People v Edwin Sichilya (3D/86/2023) [2024] ZMSUB 5 (5 January 2024)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/86/2023 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: REPlJ13LIC OF ZAMBIA THE .mDIClARY .,......-· . .., ---------r-1 #~r;5 Jiltl L: ~ M. AGISTRATE CLASS P. O. eux 420!Cl, M.3.~._ .... ~ a · · J THE PEOPLE AND EDWIN SICHILYA Before: Hon. Deeleslie Mondoka For the State: Mr. E. Mwanza, Public Prosecutor, National For the Accused: In person Prosecution Authority. JUDGMENT CASES REFERRED TO: i. ii. iii. iv. v. vi. vii. MOONGA V. THE PEOPLE (1969) Z. R. 63; R V. MUCHUMA 4 N. R. L. R. 64; CHISHA V. THE PEOPLE (1968) ZR 26; SALUWEMA V THE PEOPLE (1965) ZR 4 (CA); LUCKY DUBE, RONNIE MAFULO AND FRANK MOLOSI V. THE PEOPLE CAZ APPEAL NO. 48, 49 AND 50 OF 2017; ATTORNEY GENERAL V. KAKOMA (1975) ZR 21; LUBENDAE v THE PEOPLE (1983) Z. R. 54 (S. C.); J1 of 13 viii. GRAVE V. MILLS 7 H& N 917; ix. x. xi. HAONGA AND OTHERS v THE PEOPLE (1976) ZR 200 (SC); WHITESON SIMUSOKWE V THE PEOPLE (2002) ZR 63; JOSEPH MULENGA V. THE PEOPLE SCZ APPEAL NO. 128 OF 2017, AND xii. MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.). STATUTE AND OTHER RELEVANT RESOURCES: i. ii. iii. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA; CROSS ON EVIDENCE 6TH EDITION (1985), AND PHIPSON ON EVIDENCE, SEVENTEENTH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010). INTRODUCTION [1] The accused EDWIN SICHILYA stands charged with one Count of unlawful wounding, contrary to section 232 of the Penal Code Chapter 87 of the Laws of Zambia. [2] The facts in brief are that––the accused on 19th August, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, did unlawfully wound LISTER NAMULINGA. [3] The matter debuted on 5th September, 2023––when the accused persons stood trial, and was arraigned on the charge succinctly delineated on the indictment; to which the accused pled NOT GUILTY. PRELIMINARY CONSIDERATION [4] From the outset, I cautioned myself that––the accused plea of not guilty disputes all the ingredients of the offence charged; this was the position in re MOONGA v. THE PEOPLE (1969) Z. R. 63. Further, a plea of not guilty puts the prosecution under the necessity of proving all the elements of the offence. R v. MUCHUMA 4 N. R. L. R. 64. J2 of 13 [5] Consequently, there is no obligation on the part of the accused to prove his innocence or indeed to give a satisfactory explanation, this was the position in re CHISHA v. THE PEOPLE (1968) ZR 26. It is worth noting that, this position is so, even if the explanation on the face of it seems ridiculous. (Emphasis mine) [6] Subsequently, if the accused persons case is ‘reasonably possible’, although not probable, then a reasonable doubt exists, and the prosecution cannot be said to have discharged its burden of proof. [7] And if upon considering the evidence adduced there is reasonable doubt on the mind of the court as to the guilt of the accused, the court will return a verdict of NOT GUILTY. SALUWEMA V THE PEOPLE (1965) ZR 4 (CA). BACKGROUND FACTS PROSECUTION’S CASE [8] [9] The evidence surrounding this case is by and large– a brisk trot through the sum of the facts gleaned at trial. The prosecution holding no brief for the accused person’s action summoned four (4) witnesses to make the case against the same. [10] On 18th September, 2023, the prosecution summoned as its first witness, PW1, a certain SHADRECK SICHILYA, a tricenarian, who gave his testimony on oath as hereunder. [11] It was PW1’s testimony that the accused on the 19th day of August, 2023: woke up; exchange pleasantries with the mother, the victim herein, LISTER NAMULINGA. Then left for his shop. A few hours later, PW1 received a phone call that there had been a kamikaze attack on his mother. Weighed down by the news––PW1 in no time was at the mother’s abode. Alas and alack, PW1 found people crying; his mother laying on the ground insensibly with blood on her head. PW1 with aid J3 of 13 of persons around ferried the mother to Mwamba clinic, where an ambulance was organized and finally the mother was taken to Mbala General Hospital. [12] PW1 indicated that days after she had gained consciousness, the mother was taken to Lusaka at a private hospital, but before that––on the material date of the wounding, PW1 asked the father, RUDOLPH SICHILYA as to who was responsible for wounding the mother. The father informed the same that it was the accused, PW1’s brother who bludgeoned the mother on the head using a hoe. [13] During cross examination the accused called into question the testimony of PW1, when the accused stoutly challenged PW1’s on being a witness of fact seeing as the same was not there when the wounding was occasioned. [14] Nothing was advanced in re-examination. [15] On 30th May, 2023, the prosecution braced the testimony of PW1 with that of PW2, RUDOLPH SICHILYA, an octogenarian and autochthon of Mwamba village, who gave a regaling, albeit gory lowdown of the facts as hereunder. [16] On the morning of the 19th of August, 2023, the accused heard his daughter crying. The accused hauled a stream of invectives at PW2 and the wife that they had beaten his daughter. [17] The situation took a nasty turn, when the accused herein accosted his mother who was standing by the door and what followed was brutish behaviour on the part of the accused––the accused employing a strong-arm tactic; threw the mother to the ground and picked a hoe; mercilessly drubbing the mother with the same a number of times on the head. [18] PW2 trembling to think what had happened––he desperately attempted to quell and see off the accused, when PW2 called for help J4 of 13 from nearby people, who managed to come to his aid and apprehend and laid it on the accused for his behaviour. [19] Nothing was advanced in cross-examination and re-examination. [20] The prosecution allied the testimony of PW1 and PW2 to that of PW3, the victim herein. Hereunder is a taut version of PW3’s facts. [21] It was PW3’s testimony that at around 06:00hrs in the morning, PW2 and her were working in the field. PW3 came back from the field at around 11:00hrs with some sugar canes which she gave to her grandchildren. [22] It was her testimony that the kids differed and that the older child bested the younger causing her to burst into tears, which crying upset the accused who rushed to discipline the older child. PW3 intervened and was accordingly and violently trounced by the accused, who used a small hoe, which hoe PW1 had used to cut the canes and bludgeoned PW3 on the head three (3) times putting her in a stupor. [23] PW3 indicated that she was unconscious and that she had no recollection whatsoever of when she was consigned to the hospital where she received treatment, and after 2 week she was taken back to the village and soon after, PW3 was taken to a private hospital in Lusaka. [24] Nothing was advanced in cross-examination and re-examination. [25] The prosecution’s last witness was PW4, one constable AUDREY MWEWA. Who testified as hereunder. [26] On 21st August, 2023, whilst on duty PW3 was allocated a docket of unlawful wounding, in which male RUDOLPH SICHILYA, reported that female LISTER NAMULINGA, was unlawfully wounded by male EDWIN SICHILYA herein. [27] Perusing through the docket PW4 ascertained that the accused was already in lawful custody. It was PW4’s testimony that during the J5 of 13 interview the same indicated that the mother took the offensive, as she essayed to assault the accused and that the accused merely anticipated, and disarmed her and threw her to the ground and she injured herself in the process. A warn and caution was administered and the accused gave a free and voluntary response denying the charge. [28] PW4 testified that the victim at the time was in hospital. Fortunately, PW4 and his colleagues managed to get a statement from the same. From thence PW4 made up his mind to charge the accused with the offence herein. [29] PW4 then tendered a medical report into evidence and the same was marked as P2 upon been aptly produced before court. [30] Nothing was advanced in cross-examination and re-examination. [31] At the close of the prosecution’s case, the court then found the accused person with a prima facie case to answer and put the same on his defence pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. THE DEFENCE’S CASE [32] The accused person––DW1 elected to give sworn testimony. The defendant took up the cudgels to disavow the allegation that he had assailed PW3 to her wounding. DW1 in giving sworn evidence recounted as hereunder. [33] On the 19th of August, 2023, at around 15:00hrs the children were playing, when the older child beat the younger––DW1 got the hump and approached the older child and the child was thus rapped over the knuckles by DW1 for the questionable behaviour. [34] It was DW1’s testimony that in the process his mother displeased with his approach charged at him with a hoe in hand. Providentially, DW1 took pre-emptive measures, when he anticipated PW3’s move and J6 of 13 disarmed the same; pushed her to the ground and thus occasioning her wounding, when PW3’s head hit against the hoe on the ground. [35] DW1 overwhelmed with fear from what had happened, he decided to move from where the wounding happened and a group of men came at him––apprehended him and rough him up in the process. [36] It was DW1’s testimony that he was taken to Mwamba Clinic, but at the clinic the medical officers were told not to treat the same. DW1 was then consigned to Mbala police station, where the police advised that the same needed to be taken to hospital as they could not detain him in his state. DW1 was then taken to Mbala General Hospital where he was attended and was later sent back to the police station where he was detained. [37] The prosecution played hardball during cross-examination––DW2 during cross-examination indicated that there was a paltry five (5) people during the wounding of PW3. It was established that DW1 did not expostulate the fact that he hit PW3’s head three (3) times at any time during trial. [38] Nothing was advanced in re-examination. And that marked the close of the defence’s case. FACTS IN DISPUTE [39] This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: that DW1 gave PW3 a shellacking on the head three times with a hoe and that the whole wounding was an accident; (ii) that DW1 ran away and was apprehended by a drove of boys who in the process occasioned harm on him. J7 of 13 FACTS NOT IN DISPUTE [40] I find the following facts not to be in dispute: (i) that PW3 sustained wounds on the 19th day of August, 2023; (ii) that PW3 was rushed to the clinic and later Mbala General Hospital for treatment; (iii) that PW2 was present on the date in question. THE LAW ESTABLISHING THE CHARGE IN CASU [41] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 232 constitute the offence of unlawful wounding, which section enacts as follows: Any person who- (a) unlawfully wounds another; or (b) unlawfully, and with intent to injure or annoy any person, causes any poison or other noxious thing to be administered to, or taken by, any person; is guilty of a felony and is liable to imprisonment for three years. INGREDIENTS TO BE ESTABLISHED TO PROVE THE ACCUSED GUILTY [42] In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused person unlawfully wounded PW3; (ii) that the accused did not do so in self- defence; (iii) that the accused did not seek consent before he occasioned harm on PW1. [43] As a result, the accused is entitled to give and or call evidence or say nothing at all and if they elect to remain silent this does not in any way shift the burden from the prosecution to prove the guilt of the accused to the required standard as herein articulated. ANALYSIS OF THE LAW AND FACTS [44] In casu, I am faced with conflicting facts, i.e., the prosecution on the one hand through its witnesses asserts that––the accused unlawfully wounded PW3 by hitting her repeatedly on the head and on the other J8 of 13 hand, DW1 contends that the wounding was occasioned on PW3 accidentally by DW1, when the same was attempting to defend himself. [45] Following from the same, in re LUCKY DUBE, RONNIE MAFULO AND FRANK MOLOSI V. THE PEOPLE CAZ APPEAL NO. 48, 49 AND 50 OF 2017, it was held inter alia that: it is the duty of the trial court to make findings of fact in respect of conflicting evidence. (Emphasis mine) [46] In the bargain–the Supreme court earlier espoused in re ATTORNEY GENERAL V. KAKOMA (1975) ZR 21 wherein it was stated that: … “a court is entitled to make findings of fact where the parties advance directly conflicting stories and the court must make those findings on the evidence before it and having seen and heard witnesses giving that evidence.” (Emphasis supplied) [47] Thus, it is crisp to me that, it is within my province as a trial court to scratch beneath the surface of the evidence before me and make findings of fact. WAS THE INJURY ON PW3 OCCASIONED ACCIDENTALLY? [48] By way of context––DW1 herein claims that PW3 was accidentally wounded by him when DW1 attempted to ward off an attacked by PW3 who charged at him with a hoe. It was DW1’s testimony that PW3 essayed an attack on him with a hoe, which PW3 had earlier used to cut sugar canes that she gave to her grandchildren. [49] In re LUBENDAE v THE PEOPLE (1983) Z. R. 54 (S. C.) the Supreme Court did consider the meaning of the word “accident” in the context of section 9(1) of the Penal Code chapter 87 of the Laws of Zambia, and held as follows: … “An event occurs by accident if it is a consequence which is in fact unintended, unforeseen or such that person of ordinary J9 of 13 prudence would not have taken precautions to prevent its occurrence …”. (emphasis mine) [50] I will take a hiatus and address DW1’s behaviour vis-à-vis the testimony by the prosecution’s witnesses during cross-examination. To address the idea of “cross-examination”, I will consider partly the learned authors of CROSS ON EVIDENCE 6TH EDITION (1985), which authors stated that: “the object of cross-examination is two-fold, first, to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross- examination is conducted, and secondly to cast doubt upon the accuracy of the evidence-in-chief given against such party”. (Emphasis supplied) [51] Further, according to PHIPSON ON EVIDENCE, SEVENTEENTH EDITION, (THOMSON REUTERS LEGAL LIMITED 2010) paragraph 12 – 36 at P. 365: “The credibility of a witness depends on his knowledge of the facts, his intelligence, his interestedness, his integrity, his veracity. Proportionate to these is the degree of credit his testimony deserves from the court or jury. Amongst the obvious matters affecting the weight of a witnesses’ evidence may be classed his means of knowledge, opportunities of observation, reasons for recollection or belief, experience, powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case inquired into either in direct examination to enhance or in cross – examination to impeach the volume of his testimony. So, all questions may be asked in cross examination which tend to expose the errors, J10 of 13 omissions, inconsistencies, exaggerations, or improbabilities of the witnesses’ testimony”. (Emphasis added) [52] And addressing the issue of cross-examination– the learned authors of CROSS ON EVIDENCE 6TH EDITION (1985) stated that: “the object of cross-examination is two-fold, first, to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted, and secondly to cast doubt upon the accuracy of the evidence-in-chief given against such party”. (Emphasis supplied) [53] Lord Mansfield in re GRAVE V. MILLS 7 H& N 917, stated that: … “a man shall not be allowed to blow hot and cold - to affirm at one time and deny at another - making a claim on those whom he has deluded to his disadvantage, and founding that claim on the very matters of the delusion. Such a principle has its basis in common sense and common justice - and it is one which the courts of law have in modern times usefully adopted.” [54] In re HAONGA AND OTHERS v THE PEOPLE (1976) ZR 200 (SC), it was held inter alia that: … “where a witness has been found to be untruthful on a material point the weight to be attached to the remainder of his evidence is reduced; although therefore it does not follow that a lie on a material point destroys the credibility of the witness on other points (if the evidence on the other points can stand alone) nevertheless there must be very good reason for accepting the evidence of such a witness on an issue identical to that on which he has been found to be untruthful in relation to another accused.” (Emphasis supplied) J11 of 13 [55] Without further ado–permit me to assert in lieu of mincing my words that, I am inclined to believe the prosecution’s evidence as deployed by its four (4) witnesses. More to the point––even though the self- defence argument was raised by DW1, it is clear from the facts herein that the same is not a prelapsarian argument, in part that––DW1 did not gainsay the testimony of PW2 and PW3 concerning DW1 having intentionally flagellated PW3 on the head repeatedly with a hoe, which position was impeccably established when DW1 was under the mill of cross-examination. [56] To put it differently––DW1’s testimony was bereft of the trappings that make for credibility at law, and as a consequence this court cannot abide such a testimony. Why? Well. The argument deployed herein by DW1 that: the wounding on PW3 was occasioned by misadventure and not accidentally on purpose, when DW1 threw PW3 to the ground in self-defence, as PW3 unexpectedly lunged at DW1 with a hoe is hauntingly desolate of merit––tout court not worth its weight in gold! [57] Further––not only is it flinging one’s cap over the windmill for DW1 to argue self-defence herein––to say nothing of the use of excessive force, as was the position in re WHITESON SIMUSOKWE V THE PEOPLE (2002) ZR 63. [58] And as an aside––granted that DW1 had no legal representation––DW1 managed to cross-examine PW1. Alas, DW1 left the evidence of his mother (PW3) unchallenged. Why? Well, I can only surmise that this was because she told the truth and he could not challenge her. The unchallenged evidence of his mother (PW3) corroborated the testimonies of PW1, PW2 and PW4 that, DW1 did indeed unlawfully wound PW31. 1 JOSEPH MULENGA V. THE PEOPLE SCZ APPEAL NO. 128 OF 2017 J12 of 13 [59] Having considered the arguments on both sides––and having meticulously weighed the evidence herein, I can roundly assert that, I find the evidence by DW1 exiguous and wanting in material fashion. Therefore––having established that there was indeed a credibility gap in the testimony of DW1, in that DW1’s evidence is grounded in the fallacy that, the wounding of PW3 was occasioned by misadventure in an attempt to defend himself. I am persuaded that by this determination all other issues vis-à-vis the accused herein are rendered otiose, and thus obviates the need to explore and assess the matter further. VERDICT [60] In conclusion, the state has satiated the standard of proof in re MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.) and that there is no lingering doubt that, DW1 herein did wound PW3 with a hoe. [61] Thusly––I find the accused person GUILTY as charged for the offence of unlawful wounding, contrary to section 232 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT him accordingly. [62] IRA WITHIN 14 DAYS. JUDGMENT DELIVERED AT MBALA IN OPEN COURT ON 5TH JANUARY, 2024 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J13 of 13