Obvious Cheelo and Anor v The People [2019] ZMCA 357 (25 October 2019)

IN THE COURT OF APPEAL OF ZAMBIA (cid:9) HOLDEN AT LUSAKA APPEAL/80,81/2019 (Criminal Jurisdiction) OBVIOUS CHEELO NICTOR MAPULANGA VS THE PEOPLE 1ST APPELLANT 2ND APPELLANT RESPONDENT Mchenga DJP, Sichinga and Majula, JJA On 24th September, 2019 and 25th October, 2019 For the Appellants: Mr. H. M. Mweemba, Principal Legal Aid Counsel For the Respondent: Mrs. M. Tembo-Weza, Acting Senior State Advocate JUDGMENT MAJULA JA, delivered the judgment of the Court. Cases referred to: 1. Abedinegal Kapesh & Another vs The People SCZ Selected Judgment No 35/2017. 2. John Lubhozya vs The People SCZ No. 48512013. 3. Chipango & Others vs The People (19 78) ZR 304 4. Jackson Kayuni & Another vs The People Appeal 2511252. 5. Simon Choka vs The People (1978) ZR 243 6. Saluwema vs The People (1965) ZR 4. 7. Philip Mutantika vs Kenneth Chipungu SCZ Judgment No 13/2014. J2 8. Yokoniya Mwale vs The People Appeal No 285/2014 9. Kambarage Mpundu Kaunda vs The People (1992) S. J. 1 (SC). 10. Chitalu Musonda vs The People (Appeal No. 138/2014) Legislation referred to: The Penal Code, Chapter 87 of the Laws of Zambia, section 200 INTRODUCTION This is an appeal against conviction and sentence of the appellants by the High Court (Maka-Phiri J.) on a charge of murder contrary to section 200 of the Penal Code. It was alleged in the particulars of the offence that on 23rd July 2017 at Ma7abuka District of the Southern Province, the appellants did murder Ranje Mweete. The appellants were subsequently tried and convicted by the High Court sitting in Mazabuka on 16th April, 2018 and sentenced to suffer the death penalty. EVIDENCE IN THE COURT BELOW The evidence led by the prosecution in the Court below was solicitated from four witnesses. It was on the 23rd July, 2017 when the people in Namembo village, situated in Chikankata District experienced a very strange event. PW1 was at her residence when she saw six men approach her and request for her husband's whereabouts. The group of six were armed with various weapons such as axes, planks and a pounding stick. PW1 expressed ignorance as to where her husband J3 Ranje Mweete was and the 2nd appellant angrily reacted to this response by accusing her of lying and then hitting her on her left side with a plank. Another person known as Lano joined in the beating and threatened her to disclose her husband's whereabouts. When they stopped beating her, another assailant said Ranje was in the house. The assailants accused Ranje (hereinafter referred to as the deceased) of bewitching the 2nd appellant's mother who was known as Doris. The group of six descended on the house and wreaked havoc by breaking the frames and putting some grass and petrol in the house and setting it ablaze. They had come with some petrol of their own and also obtained some from the motor bike they found at the house. According to the prosecution evidence when the fire became intense in the house, the deceased jumped out through a window. The 1st appellant then hit him with a pounding stick on his head after he had fallen to the ground. The 2'' appellant axed him and the rest of the group joined in beating the deceased mercilessly with a variety of weapons they had at their disposal. Upon seeing that the deceased had died, the 2nd appellant retrieved the deceased's motor bike from the yard, axed the fuel tank and lay it on top of the deceased's body. He then picked up some grass and lit a fire. Inevitably the motor bike was gutted and the deceased burnt to ashes. Thereafter the attackers ran away leaving their weapons at the scene of crime. This horrific incident was reported to the Police by Shenny Mweete, PW2 the deceased's J5 the appellants were visibly annoyed on that day and they were alleging that the deceased was a wizard. The arresting officer was PW4 Sergeant Miyanda Chikani who after receipt of a report of murder and investigating the matter, charged and arrested the two appellants. During the course of the investigations he learnt that the deceased was murdered on suspicion that he was a wizard. APPELLANT'S DEFENCE On their part both appellants denied having participated in the brutal murder of the deceased. The 1st appellant gave a detailed account of what happened. He told the court that he had received a call from his brother, Itain Mapulanga on 18th July, 2017 that his mother had died. He was working from Nampundwe, so upon hearing this sad news he embarked on a journey to Chikakanta with his wife as that is where the funeral was being held. On Saturday, 22nd July, the mother was buried. At a family meeting concerns were raised regarding the non-attendance of the deceased at the funeral. According to 1st appellant, at some point when his mother Doris paid them a visit in Lusaka, she indicated that her illness emanated from the deceased. That during the period she used to take the deceased's young brother (PW2) to Lusaka for treatment at the traditional healers, they swapped sides, he started improving and she started feeling sick. Doris attributed her illness J6 to the deceased that he is the one that had been bewitching PW2 and had now transferred it to her. The source of that information to the effect that she was being bewitched by the deceased was from witch- finders. The absence of the deceased at Doris's funeral prompted the family members to go to the deceased's home on 23hu1 July, 2017. The objective of the visit was according to DW 1 was to merely inquire into why the deceased absconded. When they arrived at the deceased's home, Lano requested the deceased to come out, if not he was going to die inside the house. The 1st appellant claimed that the deceased pleaded not to be killed and admitted to killing Doris. Upon hearing this admission, the 1st appellant was deeply hurt and, in his view, it confirmed what Doris had told him was actually true. He went on to explain that the deceased offered to compensate them with cattle. However, this appeared not to have been acceptable because when the deceased finally came out of the house the group started battering him. It was his further evidence that he distanced himself from the thrashing of the deceased. The 1st appellant left, went back to the funeral house and thereafter boarded a bus to Lusaka. At Kafue bridge he found PW2 with police officers and was ordered to disembark. He was subsequently arrested. He categorically denied being armed with a pounding stick and hitting the deceased. J7 The 2nd appellant, who prior to his arrest and conviction was a sausage maker in Lusaka, gave evidence that was materially similar to that of the 1st appellant. He too went to attend Doris's funeral and attended the family meeting which expressed disquiet at the deceased's absenteeism at the funeral. He witnessed the deceased's wife (PW1) denial of her husband's whereabouts and Lano's utterances regarding what would befall the deceased if he stayed inside He too opted to take an observer status while the fracas was going on. He claimed he never took part in stopping the hammering of the deceased as there were a lot of people. A2 admitted being angry and provoked after the deceased confessed to killing his mother. This was done through the use of charms and black magic. He did not shy away from expressing his views on wizards by stating that it's better a wizard is killed to avert or stop him from murdering other people. In addition, wizards were disliked in Namembu village. He refuted the assertion that he had carried any weapon to harm the deceased. He decided to return to Lusaka to get more leave days and was apprehended on a bus. The reason he advanced for being implicated was that the relationship between the families in the village was not good. FINDINGS BY THE TRIAL COURT. The trial Judge, after a careful scrutiny of all the evidence before her, came to the following findings: J8 1. That the deceased did not die accidentally but was murdered. This was confirmed by the witnesses PW1, PW2 and PW3 who witnessed the deceased being assaulted using a pounding stick, which evidence corroborated the postmortem report. 2. The assailants' assault was ignited by the suspicion that he was responsible for the death of Doris. That from their behavior and belief in witchcraft they had malice aforethought as they ought to have foreseen death or grievous harm would result from their actions. That the deceased was assaulted in the manner described by prosecution witnesses was corroborated by the appellants themselves. 3. The story by the appellants regarding what transpired that they were mere spectators when the barbaric assault was taking place was rejected by the trial Judge. She found it improbable that the appellants, after being outraged, relegated themselves to being spectators. The trial Judge accepted the evidence of the prosecution witnesses that both appellants were part of the group of six who participated in the attack. 4. PW2 was found to be a credible witness. This was discerned from the manner he reacted, that is rushing to the police and assisting with the subsequent apprehension of the two appellants at the checkpoint. 5. Regarding PW1, PW2 and PW3 being witnesses with a possible interest to serve, the Judge found there was no reasons why J9 they would falsely implicate the two. She proceeded to exclude the danger of false implication. 6. She went on to further find that the appellants and those at large had a common intention to cause death of the deceased. 7. The defence of belief in witchcraft and provocation was not available as it fell short of the threshold articulated in the case of Abedinegal Kapesh & Another vs The People'. GROUNDS OF APPEAL Resenting the judgment of the court below, the appellants have advanced two grounds of appeal couched as follows: 1. The learned trial Judge misdirected herself in law and in fact when she convicted the appellants and sentenced them to death in the presence of the available evidence of belief in witchcraft. 2. The learned trial judge misdirected herself in law and in fact when she relied on the evidence of PW1, PW2 and PW3, witnesses with a possible interest to serve in rejecting the appellants' defence without satisfying herself that the dangers of false implication had been ailed out. APPELLANT'S ARGUMENTS The appellant's argument is simply that there was a clear suspicion of witchcraft which was associated with the deceased. That it is this belief in witchcraft that led to the deceased being murdered. They have argued quite spiritedly that the appellants had clearly established the defence in that they reasonably believed in witchcraft. J10 In relation to the trial Judge having dismissed the appellants' belief in witchcraft and having relied upon the case of Abedinegal Kapesh1 which makes it a requirement that an accused must be put in such fear of immediate danger to their lives for extenuation based on witchcraft to avail them. The appellants are contending that there is a distinction to be made in the case at hand and that of Abedinegal Kapesh1. They have strongly argued that the Abedinegal Kapesh1 case is not cast in stone and that the belief in witchcraft in Zambia is imbedded into minds of people and this belief should not be considered on the basis of reasonableness as it is a belief. They have gone on to argue that once a person is identified as a witch or wizard in the family and on the basis of that belief, immediate family members or people apprehend that there is another victim to follow after the deceased, by virtue of this belief they resort to acts of eliminating the purported witchcraft practitioner. Turning to the case in casu the argument is that the evidence reveals that the community and the appellants believed in witchcraft, Doris having consulted a witch finder on three occasions was notified that the deceased was named as a wizard. And further that he admitted having bewitched and killed Doris, and this is sufficient reason to be provoked. The court's attention has been drawn to the case of John Lubhozya vs The People2 as authority for the proposition that witchcraft is not evidence based but can be established as a matter of fact by other evidence such as a visit to a witch doctor, witchfinder or traditional healer or some suspicious event believed to have been authorized by the deceased. ill According to the appellants a witch finder was consulted and the deceased admitting, makes the above cited John Lubhozya2 case applicable. That the learned Judge should, therefore, have accepted the evidence of belief in witchcraft and should have treated it as an extenuating circumstance. It is in this vein that it has been contended that there should be a distinction between the Abedinegal Kapesh1 case and in casu, and another sentence other than death imposed. Moving on to ground two, Counsel has faulted the trial Judge for relying on the evidence of PW 1, PW2 and PW3. The argument is basically that these prosecution witnesses are the ones who told the court what transpired at the house of the deceased. That these witnesses are close family members and are witnesses therefore with a possible interest to serve and whose evidence required corroboration or evidence of something more in order to believe them. This is against a backdrop that according to Counsel, they had an issue with the appellants emanating from accusations of witchcraft and also the death of their beloved one. Counsel adverted to the cases of Chipango & Others vs The People3; Jackson Kayuni & Another vs The People 4, and Simon Choka vs The People 5 which are authorities on how to deal with witnesses who fall into the category of suspect witnesses. These cases are instructive in that they guide that where you have such a witness, there must be evidence of corroboration or something more before the danger of false implication can be said to be excluded. The long and short of J12 the appellant's argument is that PW1, PW2 and PW3's evidence lacked corroboration or something more. The submission is that the appellant's story that they never believed in witchcraft makes their explanation reasonably possible. They have relied on the case of Saluwema vs The People6 where it was held inter-alia that: "If the accused story is reasonably possibly though not probable, then there is a doubt, and the prosecution cannot be said to have established their case beyond all reasonable doubt." It was on the basis of the appellants explanation which was reasonably possible and the lack of corroboration or something more that the appellants pray that the appeal be allowed and the conviction of the lower court be quashed and the appellants be acquitted. At the hearing of this appeal Mr. Mweemba sought to rely on the grounds of appeal and heads of argument that were filed. He just emphasized that from the evidence on record there were substantiated allegations of witchcraft. He went on to add that even though the appellants distanced themselves from the killing, they should be accorded the benefit of extenuation. RESPONDENTS ARGUMENTS On behalf of the state Mrs. M. Tembo-Weza submitted that the trial Judge was on firm ground when she convicted the appellants. J13 Significantly that a critical look at the evidence of the appellants reveals that they did not disclose to the court in their evidence that they went to consult a witchfinder to show their belief that their mother's illness was caused by the deceased. Further, that since they denied participating in the killing the deceased, extenuation cannot be availed to them. She sought refuge in the case of Philip Mutantika vs Kenneth Chipungu7 where is was held that a person cannot be permitted to blow hot and cold. In this particular circumstance extenuation cannot apply to the appellants who deny killing the deceased as this would be tantamount to blowing hot and cold at the same time which should not be permitted by the court. Replying to ground two on the question of the witnesses with a possible interest to serve, it was her submission that there was no evidence that the prosecution witnesses had a particular bias or motive to falsely implicate the appellants. The mere fact that they were related to the deceased should not categorize them as witnesses with a possible interest to serve. Mrs. Tembo Weza, in support of this submission, called in aid the case of Yokoniya Mwale vs The People8. She urged the court to uphold the conviction and dismiss the appeal. Mr. Mweemba, reacting to these submissions reiterated that there was evidence of belief in witchcraft on the record and that the court should accord extenuation. S DECISION OF THE COURT J14 In the 1st ground of appeal the appellants are aggrieved with the death sentence imposed by the lower court despite some evidence of belief in witchcraft. The trial Judge, arrived at the conclusion that there were no extenuating circumstances and found them guilty of murder. This was premised on the fact that although the evidence revealed that there was a belief in witchcraft it however fell short of the threshold for provocation. She opined that: "There is no evidence to show that the accused had been put in such fear of immediate danger to their lives for extenuation based on belief in witchcraft to be available to them. The accused persons followed the deceased and executed their barbaric plans of killing the deceased and yet no danger was posed to them. I am guided in this regard by the holding of the Supreme Court in the case of Abedinegal Kapesh & Another vs The People'." We hold the view that aside from no immediate danger been posed to the appellants to call in aid extenuation what is most significant is the fact that both appellants deny participating in the atrocious act of beating the deceased and setting him ablaze. The defence is that they were mere innocent bystanders. This defence was rightly rejected by the court in light of the credible evidence adduced. The trial Judge found that the two appellants, together with the fugitives from justice, had a common intention to cause the death of the deceased. This ground of appeal is accordingly dismissed for lack of merit. J15 The issue that arises in ground two is that PW 1, PW2 and PW3 were related one way or the other to the deceased. Being relatives of the deceased they therefore, fall into the category of witnesses termed as suspect witnesses. Suspect witnesses are regarded as those who might have a possible interest of their own to serve. The principle in dealing with such type of witnesses is that the court must guard against convicting on their evidence alone. There must be something more and the danger of false implication must be excluded. We take a leaf from the case of Kambarage Mpundu Kaunda vs The People9 which held that: "Prosecution witnesses who are friends or relatives of the prosecutrix may, have a possible interest of their own to serve and should be treated as suspect witnesses. The court should therefore warn itself against the danger offalse implication of the accused and go further to ensure that the danger is excluded." Chitalu Musonda vs The People1° is another insightful case where the Supreme Court expressed themselves as follows: "A relative is not automatically a suspect witness, it is the circumstances of the case that can render a relative to be a suspect witness." The foregoing cases indicate that a relative is not automatically a suspect witness. The court has to look at the circumstances of each particular case to render that relatives are suspect witnesses. J16 We are fortified in so stating by the wisdom drawn from the Supreme Court in Yokoniya Mwale vs The People8 which said: ".... We ought to however, to stress, that these authorities did not establish, nor were they intended to cast in stone, a general proposition that friends and relatives of the deceased, or the victim are always to be treated as witnesses with an interest to serve and whose evidence therefore routinely required corroboration. Were this to be the case, crime that occurs in family environments where no witnesses other than near relatives and friends are present, would go unpunished for want of corroborative evidence. Credible available evidence would be rendered insufficient on the technicality of independent corroboration. (cid:9) This, in our view, would be to severely circumscribe the criminal justice system by asphyxiating the courts even where the ends of criminal justice are evident. The point in all these authorities is that this category of witnesses may, in particular circumstances, ascertainable on the evidence, have a bias or an interest of their own to serve, or a motive to falsely implicate the accused. Once this was discernable, and only in those circumstances, should the court treat those witnesses in the manner we suggested in the Kambarage case. A conviction will thus be safe if it based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or victim, provided the court satisfies itself that on the evidence before it, those witnesses could not be said to have had a bias or motive to falsely implicate the accused, or any other J17 interest of their own to serve. What is key in our view, is for the court to satisfy itself that there is no danger offalse implication. Therefore, turning to the matter before us, the trial Judge did address the issue of PW1, PW2 and PW3 being categorized as witnesses with an interest of their own to serve (see pages J.22 to J.23 of Judgment). Despite finding that they were not, she still looked at or considered evidence that supported their testimony. In point of fact the appellants in their evidence confirm that the deceased was indeed attacked, badly beaten and subsequently set ablaze. They do not dispute the killing of the deceased which evidence was that of the prosecution witnesses. What the appellants are disputing is the finding that they participated in the killing. The appellants were the ones who were infuriated by the fact that the deceased and his family did not attend their mother's funeral. They further believed he was the cause of her death and this is what drove them to go to his house and accost him. It is against this background that the appellants' story of being mere bystanders falls apart. It is an incredible tale aimed at extricating themselves and we are of the considered view that the Judge was unerring in her findings. She carefully and correctly evaluated the evidence before her. We are in agreement with her findings taking into account all the circumstances of this case and see no basis upon which she can be faulted. This ground of appeal accordingly fails. J18 We therefore uphold the decision of the learned trial Judge on both conviction and sentence. The appeal is accordingly dismissed in its entirety. C. F. R. chenga DEPUTY JUDGE PRESID D. L. . Sic. inga COURT OF APP AL JUDGE B. . Maju1a COURT OF APPEAL JUDGE