Kafula v People (SCZ Appeal 1 of 19991) [1991] ZMSC 46 (12 June 1991)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 1/1991 HOLDEN AT NDOLA BETWEEN: ' MICHAEL CHANDA KAFULA Appellant and J THE PEOPLE Respondent CORAM: Ngulube, D. C. J., Sakala and Lawrence JJS. 12 June 1991 For the Appellant: Mr. S. K. Munthali, Senior Legal Aid Counsel For the Respondent: Mr. JU Okafor, Assistant Principal State Advocate JUDGMENT Lawrence, J. S., delivered the judgment of the court. ■ . ■ •: ■ - • • ■ -v The appellant was jointly'charged with three others who were acquitted of murder but convicted of assault occasioning actual bodily harm. The appellant appeals to this court against conviction for the ■ murder of one Mubanga Luchembe Kankululu (hereinafter referred to as the deceased). ' The particulars of offence were that Michael Chanda kafula on the 27th day of July 1986 at Kasama in the Kasama District of the Northern Province of the Republic of Zambia jointly and whilst acting together did murder Mubanga Luchembe Kankululu. The brief history of the case against the appellant is that the appellant, a nephew of the deceased, had approached a so called witch- finder who advised him and gave him a letter stating that the deceased had been responsible for the death of the appellant's daughter by means of witchcraft. Armed with this letter, the appellant, accompanied by eight other persons, went to the deceased's house, where in the presence of PW2, the deceased's wife, he and three other co-accused mentioned above, began to assault the deceased with fists and sticks. Two of the : J2 : four later desisted from assaulting the deceased but the appellant and one other man dragged the deceased into his own house where they continued to assault h|m. PW2, who was the only eye-witness called, saw the appellant and his colleagues take some herbs, used by PW2 as a relief for asthma, before they ordered her to leave the house; She fled, leaving the two men with her husband who was then still alive. ' ,V The rest of the villagers had already fled the village, because soon after reading the letter from the witch-finder the appellant had announced that he was going to kill the deceased who was the headman of the village and warned that anybody who would try t0 rescue him would be killed as well. When PW2 returned to her home the following day she found her husband lying dead in the^-Kbuse. In his defence the appellant told the lower court that he had gone to the deceased's house, where after reading the letter written for him by the witch-finder, the deceased, who had in fact convened the meeting, took a whip and struck the appellant on the shoulder. The. appellant struggled to wrest the whip from the deceased and in the ensuing struggle pushed the deceased to the ground. The deceased then asked PW2 for some herbs to drink. After the deceased had drunk the said herbs the appellant left the scene. He said no one else saw the deceased drink the herbs. On the following morning he heard that the deceased had died. The appellant went to the funeral and later handed himself to the police because he had been accused and implicated in the death and was being threatened with violence. : The medical evidence adduced by the prosecution, however, showed that the deceased's death was caused by a blow to the head. Mr. Munthali on behalf of the appellant submitted.firstly that the evidence of PW2, the only eye-witness, was to the effect that there were many1-people who had assaulted the deceased and, therefore, it was not possible to say which of these people struck the fatal blow. Mr. Munthali went further to say that unless it could be proved that there was a common design to.cause harm to the deceased no one could be convicted of the murder. £ Section 207 of the Penal Code defines “causing death" as follows: “207. A person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the , following cases: : J3 : (For the purpose of this judgment sub section (a) and (c) are not applicable). (d) If by any act or emission he hastens the death of a person suffering under any disease or injury which apart fran such act or amission would have caused death; (e) If his act or omission would not have caused death unless it had been accompanied by an act or emission of the person killed or of other persons." The appellant states that he had pushed the deceased to the ground but does not say the deceased had struck the ground with his head. The only evidence we have of a blow to the head is that of PW2 who stated that she had seen the appellant strike the deceased on the head with a stick. The cause of death, according to the evidence reported was a blow to the head. There IS’ ample evidence that all other persons he involved in the assault had desisted after a while, but that/appellant and one other continued to assault the deceased even when he took refuge in his own house. The appellant, on his own admission, followed the deceased into the house. He was the only one who purportedly saw ; the deceased drink herbs as others had already left. It is further argued that'the issue of the confession statement T . . ■ ■ ' . .i-i'.-.'j not purpotedly made by the appellant was/properly resolved by the learned judge a quo, but even in the absence of the appllant's confession statement, which seemed to fully support the evidence of PW2, we are satisfied that the appellant was the main actor in the drama. His intent was to find out who had bewitched his daughter and when the witchfinder obliged by naming the deceased, he and his friends proceeded to the deceased’s village where they took part in the assault. But the manner in which the deceased was assaulted seems to us not to have been meant to cause actual bodily harm. The appellant and his colleagues meant only to cause the deceased to admit that he bewitched the appellant's child. Mr. Okafor for the state does not support the conviction for murder and says that it is very difficult in the circumstances of this case to establish malice aforethought.. We are indebted to Mr. Okafor for his stance, because it seems to us that although the appellant had said that he was going to kill the deceased we are convinced that this was mere bluster and not an actual intent to cause bodily harm to the deceased who was his uncle. For this reason we allow the appeal and set aside the conviction for murder and substitute a conviction for manslaughter. As for the sentence we find that such senseless violence attracts a custodial sentence and we therefore impose a sentence of si years imprisonment with hard labour with effect from the date of arrest. ft M. M. S. W. NGULUBE DEPUTY CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE A. R. LAWRENCE SUPREME COURT JUDGE