Musukuma v People (Appeal 86 of 1986) [1988] ZMSC 56 (11 February 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 86 OF 1986 HOLDEN AT LUSAKA (Criminal Jurisdiction) KALEBU MUSUKUMA Appellant - v - THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Gardner and Sakala, JJ. S. 20th October, 1987 and 11th February, 1988 L. Mwanawasa of Mwanawasa and Company, for the appellant N. Sivakumaran, Assistant Senior State. Advocate, for the respondent JUDGMENT Sakala, J. S. delivered the judgment of the court. ' k- t The appellant was convicted of murder and sentenced to death. The particulars of the offence alleged that on 25th May, 1984, at Lusaka he murdered Patrick Musonda Mwandama. There was no evidence from an eye witness explaining the events that led to the deceased's death. The case for the prosecution, however, was that the deceased and the appellant lived in the same house at No. 176 Chilenje South, Lusaka. The prosecution evidence was to the effect that on 26th May, 1984 PW11 had gone to house No.176 Chilenje South where the appellant and the deceased lived to visit the appellant's sister who was also said to be staying at that house. The evidence of PW11 was that when she arrived at the house she knocked but nobody answered. According to PW11 while at the house she noticed fire bursii&in the backyard garden of the same house and she also noticed a lot of blood in the verandah of the same house. Thereafter she made inquiries from the next house and informedthtee 2/..............occupants J2 occupants of the next house what she had seen. PW3, an occupant of the next house, on receipt of the report from PW11 went to house No. 176 Chilenje South Lusaka. He also noticed a lot of blood. Consequently, he reported what he had seen to the UNIP Chairman of the area and in company with the UNIP Chairman of the area reported the matter to the police. PW9 a police officer in company with other officers went to house No. 176 Chilenje South Lusaka. They also noticed blood stains in the verandah. The police evidence is that they entered the bedroom and further found a lot of bj^od from the bedroom going up to the sit|lngroom where the appellant was found sleeping on a mattress. From the sitting-room according to the police’s evidence the blood trail continued outside the house up to the beckyard garden where they noticed a mound covered with burnt maize stocks and grass. PW9 further explained that on seeing all this he suspected something. Accordingly he returned into the house and woke up the appellant. According to PW9 he noticed blood stains at the bottom of the appellant's trousers and on his feet. According to PW9 when the appellant was adked about the blood, his reply was that he had killed a chicken at a party. The police officers' evidence was further to the effect that they recovered apair of blood stained red underpants, a blood stained stone and a blood stained axe handle. The prosecution evidence was also to the effect that the mound was dug up and a naked body of the deceased with several injuries was exhumed with the deceased's head covered in a red bedspread. The appellant gave evidence in his defence. He did not deny that he lived with the deceased at house No. 176 Chilenje South Lusaka. He explained that on the evening of the 25th of May 1984 he went to a wedding reception with a friend, DW2. According to the appellant he did not return to the house until 0400 hours the following day. He explained that before he left the house for the wedding reception he requested the deceased oot to lock the house. He explained that at the reception there was a lot of eating abd drinking that when he returned home he went straighltobed and observed nothing until 10.00 hours when he saw the police who accused him of having killed the deceased. The appellant's evidence of being at a wedding reception and returning home at 0400 hours the next day was confirmed by his friend who was DW2 at the trial. 3/................ The 3 J3 : The learned trial commissioner very carefully reviewed the prosecution and defence evidence. He accordingly observed that the evidence connecting the appellant with the offence was circumstantial. He carefully analyzed the authorities that set out the principles when circumstantial evidence can be held adequate to convict an accused person. He lamented the fact that the blood tests by the public analyst were not conclusive. He found that the appellant's explanation that the blood on his trousers and underpants had come from a chicken was false. The learned trial commissioner accepted the fact that the deceased and the appellant lived together In the same house. The trial court, however, rejected the appellant's defence of alibi and held that the only reasonaile inference to be drawn from the blood found on,the appellant and his clothes is that he is the one who killed the deceased. On behalf of the appellant Mr. Mwanawasa argued six additional grounds before us and we have very carefully considered those grounds. The gravamen of those six grounds is a criticism of a number of the learned trial commissioner's findings. The major criticism was directed at the learned trial commissioner's finding that the canvas shoes and the blood stained underpants belonged to the appellant, that he wore them on the fateful day and that the appellant's feet and clothes were blood stained. On the question of the canvas shoes the submission was that the evidence of the appellant that he had worn brown shoes when going to the wedding reception had been corroborated by DW2 and yet in his judgment the learned trial commissioner did not consider whether the appellant had changed his shoes after returning from the wedding reception at 0400 hours the next day. The learned counsel drew the court's attention to the evidence of PW5 a police officer which was to the effect that the photographs he had taken at the scene showed footprints leading'to the backyard garden. Counsel's;content ion was that whoever dragged the deceased must have been bare footed, an aspect not considered by the learned trial commissioner. The argument on the blood stained underpants was that the prosecution having withdrawn them from the evidence, the learned 4/................ trial trial commissioner should not have relied on than. The argument on the blood stained feet was that the appellant denied having blood on his feet which was in fact supported by some of the prosecution witnesses. The arguments on the blood stained trousers were that this trousers were found at the house long after the appellant had been taken away. Mr. Mwanawasa criticised the lack of evidence from witnesses who must have been present when the appellant was taken out from the house to identify the pair of trousers produced to court as being one worn by the appellant; particularly in the light of the contradictory evidence as to the colour of the trousers the appellant was wearing. Mr. Mwanawasa also criticised the .learned trial commissioner's calling of a witness for the prosecution, accepting as evidence hearsay statements made from the bar by the state advocate and at the same time refusing the same hearsay evidence when made by the defence. Counsel submitted that this displayed bias on the part of the learned trial commissioner.. Counsel further argued that the learned trial commissioner misdirected himself and showed further bias by making a finding that PW9 had testified that the blood trail ran from the bedroom to the sitting room where the appellant had been found sleeping when in fact the evidence was that the blood trail ran from the verandah to the backyard garden. Mr. Sivakumaran reacting to Mr. Mwanawasa's submission argued that it was not in dispute that at this house there was blood on the floor, there were marks of dragging, there was a shallow grave and that a body of the deceased was exhumed with several injuries and that the appellant was found at this house with blood on his clothes and body. He submitted that the discrepancies regarding the colour of the trousers were immaterial particularly taking Unto account that a blood stained pair of canvas shoes was found under his mattress and also taking into account the evidence of PW9 who stated that ahen the appellant was asked about the blood on him, his reply was that he had killed a chicken. Mr. Sivakumaran submitted that according to J5 the evidence, the wedding reception took place at a house 17kilometres from the house where the deceased was murdered. He contended that In these circumstances it cannot be argued that there was an alibi. Counsel further argued that only two people, namely the appellant and the deceased, lived at the house. He submitted that the circumstantial evidence was sb strong that the only reasonable inference to be drawn must be that the deceased's death was caused by the appellant. Counsel further pointed out that, while the circumstantial evidence on tts own might not be enough, the lie told by the appellant strengthened that circumstantial evidence. On account of the view we take of this case, we find it unnecessary to consider all the six additional grounds argued by Mr. Mwanawasa on behalf of the appellant, but would like to deal very briefly with the grounds related to the finding of blood on the body and clothes of the appellant. {We agree that the learned trial commissioner's reliance on the blood stains found on the underpants which underpants had been excluded from the evidence was a misdirection. As regards the blood found on the feet and the trousers of the appellant we note that the prosecution evidence was to the effect that there was blood all over the floor in the house. We, therefore, agree with the submission made On behalf of the appellant that on account of this evidence the only reasonable inference cannot be that the appellant must have been the one who killed the deceased. This conclusion in our view takes care of all the arguments of the blood stains found on the appellant. We would like to observe that while the underpants were excluded we, however, still cannot find any explanation as to how the blood should have been found on the underpants. As already noted there was in this case no eye witness to the incident that led to the deceased's death. There is further no direct evidence connecting the appellant to the offence charged. There is evidence, which is not in dispute and confirmed by the defence witness, that the appellant during the greater part of the evening of the 25th and the early hours of the next day was at the reception where there was some amount of drinking. The prosecution B/.................evidence evidence is that the appellant was found sleeping In the house sometime around 10.00 hours. While it is not In dispute that the appellant lived in the same house with the deceased, we are not satisfied that the only reasonable inference to be drawn from the prosecution evidence must be that the appellant is the one who killed the deceased. We entertain serious doubts in this case, and this being the case we find it unsafe to uphold this conviction. We accordingly quash the conviction, set aside the sentence. The appellant is, therefore, acquitted. M. S. Ngulube DEPUTY CHIEF JUSTICE . T. Gardner SUPREME COURT JUDGE c I Sakala SUPREME COURT JUDGE