IN THE SUPREME COURT OF ZAMBIA
HOLDEN AT LUSAKA
Appeal No. 62/2013
(Criminal Jurisdiction)
BETWEEN:
STEAK CHIBALE
APPELLANT
AND
THE PEOPLE
RESPONDENT
Coram: Mumba, Ag. DCJ, Muyovwe, JS and Hamaundu, A/JS
On 7th May, 2013 and 4th February, 2014
For the Appellant:
Mr. A. Ngulube, Director of Legal Aid
For the Respondent: Mrs. M. P. Lungu, State Advocate
JUDGMENT
MUYOVWE, JS, delivered the Judgment of the Court
Cases referred to:
1. Jack Chanda and Another vs. The People (2002) Z.R 124
This is an appeal by the appellant against the sentence
imposed on him by the lower Court.
The appellant was charged
with one count of murder contrary to Section 200 of the Penal Code.
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The particulars alleged that on the 11th November, 2008 at Samfya
District in the Luapula Province of the Republic of Zambia, the
appellant did murder one Patson Nyimbili.
The brief facts which were accepted by the Court below are
that on 26th November, 2008, PW2 Palena Pionete and PW3 Febi
Mwewa received information from some children that the appellant
was chasing the deceased (their father) while armed with a spear
and an axe. That they both rushed towards the deceased’s house
where they saw the appellant throw a spear at the deceased which
landed on his shoulder and he fell to the ground. The appellant
then axed the deceased three times on the head and then ran away
leaving the tools he used at the scene stained with blood.
Both
witnesses said prior to the gruesome attack on the deceased, they
knew the appellant as their uncle. PW1 Julian Nyimbili said she
received the information of the death of her husband from her
daughter PW2 and that the appellant was the one who had killed
him. She rushed to the scene and found her husband lying in a
pool of blood with injuries on his head and she also saw the spear
and the axe which were used during the attack. She said the
appellant was her brother. PW4 Ernest Kabamba Kasalu was the
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one who apprehended the appellant and took him to the police.
PW5 Constable Kainde Damson was the arresting officer.
He said
he visited the scene where he found the deceased lying in a pool of
blood and besides his body was a spear and an axe stained with
blood which had been used in the commission of the crime. That
he took the body of the deceased from the scene for postmortem
examination and also collected the spear and the axe.
Postmortem
results indicated that the deceased died from severe injuries to his
head.
He said he interviewed, warned and cautioned and later
charged the appellant with the offence of murder.
This witness
produced the spear, the axe, postmortem report and warn and
caution statement as exhibits P1 to P4 respectively.
In his defence, the appellant admitted attacking the deceased
using the spear and the axe because he suspected him of
bewitching him.
He said he used to dream about the deceased
wanting to kill him so he had to kill him first.
On this evidence, the learned trial Judge convicted the
appellant and sentenced him to the mandatory death sentence.
The appellant has appealed to this Court against sentence. The
appellant filed one ground of appeal namely that:
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1. The Court below erred in fact and in law by finding that
there were no extenuating circumstances and thereby
imposing the mandatory death sentence.
At the hearing of the appeal, the learned Director of Legal Aid
relied on his heads of argument filed herein.
In his brief submission, the learned Director of Legal Aid
submitted that the appellant believed that the deceased wanted to
kill him through witchcraft in the dream and that he was even
unwell. Counsel contended that in murder cases, it is trite that the
belief in witchcraft is an extenuating circumstance.
On behalf of the State, Mrs. Lungu submitted that the State
agreed with the submission by the Director of Legal Aid that the
appellant’s belief in witchcraft was an extenuating circumstance.
We have considered the Judgment of the Court below and the
submission by the learned Director of Legal Aid and that of the
learned State Advocate.
From the evidence on record, the appellant’s evidence was that
he used to dream of the deceased attacking him with a view to kill
him. He also said he was feeling sick and also alluded to finding
medicine along the path leading to his field.
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However, he stated
that he did not see the deceased put the said medicine but merely
suspected him. We have noted that out of all the prosecution
witnesses only the arresting officer said the appellant told him that
he was unwell on the day that he committed the subject offence.
Further, in his submission, Counsel did not cite any authority for
his proposition that dreaming of someone and waking up feeling
unwell is an extenuating circumstance. The State did not cite any
authority for supporting Counsel for the appellant’s position. We
are alive to the provisions of Section 201(1)(b) and (2) of the Penal
Code in relation to the issue of extenuating circumstances. We are
also alive to the case of Jack Chanda and Another vs. The People¹
where we held that:
(ii)
Failed defence of provocation; evidence of witchcraft
accusation; and evidence of drinking can amount to
extenuating circumstances.
However, it is our considered view that each case should be
dealt with on its merit and the trial court must properly consider
the facts of the case in order to determine whether extenuating
circumstances exist. In this case, the appellant alleged that he
dreamt of the deceased and when he woke up he was not feeling
well and suspected that he was bewitching him and that this is
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what led him to kill the deceased. We do not agree that dreaming
about someone and waking up feeling sick can amount to an
extenuating circumstance in terms of Section 201 of the Penal
Code. In our view, lawlessness would prevail in our communities
where dreams would be used as an excuse to take away other
people’s lives.
From the foregoing, the learned Judge was on firm ground
when he found no extenuating circumstances in this case. This
ground of appeal fails lamentably.
In the premises, we uphold the judgment of the lower Court
and dismiss the appeal.
RETIRED
……………….……….……………….……..
F.N.M. MUMBA
ACTING DEPUTY CHIEF JUSTICE
…………………………….………..
…………….…………….…………………….
E.N.C. MUYOVWE
SUPREME COURT JUDGE
E.M. HAMAUNDU
ACTING SUPREME COURT JUDGE
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