Katandika v R (Criminal Appeal 28 of 2017) [2018] MWHC 63 (18 May 2018)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIM INAL DIVISION CRIM INAL APPEAL NO. 28 OF 2017 BETWEEN: CHARLES KATAN D IKA.......................................................... APPELLANT AND THE REPUBLIC........................................................................ RESPONDENT CO RAM : HON. Ju stice M L Kam w am be C h is a n g a of co u n sel for the State K a ze m b e of co u n sel for the A p p e lla n t N g o m a O fficial Interpreter JUDGMENT K a m w am b e J The A p p lic a n t w as c o n v ic te d by the First G r a d e M agistrate C o urt of the o ffe n c e of defilem ent con trary to section 138 (1) of the Penal C o d e . It w as a lle g e d that the A p p lic a n t h a d c a rn a l kn o w le d g e of a girl, EU, on 21st Ju n e , 2017 at K au d zu villa g e in the district of M a c h in g a . He w as se n te n ce d to 14 years im prisonm ent. Being dissatisfied with both co n victio n a n d se n te n ce , the A p p e lla n t a p p e a le d a g a in st both co n victio n a n d se n te n ce on the follow ing grounds: 1. That the low er court d isre g a rd e d expert e v id e n c e from a m e d ic a l professional w ho e m p h a tica lly said that the a lle g e d victim h a d not b e e n defiled. CRIMINAL DIVISION 2. The d e cisio n of the low er court w as a g a in st the w e ig h t of e v id e n c e . 3. There w as no co rro b o ra te d e v id e n c e of in d e c e n t assault or rap e . THE LAW AND EVIDENCE that to prove strictly The p rosecution h a d there w as penetration h o w e ve r slight it w as. A c c o rd in g to the e v id e n c e of the laceratio ns. The m e d ica l professional there w ere no sores or m e d ica l report d o es not sa y that there w as no penetration. W hether there w a s penetration or not is a m atter to b e d eterm in ed b y the cou rt b y looking a t the totality of e v id e n c e a n d a p p ly in g the law to the e v id e n c e , a n d not by the clin ician. The victim child said that A p p lic a n t took his penis a n d entered it into her v a g in a , a n d that she pulled the penis out w hen she felt pains. In her testim ony, the m other of the victim child told the court that A p p e lla n t later told them that he really w as h a v in g sex but he did not c o m e to finish his desire; a n d that the victim girl e xp la in e d thoroughly that he took his penis a n d entered it into her v a g in a . The testim ony of the m other is corrob orative e n o u g h . The in cid e n t o ccu rre d on the 21st Ju n e, 2017 while the m e d ica l e xam in atio n took p la c e on the follow ing d a y . The clin icia n testified that the parents re v e a le d that the vu lva w a s o p e n after the defilem ent, w h ich m e a n t that the m an fo rce d him self but failed to p e n e trate d u e to the d istu rb an ce b y the boys. The m e d ic a l report c o n c lu d e d that history is m ore su ggestive of defilem ent. The law is c le a r that it is not n e ce ssa ry that sem en b e d e p o site d in the v a g in a . The m atter w a s rep orted to the father of the victim girl on the sam e d a y a n d not too late. The victim said that she felt p ain as he en tered her. A lth ou gh he m ight h a v e failed to p en etrate her successfully, he s u c c e e d e d CRIMINAL DIVISION to press on her private parts for entry, h e n c e she felt pain. This constitutes p en etratio n h ow ever slight it m a y h a v e b e e n . Emission of se e d into the victim is irrelevant (Twaibu v R ALR (M ai) 532) a n d Marriette v R 4 ALR (M ai) 119. This court fails to find fault with the lower cou rt a n d therefore co n victio n is m ain tain e d . Pronounced in o p e n court this 18th M ay, 2018 at Chichiri, Blantyre. M L K a m w a m b e JUDGE CRIMINAL DIVISION 3