Makwell Chanda v The People (HNA/373/1971) [1971] ZMHC 14 (31 December 1971)

MAKWELL CHANDA v THE PEOPLE (1971) ZR 34 (HC) HIGH COURT CHOMBA J 31st DECEMBER 1971 I (HNA/373/1971) 30 Flynote Criminal law and procedure - Charge - Assault occasioning actual bodily harm - Whether charge should allege assault was unlawful. Evidence - Medical evidence - Charge of assault occasioning actual bodily harm - When medical evidence necessary. Headnote ■ The 35 appellant was convicted of the offence of assault occasioning actual bodily harm. His counsel argued: (1) the charge was defective in that in the particulars of the offence it was not alleged that the assault was unlawful, (2) the trial magistrate should not have held that actual bodily harm had been caused to the complainant because there was no ■ medical 40 evidence. Held: (i) The practice in Zambia in regard to the framing of a charge of assault occasioning actual bodily harm is based on English practice and it is not necessary to allege that the assault ■ was unlawful 45 . 1971 ZR p35 CHOMBA J (ii) In the case of assault causing actual bodily harm, medical evidence is necessary only when the defence denies injury and the same is in issue. ■ Legislation referred to: I Penal Code, 1965 (Cap. 6), ss. 5, 220. 5 G M Sheikh, Legal Aid Counsel, for the appellant. C Kawamba, Senior State Advocate, for the respondent. Judgment Chomba J: The appellant in this case was convicted of the offence of assault occasioning actual bodily harm, contrary to s. 220 of Cap. 6. The particulars of offence allege that he on the 8th of November, 10 1971, at Mufulira in the Mufulira District of the Copperbelt Province of the Republic of Zambia, did assault Innocent Kapansa thereby occasioning him actual bodily harm. In his appeal two main points were raised on his behalf by his counsel Mr Sheikh. Firstly counsel submitted that the charge was defective in that 15 in the particulars of offence it was not alleged that the assault was unlawful. He cited no authority for that proposition. Secondly he argued that the magistrate should not have found that actual bodily harm had been caused to the complainant because there was no medical evidence. I can find no authority on the basis of which I can uphold the 20 appellant's counsel's novel submission that a charge of this nature is bad unless the alleged assault is described as unlawful. Indeed in s. 220, Cap. 6, under which the appellant was charged, the offence is defined as, "Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for 5 years." The word 25 "unlawful" does not appear there. I have also perused the precedents contained in the Criminal Procedure Code regarding the framing of charges but unfortunately have not found a precedent concerning the present offence. But in the 36th edition of Archbold Criminal Pleading Evidence and Practice at para. 2637 a precedent for assault occasioning 30 actual bodily harm is set out. It is as follows, "Statement of Offence: Assault Occasioning Actual Bodily Harm. Particulars of Offence: A . . . B . . . On the day of . . . in the County of . . . assaulted J . . . N . . . thereby occasioning him actual bodily harm." By referring to this precedent I am reinforced in the view that our practice in Zambia in regard to the framing 35 of a charge of assault occasioning actual bodily harm is based on English practice which as is shown in the precedent does not include the word "unlawful". Therefore this ground of appeal has no merit. ■ ■ ■ ■ ■ I equally feel that the second ground, that is the one relating to the necessity of medical evidence as to the injury suffered by the complainant, 40 has no merit. This is not of course to suggest that where the question of injury is in issue, that is where there is a contention by the defence that no injury was suffered, medical evidence is not necessary. In the instant case the complainant testified that as a result of the blows he received from the appellant he bled profusely from the nose and that he sustained a cut on 45 the lower lip. He further stated that his face was covered in blood and he ■ ■ 1971 ZR p36 CHOMBA J could not see. The magistrate having accepted that evidence was bound to find that the complainant had suffered actual bodily harm in terms of s. 5 of the Penal Code, where it defines the term "harm". In the final analysis I find that this ground of appeal cannot succeed also. On 5 the question of sentence, I take into consideration that the assault was very brutal and necessitated the hospitalisation of the complainant for eight days. For this reason I do not consider that a sentence of three months' imprisonment was inappropriate. The entire appear is dismissed. I Appeal 10dismissed I