The People v Kenneth Taguta (HP/299/2019) [2022] ZMHC 49 (7 June 2022)

~/ I I (:.·\_, ,_·. (: -) I I .\ ,, .·,.• ' IN THE HIGH COURT FOR ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) HP/299/2019 THE PEOPLE v. KENNETH TAGUTA For the State, Mr. M. C Chipawa, State Advocate, National Prosecution Authority For the Accused, Mrs . J(. M. Nyimbili, Legal /\id Counsel, Legal Aid Board JUDGMENT Cases Rcfcrred _to: 1. Muziba llutumbi Sitali v The People (2012) Z. R. Vol. 3. 539 (S. C.). ( 2. Chilomba v The p eople (1974) Z. R. 151 (S. C). 3 . Benwa and Another v. The People (1975) Z. R. 1 (S. C). 4. Dickson Sembauke Changwe and !fellow Hamuchanje v. The People (1988 - 1989) Z. R. 144 (S. C.). 5. Yanyongo v The People (1974 ) Z. R. 149 (S. C.). Legislation and Other Works Referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia: S. 224(a J2 1.0 The alleged offence The statement of offence before me reveals that the accused stands charged with the offence of acts intended to cause grievous harm, contrary to section 224(a) of the Penal Code, Chapter 87 of the laws of Zambia. The particulars of the offence allege that the accused, on 4th August 2019, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, with intent to 1naim, disfigure or disable, unlawfully wounded Lillian Kasalika. 2.0 The Evidence 2 .1 The Case for the Prosecution The prosecution called a total of six (6) witnesses to the stand. Upon con sidcring their testimonies, I was satisfied that a prim a f a.cie case had been made out against the accused. Accordingly, I put him on his defence. The brief summary of the evidence offered by each witness is set out below. ( PW l was Derrick Mulenga, the Sales and Marketing Manager of Unit Distributors. He testified that Mrs. Lillian Taguta was employed by the con1pany he worked for in July, 2019. He explained that he was scheduled to travel with her to Kenya for training, but she did not board that flight and he travelled alone. He recounted that she travelled on a later flight and that they returned to Zambia together upon completion of the training in Kenya. He recalled that upon arrival, she was received by her husban.d, the accused, who PW 1 positively identified in the courtroom. PW 1 noticed some tension J3 between the accused and Mrs. Tagu ta at the airport and duly notified his colleagues that collected him from the airport. It was PW l 's testimony that Mrs. Taguta attempted to hug the accused at the airport but that the accused, instead, offered a handshake. The following morning, he learnt t hat Mrs. Taguta h a d been involved in an accident and he made for the Levy Mwanawasa Hospital to s ee her. He found Mrs. Taguta unconscious and h e noticed some bruises on her arm that were not there when he had last seen her. In cross examination, PWl testified that h e had met the accu sed for t he first time at the airport on the day PW 1 was traveling to Kenya. Mrs. Taguta had not disclosed the ex isten ce of a ny dispute between her husband and her to PW 1 whil s t th ey were in Kenya. PW 1 confirmed that he did not re port the matter to the police and that it was the police that conta c ted him. PW2 was Monj e Nanyiza. She testified that at the material time she was living with Mr. a nd Mrs. Taguta. She told of how on th e day of the incident, the accused h a d ask e d h er to accompany him to collect Mrs. Taguta from the airport. She a lighte d from the vehicle with the accuse d and witnessed the accused shrug off a hug from Mrs. Taguta . When they r eturned to the vehicle, the accuse d and Mrs . Taguta started arguing. She h eard the dispute to revolve around t h e failure by Mrs. Taguta to take calls from the accused. Further, she ( J4 heard the accused utter that on one of the days he had called her, he had seen a man in her room. PW2 remembered hearing the accused a llege that Mrs. Taguta was sleeping with her workmate, an allegation that she heard Mrs. Taguta refuse. PW2 vividly recounted her recollection that in the midst of the argument, the accused pushed Mrs. Taguta out of the moving vehicle. Her testimony was that the cabin light in the vehicle was on. She narrated that the accused then stopped the vehicle and went to where Mrs. Taguta lay and noticed that she was bleeding from the nose. The accused then asked PW2 to assist him place Mrs. Taguta into the vehicle and she complied. It was P\V2's testimony that the accused warned her against s peaking of the incident to anyone. They drove to the hospital a nd PW2 was asked to go and sleep in the vehicle. When she woke up , Mrs. Taguta's sister quizzed her on the events that le d to the accident. PW2 admitted that she initially replied in the m an n er th a t the accused had told her to. Subsequently, she told the sister what had really happened and confirmed that the accused had pushed Mrs. Taguta out of the vehicle. PW2 further testified that she e njoyed a cordial relationship with the accused in whose house she had been living since Februa ry that same year. In cross examination, PW2 testified that she had given a statement to the police on a day she could not recall. The statement was read out to her and she then stated that some ( • JS of the things in the statement were not correct. She firmly stood her ground and insisted that what she had told the Court was what happened and that it was the same information that she gave to the police when she was interviewed. When asked whether Mrs. Taguta's sisters threatened her, she refused. PW2 emphasized that during the incident, she sat behind Mrs. Taguta in the vehicle and was able to see what was happening in the front of the car. She maintained that she h eard them quarrelling on the night of the accident. PW3 was Saukani Nyirenda. He testified that on 4 th August, 20 ] 9, the accu sed, who was his brother in law, telephoned him to ask for his presence at the Levy Mwanawasa Hospital. When he arrived, he found Mrs. Taguta lying on a bed. She was unresponsive when he attempted to speak to her. The accused told PW3 that Mrs. Taguta had hit her head on the dashboa rd and headrest of his motor vehicle. PW3 saw that ( Mrs. Tagu ta had a bruise on her shoulder and leg. PW3 then caJled his sister, Milika Nkatwe, and asked her to rush to the hospital. In cross examination, he acknowledged that it was the accused who called him to go the hospital and that the accused appeared concerned. J6 In re-examination PW3 clarified that his sisters spearheaded · ' the report to the police because his sister, Mrs. Taguta, was in no condition to report the matter herself. The fourth prosecution witness was Zione Nyirenda. PW4 testified that she received a call from her sister, Milika, who informed her that Mrs. Taguta was in hospital. The duo, accompanied by Milika's husband, then proceeded to Levy Mwanawasa Hospital. At the hospital, she found Mrs. Taguta unconscious. She explaine d that the accused narrated to her, upon being asked, that Mrs. Taguta had hit her head on the dashboard whilst vomiting. PW4 explained that she had, at the lime, observed that the clothes being worn by Mrs. Taguta did not reveal any signs of vomit. Upon inspecting the accused's molor vehicle, blood was visible on the front seats and the backrest. There was no sign of any vomit in the ve hicl~. P\1/4 recounted that while she inspected the car, she noticed the presence of PW2 in the vehicle. She observed that PW2's clothes had blood on them. She explained that PW2 ( disclo sed that it was Mrs. Taguta's blood on her clothes. PW4 informed the Court that she went to report the matter to Benny Mwiinga police post whilst in the company of her sister, Milika. According to PW4, the only conversation she had with PW2 was in relation to a query as to the blood on PW2 's clothes. J7 As regards h er relationship with the accused, PW 4 recalled one incident when she argued with the accused. O ther than that, she felt that she got on well with the accused. During cross examination, PW4 denied ever threatening to report PW2 to the police if she did not explain what had happene d. She explained that Mrs. Taguta had lost her memory and had not been able to explain what had happen ed. PW5 was John Wina, a scenes of cnme technician. He testified that on 4 th August, 2019, his officer in charge instructed him to manage a scene. At the scene, human bloodstain s were discovered on the side of the road. He took a bou t 27 photogra phs of the bloodstains. Thereafter, he moved to th e Mitsubishi Pajero vehicle which was parked at th e Airport police carpark and took more photographs. The follo wi ng day h e visited Mrs. Taguta at the hospital and took pictures of h er wounds. PW5 explained that Mrs. Taguta was unconscious when he took the pictures of her. PW5 stated that h e proceed ed to make a photo album comprising the pictures he h a d taken a nd submitted it before Court. During his testimony, he explained the various photographs h e had taken. The pictures depicte d, amongst other things, bloodstains on the driver's door handle, on the driver's seat, on the step of the rear door, on the rear seat mat, on the back of the driver's backseat and on the roadside. He also showed ( J8 photographs of the dashboard and the mat on the driver's side which h a d dirt on it. In cross-examination PW5 testified that the photographs ' were not taken in the presence of the a ccused. He retorted that his job wa s to capture photogra phs at the scene, which is what h e s tat ed that h e did. The la st wit n ess for the prosecution was PW6, Paul Nelson Zulu, the arresting office r. He recalle d that Ziwone Nyirenda h a d complained that Mrs. Taguta was pushed out of a moving vehicle. He recounted that he also conversed with PW2, who told h im th a t s he h a d gone with the accused to the airport to pick up Mrs. Tagu ta. PW6 recounted that PW2 informed him th a t s h e witnessed th e a ccused push Mrs . Taguta out of the car after a quarre l h a d ensued between the two on their way home. PW6 went on to testify that he also discoursed with the ( accu sed . He rela ted that the accused alleged that as he was drivin g, h e saw his wife le ap out of the vehicle. PW6 shared th a t the accused took him to the scen e of the a ccident. There , the accused professed tha t his wife had felt like vomiting as they drove home . PW6 then went to view the vehicle and found a blue coat with bloodstains on it. He also saw bloodstains in the vehicle. Apart from the bloodstains, there was nothing else that he observed 1n the vehicle. Subseque ntly, h e charged the accuse d with the offence of 1,· J9 attempted murder as he had not received a satisfactory answer from him. PW6 went on to explain that he had been given a medical report by a Dr. Tembo regarding the medical state of Mrs . Taguta. He was also given a medical report prepared by Dr. Ntani. PW6 also testified that he was given a medical report prepared by a road traffic police officer Moyo, at Ben Mwiinga police post. Ther e being no objection, these reports were tendered into evidence. PW6 also positively identified the accused as the person he charged. He noted that the accused was appea ring in court for a different offence from that which he initially charged him with. r n cross examination , PW6 acknowledged that the medical report from D. Tembo, ID3, showed that Mrs. Taguta had fallen out of a vehicle. He confirmed that t h e accused led him to the scen e of the accident. PW6 maintained that no vomit was found in the vehicle and that it was not possible for the ( vomit to h a ve been cleaned. This marked the close of the case for the prosecu tion . 2.1 The Accused 1s Defence The accused, testified on his own behalf. He testified that on 29th July, 2019, he escorted his wife to the airport to see h er off on a trip to Kenya. His wife, Mrs. Ta guta, travelled a nd returne d on 3 rd August, 2019. On the d ay she re turn ed, h e JlO drove to the airport in the accompany of his adopted daughter, PW2. When Mrs. Taguta arrived, she told him that she was feeling dizzy and felt like vomiting. He walked with her to the filling station where the car was parked and she vomited before they got to the vehicle. It was his testimony that he let her into the vehicle while PW2 was still sleeping. According to the accused, as the vehicle started off, Mrs. Taguta again co1nplained that she felt like vomiting and she opened the door and vomited once. After a considerable distance from the airport, she told him that she was feeling uneasy. He stopped the vehicle to allow her to gain access to he r handbag. Once th e vehicle started off and reached a speed of a bout 60 kilometers per hour, Mrs. Taguta opened the door forcing him to apply emergency brakes. Mrs. Taguta fell out of the vehicle and stopped. He went to her and realized s he was bleeding from her nose and mouth. He failed to lift h e r to the vehicle prompting him to wake up PW2, with whose ( help he was able lo put Mrs. Taguta into the vehicle. He rushed her to the hospital and the staff at the hospital began attending to h er. The accused went on to testify that he called his wife's brother to tell him what had transpired. His brother-in- law and sister -in- law all arrived at the hospital. Subsequently he was picked up by police officers. He was later charged by the police. Jll The accused refuted PW2's testirnony regarding the cabin light being on as the vehicle was driven. He denied having quarreled with Mrs. Tagu ta in the vehicle and equally denied having pushed her out of the vehicle. Moreover, he refuted having seen or shunned his wife's attempt to hug him. He insisted that his focus was on her bags. In cross-examination, the accused testified that he drove to Levy Mwanawasa Hospital, bypassing other health facilities because he believed she would get the best care from the hospital. He insisted that the injuries suffered by Mrs. Taguta were as a re sult of her swinging out of the door of a moving vehicle . Th e accused acknowledged that it was his sister in law th a t h a d reported the matter to the police. The accu sed went on to say that he enjoyed a good rela tion ship with PW2. He maintained that the incident of Mrs. Ta guta hitting the dashboard had taken two minutes in s pite being shown how long two 1ninutes actually was. The a ccused repea ted that PW2 only woke up when he needed her help to pick up Mrs. Taguta. It was his testimony that he didn't know whether she had woken up when he applied emergency brakes or when his wife was screaming in the vehicle. He conceded that his warn and caution statement did not state that he left PW2 s leeping in the vehicle or that he left her in the vehicle. ( J12 With respect to PW3, h e considered that he did not have a bad relationship with PW3. In re-examination , he explained that h e had not spoken to the doctors about the injuries suffered by Mrs. Taguta but to the clinical officers. The accused subsequently sought and obtained an adjournment in order to bring two witnesses before me. On the adjourned date, however, the accused, through his counsel, informed me that he had failed to secure the a ttendance of further witnesses and opted, instead, to close hi s case. I thus adjou rned the matter for Judgment. (. 3.0 THE DETERMINATION I h ave analyzed the evidence and cogitate d upon the law and s ubmissions before me. To begin with, I recall that in Muyunda Muziba Ilutumbi Sitali v The People ( 1), the Supreme Court cnounccd that an accused person bears no burden of ·proof. I, therefore, re1nind myself that the burden of proof in this matter rests squarely on the shoulders of the prosecution. The law p laces n o onus on the accused to establish his innocence. If, after contemplating the evidence in its entirety, I form the view that there is a reasonable doubt as to the guilt of the accused person, then t h e benefit of that doubt must be given to the accused person and his acquittal inevitable . J13 In this case, the State grounded its prosecution on the provisions of section 224 (a) of the Penal Code, Chapter 87 of the laws of Zambia. It states as follows: "Any person who, with intent to maim, disfigure or disable. any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person- a) unlawfully wounds or does any grievous harm to a'!-y ?ers on by any means whatever; ... is guilty of a fe lony and is liable to imprisonment for life. Section 224 was the s ubj ect of discourse by the Supreme Court in the case of Chilomba v the People (2). Th e Court h e ld as follows: Although s. 224 of the Penal Code is to some extents. a less seriou s offence rhan an offence under s. 2 15 of the Penal Code, it is not a minor offence within the meaning of s. 181 of the Criminal Proced ure Cocle because offences under the two sections are both felonies u.nd carry the same max imum sentence. The Court fo llowed its decision in th e Chilomba case 1n th e case of Benwa and Another v. The People (3), where the Court underscored that an offence under section 224 of the Penal Code is not a minor offence because it is a felony which attracts, upon conviction , imprisonment for life . The Court went on to instruct th at to elicit a conviction, the prosecution must s how, beyond reasonable doubt, that the accused, with the intention of causing grievous h arm to his wife , either unlawfully wounded or caused h er to s u stain grievous harm . J14 I have carefully considered the evidence laid before me by th e prosecution and that offered by the accused . On the evidence of PW 1, I accept that there was tension between the accused and Mrs. Taguta on the day that the accused went to collect Mrs. Taguta from the airport following her trip to Kenya. The accused spurned an attempt by Mrs. Taguta to hug him and offered, instead, a handshake. PW 1 is not a witness with an interest and had no reason to colour the truth as he testified. This tension was also observed by PW2, who recounted how the accused shrugged off a hug from Mrs. Taguta. In addition, from the testi1nony of PW2, which I h ave no difficulty in accepting, the accused and Mrs . Taguta quarreled in the ve hicle a s th ey h eade d to their home . It is com m on eviden ce by both the prosecution and the accused t h a t Mrs. Taguta fell out of a moving vehicle and s usta ine d se rious injuries . The clash in the evidence tendered is with respect to how she fell out of the vehicle. The prosecution suggests, through the evidence of PW2, that Mrs. Taguta wa s pushed out of the vehicle as it h eaded towards the Taguta's home. PW2 offered direct evidence to support the prosecutions version of events. The accused, on the other hand, would have me believe that Mrs. Taguta opened the door of a moving car and simply fell out of the vehicle, inflicting injury to herself. Upon careful conside ration, it is not difficult to accept the version of events offered by the prosecution. PW2 was a (.. l J15 passenger in the vehicle being driven by th e accused. She heard the quarrel b e tween the accused and Mrs. Taguta with her own ears. The quarrel centered on accusations that Mrs. Taguta was over familiar with h er male work mate. Indeed, this is the reason the accused ignored ove rtures of a handshake from PW 1 on the day that PW 1 and Mrs. Taguta were due to travel to Kenya. Further , PW2 perceived, with her own eyes, the accused push Mrs. Taguta out of the moving vehicle. She was enliste d by the accused t o h elp retrieve Mrs. Taguta from wh ere she lay, unconscious and helpless. On these events, PW2 was unshaken in cross examination. I h ave a lso carefully considered the tale offered by the accu sed . It is bes ieged with improbabilities. His testimony is th at Mrs . Tagula vomited in the vehicle. PW2 did not confirm this to h a ve occurred. Moreover, the vehicle contained no traces of vom it. PW 5 , the scenes of crime technician took multiple photographs of the vehicle. He too did not detect the presence of a ny vomit in the vehicle. I find for a fact that Mrs. Tagula did not vomit in the car. The accused a dvan ces evidence suggesting that Mrs. Taguta suddenly fell ill a fter arriving from Kenya . PW 1 travelled with her from Kenya and only parted company with Mrs. Taguta when she was collected by the accused. Up to that point, she neither mentione d to PW 1 that she was ill nor did she appear to be unwell. To top it a ll up , the d em eanor of the accused did not inspire any confidence. I noted, repeatedly, that h e ,, J16 was being evasive 1n answering what ought to have been straight forward questions. I find for a fact, therefore , that there is proof, beyond any reasonable doubt, that the accused pushed Mrs. Taguta out of a moving vehicle, resulting in h er suffering serious injuries. I am alive to the fact tha t for an offence under section 224(a) to be proved, th e prosecution must show that an accused acted intentionally. With that in mind, I draw attention to the holding in the case of Dickson Sembauke Changwe and !fellow Hamuchanje v. The People (4) where the Court held as follows: "It is a question of fact whether a reasonable p e rson must know or foresee tha t serious harm is a natural and probable conseque nce of throwing s omeone out of a moving train. If, a rmed with this rea lis ation and fores ight, and knowing that serious harm could fou nded on knowledge of the probable result, a n con sequ ences will be evident and will be sufficient to satisfy s ection 204 of the Pe nal Code." inten t l con sider that t h e reasoning applied in the C hangwe case m ay be a pplied in this case as a ba sis for founding an intent to satisfy section 224 of the Penal Code. I find as a fact that a r eason able pe rson must know or fore s ee tha t serious h arm is a natural and proba ble consequence of throwing someone out of a moving car. The intent in this case is, therefore , founde d on the knowled ge of the proba ble consequen ce th ereof. J17 I have also considered the case of Yanyongo v The People (5). There, Constables Nyirenda and Mubiba saw the accused behaving suspiciously as they were patrolling Independence Avenue in Kitwe. The Constables gave chase and, in the process split up. Constable Nyirenda found the accused, who was holding a gun, and attempted to disarm him. In the process, the gun went off. Constable Mubiba was shot in the left eye . In his defence, the accused denied firing any shots and claimed that if he had it was with the intention of scaring the Constables or to get away. In determining the appeal for it, th e Supreme Court reasoned as follows : "ll is plain there was a struggle, it is plain that the appellant was re sisting arrest, and it is plain that he fired the shots at or in the direction of both the policemen. It is plain that he very nearly killed one of the m in his attempt to escape. But it is not shown that he ha.d the intention to kill. There is no doubt whatever the conviction fur attempted murder cannot stand. We must quash it together with th e ~enle n cc passed. BuJ..itis equally clear that the appellant was Y!!_iJly_.9jj 1!U2.fBH1ce unde r section 224 of the Penal Code ....... The fY]_[)_c /lu.nl was yuilly beyond all doubt of an offence against section 224. We allow the appeal against conviction, quash the conviction for attempted murder and substitute a conviction for causing grieuous hurm with intent to prevent arrest, contrary to section 224 {a) of the Penal Code." On the facts of this case, it is clear as day that the accused quarrelcd with his wife. ft is also clear to me that the accused pushed his wife out of a n1oving vehicle as the argument reached a crescendo. It cannot b e argued that he could not h ave reasonably foreseen that his actions would result in the injury of Mrs. Taguta. I am of the settled mind that there is overwhelming evidence to show that the accused intended to ( J18 and did cause gnevous bodily harm to Mrs. Taguta. The prosecution has proved its case beyond any reasonable doubt. Consequently, I find the accused guilty as charged and I convict him of the the offence under section 224(a) of the Penal Code. Dated this 7 th day of June, 2022. B. G.,. Hi (( (