Boggnite Mutize v The People (Appeal No. 29/2022) [2023] ZMCA 356 (23 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA AND NDOLA (Criminal Jurisdiction) Appeal No.29/2022 BETWEEN: BOGGNITE MUTIZE APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Chishimba and Muzenga, JJA On: 22nd September 2022 and 23 rd November 2023 For the Appellant: K. Chitupila , Senior Legal Aid Counsel, Legal Aid Board For the Respondents : M. I Mwala , Senior State Advocate , National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases referred to: 1. Emmanuel Phi ri v . The People [ l 982 ] 1/, . I{ . "/ I 2. Wil s o n Mwenya v . The People (1 990 - 1997.l Z . !{ . 24 3. /\L Lorney General v . Marcus Kampumba /\chi umc 11983 J 1/, . I{ . 4. Ka l Lmu kwa v . The i:>eoplc~ Ll9'/l] ;;, . !<. . 8~) 5. Li pepo and Others v . The Pcop I c , SC1/, Ju qmcn L No . 70 of 6. Binwell Ch anqwe v . Th e People~ , SC1/, Appeal No . 3?. of ?. OJ::, 7. Ma d ubula v . The People , SCZ J u dgmenc No . 11 oi ]994 J2 8 . Christopher Nonde Lushinga v . Th e Peop l e , SC Z Judgment No. 15 o f 20 11 9 . Phiri v . The Peopl e [ 1 970 ] Z . R . 218 10. Alubisho v . The Peop l e [ 1 97 7 ] Z . R. 11 11. Adam Berejena v. The People, SCZ J udgement No . 33 o f 12 . Jutronich , Schutte and Lukin v . The People [ 1965] Z . R . 9 13. Hamenda v. The People, CAZ Appeal No . 8 of 2 0 18 14 . Sole Sikaonga v . The People [ 2009] Z . R . 192 , Legislation referred to : 1. The Penal Code , Chapt e r 87 of The Laws of Zamb ia 2 . The Court o f Appea l Act , No. 7 of 2 016 INTRODUCTION [lJ The appellant appeared before t he Subordi n ate Cour t ( Honourable M. Mukela) , charged wit h the o f f ence of r ape contrary t o Section 132 of the Penal Code . [2J He denied the charge and the matter pro ceede d to trial . [ 3 J At the end of . t he trial , h e was convi c te d and committed to the -High Court fo r se n tencing . [4l In the High Court (Maka - Ph iri , J . ) , h e was s entenced to 25 years imprisonment , with hard labour. [ S J He has appealed a g ains t bot h t h e con v iction and the sentence . CASE BEFORE THE TRIAL MAGISTRATE J3 [61 On the 8 th of March 2021 , around 04 : 30 hours , in the morning , Billy Mambwe , a manager at Oasis Bus Stat i on, in Livingstone , heard some no i se outs ide the s tation . [71 When he got to where the noise was em ana ting fr om , he found the prosecutrix , who was crying . [ 8 1 She told him that she had been raped by t he appell an t and another person. He then took her Lo the p olice station . [91 Around 06 : 00 hour s the same morn ing , Detec t ive Inspector Mayo i nterv iewed the prosecutrix a t the police station . The prosecutrix who appeare d to be drunk , told h er t hat she was raped by t he appel l ant and one Steve. r1 01 The police off i ce :c i ssued h er wi th a medi cal report . But before they could go to the hos p ital , t he appe llant was brought to t he p olic e stat ion . r111 The po lice t ook the prose cu Lr i x and t he ap pe ll ant into t he bush . The prosecutrix ident ifi ed two places where the appe l la nt and St e ve , raped her from . [1 2] Thereafter , the prosecu trix was t aken to the hospital . J4 [13] The findings of the doctor who ex ami n e d her , were that she had o l d tears on her hymen . Sh e a l so exh i b ite d signs of pain when ~ndergoing the vag inal exami na tion . [14] Recounting the circums t an ces leading to the incident in court , the prosecutrix recalled going out to drink on the 7 th of March 2021 , between 18 : 00 and 19:00 hours . [151 In the course of that even i ng, she drunk fr om YK Bar and Flavours Bar. She was at Flavour s Bar , at midnight , in the company of the appellant and two o t h er men . [16] The men invited t he prosecutr i x to es cort t h em , and they ended up in a bush, where the appe ll ant had s e xua l intercourse with her , witho ut her consent . [17] Thereafter, another person also had sexual intercourse with her, wi thout he r consen t . [lBJ She fel t p ain and shouted for heJ p . According to her recollection, the time was around 06 : 00 hours. [191 A man came and took her to the po lice station and subsequentl y, she was taken to the hospital . [201 As it turned ou t , two me n pass ed through t h e area where the prosecut ri x was raped t h at morn i n g . JS [211 Kelvin Kapalu, a Loader at Oasis Bus Station, said around 04:00 hours , on his way to work, he saw Steve coming out of the bush. He asked him what he was doing but he did not answer. [221 Shortly afterwards , he heard a voice of a lady calling for Steve to help her. Later that morning , he heard that a woman had been raped in the same area . [23] The other man who passed through the area was Davie s Mulenga. [241 He said be-tween 03 : 00 hours and 04 : 00 hours , he found the prosecutrix, the appellant and Steve , i n the bush as he was going for work. He later heard that the appellant had been apprehended in conn e ct i on with t h e rape. [251 In his defence, the appe ll ant denied committing the offence . [26] He said he repor ted for work at Shalom Bus es at 13:00 hours , on 7 Lh March 2021 . He remained t here until 04:30 hours , when he woke up to l oad a bus . [27] The bus left at 05 : 00 hours . He started g ivJ_ng out bags at 07:00 hours and went to the po l ice station at 08:00 hours. FINDINGS BY THE TRIAL MAGISTRATE J6 [ 2 8J The tria l Magistrate f o und that t h e me dical re po rt confirmed that the prosecu trix had sexual intercours e . The doctor who examined her, fou nd sand in the vu lva and noticed that the appe llant was painful vagina on examination . exper i encin g ' ' a [ 29 J She also accepted the prose cu tr i x ' s evidence th a t she did not consent to having t h e sexua l i ntercourse. She arr ived at that concl us i on a ft er accepting Kelvin Kapalu' ·s evidence that he h eard her c al li ng out for help . [30J She also found that he r d i stressed appea r ance , whe n she reported to Bil l y Mambwe , and her immediate naming of the appellant as the r ap i st, were supporting evidence . [ 3 1J Even though the tria l Magis trate noted that t he prosecutrix was drunk and that visibi lit y was poor, s he ru l ed out the possibi l ity that she could have been mistaken on t h e appe ll an t ' s identity . [32J She found that the prosecutri x spe n t t ime with the appellant and tha t Davis Mulenga's tes t imony , that he J7 found the appellant and che prosecutrix toge ther that morning , corroborated her testimon¥. [33 ) The trial Magistrate also cons i dered the appellant ' s alibi . [34 J She did not find it cred ible be ca use he opted to remain silent when questioned by the pol i ce and he on l y raised it in his defence in court. PROCEEDINGS IN THE HIGH COURT [ 35 J The sentencing Judge noted that there was need for leniency because the appel l an t was a f irst offender. [ 36J However, the Judge noted that t he appe ll ant an d his accomplice , had taken turns to rape t h e p ro secut ri x. [37 J On this account , she imposed a sen te nce of 25 years imprisonment with hard labour. GROUNDS OF APPEAL [ 3B J Two grounds have been advanced in support of this appeal. [39J The first ground of appeal , is Lha t the t rial Magist ra te e rred , when she convicted the appe l lan t i n the face of insuf fic ient evidence t hat he committed the offence. J8 [40J The second g rou nd of appeal r e l a t e s t o t h e s e nt e n ce . I t is contended t hat the sen ten c e o f yea r s impr i sonment was exce ssive . ARGUMENTS IN SUPPORT AND AGAINST THE 1 sT GROUND OF APPEAL (41] In support of the 1 s L g rou n d of appea l , Ms . Ch i tup il a referr e d to th e cas e o f Emmanuel Phiri v . The People 1 , and submi t ted th at t h e prose c u tri x ' s evi d e nce was no t corrobora t ed. In addition , t h e trial cou r t ove r loo ke d t h e p r os ecu t r i x ' s f a il u re t o e x p l ain ho w t h e e v e n t s unfo l d e d. [4 2 J She also s ubmitted t ha t th e re wa s no ra pe a nd if there wa s s e x u a l inter cour s e , it was not wi th th e appellant a nd i t wa s with t h e p ro s ec u Lri x ' s consent . [43J Ms . Chitupi l a also submit te d t h a t the testimony o f Davis Mul e nga wa s not c o r roborat i ve be c ause it wa s no t evidence t h at con f i r me d that t h e o ffence wa s c ommitted a nd t h at i t was commi t ted by t h e appellant . Sh e re f e rr e d to the ca s e of Wilson Mwenya v . The People2 i n s up p ort of the p ropositio n. [ 4 4J Fi n al l y , Mq . Chi t up i la s u b mi tt ed t ha L there were i n con s i s tencies in t h e evidence of t he p r o s e cu tri x . J9 [4 5J In court she denied that h er boyfr i end raped he r , yet he was seen and she told t he pol i ce o f f i ce r tha t he a l so raped he r . She also c l a i me d tha t she was not drunk, yet she was seen drunk. [46J She wen t on to r e f er to the cas e o f Attorney General v. Marcus Kampumba Achiume 3 and s u bm i tte d t h a t the finding that the appe l lant r a pe d t h e pros ec u t r i x , wa s perverse because it was no t su ppor t e d by e vidence . [47 J We were urged to set as i de th e con v ic t. i on . [ 48 J I n re sponse t o t h e fir s t g r o un d o [ a ppe al , Ms . Mwa l a submitted t hat the prosecu t rix ' s e v ide n ce incriminating the appellant , was corro b o ra t ed. [ 4 9 ] She argued t h at the p ros e cu t rix ' s d i s tre ss e d condition , when she turned up at th e bus s t a ti on , was corroborat i ve. Sh e refer r e d to the c ase o f Kalimukwa v. The People4 , i n support o f t h e p roposit i on . [50 J Ms. Mwa l a also subm itt ed that Lh e p ro s ec u tri x ' s evidence that she was raped was also s upported by the medica l report . [ 5 1 J On the basis o f the h o l din g s in t he c as e s of Lipepo and Others v. The People5 and Binwell Changwe v. The People 6 , Ms . Mwa l a submitted that eve n t hough th e JlO prosecutrix was a single identifying wit ness , i t was competent f or the trial Magis tr a te to c o nv i c t o n h er evidence. [52J As regards the argument that we set aside t h e finding that the appellant raped the prosecut r ix , Ms . Mwala submitt e d t h at t h e f ind in g was not perve r se because it was supported by the evidence. [53 J Finally , Ms Mwala referred to Madubula v. The People 7 and submi tt ed that e ven i f there were inconsistencies in . the prosecutrix ' s e v i de n ce , t hey di d not affect the cred i bi li ty of he r e v i d ence because th ey did not go to t h e r o ot o f h er testimo n y . COURT'S CONSIDERATION AND DECISION ON THE 1 5 T GROUND OF APPEAL [ 5 4J The two main issues raised in the appea l agains t convict i on , a re t he in c on s i s tenc i es i.n th e prosecutrix ' s evidence and t he ab sence of ev .i. d e nc e corroborating her testimony . ( 55) On t he i ncons i st e nc ie s , n t he prosecutri x ' s evidence , Ms . Chitupila pointed out t wo i ssues . [5 6 J The first issue was that t he p r osecu tri x was inconsistent on whe t h e r her boy f r i en d a l so r a ped h er Jll that morning . In court , she denied being r aped by h e r boyfriend, ye t a t t he po l ice s t ation , she cla i med tha t he also raped her . [57J The second issue re l ates to whether the prosecutri x was drunk at t he time of the i nciden t . I n cou rt , t he prosecutrix denied being drunk, yet t h e re was e vidence that -she was drunk . [58 ] We wi ll dea l with the secon d i s s ue fi rs t . [59J The trial Magistrate made a f indin g that th e prosecutrix was drunk at t he ti me she a l leged tha t s he was raped . [60J The t r i al Mag i s tr a t e t h e n p ro c e e dc~d t o as se ss t he credibility of her test i mo n y , in the l i gh t of ot h er e viden ce t hat was before her . We wil l d e a l wi th the i ss ue o f c orr o b oration in a mome nt . [61] Getting back to the questi on whet h er the prosecutr i x's boy f riend, also r ape d he r , t he prosecutr i x was c onsis t en t o n the f ac t tha t t wo me n , one of whom was the appe ll ant , r a ped he r . [62] She told Bi l l y Mambwe , the s t a t i on man a g er , t h a t the appel l ant and another man raped h er . She s aid t he Jl2 same thing i n court . It i s o n l y a t the po li ce s tation where she named Steve as be i ng o t he r man who raped h er . [ 63 J Ho wever , in the c i rcumsta n ces o f this case , i t i s our view t ha t i t is imma t er ial whethe r the ot her ma n who raped her was Steve o r no t . This i s becaus e Stev e is n o t before u s on the r a pe charge . [64 J Fu rther , the prosecutri x r e ma ined consis tent on t he f a ct that she wa s attac ked by two men , one o f wh om was the appe lla nt . [ 65 J We wi ll now dea l with the questio n of corroboration . [66J Th e tr i a l Mag i s t rate f o u nd t ha t the prosecutr i x ' s evi d ence was corrobor ated by her d i s tressed appearance , the me d ica l report an d her ca ll ing out f o r h elp wh i l e in the bush . [67 J In t h e case of Christopher Nonde Lushinga v . The People 8 , the Supr e me Cour t considere d the meaning of the term corroboration . The cour t po i n t e d out t ha t : "There is no magical meaning in the wo rd "corroboration" . It simply means evidence which confirms the commission of the offence and the ide nti t y of the perpetrator of that offence . Put differently , corroboration means supporting or confirming evide n ce" J13 [681 The first issue we will deal with is the distressed condition in wh ich the prosecutrix appeared at the bus stop. [691 In the case of Kalimukwa v The People 6 , a case in which the appella nt was charged with the of fe n ce of attempted rape , it was held that : "Independent evidence of the distressed condition of the complainant soon after the alleged offence may amount to corroboration" [701 This being the case , the trial Magistrate cannot be faul ted f or finding that the RiJly Mamb we ' s observation , that the prosecutri x was distressed when she appeared at the bus station , was corroborative . [71 1 But that was no t the only corroborative evidence . [ 72 1 There was evidence fro m Davies Mulenga t ha t be t ween 03 : 00 and 04 : 00 hours , Steve emerged fro m the bush where a short while later , he h eard a voice calli ng for him to help . Earlier on , Kelvin Kapalu had s ee n the appellant a nd Steve , with the prosec utr i x i n t ha t same area . [ 73 1 There was al so the medical report wh ic h the tr ia l Magistrat e referred to . J14 [74] The doctor who e x amined the pros e cu trix found sand in the vulva and noted that although the appellant had no fresh . inJuries on her , . . she was . . e xperiencing a painful vagina on examination . [7SJ Even if no cuts were observed , the fact that she was in pain and given that she was heard crying ou t for help , g ive the medical report some corroborative value. [76J The combined effect of the test i mony o f Kelv i n Kapalu and Davis Mulenga , is to corroborate the prosecutrix's evidence i d entifying the appella n t as one of her assailants . The y place him on the scene . [77J As regards evidence corrobo rating the sexual act , there is evidence of her ·distressed a ppea rance , the medical report indicating that she was in pain and Kelvin Kapalu ' s evidence that he heard a woman calling out for help . [78J Ms . Chitupila has submitted tha t it is possib l e that the prosecutri x had consensual sex . If it was the case , it is d ifficult to understand why she would have been calling out for help . JlS [ 79 1 Despite being drunk , the trial Magistrate ruled out the possibility of an hones t bu t mistaken identification of the appellan t by the p r osecutr i x . According to the trial Magistrate , there was sufficien t lighting where they were dr i nk in g fro m and th e prosecutrix was with the appellant for some time . [80J It is our view that she was ent i tled t o come to th i s conclusion. [811 Presented with all this evi dence that we have j us t set out , we are satisfied that the trial Mag i stra te cannot be faulted for finding that the prosecutrix ' s evidence that she raped by t h e appel l an t , wa s corroborated . c021 I t cannot , in the circumstances , be said that the trial Mag i strate ' s finding that the appe ll an t committ ed the offence , was perverse because it was not suppor ted by evidence . [83] Consequently , we find no merit in t he 1 s L ground of appeal and we dismiss it. Jl6 ARGUMENTS IN SUPPORT AND AGAINST THE 2 nd GROUND OF APPEAL [ 8 4J Coming to the appeal against the sentence , Ms . Chitupila referred to the case of Phiri v. The People 9 , and pointed out that a fi rs t of fender shou l d not be denied leniency , even though the circumstances of the case may make the app licat i on o f su ch l e niency mi ni mal . [85 J She submitted that eve n though t he appe ll ant and the prosecutr i x had been d ri nkin g , she was no t ma de drunk with t h e intention of bei ng taken advantage of . [ 8 6 J Neither is there evi d ence that he e n couraged the other man who rape d her . [87 ] Ms . Chitupila ended by submit ti n g that the sentenc ing J udge did not take int o account t he f act that the appel l an t was a first offender , at t he time of sentencing . [8 8 J On the st r ength of t he principl es set out i n the case of Alubisho v The People1 0 , we were urged to se t aside the sentence because t h e sent e nc e of 25 years imprisonment , should come to us wit h a se ns e of shock as being e x cess ive. [ 89J In response to t h e 2 nd ground o E appea J , Ms . Mwa la referre d t o the cases of Adam Berejena v . The People11 , Jl7 Jutronich, Schutte and Lukin v. The People12 and Try Hamenda v. The People13 , a nd s ubmitted that there were a g grava ti ng factor s , that wa rranted the imposition of a s tiff s e nt ence i n this ca s e . [90J Th e aggrava ting fa ct or i s that the appel lant and hi s fr ie nd took t urns in rap i ng the pr o secut ri x . [91J We were ur g ed not to interfere with the s ente nc e . COURT'S CONSIDERATION AND DECISION ON THE 2 ~ GROUND OF APPEAL (92 1 Section 16 (5) of the Court of Appeal Act , set s out the app roa ch t h at we s h ou l d take when dealing with an appe a l again s t se ntenc e . It p rov i des that : "The Court may , on an appeal , whether against conviction or sentence, increase or reduce the sentence, impose such other sentence or make such other order as the trial court could have imposed or made , except t hat (a) in no case shall a sentence be increa sed by reason of or in consideration of evidence that was not given at the trial; and (b) the court shall not interfere with a sentence just because if it were a trial court it would have imposed a different sentence , unless the sentence is wrong in principle or comes to the Court with a sense of s hock" J18 [93] Th e sentence for the offence of rape , as is set ou t in Section 132 of The Penal Code, is a minimum of 15 years , and a maximum of life impr i sonme nt . [94] In the case of Sole Sikaonga v. The People 14 , t h e Supreme Court guided t hat it is the particular circumstances of each c ase , that d etermine the s e n tence that should be imposed. [95] The court also guided on the circumstances in which the mandatory minimum sentence of 15 years , can b e imposed in a case of defileme nt. It was po i nt ed out that such a sentence can be i mposed i n an " ordinary case of defilement" . That is , a case of defilement where there are no _aggravating factors . [96] We are of the view that the same princ ipl es apply to a case of rape . The mandatory minimum sent ence i s only appropriate in an "ordina ry " case of ra pe . [97] In this case , t h e imposition of the 25 yea rs sentence was informed by the sentencing Judge noting that the appellant and his accomplic e , t ook turns to rape the prosecutr ix . Jl9 [9 8 ] It is our view that in a charge of rape, the fact that offenders ta ke turns to rape a woman or a girl , is an aggrava t ing factor . [99J That being the case, we find t ha t the s e n tenci ng Judge c annot be faulted for taki ng the v iew that even if the appellant was a first offender, this was not a case in which t he man da tory min i mum sentence was appropriate . [lOOJ Even though Section 16 (5) of the Court of Appeal Act, empowers us to i n t er fere wit h a sentence by lowering it , that can only be the case where we f ind that the sentence is wrong in principle o r where the sentence comes to us with a sense of shock for being excessive . [1011 We cannot lower a sentence mere ly because had we been the sentencing court , we would have imposed a l ower sentence. [1021 The imposition o f a se nten ce of years imprisonment on the a ppel lant , who t ook part in a "gang rape ", of a woman who was d ru nk , was no t wrong i n princ iple, neither does it come t o us wi t h a sense of shock , as being e xcessive. J20 [103J Consequently , we fi nd no reas on for temper i ng wi th it and we dismiss the appeal agains t the sen te nce . VERDICT [104J Having dismiss e d both grou nds o f appeal , we fi nd no merit in this appeal and we d i smiss jt . [l OS J We upho l d the appellant ' s convictio n and the sentence imposed o n him b y ·the court be l ow . C. F . R. Mc DEPUTY JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE ·············~ ····················"·· K. Muzenga COURT OF APPEAL JUDGE