People v Weston Sikatunga and Anor (3D/25/2023) [2023] ZMSUB 7 (17 July 2023)

IN THE SUBORDINATE COURT OF THE THIRD-CLASS 3D/25/2023 FOR THE MBALA DISTRICT HOLDEN AT MBALA (Criminal Jurisdiction) BETWEEN: REPUBLIC OF ZAMBIA THE JUDICIARY hi 1 ? JUL 2"23 &~ MAGISTRATE CLASS I , P. O. BOX 4201 0 1, MBA[ A THE PEOPLE AND WESTON SIKATUNGA ALFRED SIKATUNGA Before: Hon. Deeleslie Mondoka For the State: Mr. W. Chavula, Public Prosecutor, National Prosecution Authority. For Accused (A1): For Accused (A2): In person In person JUDGMENT CASES REFERRED TO: i. ii. iii. iv. v. vi. 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); BENSON NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14; BALLARD V THE QUEEN (1958) CR. APP. REP. 1; J1 of 18 vii. DONALD FUMBELO V THE PEOPLE SCZ APPEAL NO.476/2013; viii. ADAM BWEUPE AND DENNIS BWEUPE V. THE PEOPLE SCZ APPEAL NO. 251 AND 252 OF 2014; ix. x. xi. NZALA V. THE PEOPLE (1976) Z. R. 221; SIMUTENDA VS. THE PEOPLE (1975) ZR 294; PHIRI AND OTHERS V THE PEOPLE (19 73) ZR 47; xii. MULENGA V THE PEOPLE (1972) Z. R. 349; xiii. xiv. xv. xvi. FAWAZ AND PROSPER CHELELWA V. THE PEOPLE (1995-97) Z. R. 3; LAMECK NAMUSHI AND MUTONDO LUNETA NJONGOLO APPEAL NO. 45, 46 OF 2020; PETER YOTAM HAAMENDA V THE PEOPLE (1977) ZR 184; ILUNGA KABALA AND JOHN MASEFU V THE PEOPLE (19 81) 102; xvii. MACHIPISHA KOMBE V THE PEOPLE (2009) ZR 282; xviii. MASEKA V THE PEOPLE (1972) ZR 9; xix. CHABALA V THE PEOPLE (1976) ZR 14 (SC) SCZ JUDGMENT NO. 3 OF 1976; R V FANWELL (1959) 1 R & N 81; PARTFORD MWALE V THE PEOPLE CAZ APPEAL NO. 8 OF 2016, AND xx. xxi. xxii. MWEWA MURONO V. THE PEOPLE (2004) Z. R. 207 (S. C.). STATUTE AND OTHER SOURCES: i. ii. iii. THE PENAL CODE ACT, CHAPTER 87 OF THE LAWS OF ZAMBIA; MAGISTRATE’S HANDBOOK; 6TH EDITION (1991); E. J.; and BLACK’S LAW DICTIONARY, 9TH EDITION, 2009. INTRODUCTION [1] The accused WESTON and ALFRED SIKATUNGA (hereinafter referred to A1 and A2 respectively) stand charged with one Count of assault J2 of 18 occasioning actual bodily harm, contrary to section 248 of the Penal Code Chapter 87 of the Laws of Zambia. [2] In brief– the facts in this case are that, the accused on 3rd April, 2023 at Mbala, in the Mbala District of the Northern Province of the Republic of Zambia, jointly and whilst acting together did assault KELVIN SIMPOKOLWE thereby occasioning him actual bodily harm. [3] The matter debuted on 2nd May, 2023– when the accused persons stood trial, and were arraigned on the charge succinctly delineated on the indictment; to which the accused pled NOT GUILTY. BACKGROUND FACTS PROSECUTION’S CASE [4] The evidence surrounding this case is by and large– a brisk trot through the whole shebang of the facts gleaned at trial. [5] On 17th May, 2023, the prosecution summoned as its first witness, PW1, a certain KELVIN SIMPOKOLWE, aged 25 years, the complaint in this matter, who gave his testimony on oath as hereunder. [6] On 3rd April, 2023, it was PW1’s testimony that at around 16:00hrs while enjoying the comparative tranquillity of his hearth, he was interrupted by a man named MOSES SIMUTOWE, who to put it loosely– rained on his parade at the headman’s behest, as the same required the presence of PW1. [7] And without further ado– PW1 abandoned himself to the headman’s adjuration; left his dwelling without (so much) a backward glance for A1’s residence– whose crib was conveniently less than fifty (50) metres away from PW1’s abode. [8] It was PW1’s testimony that upon arrival at the headman’s premises, he found the same with members of a loan group in their droves along with an AGORA officer. J3 of 18 [9] A1 asked PW1 for the payment of a debt owed by KELVIN SIMPOKOLWE sr., who was a de facto member of the AGORA loan group, as the same was owing the group and in default of which it was A1’s desire to facilitate the sale of the land belonging to PW1’s family. [10] PW1 took the suggestion by A1 under advisement and disavowed the option to sell the land in question after consulting with senior family members. [11] In view of the preceding demur by PW1– A1 was out of sorts and threw a conniption because of PW1’s comeback over the land in question– A1 then furtively approached PW1 while he was regaining to his house– and came at PW1 with the skills along the lines of a pugilist and mixed martial artist. Interestedly, A2 came out of left field and joined the assault on PW1. [12] It was PW1’s testimony that the assault was occasion on him by A1 and A2 with kicks and punches, and thusly– PW1 sustained a wound on the head and abrasions on the neck. [13] During cross examination it was established that PW1 and A1 lived in close proximity. PW1 during cross-examination; like billy-o confirmed to have been assailed by A1 and A2. [14] On 17th May, 2023, when the matter came up for continuation of trial. The state summoned as its second witness PW2, a tricenarian by the name of MOSES SIMUTOWE, of Muzipazi Village in Mbala in the Mbala district, who gave voice to the issue as hereunder. [15] On 3rd April, 2023, PW2 intimated that they had gathered at the headman’s abode for their AGORA group meeting when A1 and A2 assailed PW1 with repeated blows to the head and body. J4 of 18 [16] In sum and to avoid giving a longwinded testimony– PW2’s account of the facts dovetailed splendidly with that of PW1, except to add as hereinafter during trial. [17] During cross examination it was established that KELVIN SIMPOKOLWE sr., at around 17:00hrs came and settled the debt owed. PW2 confirmed that the place was crawling with people on the date in question. It was also confirmed that PW2 was a resident of Muzipazi village. PW2 also indicated that it was a certain AMOS SIMWEEMBA who interposed himself in order to stop A1 and A2 from trouncing PW1 to the last. [18] On 30th May, 2023, the prosecution concluded its line of witnesses with the testimony of PW3, a detective constable by the name of INNOCENT NKOLE, a 30-year-old of New Location, who related as hereunder. [19] On 5th April, 2023, whilst on duty PW3 was allocated a docket of assault to investigate, in which male KELVIN SIMPOKOLWE, was beaten and assaulted by WESTON and ALFRED SIKATUNGA– autochthons of Kapatu village. PW3 maintained that the victim sustained a cut on the forehead and scratches on the neck. [20] Acting on the same, PW3 discovered that there was a medical report to that effect, which report he kept in police custody. [21] It was PW3’s testimony that the culprits WESTON and ALFRED SIKATUNGA were pulled in on 30th April, 2023, and 3rd May, 2023, respectively. Both of which had hitherto been released on police bond. PW3 further indicated that A2 was only arrested on 3rd May, as he had not been around at the time A1 was being apprehended. [22] Consequently, PW3 jointly charged A1 and A2 with assault occasioning actual bodily harm contrary to section 248 of the Penal Code Cap. 87 of the Laws of Zambia. J5 of 18 [23] Curiously, nothing was advanced in both cross-examination and re- examination. [24] At the close of the prosecution’s case, the court then found the accused persons– A1 and A2 with a prima facie case to answer and put the same on their defence pursuant to section 207 of the Criminal Code, Chapter 87 of the Laws of Zambia. THE DEFENCE’S CASE [25] The accused persons– DW1 twinned with DW2 elected to give unsworn and sworn testimonies respectively. [26] The defence called three (3) witnesses who took up the cudgels to disavow the allegation that they had assailed PW1 to his wounding. A1 in giving unsworn evidence recounted as hereunder. [27] On the 3rd of April, 2023, DW1 and members of the AGORA loan group were in conference and in attendance was an AGORA officer. This was around 18:00hrs. [28] on the date in question one of the group members had not made good on his debt. Casually, the same came through and settled his debt. And the same being an inveterate late payer– DW1 could not take it anymore– thus, DW1 wormed out information and inveighed the same against his deadbeat behaviour apropos discharging a debt as and when it fell due. [29] Near at hand was PW1, who accosted DW1 and berated DW1– and put the frighteners on him that– if they ever took property from the SIMPOKOLWES ever again, as they had done in the past, he would put DW1 in police cells. [30] A1 indicated that the people who heard received the remarks by PW1 with disapproval. [31] At around 18:00hrs, A2 came and inquired into what had happened and DW1 told the same that it was PW1 who had sailed into DW1 over J6 of 18 monies owed by SIMPOKOLWE senior. A2 then exhorted DW1 to chin up! It was DW1’s testimony that PW1 confronted him in the presence of: CECILIA NANYANGWE, JOYCE NAMUSUKUMA, VICTOR SIMUYAMBA, and the AGORA officer. [32] DW1 asserted that his presence before this court is testament to the threat given by PW1. [33] The defence braced the testimony of DW1 with that of DW2, who rehearsed his fact on oath as hereunder. [34] On 3rd April, 2023, DW2 testified that as a church (Methodist), they had congregated at Mapesa village. DW2 retreated from the said village at about 18:00hrs with his wife in tow, and found people gathered then went to inquire as to what had happened from his young brother (DW1), and DW2 was informed that he had been hauled over the coal by PW1. [35] On 30th April, 2023, DW2 had another church program at Kasesha during which time his brother was arrested. DW2 received word that his young brother (DW1) had been arrested and indicated that he would be at the police station the following day. [36] DW2 made his way to the police station and discovered that there was a docket that was opened against the same and DW1 for assaulting PW1. DW2 was the same day apprehended and placed in custody, but was fortunately released on police bond. It was DW2’s testimony that on the material date he informed the police that he was not around. [37] Further, DW2 said he was taken aback to learn that MOSES SIMUTOWE (PW2), had testified, as the same is not a legit member of the AGORA group and is an allochthon of Katupa village, but a village that is approximately 10 kilometres from the village in question. [38] DW2 made reference to AMOS SIMUYEMBA that peradventure he could come and give testimony to shed more light on the same. J7 of 18 [39] The prosecution played hardball during cross-examination. DW2 argued that he and PW2 had differed once upon a time, but that he did not inform the court before he was placed on his defence. DW2 maintained that he had been away on the date in question and that could not have committed the subject offence. [40] It was DW2’s assertion that while PW1 may have been assaulted as per the medical report, he put it to the court that the same might have fallen and blamed the same on the DW1 and DW2. [41] No issues were raised in re-examination. [42] The defence called as its last witness, DW3, JOYCE NAMUSUKUMA, a vicenarian; and autochthon of Kapatu village in Mbala. [43] On 3rd April, 2023, PW3 was taking monies to the AGORA group. PW3’s name was not found after a computer search and was only discovered around 17:00hrs. [44] DW3 indicated that while in the company of CECILIA NANYANGWE, DW1, VICTOR SIMUYAMBA, and the AGORA officer PW1 accosted DW1 and hurled a stream of invectives at the same. PW1 further threatened that whoever would follow him will see what would happen to him and thus he took his leave. And subsequently we left the premises of DW1. [45] During cross-examination the state argued that DW3 had an interest to serve, as she was their sister in-law. It was also established that DW3 did not know all the members present for her to discount that DW2 was present on the material date. [46] Nothing was advanced in re-examination. And that marked the close of the defence’s case. FACTS IN DISPUTE [47] This was the gist of the evidence before me; considering the whole evidence, I found that the following facts are in dispute: that PW2 was J8 of 18 not present on the day in question; that DW1 and DW2 did on the 3rd of April, 2023, assault PW1; that DW2 was present on the day in question; that PW2 was a member of AGORA group. FACTS NOT IN DISPUTE [48] I find the following facts not to be in dispute: that DW3 was the sister- in-law to A1 and A2; that there was a medical report speaking to the injury of PW1; that A1 and A2 are brothers. THE LAW ESTABLISHING THE CHARGE IN CASU [49] The Penal Code Act, Chapter 87 of the Laws of Zambia in section 248 constitute the offence of assault occasioning actual bodily harm: … “Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.” INGREDIENTS TO BE ESTABLISHED TO PROVE THE ACCUSED GUILTY [50] In view of the foregoing– the prosecution must satisfy me with each and every ingredient of the offence being: (i)that the accused persons unlawfully occasion harm on PW1; (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. [51] As a result, the accused are 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; FACTS AND DETERMINATION [52] 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 J9 of 18 guilty puts the prosecution under the necessity of proving all the elements of the offence. R v. MUCHUMA 4 N. R. L. R. 64. [53] 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) [54] Consequently, 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. [55] 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). [56] At this point it is worth noting in light of DW1 electing to give unsworn evidence that, our courts have always followed the words by Conroy, C. J, in re BENSON NGUILA V. THE QUEEN (1963-1964) Z. AND N. R. L. R. 14 in this case he referred to unsworn testimony in the following terms: … “The court may attach what weight it chooses to the contents of such statement. The balance of opinion seems to be that an unsworn statement is evidence in the case, but is of less weight than sworn testimony, which can be tested by cross- examination”. (Emphasis mine) WAS AN ALIBI PROPERLY ESTABLISHED BY DW2? [57] It is key to understand what to ‘establish’ means. In Black’s Law Dictionary, 9th Edition, 2009– ‘establish’ means, “to prove; to convince.” (Emphasis mine) J10 of 18 [58] Thus, in teasing out the truth, I ask the question– when should the accused persons’ defence be raised? Well. Swarbrick, in the MAGISTRATE’S HANDBOOK; 6TH EDITION (1991), quotes a passage in re of BALLARD V THE QUEEN (1958) CR. APP. REP. 1, decision by the Privy Council, which say: [59] … “the accused (person) must raise the defence by sufficient evidence fit to go to the jury, in other words, the evidential burden is on him… the (prosecution) is not called upon to anticipate such a defence and destroy it in advance. The accused, by the cross-examination of the prosecution witnesses or by evidence called on his behalf, or by a combination of the two must place before the court such material as makes the defence a live issue fit and proper to be left to the jury. But, once he has succeeded in doing this, it is then for the (prosecution) to destroy that defence in such a manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion.” (Emphasis mine) [60] Furthermore, in re DONALD FUMBELO V THE PEOPLE SCZ APPEAL NO.476/2013, the Supreme Court (hereinafter refereed to as ‘the court’) held inter alia that: … “where an accused person does not contradict Prosecution witnesses during cross examination, he is likely to be disbelieved when he brings up his own version of the story for the first time during his defence.” (Emphasis mine) the Supreme Court went further to assert that: … “when the accused person raises his own version for the first time only during his defence, it raises a very strong presumption that his version is an afterthought and therefore less weight is attached to such a version”. (Emphasis mine) J11 of 18 [61] In casu, DW2 in his testimony argues that he had raised an alibi at the police, which position had not been aptly established at trial. However, what has been crisply revealed according to PW3 vis-à-vis DW2’s testimony is that he had not been present during the time of DW1’s arrest and not that he had not been present during the assailing of PW1 on the 3rd of April, 2023, which testimony DW2 did not challenge. Thus, the position espoused by DW2, suspiciously sounds like an afterthought. [62] The Court of Appeal in ADAM BWEUPE AND DENNIS BWEUPE V. THE PEOPLE SCZ APPEAL NO. 251 AND 252 OF 2014, echoed the Supreme Courts position in re NZALA V. THE PEOPLE (1976) Z. R. 221, when it held inter alia that, it is the duty of the police to investigate an alibi given by an accused on apprehension or arrest, but where there is no evidence to support the alibi or where no sufficient details are given to the police, there is no obligation by the police to investigate such an alibi; the accused person has the onus to give sufficient details to enable the police to investigate. (Emphasis mine) [63] DW2 by advancing the pat response intimating that– “he had not been there”, was operating on a wing and a prayer– hoping against hope that the same would go off without a hitch. Curiously, all the details given that he was attending a church program on 3rd April, 2023, had not been availed to the police and or before being put on his defence. [64] Further, no material details had been availed to the police to facilitate investigations into the alibi in question. [65] Thus– I find this explanation and or evidence by DW2 to be exiguous and cannot to itself amount to a proper defence of alibi, seeing as the same is bereft of materiality and pertinent details for the police to work with. More to the point– a simple and somewhat glib response, say– J12 of 18 “I was not there” cannot hold up for a defence of alibi– seeing as, merely asserting that I was not there does not rouse reasonable doubt in the mind of this honourable court. [66] Having established that the alibi advanced by the accused does not do the accused persons any service or meet the defence of alibi, the inevitable corollary of the said conclusion is that I adopt and nod sagely with the prosecution’s version of the facts. [67] As a rider– in re SIMUTENDA VS. THE PEOPLE (1975) ZR 294, the Supreme Court held as follows: “There is no obligation on an accused person to give evidence, but where an accused person does not give evidence, the court will not speculate as to possible explanations for the event in question; the court's duty is to draw the proper inference from the evidence it has before it.” (Emphasis mine) [68] Further, in re PHIRI AND OTHERS V THE PEOPLE (19 73) ZR 47, it was held that: “The courts are required to act on the evidence placed before them. If there are gaps in the evidence the courts are not permitted to fill them by making assumptions adverse to the accused. If there is insufficient evidence to justify a conviction, the courts have no alternative but to acquit the accused.” (Emphasis mine) [69] Thus, it is the solemn duty of the court to consider all the evidence before it, so that it can pronounce itself on an issue judiciously. CALLING OF WITNESSES [70] DW2 in this matter pointed to the direction of a certain AMOS SIMWEEMBA, as a person who could have aided in elucidating on a few issues pertinent to their case had they been called. It is trite law that where a witness is not called by the prosecution, the defence is at J13 of 18 liberty to call the witness. This position has been established in a legion of cases, including but not limited to: FAWAZ AND PROSPER CHELELWA V. THE PEOPLE (1995-97) Z. R. 3. [71] Further, in re LAMECK NAMUSHI AND MUTONDO LUNETA NJONGOLO APPEAL NO. 45, 46 OF 2020, the Supreme Court observed something in the vicinity of: … “it is folly for the appellant (accused) to cry foul, when they had the opportunity to call a witness, if it appears the same would have been or given a testimony favourable to their case”. (Emphasis mine) [72] Therefore, it is the duty of the defence to be alive to the realities of their case and to be punctilious enough to call to aid all witnesses who can sponsor and facilitate the securing of a favourable outcome. WHERE THERE ANY ODD COINCIDENCES AND DID THE ACCUSED PERSONS GIVE A SATISFACTORY EXPLANATION CONCERNING THE ODD COINCIDENCES? [73] At this point I am beleaguered with the pertinent inquiries– could it be an odd coincidence that, PW1 buttonholed A1, and that the following day the same ends up with a medical evincing that he had a cut and abrasion on his neck? Or if A1 and A2 did not assault PW1, how did he then ended up with a medical report and how is he alleging that A1 and A2 had assaulted him? [74] For starters– in the case of PETER YOTAM HAAMENDA V THE PEOPLE (1977) ZR 184, it was held, inter alia that odd coincidences can prove corroboration; further in re ILUNGA KABALA AND JOHN MASEFU V THE PEOPLE (19 81) 102, the espoused position was that– odd coincidences, if unexplained may be supporting evidence; and in the case of MACHIPISHA KOMBE V THE PEOPLE (2009) ZR 282 it was swimmingly held that, odd coincidences constitute evidence of something more. (Emphasis mine) J14 of 18 [75] In re MASEKA V THE PEOPLE (1972) ZR 9, it was decided by the Court of Appeal that: … “An explanation which may reasonably be true entitles an accused to an acquittal even if the court does not believe it; an accused is not required to satisfy to the court as to his innocence, but simply to raise reasonable doubt as to his guilt.” (Emphasis mine) [76] Further, in re CHABALA V THE PEOPLE (1976) ZR 14 (SC) SCZ JUDGMENT NO. 3 OF 1976, it was held that: i) If explanation is given, because guilt is a matter of inference, there cannot be conviction if the explanation might reasonably be true, for then guilt is not the only reasonable inference. It is not correct to say that the accused must give satisfactory explanation. Dictum of Clayden, F. J., in R V FANWELL (1959) 1 R & N 81. 20 cited with approval. ii) iii) There is no onus on an accused to prove his explanation. The court is required to consider whether the explanation might reasonably be true. (Emphasis mine) [77] In casu, DW2 took a crack at explaining away the odd coincidence by engaging in hypotheticals in the order of– PW1 may have fallen and not assaulted as he claims. In light of the account, I thought hard and long to see if the explanation would be a victory for common sense, but I failed to privilege the same as being potent enough to rouse reasonable doubt. [78] Why? Well, during the course of trial PW1 evinced a medical report of the assault in question. However, it is my understanding that while the medical report speaks to the injury of PW1 or PW1 having fallen victim to something, it does not per se consummately establish that the harm was occasioned by the accused persons– A1 and A2. J15 of 18 [79] Nevertheless, the direct evidence by PW2, wherein he tarred A1 with the same brush as A2 vis-à-vis the assault of PW1, which account A1 and A2 did not impeccably impeach at trial coupled with the medical report– does in no uncertain terms prove that A1 and A2 participated in assailing PW1 and did assault the same. [80] It is for this reason that I am persuaded that the accused failed to explain away the odd coincidence herein. Further, in re MULENGA V THE PEOPLE (1972) Z. R. 349; the court held that: … “Where two or more complaints in addition to alleging assaults on themselves, are eye witnesses of the assault… their evidence of the assault… is direct evidence and is capable in law of being corroboration.” (Emphasis mine) [81] In my reverential view, the direct evidence of PW1 twinned with that of PW2 well-establishes the matter and does not need further corroboration as per the herein case of MULENGA. [82] And touching the testimony of DW3– I am alive to the fact that as a trial court I need to tread softly when considering the testimony of a friend or relative– as relatives or friends of a victim have a documented tendency to skew and or give sidelong versions of the facts, as they may possibly have an interest of their own to serve and their evidence should thus be treated with utmost caution and in the same way as evidence of suspect witnesses. [83] Following from the same, the supreme court in KAMBARAGE MPUNDU KAUNDA V. THE PEOPLE (1990-1992) ZR 215 guided inter alia that: … “as relatives and friends of the deceased may be witnesses with an interest to serve, it was incumbent upon a court considering evidence from such witnesses to warn itself against the dangers of false implication, and that the court must go further and exclude such danger.” (Emphasis mine) J16 of 18 [84] And the Court of Appeal in re PARTFORD MWALE V THE PEOPLE CAZ APPEAL NO. 8 OF 2016, echoed the sentiment: … “A conviction will be safe if it is based on the uncorroborated evidence of witnesses who are friends and relatives of the deceased, or the victim, provided that on the evidence before it, those witnesses could not be said to have a bias or motive to falsely implicate the accused, or any other interest of their own to serve. What was key was for the court to satisfy itself that there was no danger for false implication”. (Emphasis mine) [85] Thus, I cannot decidedly privilege the testimony of DW3 without running the risk of misstating– seeing as the testimony of the said DW3 has not received apposite corroboration. It is an inviolable fact that the defence witnesses have hitherto not dislodge the case through their testimony nor have they advanced material potent enough to rouse reasonable doubt in the mind of this court. Therefore, I cannot decisively rule out that DW3 was not merely feeding me a line about the events of the 3rd day of April, 2023. [86] Nevertheless, it is worth noting in passing that in re YOKONIYA MWALE V. THE PEOPLE (APPEAL NO. 205/2014) the apex court stated that: … “We are of the firm view that insistence on the position that the evidence of every friend or relative of the deceased or the victim must be corroborated, is to take the principle in the case authorities on this point out of context.” (Emphasis mine) [87] In the later appeals, case in point, in re of GUARDIC KAMEYA KAVWANA V. THE PEOPLE (APPEAL NO. 84/2015), it was observed that: [88] ...” there is no law which precludes a blood relation of the deceased from testifying for the prosecution. Evidence of a blood relation can be J17 of 18 accepted if cogent enough to rule out any element of falsehood or bias.” (Emphasis mine) [89] And being bereft of the divine attribute of omniscience– I can only deduce on the basis of all the evidence available before me– and upon solemn appraisal of all the available evidence– seeing as it would be incorrect to consider the accused persons’ testimony in isolation and then conclude that it may be reasonably possible. Their testimony must be considered on the totality of the available evidence. [90] Therefore, when all of the evidence is taken into account, it overwhelmingly points to nothing but the guilt of the accused persons. [91] In the main, the prosecution has painstakingly built an irrefragable case against the defence, as they have not credibly expostulated with the prosecution’s witnesses and or evidence. VERDICT [92] 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, the offence was committed by none other than the accused persons, herein being A1 and A2. [93] I find the accused persons GUILTY as charged for the offence of assault occasioning actual bodily harm, contrary to section 248 of the Penal Code Chapter 87 of the Laws of Zambia; consequently, I CONVICT them accordingly. [94] IRA WITHIN 14 DAYS. JUDGEMENT DELIVERED AT MBALA IN OPEN COURT ON 17TH JULY, 2023 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J18 of 18