Daddly Fichite v The People (Appeal 21 of 2017) [2018] ZMSC 354 (10 December 2018)

. " IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE ( Criminal Jurisdiction) APPEAL No. 21/2017 BETWEEN: DADDLY FICHITE AND THE PEOPLE ~ REPUBLI C OF ZAMBIA ~ SUPP. EM E COU RT ~ ,th rF= ZPMRiil r-· L;_o GE:_ 2010] MASTER OF THE SUPREME COURT COMMISSIONER FOR OATHS P. 0 . BOX 50067 , LUSAKA ~PPELLANT RESPONDENTS Coram: Phiri, Muyovwe and Chinyama, JJS. On 1st August 2017 and on 10th December, 2018. For the Appellant: Mr J. Zulu, Senior Legal Aid Counsel - Legal Aid Board. For the Respondents: Mrs C. Mbewe-Hambayi, Deputy Chief State Advocate - National Prosecutions Authority. JUDGMENT Chinyama, JS, delivered the Jud gment of the Court. Cases referred to: 1. R v Allen, 9 C & P 31 2 . Darius Sinyinza v The People (2009) Z. R. 24 3. Machipisha Kombe v The People (2009) Z. R. 282 4. Kambarage Mpundu Kaunda v The People (1990-1992) ZR 91 5. Sole Sikaonga v The People (2009) Z. R. 192 6. Winfred Mapapayi v The People, Appeal No. 191 of 2015 7. Nsofu v The People (I 973) Z. R. 287 8. Kabwita v The People, SCZ Appeal No. 3 45/ 2013 9. Joseph Mutaba Tobo v The People ( 1990-1992) ZR 140 10. Joseph Mulenga and Albert Joseph Phiri v The People (2008) 2 Z. R. 1 11. Katebe v The People ( 1975) Z. R. 13 12. Emmanuel Phiri v The People ( 1978) Z. R. 79 Jl • Statutes referred to: 1. The Penal Code, Chapter 87, Laws of Zambia, sections 137, 138 ( 1) 2. The Juveniles Act, Chapter 53, Laws of Zambia, section 122 3. The Criminal Procedure Code, Chapter 88, Laws of Zambia, sections 151(1) (b); 186(3) The appellant was convicted on one count of Defilement contrary to section 138 (1) of the Penal Code by the Subordinate Court at Lusaka and was sentenced to 25 years imprisonment with hard labour by t h e High Court. The appeal is against both the conviction and sentence. The prosecution led evidence from five (5) witnesses, the sum of which was that during the December, 2014 school holidays, PW 1 took her daughter, the prosecutrix, aged 9 years at the time, to her paternal grandmother who resided in Lusaka's Kamwala a rea. We should point out at this early stage that the age of the prosecutrix is not in dispute and was properly established by PWl who stated that her daughter was born on 9th April, 2005. The prosecutrix was in apparent good health when she went for the holidays. While there, the appellant whom the prosecutrix referred to as "uncle Daddly" because he is married to her paternal aunt, the sister to her la te father, collected her together with another younger girl n a med J2 ,. Mwangala, aged six years, several times and took them to his home where, on at least four occasions, he had carnal knowledge of the prose cu trix. On the first occasion, according to the prosecutrix, whose evidence was r eceived, as PW3, after a voire dire in compliance with section 122(b) of the Juvenile s Act, she s lept in the sitting room with Mwangala in the night, while the appellant and his wife were in the bedroom. That same night the appellant went to where the prosecutrix was sleeping on a mattress with Mwangala. The light was on. He undressed her and had carnal knowledge of her. The next incident was the next day during the day when the appellant picked up the prosecutrix from home with Mwangala. He sent Mwangala on an errand while he had carnal knowledge of the prosecu trix in his bedroom. The appellant again collected the prosecutrix and Mwangala the next evening and in the night he had carnal knowledge of her while Mwangala and his wife were asleep. Nota bly on this day, according to the prosecutrix, the appellant had earlier sent her and Mwangala to buy two packets of shake-shake beer and brandy. J3 t ,. The next evening the appellant took the prosecu trix, Mwangala and another girl named Faith after informing PW4 (referred to as "Uncle Mark" by the prosecutrix) who is also a brother to her late father and the appellant's wife and went with them in his car to his home. The children had their meal after which th e appellant and his wife took them back to their grandmother's home. Another day, the appellant picked the prosecutrix and Mwangala after telling the children's grandmother (the appellant's mother in law) that he would bring them back the next day. In the night the appellant again h ad carnal knowledge of the prosecu trix while Mwanga la and the appellant's wife were asleep. According to the prosecu trix she used to feel pain but the a ppella nt threatened to kill he r if she disclosed the escapades. PW4 was the prosecutrix's uncle Mark. This witness operated a b arber shop at his mother's (the prosecutrix's paterna l grandmother's) home. He testified that he u sed to see the appellant pick the girls, that is to say, the prosecutrix and Mwangala around 10:00 hours in the morning and would return them a round 16:00 hours in the afternoon . He saw this on more than four occasions. J4 , He stated that at one time the appellant collected the prosecutrix, Mwangala and a boy named Peter. The witness stated that his mother (prosecutrix's paternal grandmother) operated a shebeen at the house which was patronised by both men and women but he dispelled a n y possibility of a customer having defiled the prosecutrix. He stated that he would chat with the appellant in his barbershop which was just by the gate before the appellant proceeded into the house to greet the people in there after which he would leave with the girls. He denied that the prosecutrix ever slept in the barber shop alone. When the holidays were over, PWl collected the prosecutrix from the grandmother. The witness noticed that her daughter looked unhappy, sick and weak, was coughing, had lost weight and slept most of the time. After two weeks the girl told her that she was experiencing pains in her private part. She examined her and found a wound on her private part and a growth of skin protruding. When she touch ed it, it discharged pus. PW2, the mother to PW 1 and maternal grandmother to the prosecutrix took the prosecutrix to a clinic where the initial JS , examination revealed that the prosecu trix had syphilis and was HIV positive. When the prosecutrix was asked by the doctor as to who had carnal knowledge of her, she responded that it was "uncle Daddly'' . The doctor advised that the matter be reported to the police. PWS, Brinah Simozo, was the arresting officer stationed at Kabwata Police Station. Her evidence was that she received a complaint on 16th March, 2015 from PWl that her daughter had been defiled by a person whom the prosecutrix knew. According to the witness, she gave the complainant a medical report form and referred them to the University Teaching Hospital (UTH) where another medical form was issued. The medical reports which were completed by a medical doctor at UTH recorded, among other particulars noted upon examining the prose cu trix, evidence of syphilis, HIV and what was termed a "PV discharge". It was also recorded that the victim had no previous sexual experien ce and that the hymen was intact with no body injuries in terms of bruises and bites. The doctor found these circumstances to be consistent with the allegation of defilement. The witness stated, 1n cross JG examination, that she was aware of the a ppellant's night shifts but did not confirm whether he had been on duty on the dates he was alleged to have defiled the prosecutrix. In re-examination, PW5 stated that she did not investigate whether the appellant was away on duty because the victim had mentioned the name of the suspect. In his defence the appellant confirmed that the prosecutrix was h is wife's niece. He testified that the prosecutrix was collected from her grandmother's place, where she had been since November, 2014, by h is wife. He was not at home at the time having been away on duty at Arrackan Barracks for the one week that the prosecutrix stayed at his home. On the day that he returned home his wife took t he prosecu trix back to her grandmother. A week later he was informed that the prosecutrix had mysteriously left the grandmother's home. He discovered later that the girl had returned to her mother, PW 1. He denied that he had carnal knowledge of her. He stated that his in-laws, at the prosecutrix's grandmother's place, operated a shebeen and a barber shop and a lot of people go there. J7 After cautioning herself on the need for corroboration of the prosecu trix's evidence as this was a sexual offence and more particularly that it was a requirement under section 122 of the Juv eniles Act, the magistrate found corroboration in the medical report that the offence had been committed which, according to her, showed that the doctor's findings were consistent with the circumstances alleged. She took the view that being HIV positive and having syphilis, a sexually transmitted disease, was confirmation of sexual abuse. On the presence of the hymen, the magistrate was of the position that in order to constitute sexual intercourse for the purpose of the offence of defilement, full penetration so as to rapture the hymen is not necessary. She stated that even the slightest penetration will suffice drawing from the old English case of R v Allen 1 where it was held that a penetration which was not of such depth as to injure the hymen was sufficient to constitute the offence of rape. On the question whether the appellant was the defiler, the magistrate found no reason why the prosecutrix would want to falsely implicate the appellant who was her uncle when she could J8 have picked any other male person at her grandmother's place. She found support in the evidence of PW4 that he used to see the appellant pick her up from her grandmother's home. She found that the evidence of PW2 and PW4 corroborated the evidence of the prosecutrix. She discounted the suggestion that any other male person might have committed the offence. The trial magistrate found the appellant guilty as charged and convicted him accordingly. The sentencing High Court judge noted that the medical reports showed that the victim contracted an STI and she was of very tender age at the time, that she has been robbed of her right to good health and her innocence at a young age. The judge considered the contraction of the STI to be an aggravating circumstance. She sentenced the appellant to a term of twe:ity-five (25) years imprisonment with hard labour with effect from 31 st March, 2016 when the Subordinate Court convicted him. The appellant seemingly aggrieved by both the conviction and sentence has appealed to this Court advancing three (3) grounds of appeal as follows : J9 1. 2 . The learned trial court erred both in law and in fact when it convicted the appellant despite the medical evidence showing that there was no inflammation around the vagina and that the hymen was intact. The learned trial court erred both in law and in fact when it convicted the appellant despite lack of corroboration of both the commission of the offence and the identity of the offender. 3. The learned trial court erred both in law and in fact when it sentenced the appellant to 25 years imprisonment despite there being no evidence on record to show that the appellant infected the prosecutrix with the sexually transmitted diseases. Mr Zu lu, argued th e a ppeal on b ehalf of the appellan t . Regarding ground 1, cou n sel opened with the case of Darius Sinyinza v The People2 in which this court held that the charge of defilement could not be sustained because the medical evidence showed that there was n o inflammation a round th e vagina and th at the hymen was intact. Counsel criticised t h e finding by the learned magistrate, desp ite th e medical evidence ind icating that the hymen was intact, that th ere was still defilement because the prosecutrix was HIV and syph ilis positive which was confir mation of sexual abuse; that the HIV and syph ilis wh ich the prosecutrix was found with are not only transmitted through sexual in tercourse but also through other mean s such as moth er to child transmission or JlO through blood contact with an infected person; that the trial court wrongly relied on the case of R v Allen 1 to hold that despite the hymen being intact there was still defilement because that case related to the offence of rape where the absence of a hymen was not an issue. We were urged to quash the appellant's conviction. Ground 2 brought the argument that there was no corroboration of the fact that the appellant was defiled and that it was the appellant who defiled her. Counsel relied on section 122(b) of the Juveniles Act on the need to corroborate the sworn evidence of a child witness and the case of Machipisha Kombe v The People3 where it was held that "in criminal cases of a sexual nature, such as rape and defilement, corroboration is required as a matter of law before there can be conviction". It was reiterated that the medical reports did not corroborate the commission of the offence. As regards corroboration as to the identity of the perpetrator, it was submitted that there was none; that neither the appellant's wife who was a competent witness under section 151 (1) (b) (not 150 (1) (b) as submitted) of the Criminal Procedure Code , according to counsel, nor Mwangala Jll who in all instances was in the company of the prosecutrix were called as witnesses to corroborate the prosecutrix' story. That these witnesses would have confirmed the presence of the prosecutrix in the appellant's house at the material times alleged. It was argued that PW4's story that the appellant got the prosecutrix and Mwangala on four occasions around 10:00 hours and would bring them back around 16:00 hours, contradicts PW3's story to the effect that at least three of those encounters allegedly happened at night when the prosecutrix and Mwangala slept over at the appellant's place. It was also argued that PW4 was a relative to the prosecutrix which made him a witness with a possible interest of his own to serve . On the authority of the case of Kambarange Mpundu Kaunda v The People4, it was argued that it was a misdirection for the trial court to fail to warn itself and specifically deal with this issue to exclude the danger of false implication by PW4. It was argued, therefore, that PW4 could not corroborate the prosecu trix. Ground 3 of this appeal was argued as an alternative ground in the event that grounds 1 and 2 fail. This ground challenges the J12 imposition of the custodial sentence of twenty-five (25) years imprisonment by the court below which found the contraction of sexually transmitted infections as an aggravating factor. Mr. Zulu referred us to the case of Sole Sikaonga v The Peoples in which it was held that: An ordinary case of defilement will ordinarily attract a minimum of 15 years. However, where an accused is found to have infected the victim with a sexually transmitted disease, the offence will certainly attract a more severe sentence above the minimum of 15 years . It was argued t hat the record s hows that the prosecutrix was found to be syph ilis and HIV positive but the evidence does not a t all suggest that the appellant is th e one who infected her because, firstly, the appellant was not subjected to any medical examination to establish if he is also HIV a nd syphilis positive and secondly, that the possibility of infection through other mea ns such as mother to child or blood contact were not excluded. Therefore, holding that the appellant had infected the prosecutrix was a misdirection . We were thus urged to interfere with the sen tence of 25 years imprisonment by reducing it. Mrs Hambayi responded on behalf of the respondents. She submitted , generally, that the cou rt below was on firm ground when J13 it convicted the appellant as there was ample evidence adduced during trial which provided corroboration to the evidence of the prosecutrix as to the commission of the offence and the identity of the offender. That the commission of the offence was proved by the medical report whose findings are consistent with the allegation whereas the identity of t h e offender was proved by the evidence of the prosecutrix which was corroborated by PW4. In reacting to ground 1, it was argued that the trial court was on firm ground when it found that the prosecutrix was defiled based on the evidence of PW 1 and PW2 who saw the wound and pus on the private parts of the prosecutrix a few weeks after the defilements happened. That the reason why the medical doctor could not find any bruising or bites on the body as well as any vaginal or hymen tears or wounds was because he examined the prosecutrix three (3) months after the four incidents of defilement had occurred. It was submitted that the findings of syphilis and HIV, which are primarily sexually transmitted diseases, in one as young as the prosecutrix indicates sexual activity which in this case was perpetrated by the appellant on the prosecutrix. That the J14 presence of the two diseases cements the findings by the medical doctor on the medical report. It was argued that even assuming that the prosecutrix contracted the HIV through mother to child transmission, how then could she have contracted syphilis? That the only conclusion to be drawn is that the child contracted the two diseases as a result of sexual abuse at the hands of the appellant. Therefore, that t he court below was on firm ground when it held that even though the hymen appeared intact there was still penetration even if the penetration was not of such a depth as to ru pture the hymen as partial penetration was enough . Authority for this argument was drawn from the case of Winfred Mapapay i v The People6 in which, according to counsel, we found that even though the medical report did not show fresh injuries on the prosecutrix, defilement could not be ruled out because the doctor's findings were consistent with the a llegation s. In that case, the prose cu trix had been examined by a doctor sometime after the sexual assault and he explained to the court that it is not in all cases that injuries will result after d efilemen t. The respondents have, therefore, argued that lack of injuries and an intact hymen do not rule out the occurrence of defilement as the penetration could JlS have been partial and the examination in this case was conducted three m onth s after the incident. In reacting to ground 2, the respondents have argued that corroboration was provided by the ample medical evidence (medical repor ts) and the evidence of PWs 1 and 2 which, according to counsel, all show that th e pros ecu trix was defiled . Fu r th er, that the identity of th e appellant was firmly established as h e was well known to the prosecutrix and there was no possibility of mistaken identity. That the evidence of PW4 confirms the prosecutrix' eviden ce th at the appellant used to pick her and Mwangala up on at least four different occasions and th at the appellant was the only male person that he saw go away with the prosecutrix. Therefore, that th e appellant had ample opportunity to commit the crime wh ich amou nts to corroboration. As authority, the case of Nsofu v The People 7 was relied on in whic h we held that: Mere opportunity alone does not amount to corroboration, but the opportunity may be of such a character as to bring in the element of suspicion. That is, that the circumstances and locality of the to amount to opportunity may be such as corroboration. themselves in J16 Counsel for the respondents further argued that PW4 is not a suspect witness and did not have a motive to falsely implicate the appellant. It was contended that the appellant has not established why PW4 is a suspect witness as he h as not shown whether PW4 had a bad relationship with him or any other reason why his evidence cou ld be suspect. That without such proof, his evidence adds something more to the prosecutrix' evidence that it was the appellant who defiled her. And that in cross-examining the prosecutrix, the appellant neither expressly denied having sex with her nor did he try to raise the alibi which he brought up during his defence that he was at work when the prosecutrix had gone to his home. It was further a rgued that the conduct of the appellant was very odd in that it was strange for an adult male person to insist on picking up little girls and taking them to his house especially that he was only related to the prosecutrix through marriage. It was submitted that this conduct proves that his motives were not pure but of a nefarious nature. In response to ground 3, it was submitted that the contraction of syphilis and HIV by the prosecutrix is an aggravating factor J17 because the prosecutrix' life has been irrevocably changed by these diseases. Further, that the evidence of PWl and PW2 shows that the prosecutrix was well when she went for the school holiday but it was after PWl went to collect her that she noticed that the child was unwell and had lost weight. It was pointed out that the evidence of PW4 was that when the prosecutrix went to stay at his house she was well. Counsel, accordingly concluded that the prosecutrix' health started failing after the sexual assaults and infections were inflicted on her by the appellant. That the appellant who was the girl's uncle held a position of trust which he violated as a family member and this further aggravates the case. Therefore, that the trial court was on firm ground when it imposed the sentence of 25 years imprisonment as the damage occasioned to the prosecutrix is life changing and the appellant deserves a stiff sentence to deter would be offenders. We were urged to uphold both the conviction and the sentence. We have considered the evidence adduced by the parties in the Subordinate Court, the judgment of the court, the comments made by the sentencing judge and the arguments advanced before us in J18 this a ppeal. The issues for decision are basically two, namely, whether the prosecutrix was defiled and that it was the appellant who defiled h er. These two issues in fact are part of the three essential ingredients of the offence of defilement, the third being that the victim was aged below sixteen ( 16) years which we have a lready said there is n o dispute over and was established by the evidence of PW l, the mother to the prosecutrix. The law also requires that there be corroboration that the prosecutrix was defiled and that it wa s th e accused person wh o defiled her. Further, that where the prosecutrix is a child of tend er age and testifies in h er own behalf under section 122(b) of the Juveniles Act the accused is not liable to be convicted of th e offence unless that evidence is corroborated by some other material evidence in support thereof implicating the accused. With regard to the issues raised 1n ground 1, our understanding of the case of Darius Sinyinza2 is that it did not settle a universal rule th at whenever an examination of the victim of an alleged defilement d id not present inflammation or bruises or other injury around the vagina and that th e hymen was found J19 intact then the offence has not been made out. Quite clearly, the case was decided on its own peculiar facts . The critical issue in that case was simply that there was no evidence to support the allegation that the prosecutrix had been defiled. In the case of Winfred Mapapayi6 , however, the prosecutrix was already sexually active and was pregnant by another man and had no hymen when she was carnally known by the appellant. We upheld the conviction for the offence of defilement on the basis that the medical evidence was consistent with the alleged defilement. Similarly, in the case of Kabwita v The People8, we found the offence of defilement proved even though the hymen was intact. These cases reinforce the view that the offence of defilement does not necessarily depend on the absence or presence of inflammation or bruises around the vagina or an intact hymen . Whatever may be the circumstances, however, evidence that there was penetration, even partial as determined in the case of R v Allen 1 , in which the offence was that of rape, 1s required. In our considered view, the offence of rape and that of defilement are of the same genus, the difference being merely that in the former, the victim is a woman or girl of the age of 16 years and above while the latter relates to girls below 16 years of age. J20 Another issue contended in ground 1 related to the findin g by the trial magistrate that the syphilis and HIV which the prosecu trix was found with confirmed that she was sexually a bused. We agree with Mr Zulu that syphilis and HIV may be transmitted through other means . In this case, however, the doctor who examined the prosecutrix found h er condition to be consistent with th e a llegation that she was defiled. A medical doctor is entitled to make logical inferences from observations that he or she makes himself or h erself. In the case of Joseph Mutaba Tobo v The People9 we commen ted thus: We wholly agree with the Commissioner that the real value of the evidence of a medical expert consists in the logical inferences which he draws from what he has himself observed. At the time when the medical reports were tendered as evidence for th e prosecution, th ere was no objection from the defence and the documents were admitted as part of the prosecution evidence. Further, PWS who produced and tendered the medical reports was not cross-examined on them and no effort was made to request the presence of the medical officer who completed the medical reports so that he/ she could be questioned in relation J21 t o h is opinion. In the case of Joseph Mulenga, Albert Joseph Phiri v The People 10 , we said the following - During trial parties have the opportunity to challenge evidence by cross -examining witnesses. Cross-examination must be done on every material particular of the case. When prosecution witnesses the accused persons must are narrating actual occurrence s , challenge those facts which are disputed. Leaving asse rtions which are incriminating to go unchallenged, diminishes the efficacy of any ground of appe al based on those very assertions which were not challenged during trial. As we have said the defence did not raise any objection or challenge the medical evidence during the trial. The result is that, there being no reason to hold otherwise we agree with the medical doctor's opinion that h is findings (of the syphilis and HIV in the prosecutrix) were consistent with the allegation that the prosecutrix had been defiled. It is our considered view, therefore, that the appellant's allegation that she was defiled was corroborated by the medical report and indeed the evidence of PW 1 and PW2 who inspected th e prosecutrix when it became apparent that she was not well and had complained of pain in h er private part. Clearly ground 1 has no merit and we d ismiss it. J22 Turning to ground 2, having a lready found that the appellant was defiled, we move on t o consider and determine the allegation that it is the appellant who defiled her. The evidence tending to corroborate the allegation is that of PW4 . There is no dispute that PW4 is related to the prosecutrix. In terms of the decision of this court in the case of Kambarage Mpundu Kaunda v The People 4, the evidence of witnesses who are relatives and friends to the deceased (or indeed other victims of crime as in th is case) must b e a pproached with caution because they could possibly be biased again st the accused and a court dealing with such witnesses must warn itself against the d a n gers of false implication and go further and exclude the d a n ger . We did p eruse the judgment of the subordinate court and noted that the court did not caution itself when considering the evidence of PW4 in this manner. That was a misdirection. Contrary to the argument by Mrs Hambayi, however, the appellant did not h ave to establish why PW4 is a suspec t witness. It is the status of being a relative to th e victim which re nders his testimony suspect as he may be disposed to give biased testimony. Hence the need for the court to be cautious in dealing with the J23 testimony and to ensure that the danger of false implication 1s excluded before it can rely on the evidence. The foregoing, notwithstanding, we think that the trial court would still have concluded that PW4 was a credible witness if the court took into account the fact that not only was PW4 related to the prosecutrix but that he was also related to the appellant's wife who was his sister. In the circumstances, the likelihood by the witness to give evidence biased in favour of his niece is countermanded by interest arising from his relationship with the appellant's wife. These competing interests, in our view, and without anything else confirm that the witness was credible. There was also criticism of PW4's evidence arising from what Mr Zulu touted as the contradiction or discrepancy with the prosecu trix's evidence regarding the times she was collected and returned. In our considered view the contradiction is of little or no significance. What is important, is the confirmation that the appellant was seen several times taking away the prosecutrix. In fact, PW4 stated that the appellant would chat with the people he found at home before going away with the girl. There is no doubt J24 • that PW4 just like the prosecutrix was very familiar with the appellant so that the question of a mistaken identification does not anse. On the whole, we are satisfied that PW4 was a credible witness and supported the prosecutrix's testimony that the appellant used to take her away. This then provided the appellant with opportunities to have sexu9-l connection with the prosecutrix. As held in the case of Nsofu v The People7 cited by Mrs Hambayi, the character of the opportunity may bring in suspicion so as to amount to corroboration. In this case the appellant frequently took away the prosecutrix. This conduct was, as submitted by Mrs Hambayi, very odd in that the appellant was only related to the prosecutrix through marriage. This adds "something more" in support of the allegation that the appellant defiled the prosecutrix as alleged. We agree with Mr Zulu's submission t h at the absence of the appellant's wife and Mwangala deprived the prosecution of the evidence of witnesses who might have also confirmed the appellant's activities. However, the absence of these potential witnesses does not affect the prosecution's case in any adverse way. J25 . , Suffice that we are satisfied that the evidence availed sufficiently established that the appellant defiled the prose cu true As for the appellant's alibi th at he was away from home for the one week during which the prosecutrix was at his home, it is obvious that the defence was not being raised for the first time during the trial of the case . PW5, the Arresting Officer, wh en asked, during cross-examination, a bout the night shifts that the appellant claimed to have been working, replied that s h e was aware of them but did n ot follow up the issue. To th e appellant's credit we have chosen to accept that the night duties which the witness referred to were th ose stated by the appellant wh en he said th at h e spent one week at Arakan Barracks and was n ot able to leave because he was on standby. In the case of Katebe v The People 11 th is court held that- The law is clea r tha t where a defence of alibi is set up and there i s some evidence of such an alibi it is for the prosecution to negative it. There is no onus on an accused person to establish his alibi; the law as to the onus is precisely the same as in cases of self-defence or provocation. There was no attempt in this case to disprove the defence by direct evidence. The question, however, is wh ether there is evidence on record to counteract the a libi. We have already resolved that PW4 J26 , . was a credible witness and that his evidence supported the prosecutrix's evidence that the appellant used to take her away. The effect of this is that the appellant's alibi cannot afford him a defence. PW4's testimony clearly placed him in the locality of the crime. Ground two equally has no merit and we dismiss it. Coming to the third ground of appeal, there is no doubt in our minds that the view taken by the sentencing judge that the offence was aggravated by the syphilis and HIV contracted by the prosecutrix which the judge attributed to the appellant is supported by the uncontroverted medical evidence. Therefore, this ground of appeal has no merit. Bearing in mind what we said in the case of Sole SikaongaS, and particularly t h at the prosecutrix now has HIV for which currently there is no cure, we view the sentence of 25 years imprisonment imposed as being so totally inadequate. Pursuant to the powers vested in this court under section 15 (4 ) of the Supreme Court of Zambia Act, we set aside that sentence. In its stead, we sentence the appellant to life imprisonment which will not only punish the appellant but we believe may restrain would be offenders. J27 , Ultimately, the entire appeal has colla p sed . .............. ::.~ ' G. S. PHIRI SUPREME COURT JUDGE ~ ....... . E. N. C. MUYOVWE SUPREME COURT JUDGE ~J\········· ·········:;:·c:"~ SUPREME COURT JUDGE J28