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IN THE SUPREME COURT OF ZAMBIA Appeal No. 44/2015

HOLDEN AT LUSAKA
(Criminal Jurisdiction)

BETWEEN:

NOAH MULWANI APPELLANT

AND

THE PEOPLE RESPONDENT

Coram: Phiri, Wanki and Muyovwe, JJS

On the 5th May, 2015 and 2nd February, 2016

For the Appellant: Mr. M. Kabesha of Messrs. Kabesha &

Company

For the Respondent: Mr. B. Mpalo, Senior State Advocate

JUDGMENT
MUYOVWE,JS, delivered the Judgment of the Court.

Cases referred to:

1. Patrick Sakala vs. The People (1980) Z.R. 205

2. Yoani Manongo vs. The People (1981) Z.R. 152
3. Sipalo Chibozu & Others vs. The People (1981) Z.R. 28
4. R v. Turnbul (1976) 3 ALLIR 549 (1977) QB 224
5. Timothy Mwamba vs. The People (1977) Z.R. 394
6. Kambarage Mpundu Kaunda vs. The People (1990/1992) Z.R. 215
7. The People vs. Swillah (1976) Z.R. 338
8. David Zulu vs. The People (1977) Z.R. 151
9. Machipisha Kombe vs. The People (2009) Z.R. 282

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10. Haonga and Others vs. The People (1976) Z.R. 200

When we heard this appeal, we sat with Mr. Justice Wanki.

He has since retired and therefore, this Judgment is by the

majority.

The appellant was convicted of the offence of murder contrary

to Section 200 of the Penal Code by the Kabwe High Court.

In summary, the facts in the lower court were that on 11th

April, the deceased who was in good health went for work in the

morning and arrived home around 20:00 hours and then went to

visit a neighbour. She returned home around 22:00 hours and the

family retired to bed around midnight. According to PW2 and PW3

the son to the deceased, around midnight a knock was heard at the

door. The deceased inquired as to who was knocking and the voice

of the appellant was heard responding that it was him. The

deceased then opened the door and the appellant who was the

deceased's boyfriend entered the house. In the morning, it was

discovered that the door was wide open and the deceased was found

dead in her bedroom. PW2 and PW3 said they had known the

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appellant since September 2012 and that he had been frequenting

the deceased's house and spent nights with the deceased.

According to the two witnesses prior to the incident, the appellant

was last seen at the house a week earlier as the two had had an

argument.

The police officers who visited the scene observed that

the deceased had no physical injuries. The body was only clad in

an underwear which was worn in the wrong way. The postmortem

examination report revealed that the cause of death was brain

hemorrhage and brain edema caused by severe head injury; cardio-

respiratory failure and severe hypoxia as a result of suffocation by

close of upper airways by a soft object. The appellant, on being

interviewed by the police admitted going to the deceased's house on

the night in question. He claimed he did not enter her house

instead he discussed with her outside the door. The appellant was

charged with the murder of the deceased.

In his defence, the appellant said on the lIth April, 2011 he

was at a tennis club drinking beer when the deceased phoned him

that she wanted to see him. Around 23:00 hours, DW2 (Bright

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Kafupi) drove him to the deceased's house. DW2 parked the vehicle

10 metres away from the deceased's house. The appellant

explained that DW2 waited for him in the car. He went to the

deceased's house where he knocked at the door and since there was

no response, he left and drove away with DW2. Later, he bought

airtime and spoke to the deceased. The following day, he was

informed that the deceased had passed on. The police

apprehended him and he was charged with the murder of the

deceased. He said the deceased was not his girlfriend but a mere

friend and that on the night in question he had gone to the

deceased's house to discuss about the house he intended to rent

from her.

Bright Kafupi (DW2) the appellant's lone witness said on the

material day he was in the company of the appellant at the tennis

club drinking beer from 17:00 hours to 23:00 hours. While they

were drinking, the appellant received a call from the deceased that

he needed to go and see her. Around 23:00 hours, he dropped off

the appellant near the deceased's house and he left. He denied

waiting and leaving with the appellant.

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 On this evidence, the learned trial Judge in his judgment

found the appellant guilty as charged and convicted him of murder

with extenuating circumstances on the basis that the appellant was

drunk at the time he committed the offence and sentenced him to

25 years imprisonment with hard labour. The appellant has

appealed to this Court against conviction only.

On behalf of the appellant, Mr. Kabesha Counsel for the

appellant advanced three grounds of appeal couched m the

followingterms:

1. The trial Judge erred both in law and fact in convicting the
Appellant for murder on evidence which circumstantially does
not link him to the offence.

2. The trial Judge erred both in law and fact by relying on the
evidence of PW2and PW3as corroborative whose evidence was
largely unreliable.
3. The trial Judge erred both in law and fact in rejecting the
appellant's evidence on account of the Appellant having lied.

Mr. Kabesha relied on the Heads of Argument filed herein.

Counsel argued that the circumstantial evidence in this case falls

short of the required standard of the guidelines set in Patrick

Sakala VS. The Peoplel where it was held that the circumstantial

evidence must be so cogent and compelling that no rational

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hypothesis other than murder could the facts be accounted for. He

referred us to the case of Yoani Manongo vs. The People2. He

contended that there is doubt as to the cause of death in this case

having regard to the summaries in the postmortem report.

According to Mr. Kabesha, the postmortem report brings out three

probabilities as to the cause of death which he summarised as

"severe head injury, probably by a blunt semi-hard object Also,

can't exclude suffocation by close of upper airways by soft object

(probably pillow) Two scratches at the anterior surface of the

thigh, measuring 10.0 x 0.3 cm each, probably from finger nails."

Mr. Kabesha submitted that the three probabilities should invite

doubt in the mind of the Court to warrant the appellant to be set at

liberty. Relying on the case of Sipalo Chibozu vs. The People,3 he

submitted that it was highly desirable in this case for the person

who carried out the postmortem examination to testify in order to

clarify issues contained in the report. Mr. Kabesha contended that

on this ground the appellant should not have been convicted of

murder.

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 Turning to ground two, Counsel attacked the reliability of the

evidence of PW2 and PW3. He pointed out that PW2 and PW3's

evidence was that they heard a voice of someone outside the

deceased's house. Counsel argued that there was no VOlce

identification parade to confirm that the voice, if at all there was

one, which PW2 and PW3 heard on the fateful night, was indeed

that of the appellant. He contended that failure to conduct a voice

identification parade was a dereliction of duty on the part of the

police and that the presumption should be that, if indeed the

witnesses heard a voice, it did not belong to the appellant. He

invited us to consider the principle in R vs. Turnbul4 and Timothy

Mwamba vs. The People.5 He argued that the identification by

voice is more stringent than that of visual identification.

Further, he contended that the trial Court should have been

cautious in its treatment of PW2 and PW3's evidence as they were

related to the deceased. On this point he relied on the case of

Kambarage Mpundu Kaunda vs. The People.6

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 Turning to ground three, he contended that the trial Judge

erred both in law and fact when he rejected the evidence of the

appellant on account that he lied, adding that this was not

conclusive evidence of his guilt. We do not appreciate Mr.

Kabesha's reasoning when he referred us to the High Court case of

The People vs. Swillah.7

In response to ground one, Mr. Mpalo the learned Senior State

Advocate submitted, inter alia, that the circumstantial evidence

adduced before the trial Court and the totality of the evidence was

such that any reasonable tribunal would draw an inference of guilt

on the part of the appellant. He pointed out the fact that the

appellant was the last person 'seen' or heard in the presence of the

deceased and the circumstances relating to the cause of death

including "the scratches at the anterior surface of the left thigh" as

reflected by the postmortem report, are all facts which, taken

together, strongly support an inference that the appellant murdered

the deceased. Counsel argued that the doctor's report is clear that

the deceased died from severe head injury. He contended that there

is nothing strange in the fact that the doctor speculated that the

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injuries could have been inflicted by a blunt semi-hard object. That

the doctor could not rule out suffocation and that, therefore, this

could not mean that he was uncertain as to the cause of death. As

regards the scratches, the anterior surface of the thigh of the

deceased measuring 10.0 x 0.3 cm indicated in the report, the

doctor was merely trying to show that these could have been caused

by finger nails. Counsel further submitted that these scratches were

odd coincidences which support the conclusion that the deceased

was murdered and further ruled out the possibility of a natural

death as the appellant seemed to suggest. He urged us to dismiss

ground one.

In relation to ground two, he contended that the appellant at

trial did not deny that he went to the deceased's house and that in

fact his own testimony gave credence to the evidence of PW2 and

PW3 when in his evidence PW2 said "[ heard a knock at the door.

She asked who was knocking at the door." There is no doubt,

therefore, Mr. Mpalo agreed that the appellant went to the

deceased's house on the night the deceased was allegedly

murdered. According to Mr. Mpalo, the critical question is whether

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the visit to the deceased's house links the appellant to the death of

the deceased. Counsel pointed out that PW2 said in her testimony

that:

"1 heard Noah's voice and recognised it. 1 came to know

Noah since September, 2012. He was the boyfriend of
Linia Chifwala (the deceased). She opened the door and
someone entered."

He submitted that the above evidence corroborates that of the

minor, PW3who also testified as follows:

"He knocked and 1 heard his voice. When he knocked my

mother asked who was there. He answered "ninebo" I
knew his voice ...
The door was opened and I heard his shoes going to the
bedroom."

Counsel argued that the evidence of PW2 and PW3 suggests

that the appellant entered the house and, therefore, he had the

opportunity to commit the offence.

He pointed out that on the other hand the appellant claimed

that no one answered when he knocked at the deceased's house

and that he went back to the car and asked for talk-time from his

friend DW2 who had remained in the car. However, DW2

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contradicted the appellant's testimony that he left the car to go and

see the deceased and that he came back later. Mr. Mpalo

submitted that the learned trial Judge was on firm ground when he

dismissed the evidence of the appellant based on the contradictions

between his evidence and his own witness DW2. In his view, the

Court found PW2 and PW3 more credible than the appellant.

He contended that the argument that PW2 and PW3 were

suspect witnesses should not be entertained. He contended that

the critical consideration is whether they had a motive to give false

evidence and he relied on the case of Chibozu and Others vs. The

People.3

On the issue of voice identification, he submitted that in this

case the Court depended on the perception of the witnesses

regarding the voice of the offender. That PW2 and PW3 stated that

they were familiar with the appellant as he used to visit their place

quite regularly. Counsel contended that, therefore, the danger of

mis-identification cannot arise.

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 With regard to ground three, he submitted that contrary to the

appellant's submission, the trial Court did not take the lie told by

the appellant as conclusive evidence of his guilt. He cited page J 13

of the Judgment where the trial Court stated as follows:

"Further, I agree with Counsel for the prosecution that the

accused lied before this Court when he said DW2 waited
for him as he knocked on the door of the deceased
because the same was denied by DW2."

According to Mr. Mpalo, the above statement shows that the

trial Judge was merely agreeing with the observation by the

prosecution. He contended that there is no indication that the

Court relied on the said lie to convict the appellant. Further, that it

is trite that where a witness lies on one issue, the weight to be

attached to the evidence is affected. That in this case, the lie told

by the appellant affected his reliability and credibility. He

submitted that in the light of the foregoing, the trial Court was on

firm ground when he convicted the appellant. Counsel urged us to

dismiss the appeal.

We have considered the evidence on record, the Judgment

appealed against and the arguments by learned Counsel for the

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parties. We will deal with grounds one and two together as they

are somewhat interrelated.

In ground one, the gist of the argument by Counsel for the

appellant is that the appellant was convicted on circumstantial

evidence which was not cogent. Also, that the postmortem report

on the cause of death pointed to three possibilities which should

cause doubt in the mind of the court. On the other hand, Counsel

for the State submitted that the circumstantial evidence was

cogent. And that the findings in the postmortem report taken

together with the other evidence on record all point to the appellant

as the one who murdered the deceased. In ground two, the gist of

the submission by Counsel for the appellant was that PW2 and PW3

were unreliable witnesses and the court should have treated them

as suspect witnesses as they were relatives to the deceased. Also,

that there was dereliction of duty when the police failed to do voice

identification of the appellant following the testimony of PW2 and

PW3. The State submitted that PW2 and PW3 were reliable

witnesses as they had known the appellant since 2012 as the

boyfriend to the deceased and they knew his voice. Counsel added

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that the learned judge found PW2 and PW3 more credible than the

appellant.

We have combed the record and we are alive to the testimony

of PW2, PW3 and DW2. According to PW2 and PW3 they heard a

knock at the door, the deceased inquired as to who it was, and both

said they heard the voice of the appellant identifying himself and

thereafter the appellant was allowed into the house as they heard

his footsteps heading to the deceased's bedroom. We agree with

Mr. Mpalo that PW2 and PW3 who were residing with the deceased,

having known the appellant since 2012, they were familiar with his

VOlce. There was evidence that the appellant was the boyfriend to

the deceased and frequented her home. And on the material night,

evidence on record especially from his own witness DW2 confirmed

that the appellant went to the deceased's house and DW2 left him

there around midnight. This evidence corroborates the testimony

of PW2 and PW3 who said on the material night, the appellant

arrived at the deceased's house at midnight. In the morning

around 05:00 hours, the deceased was found dead in her bed and

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the appellant was no longer in the house. In the case of

Machipisha Kombe vs. The People9 we held, inter alia, that:

3. Corroboration is independent evidence which

tends to confirm that the witness is telling the truth
when he or she says that the offence was committed
and that it was the accused who committed it.

Therefore, it is fair to conclude that the appellant was the last

person with the deceased. No evidence suggests otherwise. In our

view, this evidence strongly links the appellant to the offence and

we therefore do not agree with the submission of the learned

Counsel for the appellant. Accordingto the postmortem report,

the cause of death was:

"Severe head injury, probably by a blunt, semi-hard object:

brain contusion, large subdural and subarachnoidal brain
hemorrhage at the Lt. and Rt. Temporal area of brain and
at the base of brain, severe brain edema, cardio-
respiratory failure, severe hypoxia. Also, can't exclude
suffocation by close of upper airways by a soft object
(probably pillow): dotted hemorrhages to the eyes sclean,
tongue is bitten, severe lung edema and emphysema.
Bruise at the left arm, measuring 10.0 x 6.0 cm. Two
scratches at the anterior surface of left thigh, measuring
0.4 x 0.3 cm. each, probably from finger nails .... "

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 From the postmortem report and the circumstances of

this case, it is clear to us that the deceased did not die of

natural causes.

On the evidence of PW2 and PW3, we agree that the

learned trial judge did not warn himself of the danger of false

implication arising out of the possible interest to serve of the

witnesses. However, in this case, there is the supporting

evidence of DW2, the appellant's own witness that he dropped

the appellant who was on a mission to see the deceased at

that late hour near the deceased's house. The danger of false

implication was therefore ruled out. Further, even the

argument on the failure by the police to hold the voice

identification parade cannot be sustained in the face of the

strong evidence pointing to the guilt of the appellant.

Also we are of the view that the evidence of the appellant

and indeed of his witness DW2 places the appellant at the

scene of crime and therefore, he had the opportunity to

commit the offence.

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I

Looking at the evidence placed before the learned trial

Judge, we cannot fault him for arriving at the conclusion that

he did. Therefore, grounds one and two fail.

Coming to ground three, Mr. Kabesha submitted that the

fact that the appellant told a lie was not conclusive evidence of

his guilt. Mr. Mpalo submitted that the court did not find the

appellant guilty on the basis that he had told a lie but that the

lie affected his credibility. We agree with the submission by

Counsel for the State that the learned Judge merely agreed

with the State that the appellant had lied and not that it was

the basis for the appellant's conviction. We have also noted

the contradiction in the evidence between the appellant and

DW2. Indeed, the appellant lied on the material evidence

suggesting that he left the deceased's house with DW2.

However, DW2 denied it and said he left the appellant at the

deceased's house. This is very crucial evidence. In the case

of Haonga and Others vs. The PeoplelO we held, inter alia,

that:

(iv) Where a witness has been found to be untruthful

on a material point the weight to be attached to the

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•

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...

Clearly, the learned Judge was right in finding that the

appellant lied. And when his untruthful part is discounted, it

therefore follows that DW2, PW2 and PW3 told the truth and we do

not fault the learned Judge for believing their testimony. We are of

the view that the learned Judge rightly convicted the appellant for

the murder of the deceased. Ground three also fails.

We have noted that the appellant was found guilty of murder

with extenuating circumstances on the basis that he had been

drinking beer prior to going to the deceased's house. However, we

have failed to find any extenuating circumstances in this case.

Other than the mention that the appellant was drinking beer, there

is no evidence suggesting that the appellant was drunk at the time

he committed this offence. From the circumstances of this case,

we are of the view that the deceased was murdered in cold blood

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'

and the appellant was not under the influence of alcohol. In view

of the misdirection by the learned trial judge, we set aside the

sentence of 25 years and impose the mandatory death sentence.

In sum, all the grounds of appeal fail and the appeal IS

dismissed accordingly.

rffitl. (RETIRED)
0000000000 G: s~RiO'
0 0 0 0 0.0 •• 0 0 0

M. E. WANKI
SUPREME COURT JUDGE SUPREME COURT JUDGE

EoN.C. MUYOVWE
SUPREME COURT JUDGE

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