Robert Kalimukwa v The People (HLA/76/71) [1971] ZMHC 18 (23 September 1971)

ROBERT KALIMUKWA v THE PEOPLE (1971) ZR 85 (HC) HIGH COURT SILUNGWE AGJ 23rd SEPTEMBER 1971 I (HLA/76/71 ) 15 Flynote Criminal law and procedure - Attempted rape - What amounts to. Evidence - Corroboration - Corroborative evidence in case of attempted rape. Headnote The appellant had been convicted and sentenced by the Senior Resident Magistrate, Mongu, for the offence of attempted rape. He 20 appealed on the grounds that: (1) on a charge of "attempted rape" it must be proved to the satisfaction of the court that the accused not, only intended to gratify his passions on the person of the prosecutrix but that he intended to do so at all costs and notwithstanding any resistance on her part; (2) the magistrate misdirected himself on the question of 25 corroboration. Held: ■ ■ (i) The fact that an accused person desists of his own accord from the further prosecution of his intention is no defence to a charge of attempted rape; it is merely a mitigating factor that may be 30 taken into consideration when passing sentence. ■ (ii) Independent evidence of the distressed condition of the complainant soon after the alleged offence may amount to corroboration. I Cases cited: 35 (1) The People v Daniel Lubumbe 5 NRLR 210. (2) R v Redpath (1962) 46 Cr. App. R 319. (3) R v Knight [1966] 1 WLR 230 (4) Reg v Lloyd (1836) 7 C & P 318. I (5) Reg v Wright (1866) 4 F & F 967. 40 (6) R v Shankar (1881) ILR 5 Bom 403. The People v Daniel Lubumbe at (1) above not followed. 1971 ZR p86 SILUNGWE AJ Legislation referred to: Penal Code, 1965 (Cap. 6), ss. 115, 118 (1), 351. Criminal Procedure Code, 1965 (Cap. 7), s. 168 (2). I W M Muzyamba, Legal Aid Counsel, for the appellant. 5 E L Sakala, State Advocate, for the People. Judgment Silungwe AJ: On the 22nd July, 1971, the appellant, Robert Kalimukwa, was convicted at Kalabo by the senior resident magistrate, Mongu, of attempted rape, contrary to s. 115 of the Penal Code, Cap. 6, the allegation being that on 17th June, 1971, at Kalabo, he attempted to have carnal knowledge of Judith Mulenga, a woman, without her consent. He was sentenced to twelve 10 months' imprisonment with hard labour, six ■ months of which was suspended for a period of two years from the date of sentence on condition that the accused should not be convicted of an offence of this nature. The present appeal arises out of the said conviction 15 and sentence. At the trial the appellant was represented by Mr Mwisiya of Mwisiya, Chongwe and Co. During this appeal he is being represented by Mr Muzyamba, legal aid counsel. Mr Sakala is representing the People. At the beginning of the appeal yesterday, Mr Muzyamba applied for 20 leave of the court to file an additional ground of appeal. The State had no objection to this application and leave was accordingly, granted. The additional ground of appeal was that the learned ■ ■ ■ magistrate overlooked the case of The People v Daniel Lubumbe (1) which constitutes the law on attempted rape in Zambia. The first ground of appeal by the appellant 25 says ■ that the magistrate misdirected himself on the question of corroboration. It seems that the rest of the grounds hinged on the question of corroboration and the credibility of the witnesses in general. The facts of the case are very simple and straightforward. The prosecution evidence reveals that on 17th June this year, the appellant 30 went to Mulenga's office which happened to be the registry, stood behind her, placed his hand on her forehead and kissed her. It was 10.40 a.m. Both the prosecutrix and the accused were officers in Zambia Police, stationed at Kalabo. The appellant was a Station Inspector there holding the rank of Sub Inspector. The prosecutrix is a woman Constable. After 35 the kiss, the prosecutrix told the appellant that she was not happy with his behaviour. Thereafter the appellant went to his office. A few minutes later he called the prosecutrix into his office and invited her to sit on a visitor's chair. He was also sitting on another visitor's chair. After the prosecutrix had sat down the appellant put the papers he was holding in his hand on a table, got up and said to the prosecutrix: "I want you." Then the appellant started to draw the curtains. On seeing this the prosecutrix stood up and tried to open the door but was pushed backwards by the appellant who produced keys from his pocket and locked the door. That 40 done, the appellant caught hold of the prosecutrix, twisted her arms 45 backwards and pressed her against the wall whilst standing up. The appellant pushed a handkerchief into the mouth of the prosecutrix. He ■ ■ ■ 1971 ZR p87 I ■ ■ SILUNGWE AJ then pulled up her skirt and attempted, in vain, to pull down her knickers. Having failed to pull down the knickers, he pushed his penis between the thighs of the prosecutrix and after some time, the prosecutrix felt what she calls sperms running down her legs. Kalimukwa then left her alone. Having removed the handkerchief from her mouth, the prosecutrix told 5 the appellant that she would report the incident to the officer in charge upon his return. The appellant hesitated to open the door at the request of the prosecutrix but eventually handed to her the key to the door. She opened it and went back to the registry. She was protesting loudly. The appellant went into the registry and offered to pay her compensation for 10 what he had done. Shortly thereafter and whilst the prosecutrix was weeping, she saw the officer in charge enter his office; she went there and made a report. She told the learned Senior Resident Magistrate that she showed the officer in charge sperms which were still visible on her thighs. The officer 15 in charge confirmed this story before the magistrate. The prosecutrix was taken to Yuka Hospital for medical examination where she was examined by PW2, Dr Werner on the same day. The doctor's examination revealed that the knickers belonging to the prosecutrix were moist and had a smell characteristic of spermatic fluid. He did not see any spermatic fluid in 20 between the thighs of the prosecutrix. The officer in charge, PW3, Mr Daka, confirmed the testimony of the prosecutrix. He says he found the prosecutrix weeping. She appeared annoyed and she showed him white stuff on her thighs. He arrested the accused for attempted rape which I the accused denied. 25 The accused's defence was that the officer in charge, Mr Daka, (PW3), and the prosecutrix, PW1 concocted their stories. He told the magistrate that he had had sexual intercourse before with the prosecutrix in December, 1970. A few days later the prosecutrix demanded K6 from him in consideration of the sexual intercourse which had taken place on 30 two occasions. The appellant went on to say that he had no money to give the prosecutrix, but that in January of this year he gave her K2. He said that on the date in question, 17th June, 1971, Mulenga had in fact asked him for some money but he had no money to give to her. As regards the officer in charge, Mr Daka, the accused contends that he made up this 35 story against him because the two were on bad terms following an incident that took place on the 23rd May, 1971, when the appellant's door to his house was damaged by four constables on instructions emanating from the officer in charge. ■ ■ ■ On the question of corroboration, I am satisfied that the magistrate 40 properly and correctly advised himself. I agree with his finding that there was corroboration in this case and that that corroboration was independent. There is evidence in the lower court to show that the prosecutrix had had a child by someone else whom she calls her husband. One must therefore take her to know what she means when she talks about sperms running 45 down her thighs following what the appellant allegedly did to her on the 17th June, 1971. Independent evidence of the distressed condition of the ■ ■ 1971 ZR p88 I SILUNGWE AJ complainant soon after the alleged offence may amount to corroboration: R v Redpath (2), but such distressed condition must not be over emphasised: R v Knight (3). The doctor's evidence was properly held by the magistrate to amount to corroboration. I am satisfied on the evidence as 5 reflected in the lower court's record that the incident complained of by the prosecutrix did in fact take place. The learned defence counsel now argues that the magistrate overlooked the decision in the case of The People v Daniel Lubumbe, already referred to above. The case is put forward in support of the additional 10 ground of appeal. In that case, the accused was employed as a kitchen servant by the complainant. He went to the complainant and told her he wished to leave her service and then demanded his wages. The complainant, who was standing in the back porch of her house, told the accused to report the following morning whereupon the accused leapt at 15 her throat, pushed her to the floor of the ■ lounge and sat astride her thighs. He put his hand on her clothes over her private parts and said. "Give it to me." The complainant saw the accused unbutton his trousers, but did not actually see the accused's private part. The accused tried to pull up the complainant's dress but as he was sitting on her clothes, he was unable 20 to do so. During all that time the complainant was struggling with the accused and pleading with him to let her go and that she would pay him. The accused then got up on his own accord and left her standing in the doorway leading from the lounge to the back porch. The accused was consequently charged with attempted rape contrary to s. 115 of the 25 Penal Code. Reference was made to three cases in that particular one namely: ■ ■ ■ (1) Reg v Lloyd (4); (2) Reg. v Wright (5); (3) R v Skankar (6). I ■ Mr Justice 30 Woodman, in the Daniel Lubumbe's case, held in effect that on a charge of attempted rape, it must be proved to the satisfaction of the court that the accused not only intended to gratify his passions on the person of the prosecutrix, but that he intended to do so at all costs and notwithstanding any resistance on her part. In doing so he relied upon 35 the three cases that had been cited in the case then before him. The learned Judge observed that in that case, the accused on meeting with resistance voluntarily desisted. In terms of s. 168 (2) of the Criminal Procedure Code, he then proceeded to and in fact found the accused guilty of indecent assault upon a female, contrary to s. 118 (1) of the 40 Penal Code. The accused was accordingly convicted of this minor offence. That case was decided in November, 1952, a long time ago. In this particular case under consideration, can it be said that what the appellant did to the prosecutrix amounted to an attempted rape or merely to an indecent assault. Having failed to pull down the knickers of 45 the prosecutrix, the appellant placed his private part on her knickers next to her private part and ejaculated, thereafter he left her. The State's contention is that that amounts to the crime of attempted rape. The ■ ■ SILUNGWE AJ defence view, on the other hand is to the contrary. Section 351 of the Penal Code, Cap. 6, as reflected in the latest edition of the Laws of the Republic of Zambia, 1965 Ed., defines an attempted rape as follows: "When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and 5 manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. I 1971 ZR p89 It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the 10 commission of the offence, or whether the complete fulfilment of his intention is ■ prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the 15 offender it is impossible in fact to commit ■ ■ the offence." The editors of the Digest of Criminal Case Law in Zambia, 1967 Ed., at p. 140, have briefly summarised the judge's decision in Daniel Lubumbe's case by saying in effect that when it is not proved that the accused not only intended to satisfy his passions but intended to do so at all costs 20 notwithstanding any resistance on the part of the woman, the accused would be guilty of indecent assault contrary to s. 118 (1), Cap. 6. I find myself unable to accept Mr Justice Woodman's decision in the Lubumbe case in the light of the definition of the offence of attempted rape which I have just reproduced in full above. The position is that under s. 351 of the Penal Code the fact that an accused person desists of his own motion from the further prosecution of his intention to commit the crime of attempted rape is no defence; it is merely a mitigating factor that may be taken into consideration when passing sentence. The decision of the learned judge was based on two English cases and one Indian case, but 30 he made no reference to s. 351 of the Penal Code. What constitutes criminal attempt in Zambia does not necessarily do so in England or India. With the greatest respect, I regard Lubumbe's case as having been wrongly decided. I have not the slightest hesitation in upholding the magistrate's 35 decision, namely that what the appellant did to the prosecutrix in the instant case constituted the crime of attempted rape. I therefore see no sound reason for disturbing that decision. Accordingly the appeal against conviction fails. As regards sentence, the accused was a first offender. The offence of attempted rape carries a maximum penalty of 40 imprisonment for life. I have considered that the sentence of 12 months' imprisonment with hard labour, six months of which was suspended was not excessive in the circumstances. I will not interfere with that sentence, so the appeal against sentence also fails. Appeal dismissed ■ ■ ■