to the appellant's argument that the deceased could have been murdered by someone else unknown to everyone else. The evidence of A2 was that when the deceased branched off the pathway and the appellant followed her, he heard the deceased screaming, shouting for the appellant to stop what he was doing to her as she was his mother-in-law. It is also not in dispute that the deceased's foot prints, and the appellant's footprints are the only foot prints that were found at the scene of the deceased's death, that the appellant's bottle that he was drinking from was also found at the scene and the appellant was also in possession of the deceased's axe a few moments after the deceased's disappearance. 9.7 We are of the firm view that the only inference that can be drawn from such circumstantial evidence is that the there was a struggle between the deceased and the appellant which led to the deceased's death, and that the appellant had intention of causing harm to the deceased as confirmed by the evidence of J 25 •· ' C .. A2 who testified in the lower Court that he heard the deceased shouting for the appellant to stop what he was doing to her as she was his mother in law. 9 .8 In the English case of P. L. Tylor & Others vs R 21 Cr5 , Lord Heward, Chief Justice of England said: 'It has been said that evidence against the appellant is circumstantial; so it is, that circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned circumstance, is capable of proving a position with the accuracy of mathematics.' 9.9 Further, 1n the Supreme Court case of Saidi Banda v the People 8 it was established that "notwithstanding its weakness as was alluded to in the David Zulu case, it is in many instances probably as good as, if not even better than direct evidence". 9.10 Though we agree with the appellant's submissions that PW3 is not a competent witness as a wife of the appellant to testify without the appellant's consent, we still find that the circumstantial evidence of other witnesses is enough to lead this Court to the only reasonable inference that the appellant is guilty of the deceased's murder. J 26 10.0 CONCLUSION 10.1 Having established as we have above, we find no merit in the appellant's ground of appeal and dismiss it accordingly. Both conviction and sentence of the lower Court are upheld. C. F. R. Mch g DEPUTY JUDGE PRE I ~> r- ~A Sharpe-Phir COURT OF APPEAL JUDGE c;;: K. Muzenga COURT OF APPEAL JUDGE J 27