Steven Chulu, Edward Mwindilila and Marron Nsonga v The People (Appeal No. 006/007/008 of 2023) [2023] ZMCA 314 (20 November 2023)

IN THE COURT OF APPEAL Of lAMBIA Appea l No. 006/007/008 of2023 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: STEVEN CHULU EDWARD MWINDILILA MARRON NSONGA AND THE PEOPLE I st Appellant 2nd Appellant yd Appellant Respondent Coram: Mchenga DJP, Banda-Bobo and Sharpe-Phiri, J. JA On 15th and 20th November 2023 For the Appellant: Ms. D. Kabuka, Senior Legal Aid Counsel Legal Aid Board f-or the Respondent: Mr. S. Zulu, Senior Stale Advocate National Prosecution Authority JUDGMENT Sharpe-Phiri, JA, delivered the Judgment of the Court Legislation referred to: I. The Penal Code, Chapter 87 of the Laws of Zambia Cases referred to: I. Ezious Munkombvve and others v The People, CAZ No. 7. 8 and 9 o.f 2017 2. Phiri and others v The People (1973) ZR 47 3. Madu bu la v The People (1993/4) ZR 91 4. Andrew Mwenya v The People, Appeal No. 640 o.f 2013 (SCZ) 5. Kabongo and Others v The People (1974) Z R. 84 (SC) JI 1.0 Introduction 1.1 Steven Chulu, Edward Mwindilila and Marron Nso nga (the appellants herein) appeared before Limbani, J in the Kabwe High Court charged with murder contrary to Section 200 of the Penal Code of Zambia. The particulars of the offence revealed that the trio murdered Prudence Chabushiku (the deceased) on 12 February 2020. 1.2 They all denied the charge and the matter proceeded to trial. 2.0 Evidence in the High Court 2.1 The evidence of the 8 prosecution witnesses established that the deceased returned home fro m work at about 14 hours on 12 February 2020. She handed over her salary to PW4 for safe keeping and proceeded to prepare a meal and cat some food . Later that eveni ng, she had a bath and then went to have a drink at the bar. 2.2 Acco rding to Justin Mulenga, PW3, a bar owner, the deceased was at his bar on 12 February 2020 from 17:00 hours until it closed at 20:30 hours. He said he saw the deceased drink at the bar with PW5. PWS, David Patifi confirmed that he was at the bar with the deceased that day. The appellants were also at the bar drinking on the night of the 12 February 2020. At some point, one of the appellants came and picked up the deceased and took her away. The appellants left the bar with the deceased. PWS tra iled them and decided to confront them and attempted Lo grab hold or the deceased . The I st and 3rd appellants grabbed and beat him . 2.3 PW6 Sharon Kalunga, was awoken by the noise behi nd her house. She lit her torch and went out to inquire what was happening. She saw the l st appellant fighting with PW5 over the deceased. Other people were hiding in the flowers. As she looked up, she saw people running away. She then managed to rescue PW5 from fighting with the 3rd appellant. She asked about the deceased and PW5 said she was there but did not know where she had gone. PWS ran away. 2.4 The 1st appellant threatened her when she asked him about the deceased. She retreated into her house. She had not seen the deceased at the time but heard the appellants mention her name. Later. she heard screams, and shouts of someone calling to sec what they had done to a lady, but she was too afraid to come out of her house. 2.5 PW4 went to sleep without seeing the deceased return home. The follow ing morning, she asked PW 1 about his mother, but he indicated that she had not returned home the previous evening. PW4 proceeded to the bar to look for the deceased. She met PW6 who told her or a right that had happened behind her house the previous evening involv ing PWS and the y u appellant. 2.6 Later, upon realizing that his mother had still not returned home, PWl Emmanuel M1vape Saikolo, the son or the deceased reported the matter to the Community Crime Prevention Unit (CCPU). He had last seen his mother alive at 13 hours on 12 February 2020. His mother was in a relationship with PWS, and he believed his mother was with PWS that evening she had gone out. 2.7 The Chairman of the CCPU, Recent Mweene, PW2 received PWl 's report on 14 February 2020, that his mother had been missing. Upon his investigations, he was directed to PW6, who informed him that she had seen the deceased with the three appellants behind her ho use at about 23 :00 hours on 13 February 2020. His inquiries led him to apprehend the three appellants, who lived in the community, who he questioned on the whereabouts of the deceased. In the end, the 1st and 3rd appellants led a group of them, which included PW3 and PWS, to a place about 50 meters away from PW6's house where they discovered marks on the ground and a belt belonging to the 1st appellant. The 1st appellant fu rther directed them to a place about 8 meters away from PW6' s house, where the body of the deceased was discovered. They observed the naked body of the deceased with scratch marks on her neck and private parts. 2.8 PW3 was present that mornmg of 14 February 2020 when PW2 apprehended two of the appellants. She had asked the 2nd appellant about what had happened and he had indicated to her that the 1st appe llant had sent him to pick up the deceased for him. When he asked the I st appellant if he knew where the deceased was, he responded in the affirmative and lead them into the bush, about 300 meters away from his bar, where a belt and buckle were retrieved and the body of th e deceased was eventually discovered. 2.9 PWS went to the CCPU member after he had learned they were looking for him . He witnessed the appellants being apprehended and interviewed. Ile was also present when the appellants lead the CCPU to where the body of the deceased was. The c1ppellants and the deceased were known to him fo r a few years. J4 2. 10 The appellants were held in a shop and the matter was reported to the police. The appellants subsequently led the police to the dcceased's body, which was retrieved and taken to the mortuary. 2.11 The arresting Officer, Sergeant Febian Mbangu, PW8 who initially received a report from PW2 of a missing person on 14 February 2020, later learned that the deceased had been found dead and that some suspects had been apprehended. He attended the crime scene where they met PW2, who handed over three suspects that had been apprehended. 2.12 PW8 's investigations revealed that the 1st and 3 n1 appellants had led PW2 and others to a place where the body of the deceased a belt and buckle were discovered, which were handed over to him. PW8 visited the scene and viewed the sectors where the belt and buckle and deceased's naked body, red shirt and a pair of trousers were recovered. The body of the deceased was inspected, and certain observations made of a swollen head and strangle marks on her neck and thighs. PW8 form ed the view that the deceased had been raped. lhe body of the deceased was taken to the Kabwc mortuary, and he detained the suspects at the police station. 2.13 A postmortem examination was conducted on the deceased s body by Dr. Pavlov. PW7, Joe Simufukwe, the dcccased' s brother, attended the examination and had observed numerous wounds all over her body and swollen head. PW7 had seen his sister three weeks prior to her death. and she was in good health. The postmortem report revealed that the deceased had died due to the injuries she had sustai ned. JS 2.14 Warn and caution statements were recorded from the appellants by PW8. During these interv iews, the I st and 2nd appel lants adm itted having sex ual intercourse with the deceased. The yd appellant remained si lent. PW8' s investigations revealed that PW5 was with the deceased on the material day. He had been beaten by the 3rd appellant and had run away leaving the deceased with the appellants. PW8 proceeded to arrest and charge the appellants with murder a11er he concluded his investigations. They denied the charge. 3.0 The Defence 3. 1 After conclusion of the prosecution ev idence, the appellants were put on their defence. The 1st and 3rd appellants opted to give evidence on oath, but the 2nd appellant chose to remain silent. 3.2 The ev idence of the 1st appel lant, Steven Chu/u, was that on the material day he had been drinking at PW3 's tavern. While there he had observed PW5 and the deceased fighting, but which was stopped when PW3 took PW5 out of the bar. They continued drinking until the bar closed. He was surprised to be apprehended two days later by the CCPU. Tf c later discovered that his friends the 2nd and 3rd appel !ants were also apprehended. He denied having led the police to the recovery of the body of the deceased. Ile insisted that his belt and buckle was taken fro m his home. He also conceded that most of the prosecution witness lived in his village, and he had never differed with either of them. He denied (ighti ng with PW5 on the material night or having sex with the deceased. Ile stated that the 3rd appel lant had led the CCPU to the scene of the crime. 3.3 The evidence of the yt1 appellant Marron Msonga was that at about l 9:00 to 20:00 hours on the material evening, he was drinking alcoho l at a bar. At some point he left the bar and went to PW6 's house to buy alcohol. Along the way, he had met PW5 who initially blocked his way, then insulted and beat him. He stated that PW6 had heard them fi ghting and came out. He told her what had happened, and she separated them. He went to his house and slept. 3 .4 Several days later, the 3rd appellant was apprehended by members of the CCPU with the 2nd appellant. When questioned, he had indicated that he did not know anyth ing about the deceased other than seeing her fight at the bar. He had also only led the CCPU to the area where he had fought with PW5, which was outside the house of PW6. He had known PW5 for some time as they worked together, and he had no ill motive aga inst PW5. 4.0 Trial Judge's findings 4.1 Ilav ing taken all the ev idence into account, the trial Judge, Limbani , J of the Kabwe High Court evaluated and considered the evidence before him and rendered his decis ion on 17 June 2022. 4.2 The Judge found that on the material night the deceased was in the company of all the appellants and PW5. They had been drinking at the bar until it closed around 20:00 hours. That according to PW5 , the 3rd appel lant picked up the deceased which prompted PW5 to fo llow them outside. /\ fight ensued between him and the 3rd appel lant, which PW6 had observed near her house and had separated the men. further, that PW5 escaped while th e deceased remained with the appellants. J7 4.3 The Judge held that the deceased was last seen with the appellants on the fatefu l night, as she did not return home after going out for a drink. The body of the deceased was with found with scratch marks and white stuff on her private parts. 4.4 The trial Judge considered the evidence adduced in the postmortem report that the deceased's cause of death was asphyx ia due to aspiration of vomiting masses due to multiple blunt force head in,i uries by blunt hard object, brain contusion, multiple subarachnoid brai n hemorrhages and acute respiratory fa ilure. His findings on the cause of death of the deceased was that the deceased died due to asphyx ia. He also fo und that the I st appellant' s belt and buckle were discovered at the cri me scene. The 151 and 2nd appellants had confessed to having sexually assau lted the deceased and the 3rd appellant led PW2 to the scene of the crime. 4.5 The Judge held that all the evidence adduced points to the appellants as the persons who attacked, sexually assaulted, and murdered the deceased and therefore found that the prosecution had estab lished its case to the required criminal standard against all the appellants. The Judge convicted them of the offence of murder contrary to Section 200 of the Penal Code of Zambia and sentenced them to death accordingly. J8 5.0 Grounds of appeal 5. 1 Being di ssatisfied w ith the judg ment of the Cou rt, th e appe ll ants Ji led an appeal on 14 November 2023 advancing one gro und or appea l. The sole ground of appeal contended that th e learned trial Court erred in law and in fact when it he ld that there was overwhelming evidence that connected a ll three appell ants lo the death o f th e deceased aga inst the ev idence on record. 6.0 Hearing of appeal 6.1 The appeal was heard in N dola on 15 November 2023. The appell ants and the respondent were represented by Counse l as earlier indicated. 7.0 Arguments in support of the ground of appeal 7.1 Both the appellants and the respondent filed their heads of argument on 14 and 15 November 2023 respectively. We shall not reproduce the arguments but w ill refer to them where re levant in ou r ana lys is belov.r. 8.0 Decision of this Court 8. 1 We have care full y co ns idered the ev idence on the record , the judgment sought lo be impugned as well as the arg uments of both counse l for th e parties. The so le ground of appeal alleges that the learned tria l Cou11 erred when he found that there was overvvhelming ev idence that connected a ll three appellants to the death of the deceased contrary to the evidence on record. ]9 8.2 The contention of the appellants is that they were convicted based on circumstantial evidence which fell below the required standard of proof in criminal matters. The appellants set out a sequence of facts which they contend reveal inconsistencies in the evidence that was before the lower court. 8.3 The appellants argued that PW6, who testified to hav ing heard the noise outside her house on the night of 12 f ebruary 2020 slated during trial that when she came out of the house, she only saw A3 (Yd appellant) and PW5 . The appellants further argued that PW6 did not see the deceased al all but that PW2 who apprehended the appe llants claimed to have been to ld by PW6 to apprehend all the 3 appellants. 8.4 That this created inconsistencies in the evidence of PW2, PW5 and PW6 which should have been resolved in favour of the appellants. Further, that PW5 was a witness with an interest to serve as the evidence of PW6 was that she had seen him with the y c1 appellant behind her house and the testimony of PW4 was that PW5 was the owner of the bar and the last person he saw the deceased with as they left the bar together. 8.5 The appellants further highlighted that there vvere glaring inconsistencies in the prosecution evidence of PW5 who neglected to inform court that on the 12 February 2020 he had been in the company of the deceased, but instead informed court that he merely saw the deceased at the bar of PW4 where he also happened to equally see the 3 appellants. 8.6 further, that in PW5 's evidence in chief, he testified that in the morning after the fight, he le lt his house to report to the neighbourhood watch about what transpired the previous night as evidenced in lines 7 to 11 at page 46 JI 0 of the record but that shortly after that he gave evidence to the contrary that the neighbourhood watch came to pick him at his home. Further that PW5 's evidence of the l51 and 2nd appellants leaving with the deceased was not corroborated and therefore ought not to have been reli ed upon. 8.7 The appellants submitted that in relation to the evidence or leading up to the deceased's body, PW! stated that A2 was the one that led to the discovery of the deceased 's body, PW2 told court that A3 did the leading to where the fight took place and belt and buckle discovered while /\. I pointed at the dcceased's body. That on the other hand PW3 testified that /\. I led them to where A I showed them the belt and buckle but he dill not see the body of the deceased. The appellants argued that none of the said witness testimonies corroborated each other as to who did the leading to the discovery of the body. 8.8 The further contention is that the trial Court erroneo usly arrived at the conclusion that Al and A2 admitted to hav ing sexuall y assaulted the deceased . That this conclusion was not supported by evidence as the findings of the medical examination report on postmortem made no such findings and it is only PW8, the arresting officer, who testified that/\ I and A2 admitted to havi ng sexual intercourse with the deceased. That th e conclusion wh ich the trial court arrived at was averse to the appcl !ants. 8.9 Our attention was drawn to the case or Ezious Munkombwc and others v The PeopJc 1 where the Court held that ' ... when considering a case anchored on circumstantial evidence, the strands of evidence making up the case against the appellants must be looked at in their totality and not individually. ' JI I 8.10 The appellants further relied on the case of Phiri and others v The People2 where it was held that 'the Courts are required to act on the evidence placed before them. If there are gaps in the evidence the courts are not permitted to fill them by making assumptions adverse to the accused ... ' 8. 11 The respondents countered the arguments contending that the discrepancies the appellants were attempting to highlight were minor and di d not go to the root of the case. The respondents drew the Cou11's attention to the case of Madubula v The People3 where it was held that 'minor discrepancies in the prosecution evidence that do not go to the root of the case are not fata l to the proseculion case. ' 8.12 On the submission that PW5 was a suspect witness with an interest to serve, the respondent's argument was that the 1st ap pellant knew PW5 as they used to work together and related well. That since PW5 knew one or the appellants with whom he enjoyed a cordial re lationship, there was no motive to give fa lse evidence aga inst them and that the tri al Court did not err when it accepted his evidence. 8. 13 That the appellants did not in fact present anything that would warrant the court to classify PW5 or any other witness as one with an interest to serve. The respondents relied on the case of Andrew Mwenya v The Peoplc.i where it was held that 'something has lo be presented that ivould warrant the Court to classify a witness as one with an interest of his own to serve; a motiv~ lo give fa lse evidence against the accused on the part of the witness has to be revealed and in the absence of this there is no need to treat the witness with caution. ' J 12 8. 14 We are indebted to counsel for the industrious arguments. We concur that this case hinges on circumstantial evidence and both pa11ies have adequately addressed the principles for consideration where evidence is circumstantial, in this case, given that no one saw the deceased being murdered. 8. 15 We are guided by the holding of the Supreme Court in the case of Ka bongo and Others v The Pcople5 where it was held that 'the whole sequence of events must be Looked to in order to draw the correct conclusions as lo the state of mind of the appellants at all relevant times including the commencement. ' 8.16 The Supreme Court went further to pronounce in relation Lo the act (the escaping act) that resulted in the killing of the deceased by one of the accused in the aforesaid case that 'the escape could not be divided into compartments; the whole escape was part of the res gestae in the course of which the deceased was killed '. 8. 17 The appellants argue that there was no overwhelming evidence that connected them to the murder of the deceased. The circumstances require us to look at the evidence of the chain of events from the time the deceased was last seen up to the time her body was discovered. 8. 18 A brief history of the matter has already been set out in the earlier part of this judgment. The deceased was drinking with PW5 at a bar on the night of 12 February 2020. According to PW5, the deceased was li fted and carried away from the bar by the appellants. I le pursued the appellants, but Jl3 a fight ensued, and he retracted, and the deceased remained with the appellants and was fo und murdered two days later. 8. 19 We have closely examined the evidence of the witnesses in the Record of Appeal in considering the ground of appeal in this matter. 8.21 PW 1 's evidence was that the 2nd appellant led them to the discovery of where the deceased's body was found. 8.22 PW2 's evidence was that upon inquiry from PW6, she told him that she had seen the deceased with the three appe llants behind her house at about 23:00 hours on 12 February 2020 fo llowing wh ich he proceeded to apprehend the 3 appellants. During the interview. the 3 appellants kept referring to each other when questioned about the deceased's whereabouts until the 1st and 3rd appellants eventually led them to PW6 's house and the 1st appellant pointed to a place about 50 meters away from the house. Upon searching the area, they fo und marks on the ground and a buckle and belt which belonged to the !51 appellant. After further prodd ing the appel !ants, the 1st appellant eventually directed them to a place about 8 meters away, where they fo und the body of the deceased. They observed that the deceased was naked and had scratch marks on her neck and private parts. 8.23 PW3 's evidence was to the effect that when he inquired from the 2nd appellant as to why they had been apprehended was that he told him that the 1st appellant had sent him to pick up the deceased. PW3 stated further that when he asked the I st appe llant i r he knew where the deceased had been taken, he confirmed that he did and agreed to lead them to \,vhcre the deceased was. He said that he then led them into the bush, about 300 meters J 14 away from his bar, where they saw some marks and a bell. PW3 said they led them to the body of the deceased, who he was able to identi fy as he had known the deceased for five years. 8.24 PW4 ' s evidence was that when she inquired from PW6 of the deceased 's whereabouts PW6 told her about the fight that had ensued the previous night behind her house between PWS and the y d appellant. 8.25 PWS's evidence was that he was at the bar with the deceased on the ni ght of 12 February 2020. J\t some point, she was whisked away by the appe llants. He pursued them and when he tri ed to grab the deceased from them, he was beaten by the l st and 3rd appellants but was luckily rescued by PW6 who had intervened. 8.26 PW6's account was that on the night of 12 February 2020, she heard noise while asleep and when she went outside to check, she saw the pt appellant and PWS fighting. She also initiall y saw some people hiding in the bushes but they ran away. She managed to pull PWS away from the 1st appellant but was threatened by the pt appellant and she went back inside while PWS ran away. She said she did not sec the deceased but heard the men mention her name. 8.27 PW8, the arresting officer's evidence was that he had been informed that the deceased was missing and th at some suspects had been apprehended. ]-le rushed to the crime scene where PW2 handed over the suspects who led him to the scene where the body had been found and a belt and buckle belonging to the 1st appellant retTievcd. I le stated that the scene had 2 portions, one where the deccased's naked body was found w ith a pair of J l 5 trousers and red shirt, and another about 10 metres away where struggle marks, the belt and buckle had been recovered. 8.28 On inspection of her body, they had observed that the head was swollen and there were strangle marks on her neck and thighs. He suspected that she had been raped. They took her body Lo the Kabwc mortuary and detained the suspects at the police station. Dr. Pavlov later conducted a postmortem examination and made his findings. He proceeded to record warn and caution statements fro m the appellants. The l si and 2nd appellants admitted having sexual intercourse with the deceased. The y c1 appellant remained silent. 8.29 On a careful examination of the evidence presented in the court below as summarized above, we do agree with the respondent' s contention that the discrepancies in the prosecution witness accounts arc very minor and do not go to the root of the case or absolve the appellants from the common scheme action of having led to the death of the deceased on the night of 12 to 13 February 2020. We also find no basis to question the credib il ity of PWS 's evidence on the ground that he was a suspect witness with an interest to serve. PWS had confirm ed that the appcl lants were wcl I known to him and that they had no diffe rences between them. In fact, he had known the l 51 appellant since he was born. 8.30 We settle on the evidence that the deceased left the bar with the appel lants on the night in question. She was last seen alive by PWS with the said appellants behind PW6's house where a fight ensued between PWS and the 3rd appellant when PWS attempted to grab the deceased away from the appellants who were acting together. JI 6 8.31 The evidence of PW5 that the deceased was carried away from the bar by the appel I ants, this was corroborated by PW2 who stated that when questioning the appellants about the whereabouts of the deceased, the 2nd appellant implored the 1st appellant to inform PW2 where the deceased was. PW2 said the 2nd appellant had said this to the I st appel lant: 'you sent me to pick her up and you know well where she is. ' 8.32 The fact that the deceased had been taken from the bar by 2nd appe llan t was further corroborated by PW3 who said he had spoken to the 2nd appcl I ant on the day of their apprehension, who told him that the I st appellant had sent him to pick up the deceased for him. PW3 also said that the 1st appellant had confirmed that the 2nd appellant had picked up the deceased. 8.33 With regard to the issue of the fight, the evidence of PW5 was that the three appellants were there with the deceased on the night in question. This was corroborated in part by PW6 who although testified that she only identified the 3rd appellant with PW5 "vhcn she came out of her house, she con firmed that there were other people hiding in the bushes who she saw run away. Also, this was further corroborated in part by the evidence that the l st appe llant's buckle and belt were found near the scene of the fight and on ly a few meters from where the deceased's body was found. 8.34 Turning to the evidence of the recovery of the dcccascd's body PW2 confirmed that the 1st and yd appel I ants led them to a place where the belt and buckle of the 1st appellant were found, and the 1st appellant pointed to a place about 8 meters away where the deceased's body was fo und. PW8 's Jl 7 evidence was a lso that all the three appellants led him to the scene where the body of the deceased was recovered. Th is was a lso con firmed by PW5. 8.35 The 3rd appel lant also admitted having gone to PW6's house on the night in question and encountering PWS and having a fight w ith him. 8.36 All these pieces of evidence are odd coincidences that go to confirm that the 3 appe ll ants were the last known people w ith the deceased bef"ore she met he r death. Evidently, they acted in uniso n and knew about the circumstances under which the deceased died. 8.37 The postmo rtem report revea ls that the deceased·s cause of death was asphyx ia due to aspiration of vomiting masses due to multip le blunt force head injuries by blunt hard object, brain contusion, multiple subarachno id brain hemorrhages and acute respiratory failure. His findin gs on the cause of death of the d eceased was that the deceased died due to asphyx ia. We have no reason to doubt that the deceased 's death was a result of the appellants acting jointly and together to inn ict gri evous harm on the deceased thereby resulting in her death . 8.38 Based on the forego ing, we do not accept the appellants argument that there was no overwhelming evidence or that th e tria l . Judge erred. /\ !though the case against the appellants was anchored on c ircumstantia l evidence, the only inference that cou ld have been drawn on that evidence is that the appe llants committed the offence. We see no bas is to fault the trial . Judge. J l8 8.39 Having determined as we have, we find no merit in this appeal and dismiss it accordingly. DE A. M. Banda-Bobo COURT OF APPEAL JUDGE ~ pe-Phir COURT OF APPEAL JUDGE 119