Mulenga v People (SCZ Judgment 116 of 1993) [1993] ZMSC 94 (19 October 1993)

IN THE SUPREME COURT OF ZA?43IA HOLDEN AT LUSAKA (Criminal Jurisdiction) JUDGMENT NO. 116 OF 1993 BETWEEN: ALEX KANDAMI MULENGA APPELLANT Vs THE PEOPLE RESPONDENT CORAM: GARDNER, SAKALA AND MUZYAMBA JJS., 19th October, 1993 S. W. Chirambo Senior Legal Aid Counsel for the appellant. J-M. Mwanachongo Principle State Advocate for the State. JUDGMENT Gardner U. S. delivered the judgment 'of the court. Cases referred to:- ' . * . (1) Love Chimbini -v- The People (1973) Zambian Reports page 191 (2) Turnbull and Another (1976) 3 E. R. 445 The appellant was convicted of an act intended to cause grievous harm?' - ■ ■ The particulars of the offence were that he, on the 21st February, 1991 at Mporokosb, did unlawfully wound Jackson Kasama Mushota. The prosecution r’" //‘AvViir/ evidence was that the complainant, Jackson Mushota, was cutting poles in the bush when he saw the appellant, whom he said he recognised as he had known him well for many years, and the appellant had a gun. the complainant thought the appellant was shooting birds and he followed him; however, the appellant took cover and the complainant could no longer see him. The complainant proceeded with the cutting of poles and whilst he was still doing so he saw the appellant 90 metres away coming towards him with a gun. He did not see th< appellant aim the gun but he was shot and sustained injuries to his body. Uheivhe was taken to the hospital it was found that he had a number of pellet wounds in his body and sone of the pellets still remained in his body after he was discharged from the nospital. 2/..... * J2 .j , r^rs was no other eyewitness of wnat occurr^j. The appellant gave evidence on sa jnd said that ne was nowhere near the scene of tta snooting at the ttao, that ta did not nave a gsn ano cm no gun was found in his possession when nis prealsos awe searched oy the uolica. lie agreed that he knew the complainant well. Hr. Crtir-anoQ on aenalf of the appellant argued a number of grounds of apatHl. tie first of which was that the >tun should nave been.produced and tM - fin^rprK.ts on the gun which ought to have bm produced should have been aade ^vaU iob* to ostabHsh the ideqtjof the assailant. Secondly* counsel argued t-'it t^r*- was -no corroboration of a single witness identification. He ^intai^c tMt at 3C metres in cte circumstances of this case, with a neater of trass aroum th® c^iain^nt could not Pave been sure of Identifying tlwappellant. He m&lntAi further tuat owiainont was an insatisfactory' witness because he contradicted in that at one stags too complainant said he saw the appellant aiming s gu it hi~i and the next SitaenL said that he did not see Mb actually ata the gun. or* the unsatisfactory nature of the eriaence. ^r. Chirac argued that the wvtiisr^ of identification should not have te$n accepted. Counsel further argued that th^-c was .3 statement in the swdlcM report indicating that tn^ cc^plain^t u 70; \.k- ( who bed snot at hta because the police constable who-bad written the instructions to tnt rwcic«il authorities nod said that the complaint was that tw r^Hina'c had snot oy a person unknown. In these circumstances tr. Catrin argued that the complainant could not-have told police whoa he iccusei of snooting at hi-«. Finally, ar. CMra.’Spo argued that&W:evi0ence that tud x^viGujiy accused too complainant of tains A wUard and had . stacked 'Uri wten an axe for tnac reason, should not have ta^t^sed by the learns: ;rtal Jvoj2 in tae manner wnicn ns did, namely where the judse'founj that wo ipoellant had the intuntiori to shoot the ca^lalnanc and to cauis ftta grievous Mr ir. Pwanacnongo on behalf of the state arguedwas no Question ur tiw possibility of idMtity because IM appellant ^ had admitvsc - Y •’* r**» li evit‘^,>* that tne parties were well kne^n to each other. ' rid';Usa iMt was m isiprobrlety in the learned trial Judged wing referred to tne ''iistorv of tM casa hWi the appellant had accused of a .uzard sm had attempted to axe Ma. ?'• b/............■ Coaling with the first ground of appeal that no gun was used in tills , case, we are quite satisfied that the rest of the evidence overwhelmingly proves ■ that tn? cwUthant was sm and received injuries from shotgun pellets. It follows, therefore, that a gun must have been used and Its non-production because it could not be found did not weaken the prosecution case. This ground of appeal cannot succeed* In connection with t;»at ground we would coament tnat the fact that the gun was not found tn the premises of the appellant does not suggest his innocence because, in the circumstances, it would not have been reasonable to expect the appelJaQt to retain possession of the gun having used it us alleged* di tn regard to the quality of the identification in this case we appreciate that this was a case of single witness identification, but, as we ' said in the case of Love Chinbini -v- The People 191 (1) where a suspect is well known to a ^^^^possibllity of mistaken identity is very osucn Uss than where a co-aplete stranger is the subject of identification. He are also mindful of the comments rode in England in the case of Turnbull and Another, 1976 3 All E. R. R4J. (2) in which the court held that even In a case -where: a suspect was well ,.;v?wn to a witness, when a witness had only a fljetlnji glimpse of his assailant there was still a possibility of mistaken identification. In this , case tne complainant said that ne saw the appellant earlier waan he followed him, and, although he did not mention the distance at which he then saw the appellant It is quite clear from his evidence that he was recognise the appellant, in ail the circumstances it cannot be said that he had only a fleeting glimpse of his assailant,and no question of the possibility of mistaken identification arose on which the learned trial judge should nave adjudicated. With regard to the question of the unreliability of the complainant as a witness, we note Mr. Chirambo’s comment that this witness at one time said ’ > JT.'n’j- v^- ' ’’’■ • * • . A: • ‘ • t/j* •..' that the appellant aimed the gun at him and then immediately afterwards said he did not actually see the aiming; but this : his evidence in chief and wds oil in z cannot be regarded as an inconsistency Instead it was a vary proper correction of his own evidence by the witness. A.' In regard to the learned trial judge’s use of the earlier evidence the the appellant had previously assaulted the copplainant with an axe and sad accused him of being a wizard, we are quite satisfied that there was no impropriety in his method of referring to that evidence. : It was evidence of similar conduct by the appellant and was properly used by the learned trial Judge in supporting the motive for the assault on the complainant. For the reasons we have given none of the grounds of appeal can succeed. The appeal against conviction is dismissed. The appellant was sentenced to twelve years imprisonment with hard labour, and, in the course of sentencing him, the learned trial judge said:- “Incidences where people fclirWh other or do grievious harm to each other based on witchcraft suspicion is so alarming in this province. Despite the senteices I have imposed on accused persons who are so married to witchcraft. I am amazed to note in this case that the accused still had to hurt PHI as if he were an animal.“There was no evidence that this particular appellant was aware of any of the sentences that had been imposed by the learned trial judge and tiie sentence imposed was wrong in principle. -■ * Yle agree with the learned trial judge that the use of belief in witchcraft as an excuse for assault must be deprecated by this court and deterrent sentences must be imposed on those who use such an excuse for their ’ . < ? •• ■ . assaults. ■ ' The appeal against conviction Is allowed and the sentence the High Court is set aside. In its place we sentence th^ppellant to four years imprisonment witn hard labour with effect from 25th February, 1991, the date of his arrest. . ....................... '......... S fl. T. GARDNER '' ‘ ’J:V’Z' jvJ ■ - ■ SUPREME COURT JUDGE ............ 1 C -■ ■■ ' / ■: • ■ ■ .... A-■' . A. ■... . - r '• ■ ■, ■ ■ ................... * —............ ... . E. U SAKALA ■ C ' SUPREME COURT JUDGE . ....... . .. . ■ ■ W. M. MUZYAMBA SUPREME COURT JUDGE