Kapandula Luputa v People (APPEAL NO. 35/2019) [2019] ZMCA 422 (20 August 2019)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 35/2019 HOLDEN AT LUSAKA ( Criminal Jurisdiction) BETWEEN: KAPANDULA LUPUTA LLANT THE PEOPLE RESPONDENT Coram: Makungu, Mulongoti, Siavwapa. J. J. A On the 26th day of June, 2019 and 20th day of August, 2019 For the Appellant: Mrs. L. T. Tindi - Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. M. Chipawa - State Advocate, National Prosecution Authority. JUDGMENT MAKUNGU, JA delivered the Judgmen t of the Court. Cases referred to: 1. Andrew Tembo v. The People SCZ Judgment No. 13 of 2011 2. Chabala v. The People (1976) ZR 14 3. Shawaz Fawaz & Prosper Chelelwa v. The People (1995) SJ 4. Simon Malambo Choka v. The People (1978) ZR 243 5. Muvuma Kambanja Situna v. The People (1982) ZR 115 6. The People v. Njobvu (1968) ZR 132 7. Andrew Mwenya v. The People SCZ Appeal No, 640 of 2013 8. John Lubhonza v. The People SCZ Appeal No. 485 of 2013. 9. Jose Antonio Golliadi v. The People SCZ Appeal No. 26 of 2017. 10. Chitalu Musonda v. The People SCZ appeal No. 138 of 2014 11. Kalaluka Musole v The People. (1963-1964) Z. and N. R. L. R. 173 (C. A.) 12. Noah Kambobe v. The People (2002) ZR 57 Legislation referred to: 1. The Penal Code Chapter 8 7 of the laws of Zambia 1.0 INTRODUCTION The appellant, Kapandula Luputa, was convicted of murdering Ruth Gonah, contrary to section 200 of the Penal Code , Chapter 87 of the Laws of Zambia. Upon his conviction, h e was sentenced to d eath. He has a ppealed against both conviction and sentence. 2.0 THE EVIDENCE BEFORE THE COURT BELOW 2.1 The prosecution called seven witnesses and in a nut shell their evidence was as follows: 2.2 The deceased Rita Gon ah had a love affair with the appellant for a few years and they had a child together. The deceased, her sisters and mother lived in Chinunkula village, Chief Mungule, Chibombo District. On 25th December, 20 13 the deceased went to attend a wedding ceremon y in the same village. Around 18:00hrs, the a ppellant telephoned the d eceased's sister Keziah Gonah (PWl) several times and inquired about the whereabouts of the deceased. He was told she h a d gone for a wedding. -J2- Around 21 :00hrs under the moonlight, the appellant went to PWl 's house with an umbrella but she was not there . After chatting with Rita for a while, she went into the house leaving him outside. 2.3 About thirty minutes after midnight, the deceased's mother Beatrice Mpofu (PW2) left the deceased in her house and went to PW 1 's house which was about 1 Smetres away. She asked for PWl 's phone with the intention of calling th e neighbours and informing them that the appellant was hanging around her premises and persistently askin g to see the deceased but she had told him to leave and come back the following morning because the d eceased did not want to see him. 2 .4 PW2 left to go and report the matter to her son. After a short while she h eard the deceased screaming from h er mother's house "Kezia, I am dying!" When PW 1 rushed to ch eck what was h app ening, she found th e appellant pointing a shotgun at the d eceased and threatening to kill h er. When she tried to dissua d e him, h e turned and pointed the gun at her. She then advised the deceased to shut the door and rushed to h er house to dress up. Whilst in h er house, she heard -J3- gunshots from outside. She went back and found the deceased lying by the door, shot on the neck with blood oozing from the wound and she was dead. The appellant was nowh ere to be seen. Their mother also heard gunshots from a distance as she was walking to her son's house and she rushed back. 2.5 It was also in evidence that the deceased terminated the relationship between her and the appellant because he was a married man. The appellant did not take it kindly and he made it his aim to interfere with any other relationship that the deceased had with any other man . The appellant even threatened to commit suicide if the deceased ended their relationship. 2.6 Willie Mumba (PW3) the deceased's cousin, learnt about the shooting around 10:00hrs and accompanied the police to the crime scene where he took some pictures. Those pictures were later developed and given to the police. He witnessed the post mortem conducted on the body of the deceased on 28th December, 2013 . -J4- 2.7 Nyaufuku Payas Illunga (PW4) a Superintendent and Forensic Ballistic expert had examined the Greener Shotgun in question of caliber 18.5 mm, bearing serial number 74618 and one empty cartridge of the same caliber. He established that the cartridge was loaded, fired and ejected from a firearm of the same caliber. He also established that that type of gun could only be fired by pulling the trigger. 2.8 Mwiinga Namooya (PWS) a Police officer of Kabangwe police station who had also visited the crime scene, was of the view that the bullet that killed the deceased passed through the door from the outside. 2 .9 Wills Shamene (PW6) a member of the neighbourhood watch was the one who went and picked up the shotgun in issue from the appellant's house while he was in custody and gave it to the police. 2 . 10 Justine Banda (PW7) a Detective Sergeant had backed up the investigations. He discovered that the appellant had on 30th December, 2013 been taken to the hospital for having attempted to commit suicide by taking some poison. The same day, he was taken to Kabangwe police station where he was interviewed by PW7. The appellant told him that he -JS- left his home village on 26th December, 2013 to go and visit the deceased who was his friend at Chimukile village. He carried a gun with a view of killing guinea fowls but he did not manage to kill any. He proceeded to the deceased 's house but was not welcomed as it was late at night. This incensed him inspite of the deceased 's family informing him that h e could go and visit the following day. The deceased linger ed around and at midnight h e went and knocked on the door of the d eceased's mother's house but she insisted that h e should leave and go back the following morning. He pleaded to see h er and at one time the d eceased opened the door to persuade him to leave. At that point in time, he accidentally touched the trigger of the gun and it went off instantly killing the deceased. After warning and cautioning the appellant, h e pleaded that it was an accident. He produced the gun and empty cartridge which h e h a d given to PW3 for examin ation, the photos taken by PW3 and the post mortem r eport 1n evidence . He confirmed that the deceased was shot through the door and sh e died of subdural h emorrhage and hemorrhagic shock due to gunshot wound of h ead and n eck according to the post mortem report. -J6- 3 .0 THE DECISION OF THE COURT BELOW 3.1 The trial Judge found that the appellant was in possession of a firearm and did not dispute firing it save for the defence raised of it having been accidental . The court rejected the accused's explanation that the gun went off accidentally as "a fabricated story intended to rescue him from the noose." She found that according to the ballistics report, the gun was in good mechanical condition. Therefore the evidence of the accused was against that fact. 3.2 That as regards the gun facing upwards when he allegedly missed a step, this also was a "smokescreen for what truly transpired." She found that the gun was not facing upwards because the pictures showed that the bullet went directly through the door. 3.2 She found that the accused was inconsistent in his evidence by stating that the deceased was facing upwards after being shot and in the same breath that she was facing down. There were other inconsistencies in his testimony which led her to the conclusion that the appellant was not a credible witness. -J7- 4.0 THE APPEAL 4 . 1 This appeal is based on three grounds framed as follows: 1. The learned trial court erred in law and fact when it convicted the appellant for the offence of murder based on insufficient evidence. 2. The learned trial court erred in law and fact when it failed to properly take into account the possibility of false implication when considering the evidence of PWl. 3. The trial court erred in law and fact when it failed to take into account the fact that the appellant was intoxicated at the time the offence occurred. 5.0 ARGUMENTS 5.1 At the hearing of the appeal, both counsel relied on their written heads of argument. In support of ground one, Mrs. Tindi submitted that the only evidence of the appellant is that contained in the Judgment. She referred us to the case of Andrew Tembo v. The People f1J wherein it was held as follows: "The Supreme Court has had occasion in the past to hear and determine criminal appeals on the basis of a -JS- judgment of the High Court. Thus, where a Judgment of the trial court sufficiently summarizes the evidence of pertinent witnesses, an appellate court can be able to assess the weight of such evidence and to determine whether the decision of the lower court should stand." 5.2 The lower court indicated that the appellant pleaded ignorance of th e fact that the deceased did not want to see him. She stated that the courts finding that the story advanced by the appellant of having gone hunting for wild guinea fowl, was an afterthought, was incorrect because the appellant told PW7 that he shot the deceased accidentally. She went on to state that the appellant advanced a reasonable explanation of how and why h e carried the gun and that this explanation was not discredited by the prosecution. Therefore, the only reasonable conclusion that can be drawn is that the shooting was accidental . In aid of this, she relied on the case of Chabala v. The People f2J which articulates the principle that if a reasonable explanation is given, then guilt is not the only reasonable inference that can be drawn. The appellant would not have -J9- known where the deceased was in order for him to aim and shoot at her as she was behind the door. 5.3 According to counsel for the appellant, the possibility that the gun was fired accidentally could not be ruled out as there was no eye witness to the actual shooting except that gunshots were heard by PWl and PW2. With respect to the expert opinion given by PW4, counsel referred us to the case of Shawaz Fawaz and Prosper Chelelwa v . The People f3J where the Court stated as follows: "When dealing with the evidence of an expert witness, a court should always bear in mind that the opinion of an expert is his own opinion only, and it is the duty of the court to come to its own conclusion based on the findings of the expert witness ... " She argued therefore that the evidence was insufficient to prove the case against the appellant. 5.4 In support of ground two, it was submitted that the evidence of PWl should have been treated with caution because she was aggrieved by the loss of her sister and would like the appellant to atone for the pain of her sister's -JlO- death. The explanation given by PWl that she went home to dress up when her life and that of her loved one was under threat was not a reasonable one considering the circumstances. It was counsel's position that the evidence of PWl cannot be relied on in the absence of supporting evidence because she is a witness with a possible interest of her own to serve. Counsel relied on the case of Simon Choka v. The People r4J wh erein it was held as follows: "A witness with a possible interest of his own to serve should be treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belief in the truth thereof based simply on his demeanour and the plausibility of his evidence." 5.5 In support of the third ground of appeal, sh e submitted that there is evidence on record showing that the appellant was intoxicated at the material time. This eviden ce corroborated his explanation that the gun was fired accidentally. However, the Judgment is silent on the matter. The lower court ought to have addressed its mind to this issue as the same was brought up by the appellant when cross- -Jll- exam1n1ng PW 1. She referred us to the case of Muvuma Kambanja Situna v. The People f5J wherein it was held as follows: "A Judgment of the trial court must show on its face that adequate consideration has been given to all relevant material that has been placed before it , otherwise an acquittal may result where it is not merited." 5.6 According to Mrs. Tindi, the prosecution witnesses failed to properly show that the appellant was not intoxicated at the time the offence occurred. She urged us allow the appeal. 5.7 In countering the appeal, counsel for the state, Mr. Chipawa submitted that the lower court was on firm ground when it rejected the accused's explanation as a fabrication and an afterthought. According to counsel, the mere fact that the appellant pointed the gun at the deceased and fired it demonstrates an intention to kill or to cause grievous harm and in short malice aforethought. To support this position he cited the case of The people v. Njobvu. f6J -J12- 5.8 Counsel argued further that the conduct of the appellant fleeing the scene after he allegedly accidentally shot the mother of his child was very odd. 5. 9 In refuting grou nd two, Mr. Chipawa submitted that the lower court properly considered the status of PW 1 as a suspect witness as seen on page 15 of the judgment. The lower court properly found that both PW 1 and PW2 had no reason to falsely implicate the appellant. The appellant confirmed that h e had a good relationship with them. To support this, he relied on the case of Andrew Mwenya v. The People f7J wherein it was held: "The mere relationship of a witness to a deceased does not create an interest to serve on the part of the witness without establishing particular circumstances which could have motivated such a witness. For instance, evidence of poor relationship between the witness and the person accused of committing the crime can constitute such circumstances." 5.10 On ground three, Mr. Chipawa submitted that intoxication was not established by the appellant in the lower court. The -J13- record shows that the appellant did not plead intoxication but merely, loosely referred to it in cross-examination of PWl. Th e app ellant demonstrated alertness before and after shooting the deceased . He fled the scene and managed to eject the expended cartridge from the gun. In aid of this he cited the case of John Lubhonza v. The People f8J wherein it was held among other things as follows: " ... The defence of drunkenness was not established because he exhibited alertness and composure when he rode his bicycle from the crime scene." 5. 11 Ther e was nothing to necessitate the consider ation of intoxication by the trial court. The learned trial court correctly directed itself considering th e guidance in Jose Antonio Golliadi v. The People r91 wh ere it was stated: "We must emphasize that the trial courts must be wary of finding drunkenness as an extenuating circumstance in every case where the offence is committed at a drinking place or where the accused claims he was drunk. It is important to consider peculiar facts instead of applying drunkenness as an -J 14 - extenuating circumstance in every single case which could lead to injustice." 5.12 According to counsel, there were no peculiar circumstances to justify the consideration of intoxication as an extenuating circumstance. He therefore urged us to dismiss the appeal. 6.0 QUESTIONS RAISED In this appeal we deal with the following questions: 1. Whether there was a possibility that the appellant was falsely implicated? 2. Whether the appeal can be decided on the judgment of the lower court, there being no separate record of the appellant's testimony? 3. Whether the evidence that was adduced was sufficient to warrant the conviction? 4. Whether or not there were extenuating circumstances? 7.0 DECISION OF THE COURT 7 .1 We have looked at the record of appeal and the arguments advanced by counsel for both parties. We shall begin with -JlS- ground two, followed by ground one and ground three will be tackled last. 8 .0 Our views on ground two are as follows: 8.1 It is clear that PWl was the sister of the deceased whereas PW2 was her mother. On page 15 of the Judgment, the trial Judge Betty Majula - Mung'omba as she then was, considered the appellant's testimony that he had a good relationship with PW 1 and PW2 and they had no reason to falsely implicate him. The appellant also stated that parts of their testimony was true although he chose to dispute the evidence that was unfavourable to him. The learned Judge found the evidence of PW 1 and PW2 to be credible and that there was no reason for them to falsely implicate the appellant. The case of Andrew Mwenya v . The People t7J applies as the relationship of PWl to the deceased did not create an interest to serve on her part under the circumstances. It is clear that the lower court treated the evidence of PW 1 and PW2 with circumspection as guided in the case of Chitalu Musonda v. The People. r10J 8.2 Although the court did not specifically warn itself of the dangers of false implication, it properly found that there was -J16- no such danger. The second ground of appeal therefore has no merit and fails . 8.3 Coming to ground one, we have not found on the record of appeal the appellant's evidence in the record of proceedings although the judgment of the court below indicates that the appellant testified on oath and summarizes sufficiently his evidence and that of the prosecution witnesses. As rightly pointed out by the appellant's counsel, an appellate court can determine an appeal on the basis of a High Court Judgment according to the guidelines given in the case of Andrew Tembo v. The People supra. We shall therefore determine this appeal on the basis of the Judgment of the court below. 8.4 The expert witness PW4's eviden ce was that the shotgun in question could not go off without pulling the trigger. PW l's evidence shows that the appellant was aiming the gun at the deceased and when she attempted to help her, he turned and pointed the gun at her. The lower court found that PWl 's evidence was credible. She had the opportunity of seeing her testify and judging h er demeanour, which opportunity we do not have. Therefore, we cannot interfere -Jl7- with that finding. The lower court's r ejection of the appellant's evidence wa s justified . She rightly found that a person on a friendly visit cannot carry a gun and that the murder was prem e ditated. Surely, if one does not intend to shoot someone, he would not aim at him or her. The appellant was ostensibly desperate to do something about his r ejection. The evidence against him was overwhelming. For the foregoing reasons ground two is devoid of m erit and it fails. 8.5 Considering the third ground of appeal, according to th e case of Kalaluka Musole v. The People, '111 ba sically, intoxication is no defence to a criminal charge except when the effect of intoxication is such that the accused did not know what he was doing, or did not know that what he was doing was wrong. This is subject to the proviso that either the accused's state of intoxication was not self-induced, or tha t the effect of it was so great as to render the accused insane, temporarily or otherwise. The other exception is wh ere the effect of the intoxication, with or without other factors, is such as to negative any intention on the accused's part, specific or otherwise to commit the offence -JlS- • he is charged with. This would inevitably result in a verdict of not guilty. 8.6 We understand the case here was not that the appellant was intoxicated. PWl's evidence under cross - examination was that the appellant does not even take alcohol and she would not have known if he was highly intoxicated on the material day. We are of the considered view that the appellant was well aware of his surroundings, in control of his faculty and knew exactly what he was doing. This is supported by his failed defence to the effect that he accidentally pulled the trigger as he was avoiding to fall. The appellant did not testify or tell the police that he was intoxicated at the material time. We therefore hold that even though the learned trial judge did not deal with this aspect of the case, the same is immaterial as it does not affect the conviction and sentence. We do not find merit in this ground as well. 8.7 The sentence of death imposed on the appellant is correct in principle and does not come to us with a sense of shock considering that the murder was premeditated. The -J19- • Supreme Court has in a plethora of authorities including the case of Noah Kambobe v. The People l121 held that a sentence can only be interfered with if it is wrong 1n principle and comes to the court with a sense of shock. 9.0 CONCLUSION 9. 1 This appeal is devoid of merit and is hereby dismissed . ......... ~ ·········~ ····· C. K. MAKUNGU COURT OF APPEAL JUDGE ( J. Z. MULON TI .................................... M. J. SIAVWAPA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J20-