Chikwanka v People (Appeal 88 of 2004) [2005] ZMSC 29 (6 December 2005)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) APPEAL NO 88 OF 2004 MORGAN CHIKWANKA Appellant V THE PEOPLE Respondent Coram: Chirwa, Chibesakunda and Chitengi JJS on 17th May 2005 and 6*h December 2005. For the Appellant: Mr B Mosha, Mosha & Company For the State : Mr J Mwanakatwe, Deputy Chiet State Advocate J U DGMENT Chirwa, JS delivered the judgment of the Court: Case referred to: 1. Penias Tembo v The Peple [1980] Z. R. 218 The appellant, MORGAN CHIKWANKA, was convicted by the Subordinate Court of the Ist Class on one count of Defilement, contrary to Section 138 of the Penal Code, Cap. 87. The particulars of the offence alleged that the appellant on 12th May 2001 at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia unlawfully had carnal knowledge of CHRISTINE KACHELA a girl under the age of sixteen years. Upon his conviction, he was sentenced, on committal to the High Court for sentence, to 20 years imprisonment with hard labour with effect J2 from 23rd August 2004. He has appealed against both conviction and sentence. The prosecution evidence was that on 12th May 2001, the complainant CHRISTINE KACHELA, a 7 year old girl complained to her 10 year old brother that she felt pain when urinating. The brother, who was PW 2, told their mother, PW 1. When the complainant was asked by PW 1 as to what happened, at first she said nothing but after she was slapped, she revealed that the appellant had on a number of occasions taken her to his parents spare bedroom and defiled her. On receipt of this information, PW 1 with the complainant went to the home of the appellant. She found some boys playing outside the house and on asking the complainant to point out any of the boys who defiled her, she responded that he was not among them. The appellant’s mother came out of the house and invited PW 1 and the complainant into the house and as they were narrating, the appellant came out of his bedroom and the complainant pointed at him as the boy who had been defiling her. The appellant denied the allegation. Whilst at the house, the complainant was able to point out the bedroom they had been using. On 13th May, 2001 PW 1 took the complainant to the hospital where she was examined by a doctor, PW 4, who upon examining the complainant, confirmed that she had been defiled. She confirmed this from the absence of the hymen indicating penetration by a male organ and the opening was 8 cm which was abnormal for a girl of that age. She also observed a tear on the lip or entrance of the vagina. J3 After hospital, the matter was reported to the Police. When PW 1 returned from the reporting the matter to the Police, the appellant and his mother approached her and pleaded that the matter be settled out of court as the appellant was school-boy and young. The appellant is alleged to have confessed to have defiled the girl because at times he felt confused. PW 1 refused to settle the matter out of court as the matter had already been reported to the Police. The appellant was then arrested for the subject offence. When put on his defence the appellant denied defiling the complainant and that on 12th May 2001 he had just arrived from Ndola and in the evening PW 1 and the complainant came to his parents' house and complained that one of the boys had defiled the complainant. He was called from his bedroom and asked about it. He denied the allegation. In his further evidence, the appellant said that on Monday 14th May 2001, Chibale told him that she was feeling sorry for him because the complainant and her mother were telling lies about him. He called his father and mother to hear what Chibale was saying. He denied going to the house of PW 1 to try to settle the matter out of court. He was then arrested on 15th May 2001 and he denied the charge. The appellant called his father as a witness and he was DW 2. DW 2 confirmed been visited by PW 1 and the complainant on 12th May 2001. On arrival, PW 1 asked the complainant to tell them what happened but the complainant said nothing. PW 1 then slapped the complainant twice. DW 2 advised PW 1 not to beat the complainant. PW 1 then explained J4 that the complainant had been defiled by the appellant. DW 2 then suggested that they go to the hospital and he offered his car but PW 1 refused and said that they would go to the hospital on Monday. On Sunday he was surprised to be summoned to PW 1 's house and to be shown a medical report. He asked PW 1 how they obtained the medical report, PW 1 told him that her husband had arranged for a doctor. On 14th May 2001 DW 2 was visited by Chibale who told him that she felt bad about what was happening and that PW 1 and her husband were forcing her to be a witness but she had refused because they wanted her to say what they wanted her to say. In considering the evidence before her, the learned trial Magistrate did warn herself of the need for corroboration. She found as a fact that the complainant had been defiled on more than once and this was corroborated by the evidence from the doctor. She ruled out mistaken identity as both the appellant and the complainant lived in the same neighbourhood. She found that the prosecution had proved the case beyond reasonable doubt. There were two grounds of appeal in the case. The first was that the learned magistrate misdirected herself by convicting on uncorroborated evidence of the alleged victim especially when there was evidence that force was used to elicit evidence from the said victim. There was a serious omission in the medical report that should warrant the treating of the medical evidence as suspect. J5 In his written submission and oral submission on the 1st ground, Counsel for the appellant argued that on the authority of PENIAS TEMBO V THE PEOPLE (1), evidence of children must be corroborated. It was submitted that the evidence of PW 1, the victim's mother cannot be considered as corroboration because the evidence of PW 2 clearly showed that PW 1 slapped the victim in order to solicit information from her. There was therefore need to look for something more. In answer to this submission, the learned Chief State Advocate submitted that there was ample evidence to corroborate the prosecutrix in this matter. It was submitted that firstly, there was the evidence of PW 2 where the prosecutrix first complained after experiencing pain on passing urine. Secondly, the evidence of the appellant and his father visiting PW 1 pleading for forgiveness and to settle the matter out of court as the appellant was young as testified by PW 1 and PW 3. It was submitted that the evidence of defilement was further confirmed by the evidence of PW 4, the medical doctor. It was submitted that the appellant was properly linked to the offence. In arguing the second ground, the ground was sub-divided into 4 sub-paragraphs. The gist of the ground was that the medical evidence as given in court should not be relied upon because it was different from the written medical report. It was submitted that there are material differences in the oral evidence and the medical report as presented. It was pointed out that in the written report, the doctor indicated that the hymen was absent and that the victim had been raped by a known J6 person. In her oral evidence she testified that the diameter of the vagina was 8 cm and that there was tear at the entrance. It was submitted that the evidence of PW 4 was embellished and made unreliable and was as result of conspiracy between PW 1 and PW 4 as such it should not be believed. In answer to this ground of appeal, it was submitted that the medical evidence cannot seriously be impeached in that the doctor merely elaborated on the medical reports given and there was nothing wrong in elaborating evidence by the author of the report. We will deal with both grounds together as they are connected. It is trite law that evidence of minors must be corroborated and further in sexual offences, the corroboration must be such as to eliminate false implications. On to evidence of defilement, there is the evidence of prosecutrix herself and that of her brother PW 2 and the doctor, PW 4. The report by the prosecutrix was unsolicited. It was made after she experienced pain on urinating. After this, PW 2 reported to their mother PW 1 that the prosecutrix was experiencing pain on passing urine because she had been raped. On receiving the report, PW 1 asked the prosecutrix as who the perpetrator of the crime was. We accept that the prosecutrix did not voluntarily reveal the perpetrator, she had to be slapped. We further accept that PW 1 did not suggest any person to the prosecutrix to implicate. After this, the prosecutrix mentioned the appellant. This evidence of non-suggestion of the perpetrator is further shown when the prosecutrix led her mother to the home of the appellant, where on arrival, J7 they found a number of children playing and the prosecutrix said the perpetrator was not amongst them. On entering the house of the appellant on invitation, without further soliciting the prosecutrix pointed at the appellant as the perpetrator. Further, there was evidence of PW 1 and PW 3 to the effect that after PW 1 had been to the house of appellant's parents and after the appellant was confronted with the accusation, the appellant and his parents came to the house of PW 1 pleading for forgiveness and that the matter be settled out of court as the appellant was young and he has some mental problems. The appellant was adequately represented and this piece of evidence was not seriously challenged. As if these were not enough, in his evidence and that of his witness, the appellant alleged that a Chibale, who had been staying with PW 1, came to their home and told them that they were falsely implicated. This fact was never put to PW 1. As we said the appellant was adequately represented and if this allegation was never put to PW 1, by Counsel, it clearly shows that it was an after-thought. Coming to the medical evidence, we agree with the learned Chief State Advocate that the medical report gives significant findings and during her oral evidence she was asked question to elaborate on her report. Her evidence confirms that the prosecutrix was sexually abused as her hymen was absent. She was asked under what circumstances a hymen could miss, she explained either by sexual inter course, bicycle riding or horse riding. The detailed oral evidence was solicited either in J8 examination in Chief or in cross-examination and this cannot make evidence suspect. We are satisfied that on the totality of the evidence the evidence of the prosecutrix has been adequately corroborated by her brother PW 2 and the doctor. Further the crime is linked to the appellant by his conduct and that of his parents when the alleged defilement was brought to their attention, they tried to settle the matter out of court and apologized for the conduct of the appellant. We see no merit in this appeal against conviction and we dismiss it. Before we consider the appeal against sentence, we wish to make an observation. Under Section 138, there is a provisio that it shall be sufficient defence to any charge under this section if it shall be made to appear to the court before whom the charge shall be brought that the person so charged had reasonable cause to believe, and did in fact believe, that the girl was of or above the age of sixteen years. This defence must be explained to the accused. But in some cases, ocular observations by the court are sufficient to determine that no body can reasonably think that the girl is of or above sixteen years. In the present case, the learned trial magistrate did not explain to the appellant the possible defence under the provisio. But we are of the opinion that this was not a misdirection nor fatal in this case. The girl at the time of offence was 6 years and any ocular observation can clearly indicate to any reasonable man that the girl was below the age of 16 years. We therefore dismiss the appeal against conviction. IN THE SUPREME COURT OF ZAMBIA APPEAL NO 88 OF 2004 HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) MORGAN CHIKWANKA Appellant V THE PEOPLE Respondent Coram: Chirwa, Chibesakunda and Chitengi JJS on 17th May 2005 and 6th December 2005. For the Appellant: Mr B Mosha, Mosha & Company For the State : Mr J Mwanakatwe, Deputy Chiet State Advocate J U DGMENT Chirwa, JS delivered the judgment of the Court: Case referred to: 1. Penias Tembo v The Peple [1980] Z. R. 218 The appellant, MORGAN CHIKWANKA, was convicted by the Subordinate Court of the 1st Class on one count of Defilement, contrary to Section 138 of the Penal Code, Cap. 87. The particulars of the offence alleged that the appellant on 12th May 2001 at Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia unlawfully had carnal knowledge of CHRISTINE KACHELA a girl under the age of sixteen years. Upon his conviction, he was sentenced, on committal to the High Court for sentence, to 20 years imprisonment with hard labour with effect J9 The appellant was sentenced to 20 years by the High Court on being committed there for sentence. Counsel for the appellant submitted that the sentence of 20 years imprisonment was excessive and asked us to reduce. We bear in mind the mitigation offered and the fact that the appellant is very young. But we note and take judicial notice that there has been an up surge of defilement cases and we are living in the world . of deadly diseases such as HIV/AIDS and innocent girls must be protected from the likes of the appellant. We therefore do not accept that the sentence of 20 years is excessive. It does not come to us with any sense Cjf shock as being excessive. The appeal against sentence is also dismissed. D K Chirwa JUDGE OF THE SUPREME COURT L P Chibesakunda JUDGE OF THE SUPREME COURT JUDGE OF THE SUPREME COURT