Bbinga and Anor v People (Appeal 52 of 2010) [2012] ZMSC 115 (5 June 2012)

OCX IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APPEAL NO. 52/2010 BETWEEN; MOSES BBINGA JENNIPHER MWEENE 1st appellant 2nd APPELLANT V THE PEOPLE RESPONDENT Coram: Chirwa, Ag. DCJ, Chibesakunda and Chibomba, JJS on 5th October 2011 and 5th June 2012. For the Appellants : Mrs. L. Mushota of Mushota Associates For the State : Mr. P. Mukuka, Senior State Advocate JUDGMENT CHIRWA, J. S, delivered the Judgment of the court:- CASES REFERRED TO:- (1) R V BASKERVILL [1916] 2 K. B 6S8 (2) KATEBA V THE PEOPLE [1975] ZR. 13 (3) MHANGO & OTHERS V THE PEOPLE [1975] Z. R 275 J2 The two appellants, MOSES BBINGA (herein after referred to as 1st appellant) and JENNIPHER MWEENE (hereinafter referred to as 2nd appellant) were jointly charged with one count of Rape Contrary to Section 132 of the Penal code, Cap 87. The particulars alleged that the two appellants on 18th July 2006 at Chirundu in the Siavonga District of the Southern Province of the Republic of Zambia jointly and whilst acting together had unlawful carnal knowledge of JANA BBINGA without her consent. They pleaded not guilty. The undisputed facts are that the 1st appellant is the biological father of the complainant, Jana Bbinga and the 2nd appellant is a step mother the 1st appellant having divorced Jana Bbinga’s biological mother. The prosecution called 7 witnesses in trying to prove the case against the appellants. The first witness was the complainant who testified that she was 15 years old. That she was staying with her father and her step mother and sometime in June 2006 the 2nd appellant J3 approached her and told her that she should know how to live with a man in the house and when she inquired what she meant, the 2nd appellant told her that she and her husband would teach her how to love a man in the house. The complainant refused and she was told by the appellant that since she had refused she should keep quiet. On 18th July 2006 at about 04:00 hours 1st appellant woke her up and told her to warm up some water for bathing. The complainant woke up and put some water on the stove. 1st appellant then told the complainant that the 2nd appellant wanted her. The complainant went to where 2nd appellant was sleeping and knelt near a fridgerator. 2nd appellant told her to sit on the bed where she was sleeping. The complainant refused. 1st appellant entered the room where the two were, locked the door and threw the keys into bedside drawers. 2nd appellant told the complainant that she wanted to tell her how to handle a man. 1st appellant then told the complainant that he wanted to sleep with her, but she refused. 2nd appellant ordered the complainant to do what her father wanted but she refused saying that he was her father. 1st appellant then told her that she must sleep with him and not other men and that J4 he would give her anything and pay her school fees. The complainant kept on refusing. Then 2nd appellant held the complainant by the shoulders and 1st appellant undressed her and during the struggle her underwear got torn. She was then lifted by 1st appellant and put on the bed, he undressed her and had sexual intercourse with her. After he had finished with her, 1st appellant told her that he would be having sex with her once a week. The complainant then put on her skirt and picked up her torn underwear. The 1st appellant left for Lusaka the following day and the complainant also left the house and went to her uncle and she reported her ordeal to her aunt. The matter was then reported to Chirundu Police Station after her uncle returned from Lusaka and this was after a week. The appellant was then taken to the hospital for medical examination. The complainant also told the court that in the house, she was sharing the room with Aggie and Cheelo and after the sexual intercourse with her father, she never told the two girls what had happened. The complainant’s uncles were PW2s and 3 who reported the story as narrated to them by the complainant. The biological mother to the complainant was PW4 who confirmed J5 the relationship between herself, the complainant and 1st appellant and that on 21st July 2006 she heard the story of her daughter having been raped by the 1st appellant. The 6th witness was the medical doctor who examined the complainant on 24th July 2006 whose findings were that the hymen was broken, the vagina was inflamed and there was discharge from the vagina containing protozoa. The 7th prosecution witness was the arresting officer who testified that he was given a docket of rape and the suspects were already in custody. PW7 interviewed the two appellants and visited the house where the rape is alleged to have happened. He arrested the two appellants and under warn and caution the 1st appellant denied the charge saying the complainant had come home late and the 2nd appellant also denied the charge saying 1st appellant wanted to beat the complainant for coming home late. He tendered in evidence the torn underwear and the medical report. J6 When put on their defence, the appellants gave evidence on oath and called 3 defence witnesses. On his defence, the 1st appellant alleged that on 16th July 2006, there was Agricultural Show at Lusitu and he asked the complainant to go and sell some groceries but she did not sell and she came back around 0100 hours. He wanted to whip her but 2nd appellant stopped him. When the complainant was asked where she had been, she said she had been with her boy friend Iveyn Zombe. On 18th July 2006 he went to the house he was building in order to take measurements for the iron sheets he wanted to buy, he found in the unfinished house a sack spread on the floor and beside it was a pen and K500. He made a report to 2nd appellant that one of his daughters must have slept there and asked her to make inquiries. The complainant confessed having slept there. He asked her to go and pick the things left there and when the complainant came back she told him that the pen and K500 must have dropped from the pocket of her boy friend when he was giving her K5000. He was annoyed and wanted to beat the complainant but the complainant pleaded with him that she wanted to finish school. He then went to have a bath J7 but before that he told the complainant to make tea for him. After bathing he found that the complainant had left the house. He then left with 2nd appellant for Lusaka. When they came back they did not find the complainant, they were told she had collected her clothes and gone to her uncle. The following day he left with 2nd appellant for the Copperbelt. Whilst on the Copperbelt he was telephoned and told that the complainant had made a complaint of rape against him. He was shocked. He came back and thought that she had fabricated the story to cover her boy friend. He went to the police and he was accused of raping his daughter, the complainant. He denied raping his daughter. The 2nd appellant in her evidence told the court that there was Agricultural Show at Lusitu from 16th to 18th July 2006 and the complainant was given some items to sell but did not sell and that on 16th July she retired to bed around 20:00 hours. Around 2300 hours the 1st appellant came home saying that he was looking for the complainant. She advised the 1st appellant to call all the children but the complainant came home around 2400 hours. The J8 1st appellant became annoyed and asked her to check what time the complainant came home and she told him it was 2400 hours. She then asked the complainant where she was and the complainant told her that she had been with her boy friend, Ivyn Zombe. 1st appellant told the complainant to dress up so that he takes her back to the boy friend but she advised him not to do so as the complainant was not pregnant. On 18th July 2006, 1st Appellant went to the unfinished house and when he came back he told her that he found a sack spread in the unfinished house as if someone had slept there. She then asked 1st appellant to ask the complainant as she was the only child then present. 1st appellant then asked the complainant to go and bring the things left on the sack in the unfinished house and the complainant went and brought a pen and K500 and reported that the K500 may have dropped from Ivyn’s pocket when he was giving her K5000. 1st appellant then asked the complainant to call Ivyn and also to make tea and he went to have a bath. When he came back he found the complainant gone. She and 1st appellant J9 then left for Lusaka when they came back the complainant was not at home; they were told that she had picked her clothes and gone to her uncle fearing some beating from the 1st appellant. They went to the complainant’s uncle but did not find her there. She told the court that that was not the first time that the complainant had run away. The following day they went to the Copperbelt and whilst there they were told by Aaron Bbinga that the complainant alleged that she was defiled by them. This news shocked her. When they came back from the Copperbelt they went to Chirundu Police Station where they were arrested for the subject offence. She denied committing the offence and she did not know why she was implicated. The first witness for the defence was Sharon Hangandu who testified that the complainant was her cousin and that on 18th July 2006 the complainant visited her and said she was on her way to take a T-shirt to Peggy. She went with her and when they reached Peggy’s place, the complainant said she wanted to go to her grandmother. The witness then returned to her house. The J10 complainant later came back to her house and said she was going to collect her clothes as her father had threatened to take her to her boy friend on his return from Lusaka. She also accused the 2nd appellant of giving negative reports on her and yet her daughter was pregnant but still went to school. The witness also told the court that the complainant one day told her that she watched a film where a girl was under a very strict father but at night she always went out through a window to see men and when she was pregnant elders asked who was responsible and the girl said it was her father who was responsible. The complainant further told her that her father should be punished by using the same method in the film. The second defence witness was Jean Mulimba who testified that the complainant told her that she was going to her grandmother because 1st appellant was refusing her to go out with young men of her age saying that may be 1st appellant wanted to sleep with her. The witness told the complainant that she would tell 1st appellant about it. She also told the court that 1st appellant is her step father and 2nd appellant was her biological mother. She Jll further told the court that the complainant was not sleeping with her and she would not know whether the appellants defiled the complainant. The third witness was Cheelo Mulimba who told the court that 1st appellant was her step father and 2nd appellant her biological mother. She was 15 years old and a school girl and they sleep in the same room with the complainant. On the 17th July 2006 she went to the Agricultural Show and that when she came back she was tired and she went to bed at about 2100 hours and she did not know if anyone knocked at their door at night. The following morning on 18th July 2006, the complainant sent her to collect some rice from their parents’ home which she did and the complainant cooked the rice. At the close of the case the learned trial magistrate received submissions from both the prosecution and defence which he took into consideration in his judgment. After considering the evidence before him he reached the conclusion that the complainant had J12 been sexually abused as supported by the medical report. When it came to the question of who committed the offence, the learned trial magistrate correctly, on the evidence before him, found that the only evidence implicating the appellants to the crime was that of the complainant only. He corrently warned himself of the need for corroboration in sexual offences and that under certain circumstances he may accept the uncorroborated evidence and that in doing so he must give reasons for accepting the uncorroborated evidence and further warned himself of possible dangers in acting on such evidence. The learned trial magistrate was also alive to the fact that corroborative evidence need not be evidence in the strict sense but something or circumstances that corroborate the evidence of the complainant. He then held that although there was no corroboration in strict sense the evidence of the complainant had not been discredited- and that her reports to her uncles were consistent. He disbelieved the defence that the complainant falsely implicated them in the offence because they detested her behavior of flirting with other men because this was never put to the complainant when she gave evidence and this allegation is an J13 afterthought. Further he took the torn underwear as proof of force used on the complainant and that the 2nd appellant was also guilty of the offence as provided for in Section 21 (c) of the Penal Code, Cap. 87. He therefore convicted both appellants of the offence of rape and committed them to High Court for sentence. The High Court sentenced the appellants to minimum statutory sentence of 15 years IHL for the 1st appellant and 15 years simple imprisonment for the 2nd appellant. It is against the conviction and sentence that the appellants have appealed. There were three grounds of appeal and these were that:- 1. The learned court below erred in law and in fact when it convicted the appellants on uncorroborated evidence both as to the commission of the crime and by the appellants. 2. The learned Trial court erred in law in admitting and relying on the medical report that showed the complainant’s hymen was broken, when it did not show when it was broken, or how J14 it was broken or reveal any other evidence to prove the struggle before and during the alleged rape. 3. The court below erred in law and in fact in not establishing motive. The grounds of appeal were supported by detailed written heads of arguments with a number of authorities. The gist of the argument is that there was no corroboration of the complainant’s evidence of the commission of the offence and that it was the appellants who committed the offence. In view of the stand we take in this matter, we will not go through the detailed written heads of argument but we will start by re-stating the law relating to corroboration in sexual offences. This corroboration is in respect of the offence itself, and the person who commits it. This rule of practice of requiring corroboration has become virtually a practice of law as was stated by L. C. J Reading in the case of R V BASKERVILL’11 and accepted by this court in KATEBA V THE PEOPLE’2* and MHANGO & OTHERS V THE PEOPLE’3*. In J15 kateba(2) case, it was specifically stated that the general principle of the cautioning rule as to corroboration applies equally to sexual cases as to accomplice cases, meaning that before the court acts on the evidence of an accomplice or a single witness in sexual offences, it must warn itself of the dangers of acting on uncorroborated evidence. There is a further comfort if there are special and compelling grounds, the court is competent to convict on the uncorroborated testimony of the prosecutrix/complainant. It was further stated in that case that where there can be no motive for a prosecutrix deliberately and dishonestly to make a false allegation against an accused and the case is in practice no different from any others in which the conviction depends on the reliability of her evidence as to identity of the culprit, this is a “special and compelling ground” which would justify a conviction on uncorroborated testimony. In the present case there were many factors to be considered and decided upon. The complainant or prosecutrix was a biological daughter of the 1st appellant. She was sharing room J16 with two of her cousins. There was evidence from the defence that prior to the alleged crime, she was confronted about her coming home late and the night before she was accused of having slept with a boy friend on a sack in unfinished house where the 1st appellant the following morning found a pen and K500 note and she was told to pick these things up and on picking them she is alleged to have told the appellants that possibly the items were dropped by her boy friend when he was giving her K5000. After the alleged offence, she went back to her room and talked to her cousins but never mentioned the alleged offence. The following morning she met two other cousins, she never again mentioned about the alleged offence. We are aware that the learned trial magistrate warned himself of the danger of convicting on uncorroborated evidence but he never considered the effect of this evidence adduced by defence and the effect of the circumstances created by the evidence. In disbelieving their evidence the learned Trial Magistrate said that he did so because the issues were never raised during the trial. True enough, not much was put to the prosecutrix about her behaviour, but they J17 testified so during the trial and there was little or no effort from the prosecution to discredit this evidence. It is very unusual for one to be raped and join friends and talk about other things and never mention about rape at the first opportunity. In as much as the learned magistrate warned himself of the dangers of convicting on uncorroborated evidence, he misdirected himself in not seeing the danger of motive to fabricate the story against the appellants. The prosecutrix’s evidence is far from being more credible. With this doubt, it must be exercised in favour of appellants. We therefore allow this appeal, quash the conviction and set aside the sentences. ................1............................. D. K?CHIRWA ACTING DEPUTY CHIEF JUSTICE L. P. CHIBESAKUNDA SUPREME COURT JUDGE H. CHIBOMBA SUPREME COURT JUDGE