Dominic Matomola Matomola v The People (APP NO.002/2023) [2023] ZMCA 360 (22 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA - (Criminal J urisdiction) ~- - - ,, BETWEEN: r., r DOMINIC MATOMOLA MATOMOLA ~() , I ~' ' - -~ CP1MINAL r. EG :-:-:-. APP N0.002/2023 APPELLANT AND THE PEOPLE RESPONDENT Coram: Mchenga, DJP, Banda-Bobo and Sharpe-Phiri, JJA On 14th November, 2023 and 22nd November, 2023. For the Appellant: The Respondent: Mrs. S . Chibuye of Messrs Lukwesa and Mrs. K. Kombe, both Legal Aid Counsel for the Legal Aid Board Mr. S . Zulu, Senior State Advocate and Mr. B. Choongo, State Advocate, National Prosecution Authority JUDGMENT Banda-Bobo, JA delivered the Judgment of the Court. Cases referred to: Edward Sinyama v. The People (1993) - 1994) ZR 16 1. John Ng'uni v. The People (1977) ZR, 379 2. Chisoni Banda v. The People ( 1990 - 1992) ZR 70 3. John Mwansa and Another v. The People (SCZ Appeal No. 170/20 14). 4. Steven Mukuka v. The People (Appeal No. 156 /2020 5. Ratten v. R (1971) AC 378. 6. Mwewa Murano v. The People (2004) ZR 207 (SC) 7. 8. Nicholas Malaya v. The People (Appeal No. 29/2017) 9. Esaya Mumpasha a nd Others v. The People (Appeal No. 12, 13, 14 /2021 10. Mwiya Mulenga and Prince Mukuka v. The People (Appeal No. 6, 7 of 2016) 11. Hamfu ti v. The People (1972) ZR 310 12. 13. Kenious Sialuzi v. The People (2006) ZR 81 John Mpande v. The People (1977) ZR 440 (SC) 14. Samuel Mwaba v. Mutambalilo v. The People (SCZ Appeal No. 47 /2015 .) 15. David Zulu and The People ( 1977) ZR 151 SC 16. Dorothy Mutale and Richard Phiri v. The People (1 997) (SC) 17. Ilunga Kalaba and Another v. The People ( 1981) ZR Legislation and Ot her Works re ferred t o:- • The Penal Code, Cap 87 of the Laws of Zambia • Heyden, Evidence, Cases and Materials, Butterworths, London, 1975 1.0 1.1 2 . 0 2.1 Introduction This is a judgment on an appeal against the judgment of Hon. Mr. Justice Muma delivered at Mongu on 22 n d April, 2022 , wherein he convicted the Appellant for the offence of murder and sentenced him to the ultimate penalty for a capital offence, at that time , death. Background The Appellant was charged and arraigned on the offence of murder, contrary to Section 200 of the Penal Code, Cap 87 of the Laws of Zambia. 2.2 It was alleged that between 27th and 28th February, 2021, in Mongu, murdered one Mengukelo Malamo. 2.3 The Appellant protested his innocence and denied the charge proffered against him. J2 2.4 The matter thus proceeded to trial. The State called five witnesses in support of their case, while the Appellant was 3.0 3.1 the only witness in his own case. Proceedings in the Lower Court PWl was Kakoma Kalumbwana, whose evidence in the main was that he had on 27th February, 2021 , been coming from Litoya area in the company of W amundila Chinga, Maka Mushoke , using an ox-cat. At a certain point, they encountered two men on the road, one of whom was carrying a fish cage. He later asked the two for a lift in the ox-cart as he was going in the same direction. 3.2 According to PW 1, as they proceeded and reached Lope Forest, the Appellant appeared, and asked PWl where they were going. This was around 08:00 hours. According to the witness, he had known this person prior to this date. Upon telling him that they were proceeding to the village, he too asked for a lift and he got on to the ox-cart. 3.3 It was his evidence that when the Appellant got onto the ox-cart, he had been carrying a metal bar with a knife fixed to it. At a certain point in the journey, they reached J3 a junction to the village and that is where the deceased and the Appellant disembarked. The deceased lifted the cage of fish and gave it to the Appellant, while he carried fish in a polythene sack. That the deceased and the Appellant went together. 3.4 He said he learnt the next day that the man with the cage of fish had been stabbed with a knife in Mbuta forest. He identified the cage of fish and the bag that the deceased had been carrying when he last saw him. 4.0 PW2 was Agness Musa Sikuka, who testified that on 28 th February, 2021, while on her way to the field, she stumbled upon the deceased who was lying mortally wounded. She alerted the villagers of her grim find. She then returned to the scene in the company of neighbourhood watch officers. It was her evidence that she heard the neighbourhood officer ask the injured man if he knew who had inflicted the injuries on him and that the injured man said it was Dominic Matomola Matomola of Liande Village. She had been standing about two meters from the man. She had known Dominic Matomola Matomola before. J4 4 .1 It was her evidence that the injured man died before transport could come to take him to the hospital. That she did not know the deceased. 5.0 PW3 was Moka Mushoke , who had been in the company of PW 1 on the material date. His evidence was in pari material with that of PW 1. He too had known the Appellant prior to the day in question. He was informed , the following day, by a Mr. Mukuti that the man who had carried the fish cage had been found injured and had died. He went to the scene, and saw the body of the same man they had carried on the ox-cart. 5.1 Under cross examination, he told court that he had been with the deceased the same night and offered the deceased to spend the night at his house , but he had insisted on going with the Appellant. 6.0 PW4 was Mwangala Mushiba , the neighbourhood watch chairperson. He was told by two children that he was wanted as somebody had been assaulted. He then collected Musa Sikuka and went with h er , and other people to the scene . JS 6.1 It was his evidence that they went to Mbuta forest, and found the deceased who was still alive. He went about 50 centimeters close to the person. That Musa was also close by a distance of two to three meters. It was his evidence that he had asked the deceased, who had injured him. At that time, he was able to speak. That the deceased responded that it was Dominic Matomola from Liande. That everyone on the scene said they knew Dominic. PW4 described the injuries he saw on the deceased. 6.2 It was as he went to look for an ox-cart to take the deceased to the hospital that he learnt that the deceased had travelled the previous night with Moka Mushoke and Kakoma Kalumbwana. 6.3 Before he could organize transport, he learnt that the deceased had died. Later, body of the deceased was picked by the police. 6.4 He assisted in the apprehension of the Appellant. That the Appellant when queried, agreed to have been with the deceased, but denied injuring him. He however told court that when the police arrived, the suspect told the police J6 that he could take them to the scene, and that he actually led the police to the crime scene. 6.5 It was his further evidence that at the cnme scene, he observed signs of a struggle. 6.6 Under cross examination, the witness agreed that he had been to the crime scene prior to the Appellant leading him and the police to the scene. Asked about the voice of the deceased at the time he had a conversation with him , the witness testified that the deceased's voice projection was audible although he was struggling. 7.0 PWS was lmasiku Saboi, a Police Officer, who investigated the matter after being handed a docket of a murder that occurred in the Mbuta forest area. 7 .1 It was his evidence that he travelled to Litawa, and met PW4 at a bridge. Mr. Mwangala (PW4) and others then led them to the scene of the crime where the deceased lay. He told the court that using the light from the vehicle , he observed blood on the ground and some drag marks. He observed a deep cut on the deceased's head and multiple cuts on the face. J7 7.2 The witness narrated that PW4 had informed him that he had heard from the deceased, who had injured him; namely that the deceased had mentioned the Appellant as the one who had injured him. 7.3 The deceased's body was taken to the hospital where a post mortem was conducted, which revealed that the cause of death was head injuries. He also recorded statements from Mushoke who had travelled with both the deceased and the Appellant on the ox-cart. 7.4 It was his further evidence that he was later inf armed by Mwangala, that the Appellant had been apprehended. He arranged to go to Litawa, where he found the Appellant. That h e verbally warned the Appellant, after which the Appellant led them to the scene in the Mbu ta area. That upon arriving, the Appellant signaled for them to stop by banging on the roof of the car. It was his evidence that h e again warned and cautioned him. 7.5 That the Appellant explained to him what transpired, namely that on the material day, he was with the deceased and had helped him carry some fish. That when they reached a certain point, they separated, but because he was J8 not given anything for carrying the fish, he returned and fallowed the deceased. 7.6 It was PWS 's further evidence that the Appellant led them to a bush about 100 meters away from the scene, where a bundle of fish was recovered with only six (6) fish ; an ukwa bag; in which several items were found belonging to the deceased as identified by his relatives. 7. 7 It was also his evidence that the Appellant told him that h e too had sustained a wound at the back of his head after h e was stabbed by the deceased; and that h e actually saw the wound. 7.8 Further, that he interviewed the Appellant about the axe, iron bar and the knife, and was told that those items had been thrown in the river. This led the witness to proceed to conduct a search at the Appellant's village, but nothing was recovered. 7. 9 It was his evidence that h e took the suspect to the hospital for the wound h e complained a bout and h e was issued a medical report, after which the Appellant was treated. J9 7.10 He said he later warned and cau tioned him for the crime. That thereafter h e made up his mind to arrest and charge the Appellant with the offence of murder. 7 .11 In brief cross examination, h e said he did not reveal what the Appellant had been wearing, but merely that th e deceased was wounded by a certain man. 7.12 The Prosecution closed its case. Upon r eview of the evidence, the court put the Appellant on his defen ce, stating that a prima facie case had been established against the Appellant. 7.13 The Appellant was the only witness in his case. 7.14 In his defen ce, h e agreed getting on an ox-cart at Lope, in which one Mushoke was aboard . That h e disembarked a t Litawa and proceeded in his own direction, while the people on the ox-cart went on their way. When asked if he h ad known Mushoke before, h e r esponded that h e did not know him nor did he talk to him. 7 .1 5 He stated that upon disembarking from the ox-cart, he proceeded to his village . He said it was the n ext morning wh en people went to his village, asked wh o he was, and wh en h e iden tified himself, they appreh ended him. It was no then they told him that they had found an injured person in the forest. It was his evidence that he did not know him, but had found an injured person on the ox-cart. He said the police took him and they went to the scene of the crime, after which he was conveyed to Mongu. Asked who led the police to the scene of the crime, it was his evidence that it was the neighborhood watch officers. 7.16 Under cross examination, he told court that he found the deceased person on the ox-cart. He denied going with the deceased, stating that he moved alone. When asked if the deceased caused the injury on his back as he had told court, it was his testimony that infact it was not the deceased who did so, but the p eople who apprehended him. 7.17 That he had infact remembered that he did not say in his statement that he was beaten by the ones who apprehended him. That he had just remembered that it was the people who apprehended him who inflicted the in Junes. 7.18 He denied speaking about the recovery of the bag and the fish cage. He also denied talking about the axe allegedly thrown in the river. J11 8. 0 8.1 De c ision of the Lower Court In his decision, the learned Judge found as a fact that the deceased was killed in Mbuta forest while he was on his way to his village. He determined that the question was whether the Appellant herein was the one who caused the death of the deceased. 8.2 It was the court's finding that the only evidence connecting the Appellant to the death of the deceased were the words allegedly uttered by the deceased when he was asked who had injured him. That this evidence came from PW2 and PW4 who both said that the deceased said it was Dominic Matomola from Liande area who injured him. That in less than an hour, after uttering these words the deceased died at the scene before he could be taken to the hospital. 8.3 The court considered the principles for res gestae and relied on the cases of Edward Sinyama v . The People 1 and John Ng'uni v. The People2 , which latter case was approved by the Supreme Court in the case of Chisoni Banda v . The People3 where it was held that: - "Evidence of a statement made by a person who is not called as a witness may be a dmitted as part J12 of res gestae, and can be treated as an exception to the hearsay rule, provided it is made in such condition of involvement or distortion to the advantage of the maker or to the disadvantage of the accused." 8.4 After considering the evidence of PW4, the learned Judge found that the statement made by the deceased was made under traumatic circumstances and such extreme pressure that he struggled to speak as observed by PW4, whose testimony the learned Judge said he could not disregard. That the answer rendered by the deceased was spontaneous, such that there was no opportunity for concoction. That PW4 had no discussion with the deceased other than that one question that the deceased answered. 8 .5 The court referred to the injury that the Appellant had on his back, for which PW5 facilitated hospital treatment for the Appellant, that this corroborated the fact that the deceased was involved in a fight with the Appellant, and it was the Appellant who inflicted the injuries. That it was more probable than not, that the deceased also injured the J13 accused in the process. The court considered the Appellant's assertion that he had been injured by the people who apprehended him as an afterthought. 8.6 As regards the issue of the Appellant leading the police to the crime scene and recovery of items, the learned Judge found that real evidence was found at the scene, thus confirming the fact that the Appellant was involved in a confrontation with the deceased. That he took away the fish cage and ukwa bag and hid them. That PW2 or PW 4, who first visited the scene had not seen those items. 8.7 As regards the principles for leading, the court relied on the case of John Mwansa and Another v. The People4 • 8.8 The learned Judge con cluded that it was plain and clear that it was the Appellant who led to the recovery of the fish cage and the ukwa bag. The learned Judge found that the prosecution had proved the case against the Appellant and convicted him accordingly. The court sentenced him to death. J14 9. 0 The Appeal 9.1 The Appellant, dissatisfied with the Judgment, has now appealed to this Court, fronting three grounds of appeal, with the third ground being argued in the alternative to the first two grounds. The grounds appear thus: - (i) The court below erred in law and fact when it held that the statement given to PW2 and PW4 by the deceased amounted to res gestae; (ii) The court below erred in law and fact when it allowed the evidence of leading by PWS without following the laid down procedure In the alternative to grounds 1 and 2; (iii) The court erred when it erroneously arrived at a decision to convict the Appellant for murder in the face of evidence qualifying for a lesser offence of manslaughter. 10.0 Arguments 10. l Both parties filed heads of argument in support of their respective positions. Counsel for the Appellant, Mrs. Chibuye Lukwesa and counsel for the respondent, Mr. Zulu, both indicated that they would rely on their heads of argument filed in respect of their positions. ns 11.0 Appellant's Arguments 11.1 In arguing ground one, the Appellant took issue with the learned Judges finding on page 77 of the record of appeal, that the deceased made the statement under traumatic circumstances and extreme pressure as h e struggled to speak as observed by PW4; whose testimony the Judge refused to disregard. Further, that the answer rendered by the deceased was spontaneous, hence negating an opportunity for concoction. 11.2 Counsel's argument was that the court did not test the argument to determine its fitness to be res gestae for the purposes of the rule against hearsay. In stating what res gestae is, counsel adverted to the case of Edward Sinyama v. The People1, and to our decision in the case of Steven Mukuka v. The People 5 , where we stated inter alia at paragraph 5.20 that: - "For a statement to be treated as res gestae, it must be made contemporaneous to the act that causes the injury that leads to the death ... " J16 11.3 Counsel submitted that there had been a long passage of time between the event and the making of the statement, such that it did not qualify as res gestae. That the statement thus posed the risk of distortion or concoction; as it was not contemporaneous to the act. To augment the above, reference was made to the case of Ratten v. R6 • 11. 4 As regards the significance of time, our attention was called to the case of Mwewa Murono v . The People7 where a statement was disqualified from being admitted as res gestae because significant time between the alleged assault and making of the statement had passed; with the court stating that the possibility of concoction or distortion was high in the circumstances of the case. 11.5 It was argued that despite evidence on record suggesting that the Appellant was the last person to be seen with the deceased, there is no evidence on record to show that the Appellant could have been the one to attack the deceased. That there was no evidence to show that the two had been on bad terms. Reference was made to the case of Nicholas Malaya v . The People8 where the court said:- J17 "In this case, the Appellant and the deceased were in good terms and there was no reason or motive for the Appellant to turn against him" 11.6 It was submitted that based on the evidence on record , the possibility that someone else attacked the deceased could not be ruled out. 11.7 We were urged to uphold ground one. 11.8 In ground two, the lower court is faulted for accepting the evidence of leading that led to the recovery of the cage of fish and the ukwa bag; which PWS said were discovered about 100 metres from where the body of the deceased was found. Counsel contended that the court erred procedurally in accepting this evidence. 11. 9 It was submitted that this Court guided on the laid down procedure for the police on leading and demonstration in the case of Esaya Mumpasha and Others v . The People9 where we stated that the police must give an accused person a proper warning that he need not take part in the re-enactment or demonstration or video recording. Counsel also found fortitude 1n the case of Mwiya J18 Mulenga and Prince Mukuka v . The People 10 where we stated that:- " .. .leading and demonstrating in our view is self incrimination and carries the same weight as a confession and as such, the police were obliged to administer a warn and caution." 11.10 The Appellant h erein is riled by the fact that PW5 testified that h e administered a verbal warn and caution before proceeding, thus failing to follow laid down procedure for leading and demonstration. That th erefore the confession was not proper ly administered since the Appellant was not accorded an opportunity to object to its production in eviden ce. 11.11 Further, th e court is faulted for not asking the Appellant if h e had any objection to the evidence of being led , when PW5 testified . The case of Hamfuti v. The People 11 was adverted to on this point. 11.1 2 Tha t when th e Appellant testified that he was picked up to go to the scene of the crime, the court should at that point h ave addressed its mind to the eviden ce of PW4 and PW5 J19 to ascertain what exactly was meant by leading. Counsel contended that contrary to what PWS said about the leading and discovery of the fish cage and the ukwa bag, the Appellant did not lead, but was led. 11.13 That it therefore was an error for the learned trial Judge to find , as was done at page 78 of the record of appeal that the items recovered were real evidence and corroborative to the attack of the deceased by the Appellant. That this ground should succeed, as a result. 11.14 Ground three was argued in the alternative and is to the effect that the lower court could have, in the face of the evidence before it, found the Appellant guilty of a lesser offence of manslaughter, as it had been shown that there was a fight between the Appellant and the deceased. To show what could warrant a conviction for manslaughter, we were referred to the case of John Mpande v. The People 12 • 11.15 Counsel acknowledged that the Appellant gave bare denials and did not raise any defence, in particular, self defence. However, that the fact that the lower court J20 believed the evidence of PW4 and PWS, and alluded to it in the judgment, the court should have proceeded to find the Appellant guilty of manslaughter, and not murder. We were referred to the case of Kenious Sialuzi v. The People 13 , where it was guided that a court is not required to deal with every defence that is open to an accused, unless there is some evidence supporting the defence in question. 11.16 It was contended that in casu, the Appellant had no intention to murder the deceased. That the death resulted from the unlawful act by the Appellant, but that the main ingredient for murder, being the intention, is not present, even where violence is involved; and a death occurs. That malice aforethought was not established, hence the conviction for murder should be set aside and be substituted with the offence of manslaughter, and an appropriate sentence be imposed. 11.18 We were urged to uphold the alternative ground. We were urged to set the conviction aside. J21 12.0 Respondent's Arguments 12. 1 In responding to ground one, counsel for the respondent placed r eliance on the cases of Edward Sinyama v . The People 1 and John Nguni v . The People2 which was cited with approval in the case of Chisoni Banda v. The People3 on what amounts to res gestae. Based on the guidance in these authorities, Mr. Zulu submitted that the court did not error when it held that the deceased 's statement mounted to res gestae. This, according to Mr. Zulu, was because when the deceased uttered the words, he had injuries, which injuries resulted in his death a few hours after they were inflicted on him. 12.2 As regards the time factor, we wer e referred to the case of Samuel Mwaba v . Mutambalilo and The People 14 · 12.3 It was argued that due to the severe injuries suffered by the deceased, he was unable to move from the same spot h e was injured from. That as he uttered the words to PW4 , he had been struggling to talk, thus had no opportunity to concoct or distort what he uttered to PW4 and PW2. That he had been under a settled hopeless expectation of death. J22 12.4 That despite not being made in exact contemporaneity, the statement was sufficiently spontaneous. Counsel was of the view that the deceased had no reason to lie against the Appellant as the evidence showed that the two did not know each other. 12 .5 It was argued that in the circumstances of the case, there was no reason or possibility for the deceased to concoct or distort what happened, and so the trial court cannot be faulted . 12 .6 In arguing against gr ound two, counsel referred us to the case of Mwiya Mulenga and Prince Mukuka v. The People 10 relied on by th e Appellant as well, on the issue of leading and demonstration. Our attention was drawn to the evidence of PWS , who testified on how the Appellant lead him to the scene and further that two warn and caution statements were administered to the Appellant. 12.7 That the Appellant demonstrated what occurred, and later led PWS to the discovery of the fish cage which contained only 6 fish , as well as the ukwa bag containing items belonging to the deceased. Mr. Zulu asked us to note that J23 neither PW2 nor PW4 has seen these items when they first visited the scene. That the items had been hidden a 100 metres away from where the body of the deceased was discovered. Mr. Zulu also relied on the case of John Mwansa and Another v. The People4 on the principles of leading. 12.8 Counsel submitted that the leading was voluntary, and the evidence addu ced was admissible as it led to the discovery of real evidence, which was not already known by the police as per the John Mwansa4 case. That the evidence should be admitted as the officer followed the laid down procedure which led to th e discovery of real evidence th at was n ot already known to the police. 12.9 In responding to ground three , cou nsel considered Section s 200 and 204 of th e Penal Code Cap 87 of the Laws of Zambia, and argued that the Appellant had the necessary malice aforethought to be convicted of the offence of murder. That this was because both PW4 and PW5 testified seeing serious head injuries on the deceased. That these injuries indicated an intention to kill by the J24 Appellant, or at least to cause gnevous harm to the deceased , thus forming the necessary intent for the offence of murder. That additionally, exhibit PS indicated that the deceased died of severe head inju ries. 12.10 We were urged to find no merit in all the grounds of appeal. 13.0 Analysis and Decision 13.1 We have carefully considered the record of appeal, the impugned judgment of the lower cou rt and the submissions by counsel through their heads of argument. 13.2 In ground one, the issue to resolve is whether the learned Judge in the lower court erred in accepting that the statement given to PW4 and PW2 by the deceased amounted to res gestae. 13.3 Heyden, Evidence, Cases and Materials, Butterworths, London, 1975; discusses dying declarations or res gestae at page 328, where it is written that:- "the oral or written statement of a deceased person is admissible evidence of the cause of his death at a trial for his murder or manslaughter provided that when the statement was made, the J25 declarant would have been a competent witness, and was under a settled hopeless expectation of death. " 13 .4 In the case of Chisoni Banda v . The People3 , the court agreed that evidence of a statement made by a person who is not called as a witness may be admitted as part of the res gestae, and can be treated as an exception to the hearsay rule, provided it was made in such conditions of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or to the disadvantage of the accused. 13.5 In our view, the tests discussed in the above authorities were not met in this case. This is because PWl testified at page 18 of the record of proceedings that the Appellant and the deceased disembarked from the ox-cart at 20 hours on the 27th February, 2021. 13.6 It was the following day around 12:00 hours when his brother, Kazana told him that the deceased had been stabbed in the forest. At page 20, record of proceedings, PW2, who discovered the deceased lying injured, said on 28 th February, 2021 she went to the field , and after J26 walking for a good distance , she saw the deceased lying on the ground. 13.7 PW4, when he arrived at the scene, asked the deceased if he knew who had injured him . It was then that he uttered the words that linked the Appellant to the case. 13.8 In our view, even though the deceased could have contemplated that he was on the verge of death, the statement he made was not made in such conditions of involvement or pressure as to exclude the possibility of concoction or distortion to the disadvantage of the Appellant. The timeframe from when the two disembarked to the time the deceased was discovered, was too long a period for it to be disregarded. 13.9 In view of the above, we find that the learned Judge misdirected himself when he accepted the evidence of the statement made by the deceased person of the circumstances in which he was injured as res gestae. 13.10 Moving to ground two , the issue to resolve is whether the police officer , PWS did not follow the laid down procedure when he was led to the Mbuta forest, where the cage of J27 fish and an ukwa bag were discovered a 100 metres from where the body had been found. 13.11 We have not lost sight of the fact that this case rested on circumstantial evidence as no one saw the Appellant inflict the injuries from which the deceased died. Consequently, even though we have found that the lower court wrongly admitted the res gestae we are of the view that the circumstantial evidence took the matter out of the realm of conjecture leaving only an inference of guilty. 13.12 Having considered th e evidence on leading as adduced through PW5, we do not hesitate to arrive at the view that there was no procedural impropriety in the manner PW5 condu cted himself when he was led to the scene of the cnme. 13.13 As submitted by the respondent, PW5 testified that he administered verbal warn and caution to the Appellant before the scene visit and while at the scene. It was the Appellant who hit the top of the vehicle to signal that they had arrived at the scene. He led the police to the recovery of the bundle of fish with only 6 fish in it. An ukwa bag J28 was recovered containing items identified as belonging to the deceased. 13.14 We agree with the respondent that even though PW4 and PW2 had earlier visited the scene, the bundle with 6 fish and the ukwa bag were not discovered. It was only when the Appellant led the police to the scene that these items were discovered. It was therefore an odd coincidence that the items that belonged to the deceased were only discovered after the Appellant was taken to the scene, and not before when PW4 and PW2 visited the scene. 13.15 Had the Appellant peacefully parted company with the old man as he claimed, it would be an odd coincidence that he would have known where the items were found. 13.16 In the case of Ilunga Kalaba and Another v. The People 17 it was held that:- "It is trite law that odd coincidences, if unexplained may be supporting evidence. An explanation which cannot reasonably be true is in this connection no explanation." J29 13.17 It is therefore an odd coincidence that these items were discovered hidden 100 metres away from where the body of the deceased was found , and only when the Appellant visited the scene. 13.18 Further and as per the John Mwansa case, the visit to the scene resulted in the discovery of real evidence, not already known to the police. Therefore, the evidence of leading was rightly admitted. In this case, the leading was voluntary. PW5 verbally warned the Appellant before embarking on the journey to the scene of the crime. There is evidence that even at the scene he was again verbally warned and cautioned. 13.19 The Appellant was found with an injury, for which PW5 facilitated for the Appellant's hospital treatment. The Appellant, when asked about the injury at the back, denied th at it was as a result of the fight with the deceased. That infact it was the people who apprehended him who caused it. The learned Judge was of the view that this injury corroborated the fact that the deceased was involved in a fight with the Appellant and that it was the BO Appellant who inflicted the injuries. We agree that the assertion that he had been injured by the people who apprehended him was an afterthought. 13.20 Based on the Dorothy Mutale and Richard Phiri v. The People 16 case, it is our view that the inference of guilt is the only inference in this case. Based on the evidence before us , the possibility that anyone else could have killed the deceased does not arise. 13.21 As regards ground three, which was argued in the alternative, we find no merit in it. The evidence of the witnesses is very clear on the injuries suffered by the deceased. The extent of those injuries have also been clearly elaborated on p5, the post mortem report admitted in evidence. To that extent therefore, we find there was malice aforethought. The Appellant, as evidenced by the injuries suffered by the deceased , clearly intended to cause the death of the deceased, or to do grievous harm to him, which led to his death. 13.22 We find no basis on which the trial court could have reduced the charge to manslaughter. J31 13.22 In the final analysis, we find that the learned trial Judge - misled himself in accepting the evidence of res gestae. However, we find no merit in the oth er ground. The appeal therefore substantively fails. C. F. R. MCHE,..__,.r-11: DEPUTY JUDGE PRE .......... ,&J ... ~ -········ .......... . N. A. SHARPE- HIRI COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE J32