BECHANI MWALE V THE PEOPLE (APPEAL NO. 63/2019; APPEAL NO. 64/2019) [2019] ZMCA 318 (27 August 2019)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 63,64/2019 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: BECHANI MWALE (cid:9) APPELLANT AND (cid:9) / 2? THE PEOPLE (cid:9) RESPONDENT Coram: Kondolo, Makungu and Chishimba J. J. A On the 20th and 27th day of August, 2019 For the Appellants: Mr. H. M. Mwemba, Principle Legal Aid Counsel - Legal Aid Board For the Respondent: Mr. S. S. Simwaka, Acting Senior State Advocate - National Prosecutions Authority JUDGMENT MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. The People v. Everisto Banda (1990/1992) ZR 194 2. Jack Chanda and Kennedy Chanda v. The People - SCZ Judgment No. 20 of 3. Saluwena v. The People (1964) ZR 214 4. Yokoniya Mwale v. The People - SCZ Appeal No. 285 of 2014 5. Kahale Kanyanya v. The People - SCZ Appeal No. 145/2011 6. Philip Mungala Mwanamubi v. The People - SCZ Judgment No 9 of 2013 7. Chimbini v. The People (19 73) ZR 191 8. Lipepo and others v. The People SCZ Appeal No. 289/2013 9. Webster Kay Lumbwe v. The People (1986) ZR 98 10. Green Musheke Kuyewa v. The People (1996) SC 11. Mwapev. The People (1976) ZR 160 12. Phiri v. The People (1970) SJZ 189 13. Adam Berejena v. The People (1984) ZR 19 (S. C) 14. Abraham Mwanza and two others v. The People (1977) ZR 221 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The learned High Court Judge G. C. Chawatama convicted the appellant of one count of murder contrary to Section 200 of the Penal Code and one count of acts intended to cause grievous harm contrary to Section 224 (a) of the Penal Code Chapter 87 of the Laws of Zambia. 1.2 He was sentenced to death for murder and 15 years imprisonment with hard labour for acts intended to cause grievous harm. 2.0 BACK GROUND 2.1 The particulars of the first count were that Bechani Mwale on 19th April, 2017 in Petauke District, Eastern Province of the Republic of Zambia, jointly and whilst acting together with seven others did murder one Diana Phiri. -J2- 2.2 (cid:9) The particulars of the second count were that Bechani Mwale on 19th April, 2017 in Petauke District, Eastern Province of the Republic of Zambia, jointly and whilst acting together with seven others unknown, with intent to maim, disfigure or disable, unlawfully did cause grievous harm to one Julita Banda by beating her with a pounding stick. 2.3 Dissatisfied with the judgment of the lower court the appellant has appealed to this court against conviction and sentence. 3.0 EVIDENCE BEFORE THE LOWER COURT 3.1 The prosecution's case rested on the evidence of five witnesses. In summary their evidence was as follows: On 71h April, 2017, PW1 Julita Banda's ten year old granddaughter Grace went missing. Four days later, she was found in a field by Philip and she revealed that it was Papulani Mwale the appellant's father who had abducted her and locked her up in his house. PW1 reported the matter to the Headman Kennedy Chilwa PW3 and the neighbourhood watch and eventually to the police. Thereafter, the appellant -J3- went to PW3 and informed him that if his father was not released he would trouble PW1. 3.2 (cid:9) Three days later, the appellant led a group of people to PW l's homestead in Katungundu village around 19:00 hours. At the material time, PW1 lived with her mother Diana Phiri (herein after referred to as the deceased) and PW2 Precious Banda in separate houses within the same homestead. PW1 and PW2 were able to see the group of people as there was light emanating from the flaming fire that was lit outside. 3.3 (cid:9) The appellant then told PW1 who was seated by the fire that it was time for her to be killed and they were going to kill her for having caused the arrest of Pepulani Mwale. In PW1's view the appellant was not drunk. When PW1 tried to get up, the appellant struck her with a pounding stick and she collapsed. PW1 stayed unconscious for weeks. When she came to, she realized that she had been admitted to St. Francis Mission Hospital. She had sustained severe injuries which left her arms and legs so disabled so that she is unable to do anything for herself including bathing and walking. PW1 did -J4- not know the appellant personally as she was a visitor. She managed to identify the pounding stick in court. 3.4 (cid:9) PW2 identified three people in the crowd namely Ndise, Besta and the appellant PW2 knew the trio because they lived in the same village. She ran away after seeing PW1 being beaten. When she went back, she found her grandmother Diana Phiri lying in her house, beaten up. She had sustained a cracked head and blood was oozing from the head. Her mother PW1 was lying near the door of her house, unconscious with blood oozing from the injuries from her hands. PW2 and PW3 took PW1 and the deceased who was still alive at the time to St. Francis Mission Hospital where the deceased passed away the following morning. 3.5 (cid:9) The appellant went into hiding and was only apprehended at Kamuvungule Farm a week later by neighbourhood watch officers including PW4 Robert Nkhuwa. Upon his apprehension, the appellant was taken to PW3's house where, upon being questioned by PW3 he admitted to having beaten up PW1 and the deceased. -J5- (cid:9) (cid:9) 3.6 PW5 Abson Daka, A Detective Sergeant based at Petauke Police Station investigated the matter. He produced in evidence the post mortem report to the effect that the deceased died of multiple head injuries and brain damage. He took the appellant to the crime scene where the appellant demonstrated the role he played in the attack. He managed to recover a pounding stick which was pointed out to him by the appellant as the weapon used in the attack. He also recovered three stones allegedly used in the attack but only tendered the pounding stick in evidence. The medical report for PW 1 had gone missing during her transfer from Petauke General Hospital to St. Francis Hospital. 3.7 In his defence, the appellant gave evidence on oath and did not call any witness. His side of the story was that he had lived in Katungundu village for 10 years. On the material day, he went to the deceased's house to negotiate for the release of his father Pepulani Mwale from police custody. He found PW1 warming herself by the fire. To his surprise, a mob had followed him. He did not identify anyone in that group but they were annoyed and had just been sent there by people he did not know. He later learnt that the deceased -J6- was beaten by the mob. He denied having threatened PW1 with death and having gone to the Headman's house to inform him that he would trouble PW 1 if his father was not freed. He admitted that he was apprehended from Kamuvungule farm. He narrated how the police beat him up and broke his arm and that he told them he knew nothing about the alleged crimes. He also denied having shown the police any weapon at the crime scene. He denied having fled the scene. He stated that it was like a war as everybody was running. 4.0 LOWER COURT'S DECISION 4.1 The lower court found that the appellant's father was arrested as a suspect in the abduction of Grace. PW3's evidence that the appellant went to his house and threatened to cause trouble at the victim's house was credible. PW1 and PW2 saw the appellant who threatened PW1 with death. The appellant ran away to a farm in Nyampende village after the incident and this indicated that he was guilty as the totality of the evidence points to guilt. The appellant had the motive to kill the deceased and her family and he carried out his threat. The appellant's defence was dismissed and the lower -J7- court found that he had remained at the crime scene with the angry mob. 4.2 The court's further findings were that Diana Phiri's death was caused by severe head injury and brain damage according to the post mortem report. Julita Banda sustained serious injuries that day. The injuries sustained by both of them were consistent with the fact that they were beaten with a heavy instrument even if one would accept that it might have not been the pounding stick which was recovered. 4.3 On whether or not the appellant was intoxicated, the court found that his speech was not defective and his movements and his other capacities were not affected to the extent that he may not have been able to form the necessary intent. He himself did not rely on his drunkenness as having impaired his mental capacity so as not to have known what he was doing. Therefore, he was not drunk. The trial Judge applied the case of The People v. Everisto Banda (1) on issues of enmity and motive proving malice aforethought. -J8- 4.4 (cid:9) The learned Judge invoked Section 22 of the Penal Code and found that the group of attackers had an unlawful common plan to cause grievous harm or death to the victims. 5.0 GROUNDS OF APPEAL 1. The learned trial Judge erred both in law and in fact when she failed to find that a failed defence of intoxication and /or evidence of drinking was an extenuating circumstance. 2. The learned trial Judge misdirected herself in law and in fact when she relied on the evidence of PW1 and PW2, witnesses with a possible interest to serve in rejecting the appellant's defence without satisfying herself that the dangers of false implication had been ruled out. 6.0 ARGUMENTS BY COUNSEL 6.1 (cid:9) Both counsel filed heads of argument on 20th August, 2019 which they relied on. The arguments made on behalf of the appellant on the first ground of appeal are that the lower court erred by not finding the appellant's evidence that he was drunk at the material time or the failed defence of intoxication as an extenuating circumstance. The lower court should have sentenced the appellant to a sentence other than death. In support of this, the case of Jack -J9- (cid:9) (cid:9) Chanda and Kennedy Chanda v. The People (2) was relied upon where it was held among other things that: "A failed defence of provocation, evidence of witchcraft accusations and evidence of drinking can amount to extenuating circumstances." 6.2 (cid:9) Mr. Mweemba further argues that on the evidence on record, starting from the reasons for the appellant to have committed the offence to the issue of drunkenness, there is a revelation of extenuating circumstances which should render the death sentence unreasonable. He prayed that this ground of appeal be upheld and the death sentence be substituted with a lesser sentence. 6.3 (cid:9) Submissions in support of the second ground of appeal are that the incident occurred at night and it was from the light of the fire that the assailants were seen. 6.4 Under cross-examination, PW1 stated that she was a stranger in that area and did not know who attacked her. She did not identify any other person in the crowd apart from the appellant. PW2 did not see anyone beating either PW 1 or the deceased as she went and hid and only wentback -J10- (cid:9) (cid:9) when the attackers had left. PW2 told the court and the police that it was Bechani Mwale who told PW1 that she would die. However, her statement to the police shows that it was John who attacked the deceased. 6.5 Mr. Mweemba further contends that PW1 and PW2 are witnesses with a possible interest to serve, whose evidence required corroboration or evidence of something more in order to be accepted. That is because they are family members who clearly had an issue arising from the alleged abduction case. 6.6 (cid:9) Mr. Mweemba contends further that the evidence of PW1 and PW2 that it was the appellant who assaulted the deceased and PW1 was not corroborated. In fact the learned trial Judge was alive to the fact that PW2 told the police that it was John who assaulted both the deceased and PW1. The appellant had clearly disassociated himself from the actual assault. He only went to discuss the matter and left before others attacked the victims. Once a witness falls in the category of witnesses with a possible interest to serve, the issue of demeanor or his credibility or absence of motive to -ill- falsely implicate becomes immaterial. The motive is implied. The one thing the trial court has to preoccupy itself with is to find supporting evidence in order to rule out the dangers of false implication. In the absence of corroboration, the court must discount the entire evidence of that witness. The appellant was truthful enough to reveal to the Court that he was at the scene, although he disassociated himself from the offence. His truthfulness should have been credited to him and the court should have held the doubt he created in his favour. 6.7 The appellant's explanation was reasonably possible and so the case cannot be said to have been proved beyond any reasonable doubt. (cid:9) Reference is made to the case of Saluwena v. The People (3) where it was held that: "If the accused's story is reasonably possible though not probable, then there is a doubt and the prosecution cannot be said to have established their case beyond all reasonable doubt." 6.8 (cid:9) We have therefore been urged to uphold the second ground of appeal as well and acquit the appellant. -J12- 6.9 Submissions in opposition to the first ground of appeal are as follows: According to the case off Jack Chanda and Kennedy Chanda v. The People (2) there must be evidence of drinking for a court to hold drunkenness as an extenuating circumstance. 6.10 In the Jack Chanda (3) case, there was evidence to the effect that the appellants had been drinking for about five hours on empty stomachs unlike in the present case, where there is no evidence that the appellant was drinking for a certain period of time. The appellant merely claimed he was drunk that day. The learned trial Judge was satisfied that the appellant was not drunk and she dismissed the defence of intoxication. Mr. Simwaka therefore urged us to dismiss the first ground of appeal and uphold the death sentence. 6.11 As regards the second ground of appeal, Mr. Simwaka contends that PW1 and PW2 cannot be placed in the category of witnesses with their own interests to serve by virtue of being members of the deceased's family. We were referred to the case of Yokoniya Mwale v. The People 4 where the Supreme Court stated as follows: -J13- "We oughtto, however, stress that these authorities did not establish, nor were they intended to cast in stone, a general proposition that friends and relatives of the deceased, or the victim are always to be treated as witnesses with an interest to serve and whose evidence therefore routinely required corroboration. Were this to be the case, crime that occurs in family environments where no witnesses other than the near relatives and friends are present, would go unpunished for want of corroborative evidence. Credible available evidence would be rendered insufficient on the technicality of want of independent corroboration. This, in our view would be to severely circumscribe the criminal justice system by asphyxiating the courts even where the ends of criminal justice are evident." 6.12 Mr. Simwaka stated that in the case of Kahale Kanyanya v. The People (5) the Supreme Court referred to Jack Chanda and Kennedy Chanda v. The People (3) and held among other things that: "Each case must be treated on its particular facts. It does not necessarily follow that if the appellant had -J14- been drinking, then that amounts to extenuating circumstances." 6.13 On the allegation of PW1 and PW2 having an issue with the appellant, Mr. Simwaka submitted that it is not ascertainable from the record that the two witnesses had an issue with the appellant. The appellant is not the person to whom the abduction was attributed but his father. Therefore, PW1 and PW2 had no ulterior motive to falsely implicate the appellant. Counsel prayed that should we find that on the basis of abduction committed by the appellant's father the two witnesses had an issue with the appellant and therefore had interest to serve, we should find that their evidence was corroborated as shown below: 6.14 The appellant had the opportunity to commit the offences he was charged with. He placed himself at the scene and his presence coincided with the attack on PW 1 and the deceased. The argument that the appellant disassociated himself from the crimes is not sustainable. The appellant visited the homestead of PW 1 and the deceased not to discuss amicably because he openly declared his intention to cause trouble and kill. To strengthen the foregoing -J15- arguments, counsel relied on the case of Philip Mungala Mwanamubi v. The People (6) where it was held that: "Opportunity constitutes corroboration as to identity of the appellant..." 6.15 Counsel stated further that the trial court cannot be faulted for taking the appellant's running away as an indication of his guilt in light of totality of the evidence on record. The evidence that PW3 corroborates the evidence of PW 1 as found by the trial Judge. Although the offence was committed in the night, the appellant was positively identified at the scene by both PW1 and PW2 who knew him before that date as there was light emanating from the fire. According to the case of Chimbini v. The People,' the important factor to be considered in case of identification is whether or not the appellant was known to the identifying witnesses before the occurrence of the offence. PW1 and PW2 both had an excellent opportunity to observe the appellant. In Lipepo and others v. The People (8) it was held that: "An excellent opportunity is constituted by sufficient time within which the witness observed the suspects, sufficient lighting and absence of fright among others." -J16- 6.16 The lower court rightly found that the identity of the appellant was not an issue. The respondent's prayer is that the second ground of appeal be dismissed and the conviction and sentence be upheld. 7.0 DECISION OF THIS COURT 7.1 (cid:9) Having considered the record of appeal and the submissions made on behalf of both parties, we shall tackle the second ground of appeal first because it concerns the court's considerations before conviction. The first ground of appeal which attacks the sentence will be handledlast. 7.2 GROUND 2 It is not in dispute that PW1 and PW2 were related to the deceased and the child who was allegedly abducted by the appellant's father. Mr. Simwaka has rightly pointed out that there was no evidence that they had an interest of their own to serve. As the law stands, it is not in every case that a relative of the deceased or victim should be treated as a witness with an interest to serve and whose evidence requires corroboration. In this case, the crimes occurred in a family set up at night and there were no other -J17-. (cid:9) witnessesapart from PW1 and PW2 who could have testified on behalf of the State as the group of people led by the appellant was obviously against the family. The question that begs an answer is whether the evidence of PW1 and PW2 was reliable and whether the possibilities of falsehood and bias were ruled out. The case of Yokoniya Mwale v. The People (4) refers. 7.3 Although the trial Judge did not expressly warn herself of the possible dangers of PW1 and PW2 falsely implicating the appellant, on page 25 of the Judgment, she found that, "...the relationship between the two families was not good due to the fact the accused's father had abducted Grace the granddaughter to Diana Phiri and this was known to the accused no wonder he said he went to the homestead to talk to Diana Phiri to secure the release of his father." 7.4 It is clear to us that it was on the basis of the above findings that the court treated the evidence of PW1 and PW2 with caution as they were indeed suspect witnesses falling in the category of witnesses who might be biased. The learned trial Judge therefore considered whether their evidence was -J18- corroborated and we refer to pages 24 and 25 of the judgment. The court found that PW3, an independent and credible witness, corroborated the evidence of PW1 and PW2. His evidence was that the accused had expressed an intention to go to the homestead and cause trouble. We shall not interfere with the lower court's finding of fact of credibility as it has not been demonstrated that the finding was erroneous. The case of Webster Kay Lumbwe v. The People (9) refers. The Judge pointed out that the accused also strengthened PW1 and PW2's evidence of his presence at the scene at the material time. 7.5 We must point out, that the fact that the appellant saw PW1 seated by the fire and talked to her, means that there was enough light for PW1 and PW2 to also see him and his colleagues. 7.6 The case of Philip Mungala Mawanamubi v. The People (6) supra cited by the respondent's counsel, applies and we accordingly hold that the opportunity that the appellant had to commit the crimes also constitutes corroboration as to his identity. -J19- 7.7 We cannot accept the appellant's counsel's submission that PW1 and PW2 probably falsely implicated the appellant because PW1 was a stranger in that area and PW2 did not identify any other person in the group apart from the appellant. That is because as rightly pointed out by the lower court on page J.24 PW2 named two other people she saw amongst the assailants as Dina and Besta. In our view, although PW 1 was just visiting, her identification of the appellant as her assailant was corroborated by the accused himself as he had faced her and spoken to her. 7.8 The evidence of PW1 was that she saw the appellant as he struck her with a pounding stick and thereafter she collapsed. This evidence was not discredited. 7.9 We have perused the statement which PW2 made to the police on page 174 of the record of appeal. In that statement, she did not say that it was John who assaulted PW1 and the deceased but that she heard people outside saying, "Today we are going to kill all of them." Out of the voices, she identified the voice of male John, other names unknown. Therefore, Mr. -J20- Mweemba's submission that she identified John as the attacker is baseless and we reject it. 7.10 The cogent evidence that the appellant fled to Kamuvungule farm is evidence of something more supporting the evidence of PW1 and PW2. 7.11 In the circumstances, the lower court cannot be faulted for her finding that running away indicated that the appellant was guilty as the totality of the evidence points to his guilt. The case of Green Musheke Kuyewa v. The People (10) was properly applied to the facts of the case. 7.12 The trial Judge was on firm ground when she rejected the appellant's allegation that he left the homestead and went home immediately after talking to PW 1. The court stated at page 26 of the judgment that she had no doubt in her mind that the appellant was driven by his anger at having his father arrested and he was involved in some way in the commission of the offences he stood charged with. The trial Judge was convinced beyond reasonable doubt that the appellant remained at the crime scene as the crimes were being committed. -J21- 7.13 We take the position that although PW1 and PW2 did not witness the attack on the deceased, the invocation of Section 22 of the Penal Code on "common intention of two or more people to prosecute an unlawful purpose"by the trial Judge was in order, because it is clear from the evidence on record, that the appellant was the ring leader and that there was a concerted design to kill the family of PW1 and to cause grievous harm to them. Therefore, we consider the appellant as principal in the commission of murder as well as unlawfully causing grievous harm to PW 1 with intent to maim, disfigure or disable. We are fortified by the cases of Mwape v. The People (11) and The People v. Everisto Banda (1) which the lower court relied upon. The Mwape (11) case was on a group forming a common unlawful purpose and committing a crime which renders the participant a principal. In the case of The People v. Everisto Banda (1) the Supreme Court enunciated the principle that evidence of enmity that the accused had towards the deceased and the evidence of motive necessarily go to prove the fact of homicide by the accused, as well as his malice aforethought, in as much as it -J22- is more probable that men are killed by those who have some motive to kill them than those who have not. 7.14 For the foregoing reasons, we reject the appellants' advocate's submission that the appellant's story was reasonably possible though not probable. GROUND 1 7.15 As rightly pointed out by the respondent's advocate, evidence of drinking can be taken as an extenuating factor. In the present case, the appellant merely stated that he was drunk. We find no reason to upset the lower court's findings and holdings regarding the issue of drunkenness as they were based on established legal principles and evidence on record. The case of Kahale Kanyanga v. The People (5) refers. 7.16 Our firm position therefore is that there were no extenuating circumstances. 7.17 Section 224(a) of the Penal Code provides for a maximum sentence of life imprisonment and no fixed minimum. 7.18 On page 16 of the Judgment, Judge Chawatama stated that she had an opportunity to see the result of the serious -J23- injuries sustained by PW 1. She observed that PW 1 needed help when walking; one arm was supported by a sling whilst the other is "much disfigured to the extent that both hands are no longer functional. As stated in her testimony, she is unable to do anything for herself, including dressing and bathing." 7.19 Page 131 of the record of appeal shows that the appellant is a first offender. In the case of Phiri v. The People, (12) it was held among other things that: "A first offender should not be denied leniency although circumstances may make the application of such leniency minimal." 7.20 In the case of Adam Berejena v. The People, It was held that: "An appellate court may interfere with a lower court's sentence only for good cause. To constitute good cause, the sentence must be wrong in law, in fact, or in principle, or, it must be manifestly excessive or totally inadequate that it induces a sense of shock or, there must be such exceptional circumstances as to justify an interference". -J24- 7.21 In the case of Abraham Mwanza and two others v. The Peop1e.'4 The Supreme Court held that: "It is essential for a proper consideration of the question of sentence, and in some cases may be essential also on the question of verdict for the Court to know precisely what was the nature and severity of the injuries inflicted on the deceased." 7.22 In the absence of a medical report, the trial Judge's ocular observation of the extent of the injuries suffered by PW1 is sufficient for our decision. 7.23 In light of the three authorities on sentencing, we have cited above, we hold that, although the appellant is entitled to leniency as a first offender, the sentence of 15 years imprisonment with hard labour for the second count, comes to us with a sense of shock because it is too low for the gravity of the matter and totally inadequate. The nature and severity of the injuries inflicted on PW1 and the circumstances under which they were inflicted, amount to exceptional circumstances which warrant our interference with the sentence. -J25- 4 .., 8.0 CONCLUSION 8.1 To sum up, the appeal lacks merit and it is dismissed. The convictions were indeed safe. The death sentence for murder is upheld. The sentence of 15 years imprisonment is hereby set aside, instead we sentence the appellant to 40 years imprisonment with hard labour with effect from the date of arrest. M. M. KONDOLO, S.0 COURT OF APPEAL JUDGE I W~k (cid:9) C. K. MAKUNGU (cid:9) ~r COURT OF APPEAL JUDGE (cid:9) F. M. CHISHIMBA COURT OF APPEAL JUDGE -J26-