By Dickson Jere
A Livingstone wife – who was on separation with husband- showed up at his house in the night and visibly drunk. She had come from Mikes Car Wash Disco and stopped by to pick her clothes. Inside the house, a fight ensued. Husband was found with stab wounds -including on his scrotum – and was bleeding profusely. The wife, who also had wounds – fled the house. Two knifes were found on the crime scene.
Both were admitted in hospital and later discharged. The husband later developed an ailment whereby he was throwing up each time he ate. He was later moved to UTH where he died of suspected Pneumonia while being treated.
After investigations, wife was arrested and charged with murder after police established that the death was caused as a result of the stab.
The High Court, who tried the case, used circumstantial evidence and found her guilty of murder.
She appealed to the Court of Appeal where three Judges relooked at the case. What killed the deceased? Was it the wounds or pneumonia?
That was a crucial question.
“This means that the prosecution had the burden to prove the nexus between the stabbing and the pneumonia,” the Judges said.
“The nexus required proof that pneumonia was contracted on account of hospitalization arising from the stabbing,” the Judges added.
The Court said the deceased was in and out of hospital and that evidence showed that the wounds healed but was admitted for experiencing swallowing problems, which needed further examination at UTH.
“This situation creates a cocktail of uncertainty that falls short of the standard of proof beyond reasonable doubt required to secure a conviction,” the Judges said.
“We disagree with the Pathologist finding that the stab wounds were the proximate cause of death,” the Judges said.
The Pathologist report indicated cause of death as “complications (pneumonia) for treatment of a stab wounds to the neck”. However, during hearing, it was established that “pneumonia as immediate cause of death whilst the proximate cause of death was the stab wound”.
The Court then quashed the conviction and sentence of murder. Instead, the Court replaced the murder charge with a lesser one of “causing grievous harm with intent to maim’ and sentenced to seven years imprisonment.
Case citation – Lilian Mwale v The People- CAZ Appeal/26/2021.
Lecture Notes;
1. In murder cases, the first act must lewd to the death. It is caused the chain of causation. In this case, the chain was broken when the death was said to have been caused by pneumonia and not the wounds. The deceased could have gotten pneumonia from other sources and
not the wounds. So, the doubt is ruled in favor of the accused.
2. The law allows the Court to substitute the offence and convict on lesser charges. Here, the Court replaced Murder with Causing grievous bodily harm.Wife Acquitted of Killing Husband
