The People v Luckson Simwanza (HK/82/2019) [2020] ZMHC 388 (19 August 2020)

IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT KITWE (Criminal Jurisdiction) BETWEEN HK/82/2019 TH AND LUCKSON SIMWANZA Au J <.....r.:,;- - Before Lady Justice Abha N. Patel, SC. the Z9ffi of May, 2020 For the State: Mrs. M. G. Kashishi Ngulube & Ms. M. I. Mwala of National Prosecutions Authority For the Accused: Ms. M. Nzala & Mr. P. Chavula of Messrs Legal Aid Board JUDGMENT Cases Referred to: 1. George Musupi v The People (1978) Z. R 271 2. Bwanausi v The People (1978} ZR 103 3. Kambarage Mpundu Kaunda v The People (1992} SJ 1 (SC) -J2- 4. Chabala v The People (1975) 98 5. Dorothy Mutale and Richard Phiri v The People (1997) S. J 51 (SC) 6. Saluwema v The People (1965) ZR 4 7. Mwewa Murono v The People (2004) ZR 207 8. Gilbert Banda v The People SCZ No. 124 of2014 9. The People v Njobvu (1968) ZR 133 i .•. . t. 10. 11. 12. 13. 14. 15. 16. 17. Benwa and Another v The People (1975) ZR 1 (SC} Nkhoma v The People SCZ Appeal No. 52 of 2015 Nsofu v The People (2009) ZR 282 George Misupi v The People (1978) ZR 271 Yokonia Mwale v The People SCZ No. 258/2014 Andrew Mwenya v The People Appeal No. 640 of 2013 (SC} Kombe v The People (2009) ZR 282 Modester Mulala v The People SCZ No. 51/2013 18. Shamwana v The people (1985) ZR 41 19. 20. Julias v. R. (1957) 6 N. R. L. R. 24; Chimbini v The People (1973) Z. R. 191; 21. Bwalya v. the People (1975) Z. R. 227 (S. C.); • 22. Charles Lukolongo and Others v the People (1986) Z. R. 115 ( S. C. J; 23. R. v. Turnball, (1976) 3 ALLER 549; 24. Mkandawire & Others v The People (1978) Z. R. 46.103; -J3- 25. Ilunga Kabala and John Masefu v. the People (1981) Z. R. 102 (S. C.) 26. Mulwani v The People SCZ Appeal No. 44 of 20 l 5 Legislation and Other Materials Referred To: 1. Section 294(1) of the Penal Code, Chapter 87 of the Laws of Zambia; 2. Section 207 (1) of The Criminal Procedure Code, Chapter 88 of the Laws of Zambia Introduction Luckson Sim wanza, the accused person, stands charged with one count of the offence of attempted murder and one count of murder contrary to s ection 215 (a) and section 200 respectively of the Penal Code, Chapter 87 of the Laws of Zambia. Th e particulars of the offences allege that Luckson Simwanza, {the accused ) on 3 1st December 2018, at Kalulushi in the Kalulushi District of the Copperbelt Province of the Republic of Zambia, did attempt to murder one Charity Nakainga (PWl) and did murder one Kapya Mpundu Bernard Chishim.ba. (the deceased) • When called upon to plead to the 2 counts, he denied both the charges. The Court entered a plea of not guilty on both counts, and the matter proceeded to trial. The prosecutions case rested on the evidence of six witnesses. Evidence of the Prosecution -J4- • 1.1 PWl, CHARITY NAKAINGA, a 33 year old female, currently of Kalulushi, and at the material time, residing at 802 Buseko Ward, in Chibuluma District, testified that on the night of 30th December 2018, and in the early hours of 31 st December 2018, while she was sleeping, she was awakened by someone touching her on her thigh. She opened her eyes and saw the accused standing at her bed, armed with a long knife in his right hand, while he used his left hand to awaken her. She further testified, that the deceased, KAPYA MPUNDU BERNARD CHISHIMBA, was sleeping behind her and that there was enough light streaming in to the bedroom for her to clearly see the Accused, who gestured to her to keep silent and to follow him out of the bedroom. She explained that she was only dressed in underwear a nd was not allowed to reach for a chitenge material, as the Accused beckoned her and whispered that he would kill her if s h e did not follow him out. • 1.2 PWl narra ted that she followed the accused to the sitting room where her cousin, Gift was sleeping with her first- born son, Terrence. She testified that Gift, was her 1 7 -year-old cousin and Terrence was her 12 year old son. She went on to narrate that she kicked Gift on her leg to awaken her, while she could feel the accused was holding the blade of the knife at her shoulder. She said Gift woke up and immediately recognized the Accused and was by this time trembling in fear. She testified -JS- that by this time, they were near the ··front door of the house, which was open, although she confirmed having locked it at night before going to sleep. 1.3 In the scuffle and shouting that took place, the Accused stabbed her on her left shoulder, and turned to attack the deceased who had by this time heard the noise and come to see what was happening. According to PWl, the deceased shouted at the Accused and asked why he was attacking PWl. She went on to narrate that as the deceased was about to use his phone, an Itel black cell phone, to make a call, the accused struck the deceased, whose phone fell down and grabbed him by the neck and sta bbed him several times on the right side of his body. • 1.4 She confirmed there was adequate light for her to see the deceased being stabbed, after she herself had been stabbed. She testified that she shouted for her Aunt, one Christine Nakainga, who lived in the main house which is less than 2 metres away. She testified that her aunt came out and asked PW 1 what had • happened, to which she replied that she had been stabbed. At this time, the deceased, who had been stabbed had managed to apprehend the Accused by holding on to his trousers. Gift, and Terrence had managed to alert the neighbours, one of whom was LUKSON BUPE, who lives in the house next door to PWl 's house. He assisted to apprehend the Accused. The witness further narrated that her aunt, Christine Nakainga rushed off to bring a car while the rest of the people held on to the Accused. -J6- She said she managed to wrestle the knife away from the accused and threw it a distance, while other people managed to tie the hands of the Accused in front of him. She confirmed having rang Inspector Mwimbe, the CIO at the Police Station and confirmed her telephone number was 0961 339133, although she could not remember the number of the Inspector, but confirmed that it was saved in her phone memory. • • 1.5 At this time, she narrated that they were waiting for the car and that the deceased was bleeding profusely. She said when the car came, which belonged to Mr. & Mrs. Mulala, and she named others at the scene to be Joe Kapamba, Chota, Given and other neighbours. She went on to testify that they went to Chibuluma Police Sta tion, where they were given medical reports to take them to th e clinic. They were then taken to Kalulushi Hospital, where they received medical attention. She was later informed by one of the nurses on duty that the deceased who had lost a lot of blood had since died. She confirmed having informed the same Inspector Mwimbe of the developments and that she herself was taken to Kalulushi General Hospital, where she received further medical attention and was discharged on 4th January 2019. She confirmed the identity of the Accused as her assailant that night, as she knew him and also went to identify him by touching him from where he was seated in Court. 1.6 PWl testified that she had been in a relationship with the Accused from about 2014, when she worked in a bottle store, -J7- as a bar lady in Chibuluma, where she lived at the time. She subsequently discovered that the Accused was married. She talked of her attempts at trying to end the relationship, which was at most times abusive and violent. It was her evidence that she had also shifted her home, and went to stay near her Aunt's house, which was in the same compound but about at a distance of 30 minutes away. She testified that she was forced to move due to the violence of the Accused and that despite her efforts, the accused followed her to her new house, and would demand sex at any time on threat of violence . 1. 7 She fur ther maintained that she had confided in her Aunt, one Christine Nakainga, and had also made several complaints to the Police, who had also had occasion to call in the Accused, and warn ed him to leave her alone. She named Inspector Mwimbe at Chibuluma Police station and anoth er fem ale Inspector, as the ones she often went to see. Sh e testified that the Accused persisted in his behavior, which caused h er to lodge a complaint against him by issuing a Summons from the Kalulushi Local Court on 1s t June 2018 ' although she confirms that she did not proceed with the hearing of the complaint against the Accused. She duly described the features of the receipt that was issued by the Local Court, and there being no objection to its identification and subsequent • • -J8- production, the said Receipt was produced as part of her evidence and marked 'Pl' by the Court. 1.8 She also identified the medical report which was marked 1D2, the knife, which was duly described and then shown to her, marked '1D3' and a pair of red and black pliers, which fell from the pocket of the Accused when he was grabbed by the neighbours, which was identified as '1D4'. She testified that he continued visiting her house and demanding sex, and that even her family and neighbours knew of his violent behavior, towards her, which continued despite the warnings of the Police. She testified that the events escalated themselves and that she was forced to report the Accused again on 29th December 2018, and that when the Police called him, h e was reported to be in Chambishi and said he would come on 30th December 2018. • 1.9 On the 30th day of December 2018, PWl confirmed that she and the accused were at the Police Station again, and that the Accused was warned again and she was asked to go back on 1st January 2019, to issue another Summons against the Accused. The attack, the subject of this trial, took place that night. It was further her evidence that the attack lasted for 45 to 50 minutes. 1. 10 In cross examination, the Witness confirmed that the relationship with the accused continued over the years, and -J9- that she even if she had tried to stop the relationship, she did not press formal charges against the Accused. She also confirmed that the lock on the door to her house had not been tampered with, suggesting that the Accused had keys to enter her house. It was put to her that her neighbours knew the Accused as her boyfriend, which is why he was recognized by them. It was also put to her that she had not produced the alleged threatening messages received on her phone, and which had been apparently sent to her by the accused. She was also questioned as to why she had not told the Police of h er involvement with the deceased, to which she responded that sh e only told them what they asked of her, and that she was in a fairly new relationship with the deceased. It was put to her that she and the deceased taunted the Accused that night and challenged his manhood, which led to the stabbing. She denied the claim and insisted it had happened as per her evidence. Under re-examination, she clarified that she had reported the m a tter to the Victim Support Unit at least 4 times. 2. The next witness, PW2 was the neighbor, LUCKSON BUPE. He was 27 years old, and was employed as a security guard at Arm guard Security company. He confirmed his address at 802 Chibuluma Ward and also confirmed that Christine Nakainga -JlO- stayed in the main house to which there were 2 adjacent cabins. He occupied one and the other was occupied by PW 1. 2.1 His evidence, which was relevant to the incident of the night in question, was that he heard shouting and noise from the house of PW 1. He confirmed he knew Charity Nakainga, and that he also knew the accused as he had seen him before. He knew the Accused to be the boyfriend of PWl. He confirmed that he was awoken by someone shouting, and that he recognized the voice of PW 1, and she was screaming that she had died, and that as he went outside, he saw PW 1, dressed in an underwear and who appeared to be bleeding. He also observed that the accused was being held by the deceased, although he could not tell at that time that the deceased had been stabbed. He confirmed that he rushed to the scene, which was about 4 to 5 metres from his house, and saw the deceased was bleeding below the armpit. He confirmed that h e assisted in holding the Accused down, who also attempted to stab him with the knife that he was holding. He named others who were at the scene, as PWl, Terrence, Mr and Mr s Chota and Choso. It was his evidence that PWl 's aunt, Christine Nakainga went to fetch a taxi and that the deceased and PWl were sent in the car for medical attention while he ' with the help of others, tied the hands and feet of the accused ' and put him in a wheel barrow, and took him to the Chibuluma ' Police Post. He confirmed that the area was well lit. He confirmed that he had given a statement and that they left the • • -Jl 1- knife and the pair of pliers with the Police. He testified that he was informed the following morning that the deceased had died at the hospital. 2.2 The next morning, he testified that the Police came to the scene and that the place where the deceased had fallen was full of blood. He also said that they discovered some items in the yard, namely, some keys, a pair of black trousers and a thick piece of rope. He said the trousers fell off the accused during the struggle, and that he was wearing another pair of trousers underneath, although he had not paid attention to the color. According to him, an elderly woman, PWl 's grandmother burnt the items . He also testified that he did not know the deceased and only heard his name that night from PW 1. He said he knew the Accused as the boyfriend of PW 1, but had only known him for a few days, and on the day of the attack. He said he knew him as Luckson Simwanza, as that is the name being used by PW 1. He confirmed he saw the accused holding the knife and threatening to kill him with it and that the struggle with him lasted for more than 20 minutes. He was able to identify the accused in Court and also described the physical features of the knife and the pair of pliers, and identified 1D3, the knife and 1D4, the red and black pliers. 2.3 Under cross examination, PW2 was questioned as to his recollection of the events of the night in issue. He maintained that he had seen the items, namely the trousers, rope and keys • • -J12- and also that he had the screams of PW 1. He confirmed that he knew the accused as the boyfriend of PW 1, and that he had lived in that house for about 3 years, while PWl had moved there after him though he was not sure of the precise period. He confirmed that PW 1 stayed with a young boy called Terrence and a girl called Mapalo. He also stated that Terrence was one of the people who helped him push the wheel barrow. He maintained that he had seen the accused holding the knife. • He also described the features of and subsequently identified the knife and the pair of pliers which were identified as 'ID3' and '1D4'. 2.4 Under cross examination, he confirmed that he had not witnessed the stabbings and that he only saw the events after he came out of his own house. He was also questioned as to why he had not seen the items such as the pair of trousers, the night before, at the time of the incident. He replied that his attention was diverted to looking after the injured people, namely PWl • and the deceased. He confirmed that he had been living in his house from before PW 1 came to stay there. He could not identify the keys that had been found in the morning, and he did not know if the Accused had been given a pair of keys by PW 1. He clarified in re-examination, that there was sufficient light at the time of the incident, and that he saw the accused holding -J13- the knife and was even threatened by the accused, who said he would kill him (PW2). 3. PW3 was Christine Nakainga, the third witness for the prosecution. She was 29 years old and resides at House 802 Chibuluma Compound in Kalulushi. She testified that on the night in question, on 31 st December 2018, she heard PWl screaming for help and shouting that she was dying. She opened the window and saw PW 1 naked with blood pouring out from near her left shoulder. She said the visibility was good as they had electricity in the area. She confirmed the set up of the h ouses, with her being the main house and PWl and PW2 occupying the 2 cabins adjacent to her house. She testified that she reached outside to find the deceased lying on the ground screaming in pain, and the accused also pinned to the ground by PW2 who was tying the hands of the accused. She was able to see the inju ry of the deceased from the light coming from the houses of PWl and PW2. She also named someone called Chota who came to assist in apprehending the accused. She testified tha t she left the group of people and rushed off to find a bed sheet from her house which they used to try and stop the bleeding of the deceased. She was also shown a big knife which had been used by the accused to inflict the injuries on PW 1 and the deceased. She went to find a vehicle and woke up someone known as mother to Ireen, whose husband had a vehicle. On the way, they met the group of people she had left at her house. • -J14- 3. 1 She said they lifted the deceased and PW 1 into the car and the others followed to Chibuluma Police Station. She also testified that as the accused was lifted and placed in the wheel barrow, a pair of pliers fell out of his pocket. At the Police Station, she narrated that PW2 gave a statement and that she remained with PWl. After the statement, she said they all went home and she received a phone call at 04:00 hours, that the deceased had died. She went to the Kalulushi hospital and went to see the body of the deceased and confirmed it to be his, after which she went to see PW 1 who was in the same hospital. She narrated that she rang a few numbers on the deceased's phone and passed on the message of his death so that his relatives could be informed. She testified that she gave a statement to the Police at the hospital. She testified that she knew the accused from the same compound from about 2017. She knew th at PW l , who is her sister's daughter, and the accused used to d ate a long time ago. She identified him in Court. She also confirmed that she had been seeing the deceased with PWl for a bout two weeks prior to the incident. She also described and identified the knife and the pliers as 1D3 and 1D4. 3.2 She narrated that the accused was also known as 'Bashi Joe' and that he used to frequent their house late at night and that the children would tell her (PW3) that the father to Joe, was at their house with PW 1. She testified that sometime in the year 2018, she confronted the accused and insisted that he stop • -JlS- bothering PW 1 and that she was aware that PW 1 had reported him to the Police. 3.3 Under cross examination, she confirmed that the children knew the accused in the year 2018. She confirmed that she was not the first at the scene, but that PW2 was the first one there and that she did not see the stabbing take place. 4. PW4 was Inspector Oscar Mwimbe, 48 years of age, of House No. Fl Kalulushi Police Camp. He was stationed at Chibuluma Police Post in the Kalulushi district. His testimony was that he received a telephone call from PW 1 just after midnight on 31 st December 2018, reporting that she and her male friend had been stabled by the accused. She named the male friend as Mpundu Kapya. He testified that he arrived at the Chibuluma Police Station at around 05:00 hours.and was given a report of the incident by Constable Mwanza. He said that the accused, and the knife and pliers were handed to him to be further processed at Kalulushi Police Station. He went to the scene with the accused and he confirmed signs of struggle and saw blood near PWl' house. He described the set up of the 3 houses and confirmed that he found PW2 who confirmed the incident. 4.1 At the Kalulushi Government clinic, he saw PWl with a deep wound to her left shoulder and also saw the deceased who had by this time died due to excessing bleeding, and that he had been stab bed under his left arm and his back. He confirmed • -J16- that he handed the National Registration Card of the deceased, along with the lmife and the pliers to the Chief Investigating Officer, one Detective Sergeant Sinkala. He further narrated that he had attended to both PWl and the accused sometime in the year 2018, and that he had acted on complaints made by PW 1 against the accused. 4.2 He had been informed that the two were 1n a relationship from 2014 to 2016, and the accused persisted in his behavior. It was his evidence that he had received complaints from PWl on two occasions in 2018. He advised her to go to the Local Court and issue a Summons against the accused to stop him forcing her into a relationship which she insisted had ended. PW 1 complained that she was being sexually abused by the accused especially if he saw her with any male people while she was working at a bottle store. He advised them to see the Officer in Charge, Inspector Mbola. He also confirmed that he had received another complaint from PWl on 28th December 2018 and that he had given PWl his telephone number. He described the knife and the pliers and confirmed the exhibits marked 'ID3' and 'ID4'. He also identified the accused in Court. He testified that he had not documented the reports made to him on assurances made by the accused that he would cease the offending conduct. • -J17- 4.3 In cross examination, he confirmed that he had been a police officer for 29 years and knew the difference between criminal and civil offences. He confirmed that sexual and physical abuse was serious and needed to be investigated. And that medical reports should have been issued. He said not all reports made to the Police are recorded, and that he had not received a report of rape from PW 1. He said he had known of a prior relationship between the accused and PWl, which is why he opted to counsel the accused to stop bothering PW 1. He also confirmed that his investigation at the scene after the incident was limited to what he had observed outside and that he did not investigate the doors, or windows for any signs of forced entry. He could not confirm if the relationship had ended between the accused and PWl. • 5. PWS was GIFT NAKAINGA. She was 1 7 years old and lived at Block F Flat 20 Mindolo in Kitwe. She gave evidence of the night of the incident and said she was at home from school for the holidays and that she heard a knock on the door around midnight, of 31 st December 2018. She testified she was with Terrence Banda, the son of PWl. She narrated that she went outside with Terrence but did not see anyone and that they locked the door and went to sleep. She said some time later someone uncovered the blanket on her head, and she saw it to be the accused and that he covered her again and went towards PWl's bedroom, where he started pulling her and a fight -J18- ensued. She narrated that PWl kicked her on the leg and shouted her to wake up shouting that they were all going to die. She saw PWl stabbed with a knife and confirmed that the light was good enough for her to see clearly. She narrated that she had known the accused and in the month that she had been there, she had seen him twice. 5.1 She testified that the deceased was also stabbed under his left arm pit and in his back when he went outside to follow PW 1 and the accused who were still struggling. She narrated that the accused wanted to flee but that by this time, he was apprehended by a neighbour, one Mr. Chonta and PW2. She said her mother went to look for a car and that her grandmother got a cloth to tie the stab wounds of the deceased. She said the accused was tied up and taken in a wheel barrow to the Police while PW 1 and th e deceased were taken to Chibuluma clinic and then Kalulushi clinic. She identified the accused in the d ock and also identified and described the knife and pliers as 'ID3 ' and 'ID4' . 5 .2 Under cross examination, she confirmed that she did not know the deceased and that struggle took place outside. 6. PW6 was Detective Inspector Maybin Sinkala, the arresting Officer. He was 48 years old and is currently based at the headquarters at Kitwe District CID, and that at the time of the incident, he was stationed at Chibuluma Police Post in • -J19- Kalulsuhi as the criminal investigations officer. His evidence was that on 31 st December 2018, he received a call from PW4, Inspector Mwimbe of a case of stabbing in Chibuluma. Upon arrival at the Police Station, he was handed a knife and a pair of pliers as the instruments used in the commission of the offence. He testified that he went to the Kalulushi clinic and was able to attend on PWl who had been stabbed on her left shoulder, by the accused who was already in police custody. He said it was not possible to speak to the deceased due to the extent of his injuries and that he came to know his name as Kapya Bernard Mpundu Chishimba of Mufulira. He saw the medical report issued to PW 1 from Chibuluma Police Post and recorded a statement from PWl. He described the injuries of PW 1 and that of the deceased. He proceeded to Kalulushi Police Station where he cautioned the accused and interviewed him in the presence of the apprehending witnesses. After conducting his investigations, he arrested the accused and charged him with two counts, of attempted murder and murder. He also confirmed that the body of the deceased was identified by a relative of the deceased, one Arnold Chipampe. 6.1 He described the physical features of the post-mortem report which was conducted on 2 nd January 2019, by Dr Olga of Kitwe Teaching Hospital. The report made a finding of the injuries sustained by the deceased being a deep cut on the left side of • -J20- his body. The report was marked as 'IDS' for purposes of identification. He also described the medical report issued to PW 1 which was marked as 'ID2' and also described the knife and the pair of pliers which were marked 'ID3' and 'ID4'. The documents identified as 'ID2' 'ID3' 'ID4, and IDS' were tendered into evidence and marked' P2', 'P3', 'P4' and 'PS'. 4t He also identified the accused in the dock. 6.2 Under cross examination, PW6 confirmed that he knew of a rela tionship between the accused and PWl, and that it had ended. He confirmed that the pair of keys and the pair of trou sers allegedly belonging to the accused was not handed over to him, nor did h e submit the knife and pliers for fingerprint analysis. • At the close of the prosecution's case, the accused person was found with a case to answer and put on his defence. He elected to give sworn evidence and did not call any witnesses. 7. The Defence DW 1, Luckson Simwanza, gave evidence on oath and said he was 52 years old and resided at House No. 1012 Chibuluma township, and that he was employed by China Civil, prior to his arrest. He testified that h e and PW 1 started a relationship in -J21- August 2014. It was his evidence that in September 2015, PWl told the accused that she was pregnant and that he obtained money from his employers to buy some necessities for PWl and gave her K2,000 for any emergency. He said he was renting a house for her near Chibuluma Police Station at K300 per month and that he used to pay her an upkeep of about K3,000 monthly, but gave her money every other day so as not to give her a lump sum as she had a drinking problem. He said in May 2016, he gave her money and told her to go a doctor for a scan as she had not delivered the baby till then. She came back and she that she was not pregnant and that she had fibroids. 7 .1 It was his evidence that he stopped visiting her for about two weeks, and that he received a call out from Chibuluma Police Station. At the Police Station, he met one Inspector Mwimbe (PW4) and that he was with PWl. He said the complaint by PWl was that he had stopped supporting her and had deserted her. It was his evidence that he was coerced into continuing his relationship with her at the threat of a civil lawsuit against him. It was his evidence that he bought a fridge for her and kept it fully stocked with alcohol to prevent her going to bars to drink. He went on to narrate that she would return home drunk and that sometime in 201 7, he moved her to her grandmothers house, for which he paid rent of K350 per month, and paid for food and other requirements. -J22- 7 .2 He narrated an incident in the month of February 2017, when PWl went to his work place and complained to his colleagues of him having abandoned PW 1. He said most of his colleagues knew her. It was his evidence that PWl and he were arrested and detained as she was trespassing at his work place. It was his evidence that they continued in a normal relationship and on 4 th December 2018, PWl told him that she had got a job in a shop in Chief Nkana's chiefdom and that her supervisor would drop her off every day. He stated that on 17th December 2018, while he was in Chibuluma, he saw PW 1 selling beer in a bar and he challenged her as it was not in a shop but at a bar where she was working. He said they discussed the issue that evening and she agreed to stop war king at the bar as she only earned K700 monthly, while he paid a lot more per month to sustain her. 7.3 He said he received another call out from Chibuluma Police Station on 19th December 2018, and that he went with PWl and some of her relatives. He said they met again with Inspector • Mwimbe, PW4, who said that PWl had complained that the accused was depriving her of her right of employment. He said it was agreed that she finish work that month end so that she got paid for the month. He narrated that they continued with their relationship until 25th December 2018 when she informed him she was pregnant again. -J23- 7.4 He said on 31 st December 2018, he received news of a funeral in Kamakonde in Kitwe West and that he prepared for the funeral. He said he went to Kitwe to withdraw KlS,000 from his account which he divided into three, one for PWl 's house for the New Year celebrations, one for his own family and the third for the funeral house. He said he went back to the funeral home, and at about 21:00 hours, he decided to go to PWl's house and reached there by 21 :30 hours. He said he opened the door using his set of keys and saw the children sleeping on the chairs. He proceeded to the bedroom and saw two people sleeping on the bed under a mosquito net. He said he removed the net and saw a man sleeping with PW 1 and that they were both undressed. He said he was not upset as she had made a choice, and woke her up to get dressed and come outside to discuss the matter. • 7.5 To his shock, as she came out, she screamed 'thief, and narrated that PW 1 and PW2 started attacking him and pinned him to the ground, and that other people joined the fight and started beating him. He said they lifted him and took him to Chibuluma Police Station and that he did not see the deceased from the time he saw him sleeping on the bed with PW 1. He narrated that he was subsequently informed that the deceased had died and that he was arrested. He was denied the chance of retrieving his jacket and cell phone from PW 1 's house and was made to remain in the vehicle when the Police went to the scene of the incident the following day. He said the money (KlS,000) was still with him. -J24- 7.6 He denied having stabbed PWl or fighting with the deceased. He said he could have killed them both if he wanted as they were asleep and defenseless, but he chose not to, and opted to go outside to talk to her. He denied all of PWl 's testimony relating to their acrimonious relationship, and maintained that he had changed the lock in the house and that they both had a set of keys. 7.7 Under cross examination, he confirmed he had been married for 33 years and that he has five children, and that up to the time of the incident, he was still in an active relationship with PWl. He denied as untrue all the evidence of PWl including the nature of her complaints to the Police. He was shown the receipt 'Pl' being in respect of a summons from the Local Court and insisted that he had never been summonsed to court. He maintained that although he had invested in PWl and continued to pay all her expenses, he was not angry when he saw her in bed with the deceased. He also denied having stalked her or having raped her. He denied having stabbed PWl or the - deceased and denied that the pair of pliers fell out of his pocket. He maintained that PW2 and Inspector Mwimbe told lies to the Court in their narration of events and he knew of no reason why PW2 would come to Court and offer lies in his evidence. He had no idea what happened to the deceased and that PW 1, PW2 and PWS, were all lying when they said they saw him holding the -J25- knife. He stated that PWS had told lies to the Court in her evidence and that she was not there at the time. 7.8 He confirmed that he did go the house of PWl on 31 s t December 2018, and that it was the same place where PW 1 was stabbed and the deceased received his fatal injuries. And that he was apprehended from the same house and taken to the Police. This marked the close of the case for the defence. At the close of the defence, both parties agreed to file written submissions on dates which were agreed. These have been received, albeit belatedly, and after reminders from the Court. The Court is grateful to and acknowledges the industry of counsel respectively. 8. The s ubmissions of the defence The defence ha s s ubmitted that the Prosecution has failed to prove both counts and has countered that the circumstances leading to the death of the deceased was caused by the recklessnes s of life of PW 1 and that her evidence is questionable . They have further submitted that due to the ongoing physical relationship between PWl and the Accused, her denial of the relationship should be seen as an attempt to avoid the blame from the family of the deceased. It was further the submission for the defence that PW 1 has an interest to serve and hence her evidence requires corroboration. They relied on -J26- the case of George Musupi v The People in support of this submission. The defence also maintained that the evidence of the other prosecution witnesses, who were relatives of PWl is equally tainted and could not serve as corroboration, and relied on the authority of Kambarage Mpundu Kunda v The People to support this submission. 8.2 The defence have submitted that there are two versions on the record regarding the cause of death of the deceased. The ((I accused has alleged that the deceased was beaten by members of the public, while the witnesses alleged that the deceased was beaten by the accused. They have relied on the authority of the Supreme Court in the case of Dorothy Mwale and Richard Phiri v The People in support of their submission that lingering doubts ought to be resolved in favour of the accused. 8.3 In conclusion , the d efence have submitted that the version of • the accused as narrated is reasonably possible and have relied on the case of Chabala v The People to persuade the Court to con sider the wh ether the explanation offered by the Accused m ay r eas onably be true and to acquit the accused in line with the guidance in the case of Saluwema v The People. 9. The Prosecutions submissions 9.1 The Prosecution's starting point is that the State had to prove every element of the offence beyond reasonable doubt and cited -J27- Mwewa Murono v The People and Gilbert Banda v The People in support of the required standard of proof. The Prosecution has also submitted authorities in support on the issues of corroboration, a witness who has an interest to serve, and finality of assessment as to a witness's credibility in the face of different versions in the evidence offered by the prosecution witnesses and the accused. 9.2 The Court has considered all the authorities and will make further mention of them, in its analysis of the facts in the body of the Judgment. 10. Analysis of the Law 10. 1 The offence of attempted murder is created under section 215 (a) of the Penal Code as follows: " any person who (a) attempts unlawfully to cause the death of another or (b) ........ is guilty of a felony and is liable to imprisonment for life. For the offence of attempted murder to be upheld, the prosecution must prove actual intention to cause the death of the victim which can be inferred from the surrounding circumstances such as the nature of weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the assailant before, during and after the attack. -J28- 10.2 The offence of murder is created under section 200 of the Penal Code as follows: " Any person who of malice aforethought causes the death of another by unlawful act or omission is guilty of murder." On behalf of the State it was submitted that in Order to establish the offence of murder the following had to be proved: 1. That the accused caused the death of the deceased • 2 . That it was by an unlawful act 3. That the accused did so with malice aforethought. They have referred to the case of The People vs Njobvu m support of the submission. It is the prosecutions further submission that with regard to the offence of attempted murder, the Supreme Court in the case of Benwa and Another v The People has guided that the charge is to attempt unlawfully to cause the death of another. In that there is no question of constructive malice save to fmd the actual inten tion to kill. 10.3 To establish the offence of murder, the prosecution must prove malice aforethought. Malice aforethought is defmed in Section 204 of the Penal Code as follows: "Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: -J29- (a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused nor not, or by a wish that it may not be caused; (c) an intention to commit a felony .... " 10.4 Going by Section 204, malice aforethought is a state of mind of the accused at the time the accused is alleged to have caused the death of the deceased. Therefore, in order to establish malice aforethought, the prosecution must make out a case indicating that the accused either expressly intended to kill or to cause grievous harm to the deceased or knew that what he was doing would likely cause the death or grievous harm to the deceased. There must be overt acts done by the accused to establish his intention. 10.5 With respect to the ingredients for murder, the questions for this Court to establish on the evidence on record are the following: 1. Did a person die? 2. Of malice aforethought at the hands of the accused person? 3. Was the act of the accused persons unlawful? -J30- In examining the evidence placed before the Court, I take pause to caution myself that the burden of proof is on the prosecution to establish the charge against the accused, and the standard of proof which must be attained before there can be a conviction is such a standard as satisfies me of the accused's guilt beyond all reasonable doubt. 11. Findings of Fact • • I have carefully and painstakingly considered the evidence on record and the submissions of both parties. From the record the following are my findings of fact: 1. PW 1 and the accused were in an intimate physical relationship from sometime in 2014. 2. The relationship had a history of trouble with several complaints made to Zambia Police, which reports were not documented. 3 . At the material time, PWl, Charity Nakainga, lived in a small cabin at house No. 802 Buseko Ward Chibuluma District in Kalulushi, and her aunt, Christine Nakainga PW3, owned and occupied the main house. 4. At the material time, PW2, Luckson Bupe occupied the other cabin at the same address. 5. PW 1 and the deceased were the victims of a stab bing on the night of 31 st December 2018, while they slept at House No. 802, Buseko Ward in Chibuluma district. -J31- 6 . The deceased, one Kapya Mpundu Bernard Chishimba succumbed to the injuries inflicted on the night and died on 1st January 2019. 7. From the evidence before me, it is not in dispute that in the early hours of 31 s t December 2018, PWl was stabbed. It is also not in dispute that one KAPYA MPUNDU BERNARD CHISHIMBA, the deceased, received his fatal injuries on that night, and subsequently died from those injuries. I therefore make a finding of fact of the two offences accordingly. Given the undisputed facts, the only issue for determination is wh ether the accused was the perpetrator. The question that I m ust answer is this: is there any evidence linking the accused to the crimes charged? 12. Application of the law to the facts 1st Count of attempted murder: 12 . 1 The facts of this case are that the victim, PWl, on the count of attempted murder testified of a violent and abusive relationship that subsisted between herself and the accused. She gave detailed testimony of the wrangles and the reports that she made to the Police. It was her evidence that she was also forced to re-locate on account of the accused, who nonetheless followed her to her place of residence where the attack eventually took place. -J32- It has been noted by the Court that her evidence was corroborated in material respects by her aunt, ChaR,ty-Nakamga, PW, her niece ,,,.- CI-- -r ; & ~ ,:.._ Q. • . Gift Nakainga, PW and the Police Inspector Mwimbe, PW, who had ~ s received her complaints and acted on them by issuing a call out to the accused on at least two separate occasions. 12.2 The Court has also noted a receipt No. 07673117 issued to PWl by the Clerk of Court from the Local Court at Kalulushi dated 1s t June 2018. This was produced in evidence by PWl and was admitted and marked Pl. It is a receipt bearing reference as follows: Cost of Summons CR/ No. 4 93/ 18 in respect of a claim for a restraining order against Luckson Simwanza. PS is the post-mortem report for Kapya Mpundu Bernard Chishimba and shows that his cause of death was stab wound on the right side of the chest with collapse of lung. The summary of significant a bnormal findings at examination shows that "the deat h due to stab wound 5cm of (R) side of the chest near ® shoulder with penetration into chest cavity and collapse of ® lung. Breathing failure. On (L) side of the chest superficial cut wound 4 cm. Photos done by police. Stab wound sutured 5 sutures. The edges rough.". 12.3 The Court has noted that the defence mounted an objection to the production of the Post-mortem report by PW6, the arresting officer on account that it was not authored by him and that if any technical issues arose out of the said post-mortem report, -J33- the said witness, namely PW6, Detective Inspector Maybin Sinkala would not be able to answer those questions. The State however, countered the objection and submitted that production of a document in criminal procedure was anchored on custody and authorship. It was their submission that the document, being a public document, could be produced into evidence by the Officer being the arresting officer, and who laid the foundation for the production of the report. It was further submitted that should it become necessary for the report to be explained for any technical questions that may arise, the pathologist, namely Dr Olga of Kitwe Teaching Hospital, who had conducted the post-mortem could be called to Court. 12. 4 The Court did allow the production of the post mortem report into evidence, and it was admitted and marked 'PS'. An examination of the post mortem report shows its findings to be consistent with the evidence of PWl, as she specifically narrated that the deceased was stabbed several times on the right side of his body. The fact of the deceased being stabbed was also corroborated by PW2. Admittedly PW 3, PW4, PWS and PW6 were all witnesses after the stabbings had taken place. 12.5 The Court also finds that the evidence of PWl was consistent, factual and credible. She appears to have suffered both mental and physical abuse at the hands of the accused who was possessive and obsessive in his conduct towards PWl. She was -J34- the only eye witness to the attack, both on her and on the deceased. Further the evidence of PWl was also confirmed by the independent evidence of PW2. His evidence was not challenged under cross examination, especially with regard to the injuries sustained by PW 1 and the deceased and the fact that he saw the accused and PWland the deceased locked in a struggle outside, where he went. PW3 also confirmed the evidence of PWl to the extent of the history of the troubled relationship between PWl and the Accused and she had knowledge of the reports made by PW 1 to the Police against the accused. The Court found her evidence to be con sistent, reliable and credible, and found that her evidence was not challenged or shaken during cross examination. 12.6 The defence mounted by DWI was very much an afterthought. It appeared well rehearsed and stage-managed. The Court has n oted th a t he did not cross examine any of the prosecution witnesses when he had the opportunity. It was his defence that PW 1 and PW2 started attacking him as PW 1 came outside the house and shouted 'thief. He testified that he had only seen the deceased in the bed and did not stab him. It was his evidence that all the Prosecution Witnesses had lied and wanted the Court to believe his version that as he saw PW 1 in bed with another man, he simply called her outside to discuss the matter with her. -J35- 12.7 According to the submissions of the defence, PWl's evidence is not corroborated as she has an interest to serve. However, no such evidence was led, nor was there any cross examination on this aspect of PW 1. This Court is guided by the Supreme Court in the cases of Yokonia Mwale v The People and Andrew Mwenya v The People, that something has to be presented in evidence that would warrant the Court to classify a witness as one with an interest of his own to serve; a motive to give false evidence against the accused on the part of the witness should be revealed. In the absence of this, there is no need for the witness to be treated with caution. 12.8 To the contrary, The Court upon hearing from all the witnesses finds PWl to be credible, consistent and her evidence in all material respects accounted for the facts as they took place. Her evidence was equally corroborated by PW2, to the extent of the s tabbing of the deceased by the Accused. Further, the medical report produced is conclusive evidence of her stabbing at the hands of the accused. The Court, having seen and heard from PW 1, anJfinding her to be truthful and credible will accept her version of events and her testimony. 12.9 When defence counsel posed a question as to his reaction on seeing his woman (PW 1) in bed with a strange man on the fateful night, the accused's three staged response was well rehearsed and without a shred of conviction. In his words, he narrated that upon seeing her in bed with another man, he had -J36- the opportunity to reflect on her unfaithful behavior, and he asked her to come outside so that they could discuss the matter and that he wanted her to return all the household property and that he intended to send a vehicle to pack all the belongings. He claimed that of the KlS,000 that he had withdrawn and KS,000 of which was her to celebrate the new year holiday, it would now be used to transport all his belongings. 12.10 The Court has noted that no evidence was offered of the accused being found with that sum of money when he was arrested, nor did he substantiate coming into that sum of money. Further, the Prosecution Witness PW6 was not cross examined on the whereabouts of that sum of money when the accused was remanded in custody. Further, the Court has noted that the accused led evidence to the disruption caused by PW 1 at his place of work and that all x ,. ''·-·," ~ I\ his colleagues knew her and knew her to be in a relationship with him. He also gave detailed evidence of attending a funeral on the day of 30th December 2018. However, faced with charges of this nature, the defence chose to not call any witness to corroborate or substantiate any of his evidence. 12.11 The Court therefore arrives at the inescapable conclusion that his version of events is akin to spinning fairy tales, lacks truth and credibility. -J37- 12.12 He confirms being at the scene of the attack, after midnight on 31st December 2018. According to fbis evidence, he left the - funeral house sometime after 22:00 hours to go to the house of PW 1. He confirms being apprehended by several of the neighbours of PWl and being taken to the Police station on the fateful night, he confirms having seen PWl and a strange man in bed together, he confirms knowing of no reason why any of the prosecution witnesses would chose to falsely implicate him. 12.13 To the contrary, the Court finds as a fact that PWl was true ) and factual when she testified that the last complaint she had made to the Police was on 29th December 2018, and that they had been summoned together to the Police station on 30th December 2018, on which day, she had been advised to return to the Police station on 1st January 2019, to issue another summons against the accused and pursue her complaint in Court. This evidence was confirmed by PW4. Against the afore cited background of factual events, 1s the conduct of the accused in going to PWl 's house on the night of 31 st December 2018, who flew into a rage on seeing PW 1, scantily dressed, and in bed with a strange man. 12.14 It is obvious that he was armed with a knife (P3) as PWl testified that he was brandishing it and that she was stabbed with it on her left shoulder. Her medical report (P2) was consistent with her evidence of being stabbed in her left -J38- shoulder. Further the evidence of the pair of red and black pliers (P3) having fallen out of his pocket when he was being restrained by PW2 and other neighbours was corroborated by PW2. The Court having viewed the knife, and which was positively identified by PWl, PW2, and all other prosecution witnesses does not hesitate to arrive at the finding that the accused intended to murder PW 1 and did in fact cause the death of the deceased, a fact confirmed by the extent of the injuries in the post mortem report PS. 12.15 Much ado was made by the defence, of the issue of keys that were allegedly in the possession of the accused, to support the contention that he enjoyed access to the house of PWl, and that there was an ongoing consensual relationship between PW 1 and the accused. That notwithstanding, the Court is not sitting to pronounce on the moral righteousness or otherwise of PW 1. 12.16 It is disheartening to note from the evidence of PW4, Inspector Mwimbe, that he appeared to not have treated the complaints with the seriousness they deserved. PW 1 testified that she had reported the accused to the Police several times, as well as to the Victim Support Unit. PW4, by his own admission treated the complaints as 'a lovers tiff and offered mere words of caution and counselling. It is noted, and he has admitted, that he did not even document or record a formal complaint. -J39- The Court laments the lack of seriousness and regrets that a life was lost from a potentially explosive relationship. There was ample evidence of this, including the intention on the part of PWl to obtain a restraining order. 13. Conclusion 13.1 On the facts of this case, and from the evidence as presented, the Court has arrived at the finding that the prosecution witnesses were credible and that their evidence was not discredited or challenged in any material respect under cross examination. The Court also found that none of them had any reason or motive to tend er lies or indeed falsely implicate the accused. They simply gave their evidence based on what they had observed. 13.2 On the facts of this case, it is beyond doubt that the accused stabbed PW 1 a nd did attempt to murder Charity Nakainga. I therefore find him guilty and convict him on the charge of attempted murder contrary to section 215 (a) of the Penal Code. 13.3 In the case of The People vs Njovu, it was held that the prosecution must prove either that the accused had an actual intention to kill or to cause grievous harm to the deceased or that the accused knew that his actions would be likely to cause death or grievous harm to someone. -J40- On the facts of this case, and on his own evidence, the Accused went to the home of PWl and found her in bed, with another man. Armed with a threatening knife, P3, it is beyond doubt that the accused attacked the deceased person and had intention to kill or cause grievous harm to the deceased. This is evident from the weapon that was used to inflict injuries and severe injuries that were sustained by the deceased. 13 .4 I am therefore satisfied that the accused had the requisite malice aforethought when he caused the death of the deceased. The prosecution has proved beyond all reasonable doubt that the offence of murder contrary to section 200 was committed on the material date. I therefo re find him guilty and convict him on count 2 of the offe nce of murder contrary to section 200 of the Penal Co de. I find t he accused person guilty as charged for the counts of the offen ce of attempted murder and one count of the offence of murder contrary to sections 215(a) and 200 respectively, and I convict him accordingly. 13.5 Having failed to find any extenuating circumstances m this case, and as guided by the authorities, and more recently by a decision of the Supreme Court in the case of Mulwani vs The People, from the circumstances of this case, I am of the -J41- view that the deceased was murdered 1n cold blood and impose the mandatory death sentence. There being no extenuating circumstances, I therefore have no choice but to sentence the convict to death. He is to hang by the neck until pronounced dead. Leave to appeal to the superior Court of Appeal is granted. Delivered at Kitwe, the 17th day of August, 2020 I I ---- JUDGE ABHA PATEL,