Mwalukuta v S (Criminal Appeal 157 of 2017) [2018] MWHC 1269 (27 June 2018)

HIGH COURT i. RR ARR Y or sah everett Peseta seen ¥ pa ee x ee MZUZU REGISTRY CRIMINAL APPEAL NO. 157 OF 2017 B - Being Criminal Case No.189 of 201 7 in the FGM’s Court Sitting at Karonga oj. ee DANIEL MWALUKUTA VERSUS THE STATE CORAM: HON. JUSTICE T. R. LIGOWE W. Nkosi of Counsel for the State M. Chinkhuntha of Counsel for the Appellant C. Chawinga, Official Interpreter J. Chirwa, Court Reporter JUDGMENT Ligowe J l The First Grade Magistrate at Karonga convicted Daniel Mwalukuta of defilement contrary to section 138(1) of the Penal Code and sentenced him to imprisonment for nine years. Daniel Mwalukuta appealed to this court outlining seven grounds which on close scrutiny, can be reduced to three, as follows:- a. The lower court erred in convicting him when the mother of the girl testified that her daughter was 18 years old. b. The lower court erred in convicting him when there was contradictory evidence of the State as to whether carnal knowledge occurred between him and the girl. 1 and inadmissible to prove the age of a complainant at the time of the offence. The best is a _ _ birth certificate, testimony of a medical practitioner upon examination or testimony of a person with personal knowled ge as to the age. pS ae ee —Contrary to what the Magistrate found, the mother did not confirm the girl sage as 15-She———— said it was 18. And this is the age the Magistrate should have indeed taken for the age of the girl. The appellant should therefore have not been convicted. The appeal succeeds on this ground. wept at ye 8 Regarding the second ground, counsel for the appellant argues that the medical examination of the girl was not conducted by a medical officer properly appointed by the Minister of Health under section 180(2) or 190 (3) of the Criminal Procedure and Evidence Code and the appellant had not been given the opportunity to object to the tendering of the report in the; proceedings in accordance with section 180) of the Crim inal Procedure and Evidence Code. Counsel also argues that the girl contradicted herself on the fact of carnal knowledge with the appellant. She only admitted it upon being threatened that she would be arrested. o It appears though that the Magistrate took so many factors into consideration before he found that carnal knowledge occurred, including the fact that the appellant and the girl were in a love affair and that they were playing together at night under a tree as such. Whatever the case, this would have no effect in view of the outcome on the first ground. 10 Similarly, there is no point to belabour myself with the third ground. 1] The appeal succeeds. The conviction is quashed and the sentence set aside, ie Delivered in open court this 27" day of June 2018. »