The People v Raphael Mwansa (HP/259/2024) [2025] ZMHC 32 (16 June 2025)

IN THE HIGH COURT FOR ZAMBIA HP/259/2024 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Criminal Jurisdiction) APU RIC 1G a BETWEEN: ia THE PEOPLE == vs. — RAPHAEL MWANSA BEFORE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, IN OPEN COURT, ON 167 JUNE, 2025, AT 09:30 HOURS. For the People: Mr. V. Munsaka — National Prosecution Authority. For the Accused: Ms. J. R. Mutemi-—Theotis Mutemi Legal Practitioners. JUDGMENT CASES REFERRED TO: David Zulu v The People (1977) Z. R. 151; Dorothy Mutale and Richard Phiri v The People (1997) SJ 51 (SC); Saluwema v The People (1965) Z. R. 4 (CA); George Musupi v The People (1978) Z. R. 21; Kabarange Mpundu Kaunda v The People (1990 -1992) Z. R. 215; Mwewa Murono v The People (2004) Z. R. 207; Miloslav v The People (Appeal 49 of 2013) (2014) ZMSC 142 (9 March 2014); Justine Musukwa v The People (Appeal No. 88/ 2022); Mwabona v The People (1973) Z. R. 326; and 10. Peter Yotamu Hamenda v The People (1977) Z. R. 184. cRNA AWD LEGISLATION REFERRED TO: 1. The Penal Code, Chapter 87, Volume 7 of The Laws of Zambia. J1|Page 1. INTRODUCTION Ld is The Accused Person, Raphael Mwansa stands charged with one count of the offence of Murder contrary to Section 200 of The Penal Code!. The particulars of offence are that, Raphael Mwansa, on the 27% day of December, 2023, at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia, did murder Ireen Musonda (“Deceased”). The Accused Person denied the charge and a plea of not guilty was recorded. 2. THE PROSECUTION’S CASE wid Da 2.3 J2|Page The Prosecution called four (4) witnesses in support of its case and thereafter closed its case. PW1, was Ireen Mbewe, a 48-year-old Business Woman residing at 246/19 Chawama, who testified that on 27th December, 2023, at approximately 23:00 hours, while at home, she heard screams from her tenant, the Deceased, Ireen Musonda. The Deceased was heard shouting statements such as, “Raphael, you are going to kill me,” and “today you are going to kill me.” PW1 instructed her daughter to open the main door to allow her access to the outside. She proceeded to the Deceased’s house, where she continued to hear the sound of a struggle. Despite knocking on the door, the commotion inside persisted. 2.4 2.5 2.6 2.7 J3|Page Unable to open the door to the Deceased’s house, PW1 sought the assistance of the Deceased’s aunt, hoping her presence would quell the disturbance. Upon their return, the house had fallen silent. The Deceased’s aunt inquired through the window whether the Deceased was alive and asked the Accused Person to open the door. The Accused Person responded that he was dressing. PW1 then requested assistance from Mr. Bwalya, a neighbour who was returning from work. Upon reaching the Deceased’s house, Mr. Bwalya forced the door open. Inside the house, Mr. Bwalya switched on the torch on his phone and they discovered the Deceased lying in a pool of blood. PW1 stated that she was unable to determine the source of the bleeding. Mr. Bwalya proceeded to the bedroom, where he found the Accused Person, who had sustained self-inflicted injuries. PW1, feeling frightened, returned to her home. Mr. Bwalya contacted the Police, who arrived shortly thereafter. The Police conveyed the Deceased’s body to the mortuary and transported the Accused Person to the hospital. They later informed PW1 that the Deceased was confirmed dead and that the Accused Person had survived his injuries. PW 1 further testified that the Deceased had only been her tenant for a week prior to the incident, and she had no knowledge of any male individual residing with or 2.8 2.9 visiting the Deceased. She confirmed that she had never previously heard any disturbances from the Deceased’s house. Under cross-examination, PW1 confirmed that the Deceased’s house was adjacent to hers and that she had never witnessed any fights there before the incident. She affirmed that she reported to the Police that the Deceased was shouting during the incident, but also confirmed that she could not see what was occurring inside the house. PW1 reiterated that the Accused Person stated that he was dressing when asked to open the door by the Deceased’s Aunt and that she could not confirm whether any other person besides the Deceased was present in the house. PW2 was Nolli Champoloko, a 40-year-old Business Woman residing at 11/5/1 Chawama, who testified that on 27'" December, 2023, at approximately 23:00 hours, she was awakened by a knock at her door. Upon going outside, she found the landlord, PW1, who informed her that her tenant, Irene Musonda (the Deceased), was involved in a fight and had not responded to previous attempts to gain entry or communicate. PW1 requested PW2’s assistance in calling out to the Deceased. 2.10 PW2 accompanied PW1 to the Deceased’s residence. J4|Page Upon arrival, PW2 called out for the Deceased but received no response. She then called through the sitting room window, asking, “Raphael, is Irene there?” The Accused Person responded after the second call, using an angry tone and stating that he was dressing, but he did not open the door. 2.11 PW2 stated that she used her mobile phone torch to look through the sitting room window. She saw the Deceased lying in a pool of blood, with the Accused Person standing near her head holding a knife in his hand. 2.12 PW2 then left the scene to summon Barnabas, the Deceased’s father. Upon her return, she found that a crowd had gathered and the house door had already been opened. PW2 testified that bystanders claimed that the Accused Person had killed his wife and killed himself. She proceeded to Chawama Police Station and later to the University Teaching Hospital (“UTH”), where she was informed that the Accused Person was alive. 2.13 PW2 confirmed that the Deceased’s body was taken to the mortuary and she returned home thereafter. She Stated that the Accused Person was the Deceased’s husband and that she recognised him through the window using her phone torch. She further testified that she had lived in the same area with the Accused Person for three years and positively identified him in Court. 2.14 PW2 stated that she visited the hospital mortuary and observed the Deceased’s neck injury. She also saw the knife used in the incident, which she identified in Court and it was marked as ID1. J5|Page 2.20 PW3 was Bwalya Manowa, a 26-year-old reserve Police Officer residing in Chawama, who testified that on 27th December, 2023, at approximately 22:45 hours, he returned home from duty at Kuku Police Post. Shortly after securing his home, he was approached by his neighbour, PW1, who informed him of a domestic dispute involving her tenant and the tenant’s husband. PW3 proceeded with PW1 to the Deceased’s house and knocked, announcing himself by stating, “Open the door, we are the police.” He testified that he then heard the sound of someone running inside the house. 2.21 PW3 instructed accompanying individuals to check the rear of the house, and upon obtaining permission from PW1, he broke down the door and entered the premises. Upon entry, PW3 discovered the Deceased lying on the floor in a pool of blood. Using the torch on his phone, he observed that the Deceased had visible wounds to the neck and stomach. 2.22 PW3 entered the bedroom and found a man, later identified as the Accused Person, lying on a mattress holding a knife in his right hand. The Accused Person had sustained a neck injury, which PW3 assessed as serious and life-threatening. 2.23 PW3 contacted the Officer-in-Charge at Chawama Police Station. Two Officers responded, one from Kuku Police Post and another from Chawama Police Station. PW3 testified that he personally lifted both the Deceased and J7|Page the Accused Person into a land cruiser, which was the police vehicle that had arrived. The Accused Person was transported to the hospital, and the Deceased was taken to the mortuary by the Police Officers. 2.24 PW3 further testified that he recovered the knife from the scene and handed it over to the attending Police Officers. He identified the Accused Person in Court and also identified the knife, marked as ID1. 2.25 Under cross-examination, PW3 confirmed that he discovered the Accused Person in the bedroom, clothed only in trousers. He observed that the Accused Person had urinated on himself and had sustained a neck injury. Although he did not witness the Accused Person cutting himself, he stated that it was his personal inference based on the scene. 2.26 PW3 confirmed that the Deceased was unresponsive upon his arrival. He testified that he told the Police that he had heard someone running inside the house, but admitted that this detail was omitted from his official statement. 2.27 There were no questions put to PW3 in re-examination. 2.28 PW4 was Justine Kabwe Chisela, a 48-year-old Deputy Inspector (No. 14215) residing in Chawama, who testified that on 28t December, 2023, while on duty, he was assigned to a murder docket for continued investigation. The matter had initially been reported on J8|Page 27% December, 2023, involving the death of a female victim. 2.29 PW4 stated that he conducted interviews with the available witnesses and proceeded to visit the scene of the crime. At the scene, he observed blood stains in both the sitting room and the bedroom. He further testified that PW3, Bwalya Manowa, handed over a knife which had been recovered from the scene. 2.30 PW4 confirmed that the Post-Mortem Report revealed the Deceased had sustained multiple stab wounds to the neck as a result of the assault. Relying on witness testimonies and the findings of the Post-Mortem, PW4 formally charged the Accused Person with the offence of Murder. He further stated that the Accused Person denied the charge when placed under Warn and Caution. 2.31 PW4 identified in Court both the murder weapon (the knife) and the Post-Mortem Report, which were admitted into evidence as P1 and P2, respectively. He testified that the basis of the charge was that the Accused Person fatally stabbed the Deceased using the recovered knife. PW4 also positively identified the Accused Person in Court. 2.32 Under cross-examination, PW4 admitted that he did not personally record a statement from the landlady (PW1). He did, however, record the statements of PW2 and PW3. He recalled that PW2 had informed him that she J9|Page spoke to the Accused Person, asking him to open the door. He also remembered PW3 mentioning in his oral account that he heard running footsteps in the house, though this detail was not included in PW3’s written statement. 2.33 PW4 further testified that he did not record any attempt by the Accused Person to flee when PW3 tried to awaken him. He acknowledged that the Post-Mortem Report did not record any abdominal injuries on the Deceased. However, he personally observed a neck injury on the Accused Person. 2.34 PW4 testified that during his investigations, he was informed of a possible third person being present, but his findings confirmed that the Accused Person’s account was false. He stated that eyewitnesses who initially interacted with the scene confirmed that only the Accused Person and the Deceased were present in the house. PW4 reiterated that the Deceased had sustained multiple stab wounds to the neck. 2.35 There were no questions put to PW4 in re-examination. 2.36 At the close of the Prosecution’s case, the Court found J10| Page that a prima facie case had been established against the Accused Person, thereby placing him on his defence. The Accused Person was duly informed of his legal rights, including the right to remain silent, to give an unsworn statement from the dock, or to offer a sworn testimony from the witness stand. The Accused Person elected to give sworn evidence in his defence and to call witnesses. 3. ACCUSED PERSON’S CASE 3.1 3.2 3.3 J11| Page DW1 was Raphael Mwansa, aged 27 and a Business Man in Chawama. He testified under oath that on the night of 27» December, 2023, while he and the Deceased were asleep, an unknown intruder broke into their home demanding money and threatening to kill them. When DW1 screamed, three more intruders entered the bedroom and one of the intruders produced a knife which he held against DW1’s throat. DWI claimed he was assaulted and rendered unconscious, only regaining consciousness later at the hospital, where he was informed by Police that he had killed his wife. He denied any involvement and asserted that he had no memory of the events following the alleged assault. DW 1 stated that during Police interrogations, he denied the allegations of Murder. He further alleged that Police Officers beat him when he refused to confess and forced him to sign a written statement, the contents of which he did not contribute to or understand. The Court held a trial within a trial and ruled that the Accused Person’s statement to Police was made voluntarily and admitted it into evidence. 3.4 3.9 3.6 3.7 J12|Page DW 1 denied any disputes with the Deceased as claimed by PW2. He recounted events from mid-December 2023, including the Deceased temporarily staying at PW2’s house while looking for a new rental. He confirmed a family meeting had occurred regarding the Deceased’s decision to live separately, after she had found a house and paid for it without informing him, and stated that he ultimately accepted her choice. DW1 denied having a drinking problem and recounted an incident where the Deceased accused him of failing to provide support. DW 1 stated that on 27th December, 2023, there were no problems between him and the Deceased. He said they had dinner together, went to bed around 23:50 hours, and that he was later woken by a man demanding money. He claimed he was attacked and had no knowledge of how the Deceased was killed. He also claimed no one called his name or could have seen into the house due to a sack covering the window. DW 1 described the Deceased as “the love of his life” and denied any knowledge of being found with a knife or having stabbed her. In cross-examination, DW1 admitted that a family meeting took place as PW2 had stated. He denied fighting the Deceased and disputed aspects of PW3’s testimony but claimed he was not given an opportunity to respond during proceedings. He affirmed that he had reimbursed the Deceased for rent. 3.8 DW1 reiterated in re-examination that he had instructed the Deceased to inform him upon finding a new house. 3.9 DW2 was Mary Mwenya, a Business Woman residing in Chawama and mother to the Accused Person. She testified that on 27‘ December, 2023, at around 23:00 hours, during heavy rainfall, she was awakened by footsteps and a ringing phone. She overheard someone saying on the phone, “up to now you have not arrived Chile?” She then heard someone say “Come out, I have been sent by Nolli”. She explained that “Nolli” (PW2) had called her grandchild, Chilekwa, and informed him that the Accused Person and the Deceased were dead. DW2 asked Chilekwa if he had visited the scene and he responded that he had not. 3.10 DW2 and Chilekwa proceeded to the roadside and boarded a police vehicle containing both the Accused Person and Deceased. PW2 was also on board. They went to Chawama Police Station, where PW2 disembarked, and then proceeded to the UTH mortuary. DW2 stated that upon arrival, mortuary staff discovered the Accused Person still had a heartbeat. He was then taken to a hospital ward for treatment. DW2 saw a cut on his throat. 3.11 DW2 did not visit the Accused Person while he was hospitalised, leaving that to his siblings. Later, she visited him at Chawama Police Station and observed J13|Page that his head and eyes were swollen. Upon seeing her, the Accused Person began to cry, and she was then asked to leave. 3.12 In cross-examination, DW2 admitted she had no call records of PW2’s phone call and confirmed that she believed both individuals in the Police vehicle were dead at the time. She acknowledged that she was not present when the Deceased was stabbed or when PW2 allegedly saw the Accused Person through a window. She stated that she would not be pleased if her son committed the offence and agreed that the Accused Person was presumed dead, as otherwise he would have been taken to a different medical facility. She conceded that she had no proof of the injuries she claimed to have seen on the Accused Person at the Police Station. 3.13 There were no questions put to DW2 in re-examination. 3.14 DW3 was Angel Mubanga, a Business Man residing in J14|Page Chawama and elder brother to the Accused Person. He testified that on 28th December, 2023, his brother John Chanda informed him early in the morning that both the Accused Person and the Deceased had died. DW3 accompanied John to the funeral house and found many people gathered there. Upon entering the house, DW3 observed blood in both the sitting room and the bedroom. He further stated that the windows in the Accused Person and Deceased’s home were covered with nailed-up sacks rather than panes. 3.15 On 29th December, 2023, DW3 visited the UTH and saw the Accused Person with oxygen administered via the neck and his left leg cuffed to the hospital bed. 3.16 In cross-examination, DW3 acknowledged he had no documentary proof before the Court to support his claim about the leg cuff. He also confirmed that he was not present when the events of 27 December, 2023, occurred. He expressed emotional difficulty in seeing his brother, the Accused Person, in Court. 3.17 There were no questions put to DW3 in re-examination. 3.18 DW4 was Chileshe Mando, a Cleaner residing in Chawama and grandson to DW2, who testified that on 27% December, 2023, he received a phone call from PW2, instructing him to inform his grandmother (DW2) about two dead bodies. He went to DW2’s house and handed his phone to DW2 so she could speak directly with PW2. PW2 informed DW2 that a Police motor vehicle would pick her up from the tarmac. DW4 and DW2 then boarded the Police vehicle, which had approximately seven people onboard. He disembarked at Chawama Police Station and was not informed who the deceased individuals were. 3.19 In cross examination, DW4 confirmed that he was at his J15|Page house when PW2 called him but had no phone records to verify the call. He stated that it was dark when he saw the Accused Person and could not recall what the Accused Person was wearing. He reiterated that he was never explicitly told the identity of the deceased persons and was not present at the scene of the incident. DW4 admitted that he did not ask PW1 what happened and initially said he assumed the deceased were the Accused Person and the Deceased. He later acknowledged receiving a call from PW2 confirming their identities but could not recall previously stating otherwise. 3.20 In re-examination, DW4 clarified that he had no phone to provide proof of the call from PW2. 3.21 This marked the close of the Defence’s case. 4.1 4.2 4.3 J16|Page SUBMISSIONS The Court granted both the Prosecution and Defence the opportunity to file closing written submissions. However, at the time of writing the Judgment, only the Defence had submitted theirs. The Prosecution did not file any written submissions. The Defence argued that the Prosecution failed to meet the threshold for convicting on circumstantial evidence as set in David Zulu v The People!. They contended that the facts are not incompatible with DW1’s innocence. Defence Counsel maintained that there is no direct evidence tying DW1 to the Deceased’s death and the Prosecution did not prove his guilt beyond reasonable doubt. 4.4 4.5 4.6 4.7 J17|Page Relying on Dorothy Mutale and Richard Phiri v The People’, Counsel argued that several inferences can be drawn from the facts, not only that DW1 was the killer. Counsel contended that the evidence of PW1’s claim about hearing the couple fight was not corroborated by neighbours. It was further submitted that PW3’s account of someone running inside was unsupported by evidence of forced entry or open windows. Finally, it was submitted that no verification was done to confirm if a third party could have entered the house, supporting DW1’s version of a home invasion. Based on the foregoing evidence, Counsel submitted that the facts support DW1’s case that the house was invaded by thieves who attacked him. The case of Saluwema v The People® was cited in support of the foregoing. Counsel submitted that PW2’s claim of speaking with DW 1 at the scene and seeing him with a knife was not in her earlier statement taken on 28t December, 2023, which was taken when her memory was still fresh. It was further submitted that DW1 testified that the sitting room had no window, undermining PW2’s visual account that she saw the Accused Person standing with a knife over the head of the Deceased from the window. Counsel submitted that no forensic evidence linked DW 1 to the knife, leaving open the possibility it was planted. 4.8 4.9 Counsel submitted that there were contradictions in the Prosecution witnesses’ testimonies, which suggest a personal interest, and their evidence needed to be corroborated to avoid the danger of false implication. The case of George Musupi v The People* was cited in support of the foregoing submission. It was submitted that PW2 who is the Deceased’s relative and PW1 who was the Deceased’s landlord could be biased. The case of Kabarange Mpundu Kaunda v The People® was cited in support of the submission. 4.10 In conclusion, Defence Counsel submitted that the Prosecution failed to prove the case beyond reasonable doubt and urged the Court to acquit DW1. 5. CONSIDERATION AND DECISION OF THE COURT 3.1 9.2 J18|Page I have meticulously considered the entirety of the case before this Court, inclusive of all the evidence adduced by the respective witnesses and submissions by learned Defence Counsel. The Accused Person, Raphael Mwansa, stands charged with the offence of Murder contrary to Section 200 of The Penal Code’. The essential ingredient in the charge of murder is malice aforethought. Section 200 of The Penal Code! provides as follows: - “Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder.” 9.3 3.4 9.9 5.6 J19|Page Malice aforethought pertains to the mental state of the Accused Person at the material time of causing the death. Section 204 of The Penal Code! outlines circumstances under which malice aforethought is deemed to be established, including intention to cause death or grievous harm, knowledge that death or grievous harm is likely to result, or intent to commit a felony. The burden of proof rests solely on the Prosecution, and the standard required for conviction is proof beyond reasonable doubt, as was emphasised in the Supreme Court decision of Mwewa Murono v The People® where the Supreme Court held as follows: - “In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from beginning to end on the prosecution. The standard of proof must be beyond all reasonable doubt.” The Prosecution, therefore, bears the responsibility to establish, beyond reasonable doubt, that the Accused Person, Raphael Mwansa, with malice aforethought and through an unlawful act or omission, caused the death of the Deceased, Ireen Musonda. It is not in dispute that on the 27 day of December, 2023, the Deceased sustained stab wounds resulting in her death, as confirmed by the Post-Mortem Report (P2). What is in contention is whether it was the Accused Person who inflicted those fatal wounds. 9.7 The evidence against the Accused Person primarily stems from the testimonies of PW1, PW2, and PW3, all of whom placed the Accused Person at the scene. However, their testimonies contain limitations, particularly regarding direct linkage of the Accused Person to the act of stabbing. 9.8 PW1, the Deceased’s landlady, testified that on 27 December, 2023, at approximately 23:00 hours, she heard the Deceased, her tenant, scream out, “Raphael, you are going to kill me. Today, you are going to kill me.” PW1 indicated that she could still hear sounds of a struggle when her daughter opened their door. She attempted to intervene by knocking on the Deceased’s door but received no response. She further stated that although she was able to open the grill door, the main wooden door remained locked. 5.9 PW1 then approached PW2, the Deceased’s aunt, and asked her to assist in reaching the Deceased. When they returned together, they found the house quiet. PW2 called out to the Accused Person from outside, asking whether the Deceased was alive and requesting that he open the door. The Accused Person responded, stating he was dressing up but failed to open the door. 5.10 PW1 proceeded to call a neighbour, Mr. Bwalya (PW3), for assistance. Upon his arrival, he forced the door J20| Page open. Once inside, they observed the Deceased lying motionless in a pool of blood. PW1 recalled that Mr. Bwalya used his phone torch to illuminate the scene and found the Accused Person inside the bedroom with what appeared to be self-inflicted wounds. Distressed by the sight, PW1 left and returned to her house. S.11 PW2 corroborated PW1’s account, stating that she accompanied PWI1 to the Deceased’s residence and called out to both the Deceased and the Accused Person. After being ignored initially, the Accused Person responded on the second attempt, stating in an irritated tone that he was dressing up. PW2 further testified that she shone her phone torch through the sitting room window and saw the Deceased lying in a pool of blood with the Accused Person standing nearby, holding a knife. 5.12 PW2 then left to inform the Deceased’s father. Upon her return, she found that the door had already been broken down and members of the public had gathered. She heard people say that the man had killed his wife and killed himself. It was at the point that she went to the Police Station and the UTH that she learned that both the Deceased and the Accused Person had sustained injuries and that the Accused Person was not dead, contrary to earlier assumptions. 9.13 PW3, who responded to PW1’s call for help, stated that upon arriving at the house, he knocked on the door and J21| Page announced himself as a Police Officer. He testified that he then heard the sound of someone running inside the house. He instructed others to cover the back of the house, before kicking the door open and entering. 5.14 Upon entering, PW3 stated that he found the Deceased lying in the sitting room in a pool of blood with visible wounds on her neck and stomach. He used his phone torch to inspect the bedroom and discovered the Accused Person lying on a mattress with a neck wound and a knife in his right hand. PW3 opined that the Accused Person appeared to have attempted to take his own life. 5.15 The Accused Person, in his defence, denied any J22|Page knowledge of the incident, alleging the possibility of an intruder and asserting that he was unaware of being found with a knife. In his defence he testified that on the night of 27 December, 2023, while he and the Deceased were asleep, he was awakened by someone holding him and demanding money. He denied any knowledge of the stabbing of the Deceased and stated that no one mentioned his name on the day of the incident. He also asserted that the sitting room window was covered with a sack, making it impossible for anyone to see inside. He further stated that the house door had no key, and only the grill door was secured with a small lock which he had personally installed. 5.16 From the foregoing summaries of the Prosecution and the Accused’s testimonies, it is clear that this Court is faced with two conflicting testimonies. The Prosecution witnesses have led evidence linking the Accused Person to the stabbing of the Deceased, whilst the Accused Person has denied knowledge of any involvement in the stabbing of the Deceased. 5.17 The Supreme Court in Miloslav v The People’ emphasised the duty of the trial Court to resolve conflicting evidence by evaluating and accepting one version over the other, giving cogent reasons for doing so. In the said case, the Supreme stated as follows: - “Therefore, it was the duty of the trial court to resolve the disputed issue of consent by assessing the two conflicting versions between the complainant and the appellant. Upon that assessment, the trial court should have accepted one and rejected the other, giving reasons for doing so.” 9.18 In assessing the testimonies of PW1, PW2, PW3 and DW1 with respect to determining whether the Accused Person stabbed the Deceased, I shall begin by considering the testimony of PW1. 5.19 PW1 did not witness the stabbing but testified to hearing J23|Page the Deceased shout, “Raphael, you are going to kill me.” I find that this utterance qualifies as a res gestae statement and is admissible as it was made contemporaneously with the altercation. My finding is fortified by the case of Justine Musukwa v The People® wherein the Court of Appeal stated as follows regarding “res gestae” statements: - “As the law stands, such statements are admissible as long as the person tendering the statement satisfied the court, in the case of res gestae, that they were made contemporaneous to the infliction of the injury that caused death, and in the case of a dying declaration, that the deceased lost expectation of living.” 5.20 Accordingly, PW1’s statement of what she heard the Deceased state is admissible. However, it does not in itself prove the act of stabbing beyond reasonable doubt. 9.21 I now turn to consider the testimony of PW2. I must J24|Page state from the outset that PW2 is the aunt to the Deceased and, as such, a relative. In that regard, the possibility of bias in her testimony cannot be discounted. I therefore caution myself accordingly. In Mwabona v The People®, the Supreme Court held as follows: - “A witness with a bias is not to be regarded as a witness with a purpose of his own to serve, but his evidence should be treated with caution and suspicion. Where a witness might have a purpose of his own to serve the court must make a specific finding as to whether he is so regarded. The failure to regard as such a witness with possibly a purpose of his own to serve and another with a possible bias, is a misdirection which will result in the conviction being quashed unless the appellate court can apply the proviso.” 5.22 I am further guided by the case of Kambarange Mpundu Kaunda v The People’ where it was held that prosecution witnesses who are friends or relatives of the prosecutrix may have a possible interest of their own to serve and should be treated as suspect witnesses. It was further held that the Court should therefore warn itself against the danger of false implication of the accused and go further to ensure the danger has been excluded. 5.23 Upon analysis of the Record, I observe that Defence Counsel did not pose any questions to PW2 which would establish a possible motive for bias. Accordingly, and in the absence of any challenge to her credibility or impartiality, I find PW2’s testimony to be reliable. 9.24 The only portion of PW2’s evidence that connects the Accused Person to the offence is her assertion that, upon shining her torch through the sitting room window, she observed the Deceased lying in a pool of blood with the Accused Person standing by her head holding a knife. 5.25 However, the Accused Person testified that the windows J25|Page of the house he shared with the Deceased were covered with sacks, and that it was not possible to see through them. This claim was corroborated by DW3, who confirmed that the house lacked windowpanes and was instead covered with sacks. 5.26 Notably, the Prosecution did not adduce any evidence to rebut this position or demonstrate that it was, in fact, possible to see through the sitting room window using a torch at night. In the absence of such evidence, I find PW2’s testimony on this point to be unsubstantiated and I accordingly reject it. 5.27 I now consider the testimony of PW3. The portion of his evidence that implicates the Accused Person is that upon entering the house, he saw the Deceased with wounds to her neck and abdomen, and the Accused Person in the bedroom holding a knife in his right hand with a wound on his own neck. 5.28 However, the Post-Mortem Report makes no mention of any abdominal injury to the Deceased. This discrepancy raises material doubts about the accuracy of PW3’s observations and, by extension, his credibility. 5.29 I further note with serious concern that although PW3 J26| Page testified that the Accused Person was found holding a knife in his right hand, no forensic evidence was led by the Prosecution to support this allegation. In particular, there was a total failure by the Investigating Officer to cause the knife to be subjected to fingerprint analysis or any forensic examination to ascertain whether the Accused Person’s prints were on the weapon. This omission is not only regrettable but amounts to a fundamental dereliction of duty, especially in a case where the Prosecution’s case hinges on the alleged possession of a murder weapon by the Accused Person. The lifting of fingerprints from the knife was not a mere procedural formality. It was a crucial investigative step that had the potential either to directly implicate or exonerate the Accused Person. 5.30 In criminal prosecutions, particularly those involving allegations of murder, it is incumbent upon the investigative agencies to preserve, examine, and present all material evidence which may bear upon the guilt or innocence of the Accused Person. The knife allegedly found at the scene was the central physical exhibit in this case. The failure to undertake even the most basic forensic examination of it undermines the reliability of the Prosecution’s case and renders the alleged connection between the Accused Person and the weapon speculative and unsubstantiated. 5.31 The Supreme Court in Peter Yotamu Hamenda v The J27|Page People'® was categorical in holding that where investigative agencies fail to investigate relevant matters in circumstances amounting to dereliction of duty, such failure operates in favour of the Accused Person. This Court is fortified in finding that this omission by the Investigating Officer has severely prejudiced the Accused Person. The knife could have provided exculpatory evidence. Its forensic examination may have shown that the Accused Person’s fingerprints were absent, or that another person’s fingerprints were present, evidence which would have fundamentally altered the trajectory of this Prosecution. The absence of such critical forensic analysis amounts to a gross investigative failure, and in a case of this magnitude, is wholly unacceptable. 9.32 It was PW3’s further testimony that upon announcing himself as Police and demanding the door be opened, he heard someone running inside the house. Despite the Accused Person’s consistent assertion that an intruder was present, this line of inquiry was inexplicably neglected by the Investigating Officer. In my view, the production in Court of evidence of a_ thorough investigation into the possibility of intruders in the Deceased and Accused Person’s house may have erased any reasonable doubt regarding the possible presence of persons other than the Deceased and the Accused Person. However, no such evidence was adduced. Moreover, PW4, the Investigating Officer, was expressly informed during the course of the investigation of the possible presence of a third party in the house, yet there is no indication that this line of inquiry was thoroughly pursued to verify or eliminate this possibility. 5.33 This omission is not a trivial lapse but a serious J28| Page investigative failure. In a case where the central issue is who inflicted the fatal injuries, the question of whether another person was in the house at the material time is fundamental. A diligent Investigating Officer would have taken steps to verify signs of forced entry, secure any physical evidence pointing to third-party involvement, interview all relevant witnesses thoroughly, and assess whether the crime scene supported or contradicted the intruder theory. No such steps were demonstrated. 9.34 The failure to thoroughly investigate this material aspect of the case represents a serious lapse. In the case earlier cited of Peter Yotamu Hamenda v The People’, the Supreme Court stated: - “Where the nature of a given criminal case necessitates that a relevant matter be investigated but the investigation agency fails to investigate it in circumstances amounting to dereliction of duty, the Accused is seriously prejudiced because the evidence which might have been favourable to him has not been adduced, the dereliction of duty will operate in favour of the Accused and result in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the prejudice which might have arisen from the derelictions of duty.” 5.35 I must state that the duty of an investigating officer is J29|Page not merely to build a case against a suspect but to pursue the truth objectively and impartially. The failure to investigate a plausible and material defence, especially one directly raised by the Accused Person and indirectly supported by PW3’s own observations, amounts to a dereliction of investigative responsibility and severely prejudices the fairness of the proceedings. The Court cannot turn a blind eye to such glaring investigative neglect. In criminal trials, especially those concerning allegations as grave as murder, a superficial or one-sided investigation undermines the very integrity of the Prosecution’s case and risks convicting an innocent person. 9.36 Furthermore, discrepancies in the _ evidence surrounding the state of the door to the house raise additional concerns. PW3 claimed that the grill door was open but the inner door was locked. The Accused Person testified, however, that the grill door had a lock but the door to the house had no key. The issue of whether the house was capable of being locked is central to determining whether there was a possible break-in, as alleged by the Accused Person. 5.37 This lack of clarity and investigative rigour on the part of the Police must be condemned. I take this opportunity to urge law enforcement officers to conduct investigations with due diligence and seriousness, as their findings are crucial to the fair administration of justice. 5.38 I now turn to the question of whether the Prosecution J30|Page has established the case against the Accused Person beyond reasonable doubt. It is evident that there is no direct evidence linking the Accused Person to the act of stabbing the Deceased. The Prosecution’s case rests on circumstantial evidence, that screams were heard, that the door was not opened, that the Deceased was found with stab wounds and the Accused Person was found with a stab wound to the neck. 5.39 PW1 testified that she heard the Deceased shout, “Raphael, you are going to kill me,” and “Today you are going to kill me”. As earlier stated, while this statement is admissible, it is not, standing alone, sufficient to prove the commission of the offence beyond reasonable doubt. 5.40 From the evidence, two plausible inferences may be drawn: - i. That the Accused Person and the Deceased were involved in a domestic altercation which culminated in the Accused Person stabbing her before turning the knife on himself; or ii. That the Deceased and the Accused Person were attacked by unknown assailants who broke into their house. 5.41 In Dorothy Mutale and Richard Phiri v The People’, the Supreme Court reaffirmed the cardinal rule that: - “Where two or more inferences are possible, it has always been a cardinal principle of the criminal law that the Court will adopt the one, which is more favourable to an accused if there is nothing in the case to exclude such inference.” J31|Page 5.42 Applying the above principle, I find the second inference to be more favourable to the Accused Person. The Prosecution has failed to exclude this possibility through credible evidence or thorough investigation. Consequently, they have not discharged the burden of proof required to sustain « conviction for Murder, as articulated in Mwewa Murono v The People’. 5.43 In view of the foregoing, I am not satisfied that the Prosecution has proved the essential elements of the offence of Murder beyond reasonable doubt. I therefore find the Accused Person, Raphael Mwansa, not guilty of the offence of Murder and I accordingly acquit him. 5.44 Leave to Appeal is hereby granted. SIGNED, SEALED AND DELIVERED AT LUSAKA, ON THE 167 J32|Page DAY OF JUNE, 2025. WGirnear P. K. YANGAILO HIGH COURT JUDGE