Jack Chanda and Anor v People (SCZ 29 of 2002) [2002] ZMSC 101 (3 December 2002)

IN THE SUPREME COUR'1 OF ZAMBIA SCZ NO. 29 of 2002 HOLDEN AT LUSAKA ■ Appeal No. 19/20 2002 (205) (Criminal Jurisdiction) BETWEEN: JACK CHANDA KENNEDY CHANDA Vs IE PEOPLE Appellants Respondent Coram: i f r Lewanika DC., ! On 6th August, , Mambilima, Chitengi, JJS , 2002 and 3rd December, 2002 : I ■ ■■ For the Appellants I : ! Capt. F. B. Nanguzyambo - Director of Legal Aid For the Respondent : i i Mr. M. Mukelabai Director of Public Prosecutions JUDGMENT Chitengi, JS delivered the Judgment of the Court. Case referred to: - 1. Patrick. Sakata Vs The People 1980 ZR 205 Legislation referred to:- I. Penal Code Cap 87 oj the Laws of Zambia Sections 201(l)(b) and Section 204(a) The two Appellants were sentenced to death upon being convicted of murder by the High Court sitting at Kasama. (206) | The facts of this case can be briefly stated. On the day in question, Edward Pomwa (PW1) we: s at a beer party with his nephew Lackson Mumbi (PW2). Also present at the beer party were the two Appellants and one Thomas ChokoloJ j ; drink becr on an empty stomach. PW1 left for his house and told PW2 PW1 did not stay long as he did not want to not to stay long because His (PW1) wife was preparing food. When PW2 left the two Appellants anc one Thomas Chokolo followed and told him to stop, which he did. The s< cond Appellant then asked PW2 where he was said he was staying with PW1, the second staying and when PW2 < •kppellant said PW1 insulted him and he struck PW2 with a fist. Thereupon, PW2 ran to PWl’s house hotly pursued by the two Appellants I and Thomas Chokolo. At PWl’s house the two Appellants and Thomas i Chokolo first beat PW1 before beating the deceased with a paddling stick and other sticks. When the deceased lay on the ground the two Appellants and Thomas Chokolo ran away. f The effect of the assault was disastrous. The deceased suffered broken jaws and injuries all over her body and on the third day she died 'while being taken to the hospital. No post mortem was conducted on the 'body of the deceased because there was no pathologist to conduct it. The first Appellant’s \ ersion was that they had been drinking from 14:00 hours to 19:00 hours when he saw Thomas Chokolo beat PW2. At I that time PW1 was at his home. After being beaten PW2 left and went to PWl’s house while insulting. He followed and stood nearby. He heard PW1 ask PW2 as to what happened and later insult Thomas Chokolo. Thereupon, Thomas Chokolo attacked PW1. He intervened but Thomas Chokolo could not stop beating PW1 and in the process he (first Appellant) was struck or. the collarbone and he fell. He was carried to his home. On 20th August, 1998 he travelled to Kasama for medical treatment. While at Kasama he heard that the deceased had passed I (207) away. ; i. The second Appellant did not give evidence or call witnesses. The court below found PW1 and PW2 as credible and honest witnesses whose evidence it accepted but disbelieved the first Appellant. On the evidence of PW1 and PW2 the court below found as a fact that i I the first Appellant took put in beating the deceased and inflicting on her the injuries which causec her death. In respect of the second Appellant the Court below also found on the evidence of PW1 and PW2 that the second Appellant took part in beating the deceased and causing the injuries she died of. The Appellants have appealed against both conviction and sentence. Capt. Nanguzyambo t ie Director of Legal Aid for the Appellants filed written submissions with three grounds of appeal. Tlie first ground of appeal was that the learned trial Judge erred in law and fact in convicti ag the Appellants of Murder. In arguing this ground, Capt. Nanguzya nbo submitted that there was no postmortem conducted to establish tl ie cause of death. He said anything could have happened during the period of three days from the date of assault to the date of the deceased s c.cath which could have caused the deceased’s | death. | The second ground of appeal was that the learned trial Judge erred in law and fact in convicting the Appellants in the absence of mens rea I (208) i With respect to this groiind, Capt. Nanguzyambo submitted that there was a sudden and seemingly un provoked fight. The paddling stick used was picked in the course of the fight and both Appellants had been drinking. It was Capt. Nanguzyambo’s submission that these facts could not lead to the conclusion that there was intention to kill.. The third ground of appeal was that the learned trial Judge erred in law by failing to find that there was an extenuating circumstance and should not have passed the death sentence in that the convicts were young persons. Capt. Na iguzyambo found extenuating circumstances in the youthful age of the; Appellants and submitted that because of the young age of the Appellants the death penalty should not have been imposed and urged the pourt to apply Section 2Ol(l)(b) of the Penal Codefl}. As authority fori this proposition Capt. Nanguzyambo referred to recent decisions of this Court which he did not name. Mr. Mukelabai, the Director of Public Prosecutions, supported the conviction and submitted that the evidence that the Appellants assaulted the deceased was overwhelming. He submitted that it was common cause that following the ilssault the deceased suffered serious injuries all over the body including ractured upper and lower jaws. The nature of the brutal attack leads t o the inevitable conclusion that the intention of the Appellants was to kill the deceased or at least cause her grievous bodily harm. It was Mr Mukelabai’s submission that the absence of medical evidence as td“T^jf?Xiause of death was not fatal: Patrick Sakata Vs The Peoplef 1). It was Mr. Mukelabai’s submission that the deceased enjoyed very good health and she died immediately after the assault. He said the evidence was' so cogent and compelling that no rational hypothesis could be advanced to account for deceased’s death other than that she died from the injuries inflicted on her by the Appellants. ; We have considered the grounds of appeal and submission of counsel find we have looked at the judgment of the court below. (209) We now deal with the grounds of appeal seriatim. Although it is comnion cause that there was no postmortem conducted on the body of the deceased to determine the cause of death, |(we do not to accept the submissions in ground one that in the instant base absence of medical el idence as to the cause of death was fatal to the . I' prosecution case. As the i ^submitted the evidence that the Appellants brutally assaulted by the i Appellants is overwhelming. learned Director of Public Prosecutions rightly It is clear to us on the evidence that from i i the time the Appellants [ eft the deceased lying on the ground after a savage assault on her, th; deceased was never the same again until her I jdeath three days later. A 5 we said in Patrick Sakala Vs The Peoplefl) ' Jack of expert evidence o i iwhere the evidence is . a doctor as to the cause of death is not fatal so cogent and compelling that no rational ilhypothesis can be advari ; i On the evidence of this case the only reasonable hypothesis to account to account for the death of the deceased. ced (for the deceased’s death is that the deceased died of the injuries inflicted s. The submission that there could have been upon her by the Appellan some other intervening (factors is far fetched. This ground of appeal, therefore, fails. In ground two the complaint is that the evidence did not establish i malice aforethought. Leaving out what is rot directly relevant Section 204 of the Penal Code(l) defines malice afore thoughts as:~ Jl- I (210) I “Section 204:- ! (aj an intention to cause the death of or to do grievous harm to I I any person, whether such person is the person actually killed or not M ----------------------------------- - ------------------------------------------------------------------------------------------- ---------------------------------------------- ------------------------------------------ (d)------------------------------------!---------------------------—------------------------------------------------------- -- On the evidence that Was before him the learned trial Judge was on firm ground when he found that the Appellants had an intention to do grievous harm. In our view, the evidence in fact shows that the Appellants intended to ca use the death of the deceased. The assault with a paddling stick and othsr skills was very brutal. Malice aforethought wasjxroved. In the event,'this ground of appeal also fails. The third ground of appeal deals with sentence. It was argued on behalf of the Appellants that the learned trial Judge misdirected himself when he held that there were no extenuating circumstances in this case. Capt. Nanguzyambo found extenuating circumstances in the youthful age of the Appellants and as his authority for this proposition he referred to recent decisions whj^j^he attributed to us where we have held that i youthful age is an extenuating circumstance. We are bound to say that we found this submission startling. We have never decided any appeal in which we have laid down. i circumstance. What we have said is that failed old age is an extenuating defence of provocation, Evidence of witchcraft accusations and evidence the principle that young age or for that matter of drinking can amount to extenuating circumstances. In this case there ’ was evidence of drinking. The Appellants had been drinking for about f' ve hours. The learned trial Judge should have I I (211) considered this evidence when deciding whether to impose the death sentences or a sentence Other than death in terms of Section 201(lJ{b} of the Penal Code(l). Fi Li lure by the learned trial Judge to consider the evidence of drinking, which in fact was common cause, amounted to misdirection. We must, t herefore, interfere with the sentence. The third ground of appeal succ eeds, not for the reasons given by Capt. Nanguzyambo, but for tho reasons we have given. We quash the death sentence imposed by the learned trial Judge and substitute it with oi ie of 20 years imprisonment with hard labour effective from the date the Appellants were taken into custody. To the extent that we have interfered with the sentence the appeal succeeds. D. M. LEWANIKA DEPUTY CHIEF JUSTICE I. C. MAMBILIMA SUP REME COURT JUDGE I PETER CHITENGI SUP REME COURT JUDGE 7