Emmanuel Chola Bwalya v the People (CAZ APPEAL NO. 237/2020) [2022] ZMCA 205 (24 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA CAZ APPEAL NO. 237 /2020 HOLDEN AT KABWE (Criminal jurisdiction) BETWEEN: AND THE PEOPLE APPELLANT RESPONDENT CORAM: MCHENGA DJP, KONDOLO SC, BANDA-BOBO, JJA On 20th October, 2021 and on 24th August, 2022 For the Appellant : Mrs. M. K. Liswaniso, Senior legal Aid Counsel - Legal Aid Board For the Respondent: Mr. bob Mwewa, Senior State Advocate - National Prosecution Authority JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court. CASES REFERRED TO: 1. R v Robinson [1915] 1 KB 342 2. Director of Public Prosecution v Rodgers Musonda SCZ Appeal No. 159/2013 3. Saluwema v The People ( 1965) ZR 5 J 2 of 19 4. Kalonga v the People (1975) ZR 124 5. Andrew Tembo v The People SCZ Judgment No. 13 of 2011 6. George Lipepo and Others v The People SCZ Judgment No. 20 of LEGISLATION REFERRED TO: 1. The Penal Code, Chapter 87, Laws of Zambia 2. The Criminal Procedure Code, Chapter 88, Laws of Zambia 1. INTRODUCTION 1.1. The appeal was against a Judgment on rev1s10n delivered by Chembe J. The Appellant initially stood charged with the offence of defilement of an imbecile or mentally retarded person contrary to section 139 of the Penal Code. After the prosecution closed its case, the trial Magistrate found him with no case to answer on the charge he was facing but instead found him with a case to answer for the offence of indecent assault contrary to section 137( 1) of the Penal Code. 1.2. The new charge was read to the Appellant, he re-took his plea and indicated that he had understood his rights. He opted not to re-call any of the prosecution J 3 of 19 witnesses nor his own witnesses and chose to give sworn testimony. 1.3. Judgment was passed against him and he was convicted. Since the offence carried a minimum mandatory sentence of 15 years, the trial Magistrate, in line with section 217 of the Criminal Procedure Code (CPC), committed the convict to the High Court for sentencing. At this point, the bail that he was enjoying was revoked and he was remanded in custody. 1.4. When the case came up for sentencing, the High Court Judge exercised her powers of review under section 337 of the CPC. In a twist of events, the trial Judge, after analysing the law and the facts relating to the case before her, found that the facts were more appropriate to support a charge of attempted defilement of an imbecile. 1.5. Consequently, the conviction for indecent assault was quashed and replaced with a conviction for the offence of attempted defilement of an imbecile. The Appellant -7 J 4 of 19 • was then sentenced to 15 years imprisonment with hard labour. 2. BACKGROUND 2.1. The alleged sexual assault on the prosecutrix occurred on 16th September, 2019. Mulenga Bupe (PW2), told the Court that on that fateful day, he returned home from work around 18:30 hours and upon entering the house he found the Appellant, with his pants down, on top of the Prosecutrix. PW2 also noticed that the Appellant was wearing a condom. He called his neighbour Edward Mukuka (PW3) to help him. Meanwhile, the Appellant rushed to the bathroom to dress up properly and thereafter went at PW2 with force. PW2 stood his ground at the door of the house and they managed to apprehend him. 2.2. Meanwhile, Rhoda Mahachi (PWl), the prosecutrix's mother, was also returning home from work met her son who informed her that the police had apprehended a man for going after the prosecutrix. She followed the l J 5 of 19 • crowd that headed to the police station and found that the Appellant had been detained. 2.3. PWl rushed back home to see her daughter who in her words , "was not looking ok". She examined her and found slippery stuff in her vagina. The police gave them a medical report form and the Prosecu trix was examined at Roan Antelope General Hospital. 2.4 . The arresting officer, Sergeant Mumbotwa Reuben received the docket whilst the Appellant was already in custody. He confirmed that a medical report was issued but it showed no visible injuries on the victim's privates. 2.5. In his defence, the Appellant claimed he went to the area to collect a debt from one Nsonga. In the process of looking for the debtor, he met PW2 who complained that there was a man who used to come to see the Prosecutrix and they suspected that it was him. It was at that moment that PW2 called PW3 who slapped him before they took him to the police station. J 6 of 19 • 3. DECISION OF THE SUBORDINATE COURT 3.1. The trial Magistrate found the prosecution's evidence more credible as PW3 corroborated PW2 's evidence and that the two had no reason to lie against the Appellant who had stated that he had a good relationship with PW2. The trial Court also noted that the Appellant contradicted himself when he testified that he went to see N songa, who lives in an area called Section 26 , but was found in Section 27. This led to the finding that he did in fact go to PW2's residence where he was found. 3 .2 . Addressing its mind to the discrepancy between the evidence of PW2 and of PW3 with regard to where the Appellant was at the time PW3 arrived at the scene, the trial Court resolved this evidence in favour of the prosecution and found that they both apprehended the Appellant at the scene therefore the discrepancy was minor. 3.3. With that said, the physical contact, in an unbecoming manner offending public decency coupled with lack of J 7 of 19 • consent from the prosecutrix, the trial Magistrate found that the prosecution proved its case. The Appellant was accordingly convicted. 4. THE DECISION OF THE HIGH COURT 4 .1. As we have already stated in paragraph 1, the High Court decided to review the case. Upon analysing the evidence, the High Court Judge decided to apply the principle in R v Robinson (1) and found that the evidence pointed to attempted defilement of an imbecile under section 139 of the Penal Code. Her decision turned on the fact that the section itself provides for both defilement and attempted defilement of an imbecile, therefore, where the facts are not sufficient to constitute defilement of an imbecile, an accused could be found guilty of attempted defilement. 4.2. She quashed the conviction of indecent assault and convicted the Appellant for attempted defilement of an imbecile and meted out the minimum sentence of 15 years. J 8 of 19 5. THE APPEAL 5 .1. Dissatisfied with the conviction, the Appellant has impugned the lower Judgment on two grounds , namely: 1. That the learned trial Court erred in law and fact by convicting the appellant in the absence of evidence beyond all reasonable doubt. 2. The learned trial Court erred in law and fact in failing to consider the explanation of the appellant in his defence which was reasonably possible. 5.2. Both parties filed their respective arguments which we shall briefly sum up in the next paragraphs. 6. APPELLANT'S ARGUMENTS 6.1. The core argument in support of ground 1 was the absence of corroboration on the commission of the offence. It was pointed out that the prosecution heavily relied on the evidence of PW2 and PW3 which evidence was marred with inconsistences and contradictions . We J 9 of 19 were directed to the evidence of PW2 in which he stated that when he entered the house, the Appellant was running to the bathroom and they manged to apprehend him and yet PW3 stated that the PW2 stood at the entrance of the house and came out with the Appellant. The case of Director of Public Prosecution v Rodgers Musonda (2l was cited in aid. 6.2. Ground 2 attacked the trial Court's failure to consider the defence put forward about debt collection. Reliance was placed on the cases of Saluwema v The People (3) and Kalonga v the People (4l and it was submitted that there was absolutely nothing to exclude a more favourable inference for the Appellant. We were urged to allow the appeal . 7. RESPONDENT'S ARGUMENTS 7 .1. In rejoinder, it was pointed out that the evidence was clear cut. The Appellant was found flagrante delicto in the house where the incident occurred and two witnesses placed him at the scene. It was argued that Jl0of19 the Appellant's defence only confirmed the fact that he was at the scene on the material date. That the eye witness in this matter was not suspect and could and reliably did identify the Appellant. The cases of Andrew Tembo v The People (5l and George Lipepo and Others v The People (6l were cited to bring the point home. 8. DECISION OF THIS COURT 8.1. We have considered the impugned Judgment, the Judgment on review as well as the record of appeal and the submissions of the Parties . 8.2. Before we proceed to determine the appeal in the main , we shall deal with the Judgment on revision. We have noted from the record and alluded to the fact that the initial charge of defilement of an imbecile was reduced to indecent assault at the point of no case to answer. The trial Magistrate acted within the province of section 181 of the CPC which provides as follows : 181(2) "when a person is charged with an offence and facts are proved which l J 11 of 19 reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it." 8.3. Unanticipatedly, the Appellant was convicted on a charge he never stood trial for and was now serving a term of 15 years imprisonment on a different charge, i.e. attempted defilement of an imbecile contrary to section 139 of the Penal Code. 8.4. We surmise the High Court Judge could not comprehend why the Magistrate resolved to move away from the offences provided under section 139 of the Penal Code i.e defilement of an imbecile and attempted defilement but instead settled for indecent assault. For ease of reference, the provision provides as follows: " any person who, knowing a child or other person to be an imbecile or person with a mental illness, has or attempts to have unlawful carnal knowledge of that child or other person in circumstances not amounting J 12 of 19 to rape, but which prove that the offender knew at the time of the commission of the offence that the child or other person was an idiot or imbecile commits a felony and is liable, upon conviction, to imprisonment for a term of not less than fourteen years and may be liable to imprisonment for life. 8.5. It is t rite that an accused person can only be convicted of an offence where he has had a chance to def end himself against it. 8 .6. However, there are exceptions to this general rule . Section 181 (2) of the CPC allows a person to be convicted of an offence he was not charged with if it is a minor offence. Further, section 186 of the CPC allows a person to be convicted of a sexual offence he was not charged with even if it is not a minor offence but is some offence kindred to rape. 8. 7. In this case attempted rape is not a minor offence to indecent assault. It is a more serious offence and • l J 13 of 19 section 181 (2) of the CPC is therefore not applicable. The provisions of sectio n 186 of the CPC are also not applicable because the situations covered in that provision do not arise in casu. 8.8. We therefore find that the learned Judge misdirected herself when she substituted a minor offence with a higher one. 8.9. That being said, we now turn to the grounds of appeal advanced by the Appellant. We shall consider the two grounds of appeal as one ground because the issues raised boil down to whether or not the Appellant was properly convicted. The issue that requires determination in this appeal is whether the evidence in the Subordinate Court was sufficient to warrant a verdict of guilt. 8.10. Gleaning from the Record, PW2 and PW3 were the key prosecution witnesses because they placed the Appellant at the scene. In his evidence, PW2 testified that he entered the house, switched on a torch from his • J 14 of 19 phone and saw the Appellant on top of the prosecutrix. In that moment he observed that the Appellant had a condom on his penis and his trousers were down while the prosecutrix's skirt was pulled up. 8.11. He further stated that he went outside to call PW3 and when he entered the house again, he saw the Appellant rushing to the bedroom to wear his trousers properly. Thereafter, the Appellant approached him with force and found him standing at the door of the house. PW2 and PW3 managed to apprehend him. 8.12. The evidence of PW3 also placed the Appellant at the scene. He testified that at the time he was being called to help, PW2 was standing at the entrance of their house. He added that PW2 came out with the Appellant whose trousers were not worn properly. He too used a torch to see the Appellant. 8.13. The Appellant took issue with the evidence of these two witnesses and directed us to what he sees as a discrepancy 1n their respective testimonies. Of • • Jl5of19 particular interest 1s the following excerpt of PW2 's testimony: " When we entered the house, I saw the accused rushing to the bathroom in order to wear his pair of trousers properly. Thereafter he came with force. He found me at the door of the house. We however, managed to apprehend him." While PW 3 stated as follows: "At the time of calling me, Bupe stood at the entrance of their house. He came out with one person that person didn't wear his pair of trousers properly" 8 .1 4. The trial Magistrate noted the discrepancy but didn't think much of it and found that the accused was nevertheless apprehended at the scene. We agree with his finding. 8 .15 . The question then remains, what was he doing at the prosecutrix's home? It is noteworthy at this point that • ll • J 16 of 19 he was not apprehended in the "neighbourhood" but at the residence of the prosecutrix. PW2 gave direct evidence of what he saw and testified that the Appellant was apprehended in the house, a fact that PW3 confirmed when he stated that he was called by PW3 to assist him and he saw PW2 coming out of the house with the Appellant. 8.16. In refuting this evidence, the Appellant's Counsel, in the submissions, argued that there was a discrepancy between PW2 and PW3's evidence with regard to , as we see it, the positioning of the Appellant at the moment he was apprehended. From what we gather, the bone of contention in this argument is whether the Appellant was apprehended inside the house or outside. This does not help the Appellant's case in any way because what is cardinal is his location at the time the crime was committed. This was the primary consideration of the trial Magistrate and given the evidence before the Court, the discrepancy was neither here nor there. This is • • J 17 of 19 more so because the Appellant denied having been at the scene. 8.17. Further, Counsel for the Appellant also submitted that the Appellant went to collect money from Nsonga but did not know where he stayed and along the way, he met PW2 whom he asked for directions. Unbeknownst to him, he was suspected of being the mysterious person who used to visit the prosecutrix. It was at that point that PW2 called PW3 to assist him. 8.18. What is interesting is that the Appellant, 1n cross examination, stated that he was found in the line where PW2 lived. The trial Magistrate at J8-J9 found that the Appellant contradicted himself when he stated that N songa lived in Section 26 and yet he was found looking for him in Section 27. This odd piece of evidence was supported by that of the arresting officer who stated that the Appellant informed him that he had gone to collect a debt from PW2 but did not enter the house. In cross examination he reinforced his earlier testimony by • • J 18 of 19 adding that the Appellant was found at the gate looking for PW2. 8.19. The Appellant's explanation of his presence near the prosecutrix's house was very shaky to say the least. The evidence on the record as demonstrated in the preceding paragraphs all point to the fact that he was apprehended at the prosecutrix's house by two witnesses one of whom gave direct evidence relating to the incident. 8.20. The Appellant was in jlagrante delicto and this evidence cannot be ignored. His explanation was rejected by the trial Magistrate and rightly so. 9. CONCLUSION 9 .1. We find that the evidence proves the charge the Appellant was convicted of by the trial Court. 9.2. Having found that the High Court Judge erred when she substituted the Appellant's conviction for the offence of attempted defilement, we set aside the • " J 19 of 19 conviction and restore the Appellant's conviction for the offence of indecent assault. 9.3. Even though we have substituted the conviction with a different offence, we maintain the sentence of 15 years' imprisonment because that is the mandatory minimum sentence for indecent assault. C. F. R MCHENG DEPUTY JUDGE PRESIDENT ........................................ M. M. KONDOLO SC COURT OF APPEAL JUDGE "'- A. M. BANDA-BOBO COURT OF APPEAL JUDGE