David Mapulashi v People (SCZ/APPEAL NO. 271/2011) [2013] ZMSC 53 (9 July 2013)

J1 IN THE SUPREME COURT OF ZAMBIA SCZ/APPEAL NO.271/2011 HOLDEN A1 KABWE AND LUSAKA (Criminal Jurisdiction) BETWEEN: DAVID MAPULASHI APPELLANT V THE PEOPLE RESPONDENT CORAM: Mumba, Acting DCJ, Wanki, JS and Lengalenga, Act. JS On 6 th November, 2012 and 9 th July, 2013 For the Appellant: Mr. K. Muzenga, Acting Principal Legal Aid Counsel - Legal Aid Board For the State: Mrs. C. M. Hambayi, Assistant Senior State Advocate JUDGMENT Mumba, Acting DCJ, delivered the judgment of the court Cases referred to:· 1. Mwewa Murano vs. The People (2004) ZR 207 2. Emmanuel Phiri vs. The People (1982) ZR 77 3. Mbomena Moala vs. The People (2000) ZR 148 . • ---¼ mi rd¥? efc5fR¥ AL J2 The appellant was convicted on one count of rape contrary to section 132 of the Penal Code Cap 87 of the Laws of Zambia. Particulars of the offence were that the appellant on 9th December 2006 at Kasempa in the Kasempa District of North Western Province of the Republic of Zambia, unlawfully had carnal knowledge of a woman, Beauty Mulayo without her consent. Upon conviction he was sentenced to a term of 4 7 years imprisonment with hard labour, with effect from 10th December 2008. The appellant has now appealed against conviction stating that the trial court erred in law and in fact when it convicted the appellant in. the absence of proof beyond reasonable doubt. The complainant, who was PWl, is a peasant farmer of Kyata and Kandeke area, Kasempa. She is a widow aged 76 years. She testified that on the material date, 9 th December 2006, she decided to visit her brother at his field. After a chat with him, he left and went to cultivate in the field. The complainant decided to return · home, on the way, she decided to pick some mushrooms to eat. In the process of looking for mushrooms, she met the appellant whom she knew before as her nephew, his mother is a sister to the complainant. They walked together, he suggested that he could show her where there were mushrooms. He led her for a distance of about 300 meters, there were no mushrooms. There and then the appellant got hold of the complainant, she fell on her back, the appellant squeezed her throat and placed his elbow on her chest. She felt so much pain such that even by the date of trial, she was . -_,.,.. ~ .:.. N J3 not able to swallow properly. The appellant placed his hand on her mouth to stop her shouting for help. She tried to bite him in an effort to let go but he did not. During the struggle the appellant managed to rape the complainant, thereafter he got himself dressed and warned her not to report him to his uncle, a Mr. Kazumba. The complainant explained that during the struggle the appellant had pushed her clothes upwards exposing her private parts as she never used to wear underpants because of her old age. Nobody came to her rescue as it was in the bush, about three hundred meters .from the village. The complainant was in great pain but struggled back home. When she reached home, she narrated the incident to a Mr. Sobongo who accompanied her to the Police Station where the matter was reported. The appellant was apprehended the same day. The complainant was given a police medical report form which she took to Mukinge hospital where she was admitted for two weeks while receiving medical treatment for the injuries she sustained. The complainant informed the court that there was no prior arrangement to have sexual intercourse with the appellant nor that the rape was intended to be in exchange for mushrooms. The other evidence came from Gibson Mafumo who was PW2. This witness informed the court that on the material date he was at home when PWl, who was his grandmother, whilst weeping, told him that the appellant had raped her and added that it was taboo to have sexual intercourse with a nephew whom she named as tft 7 2 G 77ft5k i f t55fE?:7YfifiZ I E - ·- --, Jf5Jf5i7C :33U:Z ,c S J4 David Mapulashi, the appellant. PW2 reported to the Chiefs representative who later came with neighbourhood watch officials, together they apprehended the appellant. According to PW2, the appellant informed him upon being questioned over the rape, that he was influenced by a hangover because of the beer he had taken the previous day. The trial court also relied on the evidence of PW3, Gragen Kamanga, a peasant farmer who was also a neighbourhood watch official. PW3 received a report on the incident from the Chiefs representative. Acting on the report, he apprehended the appellant who was eventually, taken to Kasempa Police Station. PW3 had an opportunity to ask the appellant why he raped PWl to which the appellant answered that he had woken up with a hangover, and admitted raping PW 1. Detective Woman Inspector, Beatrice Muswele who was PW4, arrested the appellant on 10th December 2006, for the subject offence. According to this witness, when the appellant was arrested he admitted that he did have sexual intercourse with the complainant. When put on his defence the appellant elected to give sworn evidence and to call two witnesses. The appellant told the court that on 7 th December he drunk beer at a village. The following day, 8 th December he was picked up by officials from the neighbourhood watch and put in a shelter. Whilst in the shelter the complainant found him sleeping there. When he woke up to eat nshima, the ZE •a3w £1 JS complainant joined 1n. Around 10:00 hours the complainant returned home and reported that the appellant had raped her. Around 17:00 hours the neighbourhood watch officials apprehended him and took him to the Police Station. Under cross-examination, the appellant informed the court that he had sexual intercourse with the complainant because she consented to it, he added that she reported him to the Police for rape because he did not give her the money which she had demanded, which was KlS,000-00. The appellant later withdrew the witnesses he wanted to call because he was no longer interested in calling them. In the written heads of argument filed by Mr. Muzenga, it was submitted that the appellant admitted that he did have sexual intercourse with the complainant with her consent. It was pointed out that the prosecution did not offer any evidence to disprove the appellant's defence that there was consent. It was contended that the only evidence available on record was that of the complainant herself. It was submitted that from the reading of section 132 of the Penal Code, the absence of consent is an essential ingredient of In support of this submission the case of Mwewa the offence. Murono vs. The People 11' was cited. In that case, this court lay emphasis on the· legal burden on the prosecution to prove every element of the offence charged beyond reasonable doubt. It was submitted that there was no evidence on record to suggest or confirm the absence of consent. It was further submitted that since s=c TT ·a r 1 the sexual intercourse took place in the bush, on the ground where PWI struggled until she was over powered, according to her evidence, her clothes would have been soiled, covered with shrubs and grass, yet no such evidence was adduced at trial. It was submitted that the appellant did explain to the trial court that there was prior arrangement upon which PWl had demanded the sum of KlS,000-00, that she reported him to the Police because he had failed to pay the money. It was submitted further that the fact that PW 1 was not wearing underwear on the material date confirmed the assertion by the appellant that there was consent and that she was "ready for the encounter," . It was also submitted that there was no corroboration of the offence of rape, that is, the absence of consent to the sexual intercourse. The case of Emmanuel Phiri vs. The People 121 was relied upon for the submission regarding corroboration. It was finally submitted that it was unsafe to uphold the conviction because the commission of the offence had not been established to the required standard. On these submissions, the court was urged to quash the conviction and to set aside the sentence. Mrs. Hambayi, on behalf of the People, submitted that the conviction was supported because the charge was proved beyond · reasonable doubt. She submitted that the evidence of PWl was clear and concise, it connected the appellant to the offence. She pointed out that it was not in dispute that the appellant admitted to PW2 and PW3 that he did rape PW 1 whilst labouring under a ·tt -weee J7 hangover. Counsel contended that the appellant's admission to PW2 and PW3 was admissible because the two witnesses were not persons in authority but mere villagers. For this submission Counsel relied on the case Mbomena Moola vs. The People 131• In that case it was held that Judges Rules were to be applied by persons such as police officers trained to investigate crimes, to administer warn and caution to suspects of crimes. Village headmen, village committees or Chiefs representatives were not persons in authority. Counsel wer. J.t further to submit that the evidence of PW2 and PW3 corroborated that of PWl that rape did take place. As against the appellant's suggestion of consent upon payment of money, the evidence on record revealed violence which was so brutal on PWl that it negated the suggestion of consent. Mrs. Hambayi contended that the evidence showed that PWl was in hospital for treatment for a period . of two weeks and that more than a month after the incident, she was still complaining of chest pain, backache and tenderness of the neck from the squeezing. Further, Counsel submitted that the trial court observed the demeanour of witnesses and found that that of prosecution witnesses was better than that of the appellant. She submitted further that the appellant's evidence of consent by PWl, in exchange for lT. Loney, was inconsistent with the testimony of PW2 and PW3 to whom the appellant had admitted rape. Counsel urged the court to uphold the conviction. i 1 f C · r :if ·•tt 7 w J8 In reply, Mr. Muzenga submitted that the appellant admitted sexual intercourse which, according to Mr. Muzenga, was what the evidence of PW2 and PW3 was confirming. He contended that the evidence and violence of injury only came from PW 1 who talked about such. Mr. Muzenga further pointed out that the medical report form did not disprove consent. This appeal revolves around the element of consent in the offence of rape. PWl testified in detail the struggle she was put to. The medical evidence is clear on the injuries sustained. Indeed, she stayed in hospitaJ. for two weeks receiving treatment. The evidence of PW2 was that he saw PWl weeping and complaining that it was taboo to have sexual intercourse with a nephew. PW2 testified that when he confronted the appellant, the appellant admitted the rape. The evidence of PW2 was not challenged in any respect as the appellant did not cross-examine this witness. Upon arrest by PW4, the appellant admitted the charge of rape. Further, the evidence of PW4, who was the arresting officer, was that upon being warned and cautioned the appellant admitted the charge of rape. During trial, the appellant confirmed his admission of the charge to PW4 who was not cross examined either. The sworn evidence of the appellant to the effect that there was prior arrangement to have sexual intercourse with PWl and that she was to be paid by the appellant, was raised rather late. The first opportunity for the appellant to explain what transpired was when he was asked by PW2, who had seen PW 1 weeping. The J9 appellant did not mention any pnor arrangement or any failed payment. His defence was clearly an afterthought and was properly rejected by the trial court. After analyzing the evidence on record as cited above, we are satisfied that lack of consent by PW 1 was proved beyond reasonable doubt. This appeal fails and it is dismissed. We confirm the conviction and sentence by the trial court and the sentencing . ..•.................................................•••... F. N. M. MUMBA ACTING DEPUTY cmEF JUSTICE ~~---------- M. E. WANKI SUPREME COURT JUDGE ..•••••.......••.. F. LENGALENGA ACT. 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