Mabote Kaneta and Anor v The People (APPEAL NO. 21,22 OF 2024) [2024] ZMCA 303 (15 November 2024)

.l'1 Tn.r.i \,;UUKT u.r- 1\1"'.t"'.r.il\L u.r- ;£,J\lVU:UI\ :IOLDEN AT NDOLA 'Criminal Jurisdiction) 3ETWEEN: ~ABOTE KANETA ~IKONGE SITALI \ND rHE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 11th November, 2024 and 15th November, 2024. !t'or the Appellants: Mrs. K. K. Kombe - Legal Aid Counsel, Legal Aid Board !t'or the Respondent: Mr. F. Mphanza - State Advocate, National Prosecutions Authority JUDGMENT ~GULUBE JA, delivered the Judgment of the Court. Cases referred to: 1. Ibrahim vs R (1914)AC 599 '2. 3. 4. H amfuti vs The People (1972) Z. R. 240 D aka vs The People (1972) Z. R. 70 Jackson Kamanga & Others vs The People - SCZ Appeal l\ 30,31,32,34/ 2020 5. Robson Chizike vs The People - CAZ Appeal No. 94 of 2020 :>. John Mwansa & Another vs The People - SCZ Appeal JV 170/2014 Liswaniso vs The people (1976) Z. R. 277 David Zulu vs The People (1977) Z. R. 151 Saidi Banda vs The People - Selected Judgment No. 30 of 201~ 7. g_ 9. 10. George Musupi vs The People (1978) Z. R. 271 11 . Leonard Yona Jere vs The People - Appeal No. 102/ 2019 12. Dorothy Mutale and Richard Banda vs The People (1997) SJ 5 : 13. Saluwema vs The People (1965) Z. R. 4 14. Mpofu & Another vs The People (1988-1989) Z. R. 24 15. Gama vs The People - CAZ Appeal No. 25 of 2022 16. Esaya Mumpasha, Nange Chiti & Moshi Bongoma vs The Peop - SCZAppeal No. 12, 13, 14 of 2011 17. Michela Siangumba vs The People -Appeal No. 180/ 2023 18. Tapisha vs The People (1973) Z. R. 222 ~gis lation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 The appellants appeared before the High Court (Mbuzi, J.), c an information containing one count of the offence of aggravat< robbery and two counts of the offence of murder contrary -J2- secttons 294(1) and zaa of the Penal Code, Chapter 87 , the Laws of Zambia. l .2 The particulars of th e offence in count one are that on 10 th Api 202 1, at Sikongo District, in the Western Province of Zambi the appellants jointly and whilst acting togeth er, stole fro Kupota Mushongo cash amounting to K300.00 and at 1 immediately before or immediately after su ch stealing did u : or threatened to use actual violence to the deceased person order to obtain, retain or prevent or overcome resistance to tl property being stolen. l.3 The particulars of offence in counts two and three are that tl appellants on 10th April, 2021 at Sikongo, jointly and whil acting together did murder Kupota Mushongo and Endr Muyunda (hereinafter respectively referred to as the first ar second deceased persons). 1.4 The appellants denied the charges and the matter proceeded trial. At the end of the trial, the appellants were acquitted of tl offence in count one but were convicted in count two and thrc The 1st appellant was senten ced to life imprisonment while tl 2 nd app ellant was sent to Katombora Reformatory Schc -J3- because he was a Juvenile. The appellants appealed. again conviction. !. O CASE BEFORE THE TRIAL COURT ~. l The prosecution's case was anchored on the evidence of fi, witnesses. The evidence before the trial judge was that on lC April 2021 , between 07:00 hours and 08:00 hours, PWl, in tl company of her husband and the two deceased persons left the fishing camp and went to Luwawa fishing camp to buy fis: PW 1 and her husband later left Luwawa fishing camp leavir the two deceased persons with Mwangala Namushi. Accordir to PW 1 the deceased persons did not return to their fishir camp that night and all efforts to reach them on the ph01 proved futile because the first deceased person left h er phone the shelter. ~. 2 The fallowing day around 05: 00 hours PW 1 (being the fir deceased's sister) and her husband went to Luwawa fishi1 camp and asked Mwangala Namushi, the person who he r emained with the deceased persons the previous day, wheth he knew where they were. The said Mwangala was in compa.1 of PW2 and Siamakondo Songiso. They inf armed PW 1 that tl -J4- deceased persons were ottered hsh tor sale by the appellan shortly after she left the previous day. PW 1 called the : appellant using PW2's phone to enquire about the deceased whereabouts. According to PW 1 the 1st appellant told her to i to Namushakende fishing camp to ask PW3 who would lead h to the deceased persons. It turned out that PW3 was unawa of the whereabouts of the deceased persons. PW3 informed PVi and her husband that it was the appellants who left with tl deceased persons around 09: 00 hours and the appellan returned around 13:00 hours without them. 2.3 As PWl was going to her fishing camp, she moved for about 3( metres and stumbled upon the first deceased person's slipp which had blood stains on it. She followed a trail of blood whic led to the discovery of the body of the first deceased person ne a shrub in tall grass of about two metres in height. She observe deep cuts on her forehead, skull and upper cheek that exposc her teeth and her throat was slit. The items she had with h on the material day were also missing. 2.4 There was a search party that was conducted for the seco1 deceased person (the first deceased's infant child) whose boc -JS- was rouna a rew nours 1ater, 1 uu metres away rrom tne nr deceased person's body. PWl observed that the deceased infru was swollen on the back of his neck. She stated that tl distance between her fishing camp and that of the appellan was about a walk of 15 to 20 minutes. 2.5 PW2's evidence was that he was at Luwawa fishing camp on tl material day and saw PWl, her husband and the two decease persons. PWl and her husband left and the two decease persons remained behind. Three minutes later, PW3 was al: leaving and when he reached the appellant's fishing camp, tl 1s t appellant asked him if the first deceased person would 1 interested in buying fish and the deceased confirmed that sl was interested. The deceased went to collect the fish and P\\ then left, leaving the deceased with the appellants. 2.6 When PW2 returned to the fishing camp the following day, l found PWl asking Mwangala Namushi if she knew tl deceased's whereabouts. Mwangala informed PWl that tl deceased were seen with the appellants the day before and P\\ corroborated Mwangala's account. When the 1s t appellant w, called to ask a bout the deceased p ersons' whereabouts, 1 -J6- stated that PW::S would know their whereabouts. PW 1 , hi · husband, PW2 and Mwangala proceeded to see PW3 who denie being with the deceased the previous day. PW3 confronted tl 1st appellant on the phone disputing that he knew tl deceased's whereabouts. That shortly after PWl and hi husband left, he heard PW 1 crying when the body of tl deceased was discovered. 2. 7 PW3 's evidence was that he was with the appellants on tl material day around 09:00 to 10:00 hours. He saw tl appellants advertise their fish to the deceased who was passir by the road. When the deceased showed interest in buying tl fish, the 2 nd appellant went to the fishing camp to collect tl dish which had fish and took it to the 1st appellant. That the : appellant got the dish and the appellants left with the deceast persons but later returned around 13:00 to 14:00 hours witho, the deceased. The appellants returned to their home Namushakende village. 2.8 He narrated that the following day, PWl and her husbar approached him to enquire about the deceased's whereabou but he told them that he saw them with the appellants. P\\ -J7- conrrontea tne 1 :; L appellant over tne issue out ne snow( ignorance. PW3 later heard PWl crying and came to learn th the deceased persons were murdered. He observed a cut on h forehead, face, back, head and throat. He stated that he did n witness the offence being committed and only saw the appellai selling fish to the deceased. ~.9 PW4's testimony was that on the material day, the deceast remained at Luwawa fishing camp where the appellants wer The following day, he witnessed PWl and her husbar enquiring about the deceased's whereabouts. PW2 ar Mwangala informed them that the deceased were last seen wi· the appellants on the material day. That later, around 09:C hours, PWl informed him that the body of the first deceas< person was discovered and when he went to the scene and s2 the body, he observed wounds on the back of the hea forehead , and her throat was slit. 2.10 PW5 testified that on 11th April 2021 around 12:00 hours, 1 received a report of aggravated robbery and murder from P~ who told him that she suspected the appellants, as they we the last persons to see the deceased persons. He was led to t1 -J8- apprenens10n or tne appeuants. w nen ne arnvea at tne cnrr scene, he found the first deceased's body which had cuts, c the head, side of the forehead, the back of the head and hi throat. The body of the second deceased person was al~ discovered about 50 metres away. The bodies were deposit~ into the mortuary at Yuka Mission Hospital. 2.11 PW5 narrated that the 1st appellant led the police to the recove: of the deceased's missing items while the 2 nd appellant led the to the recovery of the machete near the appellants' village und a tree covered with leaves. That later, the 1st appellant led the to a well which was used to clean the machete. He stated th PW4 was present when the appellants led the police officers the recovery of the items. t 12 The post mortem examinations conducted on 14th April 20~ attributed the death of the deceased persons to hemorrhag shock. 2.13 In his defence, the 1st appellant denied having committed tl offence. He stated that he was with the 2 nd appellant on tl material day when he saw the deceased with PW2 at his fishi1 camp. That PW2 and the deceased bought fish from tl -J9- appellants and le!t. tte admitted that PW l called n1m enqu1nr about the deceased's whereabouts and he informed her th they went with PW2. He stated that he was tortured by tl police in order for him to admit to the commission of the offern and denied having led the police to the recovery of the items. ~.14 The 2 n d appellant's defence was that he did not commit tl subject offences. He stated that he and the 1s t appellant sa the deceased with PW2. That the duo bought fish from tl appellants and they left while the appellants remained at tl fishing camp . ~.15 He narrated that he and the 1st appellant were apprehended 1 the police and were tortured. That after three days, the poli1 told PW 4 to take them where the body of the first deceas( person was found. He denied having led the police officers the recovery of the items. 3.0 FINDINGS BY THE LOWER COURT 3. 1 After reviewing the evidence, the lower Court found that tl deceased persons' deaths were caused by the appellants. Tl lower Court was satisfied that the circumstantial evidence toe the case out of the realm of conjecture to such a degree -JlO- cogency (Ila[ n was sare rn conv1cL 1 naL Lne un 1y u11erence u 1, could b e dr awn from th is case is the guilt of th e a ppellant Th at th e appellants were th e ones wh o wer e last seen with tl d eceased p erson s and th e death s occu rred b efor e the deceas(: could reach th eir village which was a walkable distance of abo1 15 to 2 0 m inutes. ~.0 THE APPEAL L 1 Dissatisfied with the judgment of the lower Court, tl a ppellants appealed to this Cou rt against con viction, advancir t h e fallowin g two grounds of appeal - 1. The trial Court erred in law and fact by admitti, the evidence of leading in the absence of a tri, within a trial. 2. The trial Court erred in law and fact by convicti, the appellants on circumstantial evidence whi< had not taken the case out of the realm of conjectui so as to permit only an inference of guilt as the; were other inferences to be drawn. 5.0 THE APPELLANT'S ARGUMENTS 5. 1 In su pport of ground on e, Counsel for th e appellant submitt< that the lower Court sh ould have condu cted a trial within a tri -Jll- at tne point wnen tne ev1ct.ence ot 1eact.1ng tenet.erect. oy ~w ~ Wf objected to. Counsel stated that PWS's evidence was that tl appellants led him to the recovery of the deceased's items ar the machete (Pl to P8) but the objection by defence counsel w, that the leading was not voluntarily made. That the lower Cou overruled the objection without conducting a trial within a tri. and proceeded to admit the evidence of leading. 5.2 Reference was made to a plethora of authorities on confessic statements which included the cases of Ibrahim vs R Hamfuti vs The People2 and Daka vs The People3 where was held that a confession statement is not probably admissib unless the accused is given an opportunity to object to i production in evidence. Further reference was made to tl cases of Jackson Kamanga & Others vs The People4 ar Robson Chizike vs The People5 where it was held that whe: an objection as to the voluntariness of a confession arises, tl trial Court must conduct a trial within a trial. 3.3 Counsel submitted that she was alive to the cases of Jo1 Mwansa & Another vs The People6 and Liswaniso vs TJ people7 on the admissibility of evidence where leading revea -J12- new ev1aence. rtowever, counse1 arguea 1na11nese cases ao n assist this case because the trial Court should have establish( at what point the recovery was made and by whom, and wheth the same was voluntarily made. 5.4 It was submitted in support of ground two that tl circumstantial evidence in this matter did not take the case 01 of the realm of conjecture so as to permit only an inference guilt. To support this argument, Counsel placed reliance on tl cases of David Zulu vs The People8 and Saidi Banda vs Tl People. 9 5.5 It was submitted further that the evidence was weak becaus firstly, PWl was referred to the appellants by PW2 ar Simakando Songiso. That secondly, the Court's finding th death occurred in under 20 minutes was not supported by ai evidence as there was no one who saw the appellants with tl deceased persons walking from N amushakende fishing cam Thirdly, that PW2, PW4, Sitali Ndalela and Siamakando Sangi: also left the fishing camp in the same direction towards tl deceased's camp. Fourthly, that there was no evidence that t1 appellants were in possession of the machete (P7) prior to tl -J13- aeath or the aeceasea persons ana that PWLt aamntea that r identified P7 because he used the machete in the village. Th further there was a possibility that PW4 would have met tl deceased on the way. ; . 6 It was argued that PW2 and PW 4 should have been treated c suspect witnesses because they were both suspects who cou have easily supported each other, in accordance with tl principle enunciated in the case of George Musupi vs Tl People. 10 ;. 7 Counsel argued that the lower Court relied on the last se~ theory to convict the appellants. That however, this Court · the case of Leonard Yona Jere vs The People11 held that tl mere fact that an accused person was the last person to be se~ with the deceased person cannot always lead to the conclusic that he was responsible for the death of that person. ,.8 Counsel submitted that the return of the appellants to tl fishing camp was not suspicious because according to PW they returned to pick their items and left for the village. Th further the evidence does not reveal any motive the appellan could have had to harm the deceased persons. Counsel argu< -J14- tnat even tnougn tnere 1s no neea 10 prove 1ne exu:>Lence , motive to harm, it can be one of the strands of circumstanti evidence. ,.9 In summation, Counsel argued that there are two or mo: inferences that can be drawn and where there are mo: inferences to be drawn, the Court must adopt the one which favourable to the accused . For this principle, Counsel relied c the cases of Dorothy Mutale and Richard Banda vs Tl People12 and Saluwema vs The People.13 Counsel prayed th the appeal should be allowed. 5.0 THE RESPONDENT'S ARGUMENTS 5. 1 In response to grou nd one, Counsel on behalf of the responde: submitted that the evidence of leading was properly admitt( by the trial Court because the record shows that the appellan were warned and cautioned and informed of their rights prior leading the police. In support of this submission, we we ref erred to the case of John Mwansa & Anot her vs The Peop (supra) where the Supreme Court held that the evidence leading is admissible whether voluntary or not provided it lea< -JlS- to tne recovery 01 reru ev1aence prev10usiy not Known to tr police. ,.2 In arguing that the evidence recovered from the appellant leading was factual and relevant to th e case, reference w, m ade to the cases of Mpofu & Another vs The People14 ar Liswaniso vs The People (supra). ,.3 In response to ground two , it was submitted that the trial Cou could not have classified PW2 and PW4 as witnesses with possible interest to serve becau se there was nothing mo: presented to warrant the Court to classify them as suspe witnesses or witness with an interest to serve. 5.4 It was argued that the appellants were the ones who were la seen with th e deceased before their demise. Th at therefore, tl trial Cou rt correctly relied on the last seen theory. The case Goma vs The People15 was relied on where it was held th when the accu sed person was last seen with th e deceased, tl trial Judge will have to take into consideration the time lap: when he was last seen in company of the deceased. Th however, the explanation given by the appellants did n exonerate t h em. -J16- ) . 0 Lasuy, l,;ounse1 prayea tnat tne appeal oe a1smissea ror 1acK merit. 7.0 HEARING OF THE APPEAL r . 1 At the hearing of the appeal, Counsel from both sides entire relied on the heads of argument filed into Court. ~. O CONSIDERATION AND DECISION 3.1 We have carefully considered the judgment appealed again and the parties' arguments. It was argued in ground one th the trial Court should have conducted a trial within a trial wh( the evidence of PW5 was objected to . The relevant portion of tl proceedings where there was an objection to PW5 's evidence on pages 83 and 84 of the record. PW5 stated that t1 appellants led him to the recovery of the items recovere Defence Counsel objected to this evidence on the basis that l received instructions that the appellants were subjected to harsh environment in custody and therefore the leading w, involuntarily . 3.2 The lower Court overruled the objection and stated the followir page on page 2 of the ruling - -J17- ··1 must state n.owever th.at wn.at ts tmportant : consider where there is evidence of leading is whetfo and what the accused person said before leading ti police. In this case, nothing was said by the witne; on stand to show what accused l said to him befoi he was led. His evidence of leading is the ref O i admissible. The objection is now overruled and admit the evidence of leading which led to ti recovery of the relevant evidence." 3. 3 The case of Esaya Mumpasha, Nange Chiti and Mos1 Bongoma vs The People16 guided as to how the Court ought treat evidence of leading. It was held that - "It is settled that whether or not an accused pers< is represented, a trial court should always, when tJ point is reached at which a witness is about to depo; as to the content of a statement, ask whether tJ defence has any objection to that evidence being le The position we take is that this should apply wii equal force to the evidence of demonstration by c accused person because a demonstration is a , enactment of an oral or written confession ... Even the defence did not raise the objection when tJ evidence of the demonstrations was introduced, t are not satisfied that the prosecution had proved tJ voluntariness of the demonstrations beyo, -J18- aam1ss101e regara1ess wnetner tne 1eaa1ng was vo1untary or nc as long as it is relevant. The appellants alleged that the leadir of the police to the recovery of the deceased's items and tl machete was involuntary. However, as guided in the Jof Mwansa & Another vs The People case this eviden1 recovered is admissible. It is therefor e of no consequence th the trial Court did not conduct a trial within a trial. 3. 7 Further in the case of Tapisha vs The People, 18 it was guide that the failure to conduct a trial within a trial is an irregulari which is curable if there has been no prejudice to the accuse We see no prejudice occasioned to the appellants. This grour of appeal therefore fails. 3.8 Turning to ground two, the issue is whether the circumstanti evidence on record is sufficient to support a conviction. It well settled that a Court can convict on circumstantial evidenc The prerequisite is that the circumstantial evidence mu permit only an inference of guilt. In the case of David Zulu The People (supra), the Supreme Court h eld that- "(1) It is a weakness peculiar to circumstanti evidence that by it s very nature it is not d i re proof of a matter at issue but rather is proof -J20- Jacts not tn tssue but re Levant to the Jact tn tsst and from which an inference of the fact i n isst may be drawn. (ii) It is incumbent on a trial judge that he shou guard against d rawing; wrong inferences fro the circumstantial evidence at his dispos, before he canfeel safe to convict. The judge mu. be satisfied that the circumstantial evidence he t aken the case out of the realm of conjecture ~ that it attains such a degree of cogency whic can permit only an inference of guilt. " ~.9 The circumstantial evidence against the appellants was th they were seen selling fish to the deceased persons on tl material day. PW3 stated that he saw the appellants leave tl fishing camp with the deceased persons between 09:00 ar 10:00 hours and they returned to the fishing camp betwe< 13:00 and 14:00 hours without the deceased. It was establish< at trial that the distance between the appellants' fishing can and the fishing camp the deceased were supposed to return t was a distance of about 15 to 20 minutes' walk. Further, p\}\ stated that the deceased did not return to the fishing camp c the material night. This implies that the deceased met their fa -J21- on the material ctay Detore they could. reach their t1sh1ng earn and were last seen alive with the appellants . This evidenc coupled with the evidence of the recovery of the deceased belongings and the machete, leaves no alternative inference th, can be drawn apart from th e guilt of the appellants. Grour: two of the appeal also fails. }.0 CONCLUSION 1. l In light of the foregoing, we find no merit in th e appeal and it accordingly dismissed. The convictions and sentences of tl lower Court are uph eld. ~ P. C. M . NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE -J22-