Sikaonga v People (Appeal 114 of 2004) [2007] ZMSC 187 (10 April 2007)

APPEAL NO. 114 OF 2004 IN THE SUPREME COURT OF ZAMBIA. HOTDEN AT NDOLA. BETWEEN: KENSON SIKAONGA Vs. THE PEOPLE CORAM: CHIRWA, SILOMBA, J. J. S. AND MUSHABATI, Acting J. S. On the 7th December, 2004 and 10th April, 2007 For the Appellant: Mr. E. M. Sikazwe, Deputy Director of Legal Aid. For the Respondent: Mr. C. F. R. Mchenga, D. P. P. JUDGMENT SlLOMBA, J. S., delivered the judgment of the Court. Cases referred to: 1. Nsofu Vs. The People (1973) Z. R. 287. 2. Mwaba Vs. The People (1974) Z. R. 264 This judgment should have been delivered much earlier. The lapse on our part was due to the fact that the record of appeal was inadvertently put away. We sincerely apologise for the inconvenience and anxiety caused. The appellant was tried and convicted in the Subordinate Court on a charge of defilement of a girl under the age of 16 years contrary to Section 138 (1) of the Penal Code, Chapter 87 of the Laws. The particulars of the offence were that on the 27th September, 2003 at Mufulira in the Mufulira District of the Copperbelt Province of #7 J 2 Zambia, Kenson Sikaonga had an unlawful carnal knowledge of Janet Chitabale, a girl under the age of 16 years. The prosecution evidence was that Janet Chitabale (PW1), aged 12 years was, on the 27th September, 2003 around 08.00 hours, called into a building by the appellant, whom she knew very well, and made to watch a pornographic video. When she protested, the appellant changed to the video on Sodom and Gomora. Since there was no chair, she was made to watch the video while sitting on the floor. Later, the appellant twisted the arm of the complainant and after pulling down his clothes he un-addressed her, grabbed her by the mouth and warned her not to shout and thereafter had carnal knowledge of her. The complainant testified that she felt pain. The complainant was given K2000 - 00 as a reward not to reveal the incident tQ anyone. The appellant then left for some place. As the complainant was about to leave, he returned and ordered two boys, who were passing by, to grab her and take her back into the house. Inside the house, the two boys were ordered to un-address her because she had stolen K25, 000 from him. The boys refused to obey the instructions and in fact helped the complainant to run away from the appellant. In the afternoon of the 27th September, 2003, Jacqueline Kalunga (PW2), the mother of the complainant, was told that the appellant had taken her daughter to his building. When she inquired from the appellant what her daughter had done to be taken into his building she was told that she (her daughter) had stolen K35, 000 from him. That same afternoon, PW2 reported the incident to the police. At the police station, the complainant explained what happened; she was physically examined by PW4, a woman police officer, who noticed some whitish stuff from her vagina. PW2 also & J3 examined her and lamented that her daughter had been destroyed when she saw fresh injuries on her private parts. The complainant was immediately issued with a medical form to take to Kamchanga Hospital for examination. The medical report form was tendered in evidence by PW5, the police investigations officer. On the 28th September, 2003, the appellant was interviewed by PW5 and in the course of the interview the appellant admitted that he had given the complainant K2000.00 but denied having carnal knowledge of her. The appellant told PW5 that he had multiple sores on his penis, which made it impossible for him to have sex with any woman. Consequently, he was given a medical form to be examined by a doctor who confirmed the presence of the sores. PW5 told the trial Magistrate that the medical report form of the complainant confirmed that she had contracted S. T. D. \ In rebuttal, the evidence of the appellant was that on the day in issue he was watching a video film when he heard a knock on the door. Thereafter, he saw the complainant, whom he knew by the name of Chola, enter the room; he asked her what she was looking for and in response she started laughing. After greeting her, he asked her why she was not seen and she replied that she was staying very far. At her request, the appellant showed the seven minutes film, which was followed by video films known as Charles Angels, Kung Fu and Sodom and Gomora. While the films were in progress, the appellant briefly went out and when he returned he found the entrance door closed; this annoyed him because he thought the complainant was searching for money during his absence. He opened the door and there she was still watching the films. J 4 The evidence of the appellant was that during lunch his son brought food from his house, which he ate with the complainant. After lunch, the appellant went outside the room and while there the complainant closed the door again. The action prompted the appellant to chase her and after three minutes the appellant discovered that KI5, 000 cash was missing. She was later apprehended by the appellant with the help of two persons and brought back to the room. While inside the room, the two helpers refused to search her. On her own, the complainant refused to be searched and denied that she stole any money. When the appellant later met PW2, he was asked why he did not report the complainant to the police if indeed she had stolen his money. The appellant told the trial Magistrate that he did not report the theft to the police because he felt pity for the girl and’S' besides he did not have evidence. The appellant testified that the mother of the complainant reported the case to the police station, where he denied the allegation that he defiled the complainant. He confirmed that because of the sores on the foreskin, the police gave him the medical form to take to the hospital for examination. According to him, the sores were as a result of his medical condition, commonly known as sugar disease, tn cross- examination, he confirmed that he gave the complainant money and that she bought ice cream. He said that his relationship with the complainant was warm. He denied that he defiled her, saying that she was stupid to have mentioned his name. On the foregoing evidence, the trial Magistrate found that the prosecution had proved the case beyond reasonable doubt and convicted the appellant. When it came to sentence, the trial Magistrate committed the appellant to the High Court for sentence. On J 5 the 25th January, 2003, after the appellant rendered his mitigation, the learned trial judge sentenced him to 20 years imprisonment with hard labour with effect from the 27th September, 2003. The appellant now appeals against both the conviction and sentence. When we heard the appeal, counsel for the appellant advanced one ground of appeal: That the trial Magistrate misdirected himself on the question of corroboration. He said that the trial Magistrate was right to state that medical evidence showed that an offence was committed but erred when he regarded it as corroboration that pointed to the appellant as the one who committed the offence. As far as counsel was concerned, that was a misdirection as the identity of the perpetrator of the crime was not known. Counsel referred us to the disparity in the two medical reports of the appellant and f 2 the complainant. With regard to the medical report of the appellant, counsel said that it showed that there was no STD diagonised but confirmed that he was a patient for diabetes. On the other hand, counsel said that the medical report of the complainant showed that she had STD. Counsel called the case of Nsofu Vs. The People in aid. On sentence, counsel submitted that it was on the higher side. In his opposition to the appeal, the learned Director of Public Prosecutions (D. P. P.) submitted that the evidence that the prosecutrix was defiled was overwhelming and referred us to the evidence of PW1 and PW2 and that contained in the medical reports. The learned DPP submitted further that had the trial Magistrate addressed his mind to the issue of the need to find corroboration that it was the appellant who committed the offence, he would have found that corroboration. J 6 The learned DPP submitted that the evidence of PW2 was that she confronted the appellant on being informed that her daughter had been in the building owned by the appellant; that the appellant admitted being with the complainant and claimed that she had stolen money from him. According to the DPP, the foregoing evidence corroborated the evidence of the young girl (PW1) that she was with the appellant immediately it was discovered that she had been defiled. The DPP submitted that with the evidence that the appellant was in the company of the young girl immediately she was defiled, the question of whether or not it was the appellant who defiled her was a matter of credibility between the appellant and the young girl. He submitted that the trial Magistrate considered the conflicting evidence and decided to believe the evidence of the victim. In conclusion, the DPP urged us to invoke^ J the proviso to Section 138 of the Penal Code and find that had the trial Magistrate properly addressed his mind to the law he would have found the appellant still guilty. We have carefully considered the evidence before the trial Magistrate, including the medical reports, the judgment of that court, the submissions by counsel and the authorities relied on. From the submission of the learned DPP, we are in agreement that the evidence ofPW2 corroborates the evidence of PW1 that she was with the appellant in the morning at his building when she was defiled. In fact, the evidence of the appellant also confirms the presence of the victim in his premises on the morning of the 27th September, 2003. Even though he denied defiling her, the trial Magistrate believed the evidence of PW2 as being supportive of the evidence of PW1 and came to the conclusion that indeed the appellant had defiled the young girl. J7 We cannot fault the trial Magistrate for arriving at that conclusion because he was the one who heard the live testimonies of the witnesses and was, therefore, best placed to determine the demeanour of the witnesses. With that background, he knew which witness to believe as a witness of truth and which one was simply telling lies in order to save his skin. Apart from the evidence that the appellant and the complainant were together on the morning of the defilement, the medical evidence that was provided on the same day of the incident showed that the complainant’s vagina wall was inflamed, a finding that tallied with PW2’s observations; the hymen was broken; there was tenderness of the vagina on touch and the doctor’s conclusion was that defilement could not be overruled. The doctor also observed that there was whitish discharge stained with blood, a finding that was consistent with the evidence of PW4, a woman police officer, who physically examined the girl on the same day she was defiled. On the totality of the evidence, our view is that it establishes, very conclusively, that the complainant was defiled by the appellant. With these comments, the only ground of appeal is unsuccessful. With regard to the last part of the learned DPP’s submission, we wish to point out that the issue relating to the proviso to Section 138 of the Penal Code was never a ground of appeal but the DPP had to raise it as a matter of law. We note that the record of the proceedings, as recorded by the trial Magistrate, does not show that the appellant was made aware of the statutory defence available to him under the proviso to Section 138. As the appellant was un-represented at trial, it is a rule of practice that the trial magistrate should have explained to him the statutory defence available to him under the proviso at the earliest stage (>?the proceedings to enable him to reflect on the case and J 8 ask relevant questions in cross-examination of the, prosecution witnesses on the question of the age of the prosecutrix. In the case of Nsofu Vs. The People1 we dealt with the effect of failure to explain the proviso where an accused person pleads not guilty. We said that such failure was at best, from an accused person’s point of view, an irregularity, which could be cured if there had been no prejudice. The reasoning in the Nsofu case was later applied to the case of Mwaba Vs. The People2 in which the evidence established that the complainant, aged 15 years, had sexual intercourse with other men on at least seven previous occasions. In consideration of the complainant’s age, which was a borderline case and her sexual maturity, we concluded that the failure to explain the statutoiy defence to the appellant before his plea was recorded and especially before he was put on his defence was an ? irregularity. Coming to the present case, can we say that the failure of the trial Magistrate to explain the statutory defence to the appellant before he pleaded not guilty or before he was put on his defence amounted to an irregularity prejudicial to his defence? We note from the record that the evidence of the complainant, her mother (PW2) and father (PW3) emphatically confirmed that the girl was aged 12 years at the time she was defiled. She was at school in grade 6. With such evidence, we wish to take judicial notice that at grade 6, a girl aged 12 years is a very young girl, so much that even if the trial magistrate did not explain the statutory defence it cannot be canvassed that it was an irregularity that prejudiced the appellant’s defence. For these reasons, the appeal is dismissed. J9 D. K. CHIRWA . S. SILOMBA SUPREME COURT JUDGE SUPREME COURT JUDGE C. S. MUSHABATI SUPREME COURT JUDGE