Chaluluka v S (Criminal Appeal 3 of 2010) [2010] MWHC 101 (20 December 2010)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CRIMINAL APPEAL NO 3 OF 2010 LIMBIKANI GCHALULUNA, sissineorcnvrnnricxais cisnieancieninaainienmnae «ness THE STATE senssnccrnsnonsnmnannascecvicnnmansaumann raalepauiouayanensiorey axa CORAM: HONOURABLE JUSTICE G. J. MWASE Mwase J Ngwira, of Counsel, for the Appellant Mapemba (Ms), of Counsel, for the Respondent Nthondo, Official Interpreter Chirombo (Mrs), Court Reporter. JUDGMENT APPELLANT RESPONDENT The accused was charged and tried in the Senior Resident Magistrate Court sitting at Zomba with defilement the girl under 13 contrary to section 138(1) of the Penal Code (Chap7:01). After a full trial, he was convicted and sentenced to serve a sentence of 10 years imprisonment with hard labour. Being dissatisfied with both conviction and sentence, he now appeals to this court against both conviction and sentence. ~The first ground of his appeal is that the Learned Senior Resident Magistrate erred in law by convicting appellant of charge of defilement under section 138(1) of Penal Code. When the prosecution evidence failed to establish the essential elements of the offence. The second and third grounds of appeal deal with the evidence. The contention in the second ground of appeal is that the learned Senior Resident Magistrate erred in both the law and fact by failing to sufficiently consider or at all the evidence adduced by the appellant in his defence. Alternatively, by disbelieving defence evidence when there is no basis of such disbelief. Third ground alleged that learned trial magistrate failed to appreciate the nature of the burden on the prosecution before accepting the allegations as having been proved and the conviction that was recorded unsafe. The fourth ground is that the learned trial magistrate failed to adequately consider the sentencing principles with the result that the sentence in this matter is manifestly excessive. The brief facts of the case are as follows: the complainant was a girl of the age of 10 years old. She lived with her grandmother. The appellant is the Uncle of the complainant and they lived together with her grandmother, first at Manja in Blantyre and later at Kalimbuka in Zomba where the alleged offence took place. At the material day 24'n February 2009 at about two in the afternoon the complainant went to the bathroom to take a bath. After her bath, she unlocked the room and started washing her clothes. It is alleged that the appellant entered the bathroom, locked the bathroom and undressed the complainant and had sex with the complainant. When the appellant heard footsteps of PW2 referred to as Uncle Joe he opened the door and the two met in the door way of the bathroom and Uncle Joe got suspicious when he saw that the dress and pant of the complainant were down on her feet. When Uncle Joe asked the complainant what had happened she said she had been defiled. The first ground of appeal was that the learned Senior Resident Magistrate erred in law by convicting the Appellant on a charge of defilement under S.138(1) of the Penal Code when the prosecution's evidence failed to establish the essential elements of the offence. S.138(1) of the Penal Code provides that :Any person who unlawfully and carnally knowledge any girl under the age of 13 years shall be guilty of a felony and shall be liable to imprisonment for life, with or without corporal punishment. The Appellant has argued that it is a cardinal principle of criminal law that the prosecution bears the burden of proving all the charges preferred against an accused person and that the burden on the prosecution is one of proving the charges beyond reasonable doubt. (see Mohomed Sirdar vs Republic [1968-70] ALR Mal 212. He has further argued that a reasonable doubt is simply that degree of doubt which would prevent reasonable and just men from coming to the conclusion that the case is proved and that the degree will vary according to the subject and circumstances of the case (see Republic vs Banda [1968-70] ALR Mal 96. It was the argument of the Appellant that the elements of defilement as defined by S138 of the Penal Code are that the girl must be under the age of 13 years and that there must be penetration. It is the contention of the Appellant that although the prosecution proved that the girl was under 13 years, they failed to prove penetration. See the case of Marriete vs Republic 4 ALR 119. The Appellant contends that the evidence has not proved an essential element of penetration. He has argued that the evidence of PW1 cannot be relied on because it is full of inconsistencies and contradictions. He argued that although PW1, the complainant told the court that the Appellant undressed her, put his penis into her vagina and discharged the white substances into her vagina and that she felt pain but could not cry out because the Appellant shut her mouth and that she sustained bruises during the defilement; why did the semen not trickle down her body and soil her clothes. 3 PW65 told the court that he did not see any lacerations or indeed any bruises. He told the court also that bruises may take a week to heal and bigger ones leave scars. The Appellant submitted that if indeed the complainant was defiled the hospital would have found bruises or scars. The case of Ndau vs Republic 7 ALR Mal 77 was cited where the court held that penetration could not be established in the absence of scratches or cuts. The Appellant was surprised that the court below said that it did not matter that no such bruises were present. The Appellant further argued that the complainant in her evidence told the court that when being defiled the Appellant pulled down her pants and PW5 in his testimony with which DW4 concurred told the court that if a person who has just been defiled stands up the semen trickles down. PW65 further told the court that when looking for evidence of defilement, they also look at the clothes of the victim whether they are torn or dirty or smeared with semen or not. The Appellant contends that from the prosecution evidence, the complainant stood up immediately after the alleged act of defilement and one would have thought that her clothes or pants would have made good corroboration evidence of the defilement. The pant was not tendered in evidence. The Appellant argued again that the finding by the trial Magistrate that the complainant had indeed been defiled because her hymen was already torn when she had gone to Zomba Central Hospital for examination and that since the Defence did not raise any evidence to show that the torn hymen was caused by agents other than that of a male sexual organ was erroneous in the light of the evidence of PW5 who told the court that he would not tell that only the male organ was responsible for tearing of the hymen and that if he was not told that the inspections was for defilement he would not have concluded that the complainant had been defiled on the basis of what he saw. The Appellant further argued that the Learned Magistrate erroneously treated the evidence of PW2 as providing the circumstantial corroboration of the defilement and that the finding by the Magistrate that the pant and trousers of PW1 were on the floor where PW2 saw them was inconsistent with the evidence presented before the court. It was the Appellant's contention that PW2 did not say in his testimony that he saw the semen trickling down the thighs of the complainant neither did he mention that he saw semen on the clothes of the complainant. This would have been credible corroborating evidence. The appellant further argued that the trial court having come to the conclusion that the evidence of PW4 would not be relied on, then there was no any other corroborating evidence to be relied on that on the material day the Appellant defiled the complainant. This means then that the prosecution evidence did not prove all the essential elements of the offence namely that it was the Appellant who penetrated the vagina of the complainant on the material day and concluded that the prosecution had proved its case beyond reasonable doubt. When time came for the State to make submissions, they adopted the skeleton arguments which they had filed with the court. counsel submitted that there was no doubt as to the age of the complainant that she was 10 years of age and therefore under the age of 13 years as required by S 138 (1) of the Penal Code. On the issue of penetration, counsel argued that penetration can be proved in a number of ways: 1. Presence of bruises and lacerations 2. Torn hymen, which is always the case in young children. The appellant argued that in some instances both broken hymen and bruises and lacerations can be found. The law however does not require that both should be present at the same time. The Appellant argued that in this case the doctor who examined the child found that she had broken hymen and the complement child is only 10 years old and she must have a hyment. Yes the doctor did not find lacerations or bruises but the hymen was broken. The appellant further argued that the presence of semen is also proof of penetration that PW4 although he was doubted as an expert testified. The prosecution however has contended that the testimony of PW1 the complainant has been corroborated by PW2 and PW4 and PW5 and that although her story contained some inconstancies the story remained the same that is the Appellant defiled her on 24/02/09. | am not pleased at the way this case was handled by the complainants taking into account the fact that the grandmother, PW 3, of the complainant who is also her guardian is knowledgeable about the rights of children and that she works for such organizations as those that deal with children rights. When PW 3 received a report from PW 2 of the alleged defilement, she decided to send the complainant away before reporting the matter to police, let alone before taking the complainant to the hospital for examination. Secondly, the complainant was only taken to a private hospital the following day and before reporting the matter to the police. Thirdly, an incident that took place on 24th February, 2009, was only reported to police on 27 February, 2009, when the police ordered that the complainant be taken to a government hospital. Fourthly, the accused was only arrested on 13° May, 2009, and recorded statement on 21st May, 2009. It should be noted that these kind of complaints need to be handled promptly and with speed, and as a knowledgeable woman, she acted without seriousness. It should be noted that PW2 according to his evidence, did not catch the Appellant and PW1 in the act. vvitdt 11 LUIU Le COUIT Was tNat ne found the Appellant coming out of the bathroom and that the pants of the PW1 were down on her feet and that the Appellant told him that he was clearing his teeth. PW2 further told the Court that upon beating the complainant, she confessed that she had been defiled and also that the Appellant also confessed that he had defiled the complainant. That is as far as the evidence of PW2 goes. What we get from this evidence is that the Appellant was seen coming out of the bathroom and the complainant was also there. The impression that PW2 creates is that because the Appellant was doing something sinister he came out of the bathroom in a hurry and ended meeting the PW2 in the door way. All PW2 told the Court is that he saw the pant and trousers of the complainant down at her feet. He did not say whether he saw semen running down the thighs of the complainant. What he told the Court is that he got suspicious when he did not see the complainant and the Appellant at their usual places on this particular day. The question that should be asked is why should he got suspicious when he told the Court that all along him and the Appellant had a cordial relationship and there was nothing to suggest that something illicit was going on between the Appellant and the complainant. Why should he get suspicious. If he was suspicious then it means he did not view the movements of the Appellant objectively. The Appellant in his testimony told the Court that on this day after a meal he went in the bathroom to clean his teeth. He did not clean the teeth because when he entered the bathroom he found that the complainant was there and that he had to come out and that as he come out he met PW2 in the door way. This is also the same story that the Appellant gave at the Police station in his caution statement. Coming to the evidence of PW4 Mathoya who testified that he tested the urine of the complainant and saw that there were live sperms in it. 7 He wrote a medical report on his findings. It is on record that this report was rejected by the Police and another examination was ordered at Zomba Central Hospital. The Appellant argued that this report could not be admitted in evidence because PW4 could not qualify as an expert to competently examine a urine sample for the purpose of establishing as to whether sexual intercourse did take place or not. The prosecution in the other hand argued that he could be accepted as an expert. In the case of DPP vs Msosa SCA Criminal Appeal No.1 of 1973, an expert was defined as being a person who has amassed enough experience over a period of time and out of dealing with the same thing and not necessarily one who has gone for formal training or high academic learning. In this particular case what was in issue was the evidence of a police officer identifying Indian hemp and what their lordships observed was that “A Police officer may have gained practical experience in the identification of dangerous drugs which enables him to be treated as an expert.” He must lead evidence to the number of years he has served in that position and any other course he had attended relating to the investigation of the drug. In the case before me, | note that PW4 had some experience in the laboratory operations. He told the court that he had done so for 3 years. He however told the court that examining urine for the purposes of checking for sperms this was the first time. Would we say one in the position of PW4 would qualify under the case of DDP vs Msosa. My answer surely would be no the reason being that he had not yet acquired the required experience. | also want to believe that that was the reason his report was rejected by the Police investigators. | also want to believe that is the reason the Court below stated that it would disregarded the evidence given by PW4. The evidence of PW5 in the main told the Court that the complainant had lost her virginity in the sense that her hymen was torn. When that hymen was torn he could not tell. There was suggestion that the Appellant had defiled the complainant many times before but evidence that the one who did that was the Appellant was not there. PW65 told the Court that he could not find any laceration or bruises in the womanhood of the complainant suggesting that if indeed the Appellant had penetrated the complainant these signs would have been there. Yes, the complainant told the court that she was defiled but her story needed to be corroborated by some independent evidence. The Prosecution tried to do this by the evidence of PW2, PW4 and PW5. | have found this evidence wanting. The fact that PW2 could not tender the pants or any soiled clothes of the complainant, his evidence could not be said that it established penetration. The evidence of PW4 which evidence was taken to be the evidence of an expert fell short of such as it came to light that he did not have the requisite experience as required by guild line in Msosa vs DPP a Supreme Court of Appeal decision. Further, the lower court rightly disregarded this evidence. The evidence of PW5 could not say at which point the complainant lost her virginity. The onus is on the prosecution to prove the case against the appellant beyond reasonable doubt. This onus remains on the prosecution throughout the trial. In the light of the evidence before this court, | find that the prosecution has not discharged this duty to the requisite stand of proof beyond reasonable doubt. The appeal therefore succeeds in its entirety. The conviction of the lower court is accordingly quashed and the sentence it imposed consequently set aside.