IN THE SUPREME COURT OF ZAMBIA
HOLDEN AT LUSAKA
(Criminal Jurisdiction)
SCZ APPEAL № 345/2013
BETWEEN:
ENERST KABWITA
APPELLANT
AND
THE PEOPLE
CORAM:
RESPONDENT
WANKI, JS, LISIMBA AND LENGALENGA, AG. JJS
On 3rd December, 2013 and 8th April, 2014
For the appellant:
Mr. R. K. Malipenga – Messrs Robson Malipenga &
Co
For the respondent:
Miss N. T. Mumba, Senior State Advocate – National
Prosecutions Authority
JUDGMENT
LENGALENGA, AG. JS delivered the judgment of the Court.
Cases referred to:
1. NJAPAU v THE PEOPLE (1967) ZR 95
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2. KATEBE v THE PEOPLE (1975) ZR 13
3. EMMANUEL PHIRI & OTHERS v THE PEOPLE (1978) ZR 79
4. KAMBARAGE MPUNDU KAUNDA v THE PEOPLE (1990) ZR 215
Legislation referred to:
1. The Penal Code, Cap. 87 of the Laws of Zambia.
2. The Criminal Procedure Code, Cap. 88 of the Laws of Zambia.
The appellant was convicted of indecent assault on females contrary to
section 137 of the Penal Code, Chapter 87 as read together with Act № 15
of 2005 of the Laws of Zambia. The particulars of offence are that Enerst
Kabwita between 1st January and 2nd February, 2010 at Lusaka in the
Lusaka District of the Lusaka Province of the Republic of Zambia, did
unlawfully and indecently assault a female. He was tried, convicted and
sentenced to fifteen (15) years simple imprisonment effective from date of
arrest, 23rd February, 2012. He now appeals against the conviction.
The prosecution case rested on the evidence of six witnesses, PW1, PW2,
PW3, PW4, PW5 and PW6. Briefly, the prosecution evidence was to the
effect that PW1, Janet Chisenga’s thirteen year old daughter was allegedly
repeatedly indecently assaulted by the appellant between 1st January and
2nd February, 2010. When PW1 moved to Kamwala South her four children
remained with her sister, PW2, Emma Chilufya in Garden Compound in
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Lusaka. On 30th January, 2010 the children visited her in Kamwala South
and on 2nd February, 2010, they left PW1’s house without telling her and
went back to Garden Compound. On the same day in the evening around
19:00 hours PW1 received a phone call from her sister informing her why
the children refused to move with her to Kamwala South. After being told
by PW2 that her second born daughter had been defiled, the following
morning PW1 went to Garden Police Post where she found the appellant.
She found that the child had also been taken to the police. The prosecutrix
narrated how the appellant used to usher her into his house and send her
young sister away. Then he would tell her to undress and made her to lie
on the chair while he undressed in the bedroom. She said that he would
then return and smear some oil on his manhood and put it on her private
part but he would not insert it inside. Whenever he finished he would give
her K50 000.00 or K100 000.00.
PW1 used to be a neighbour to the appellant when she lived in Garden
Compound and the appellant lived in Luangwa Garden Compound in the
same area as PW1’s sister. PW1 had known appellant since 2009 because
the children from church used to sing choir songs at appellant’s house. She
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said that the child was taken for medical examination to University Teaching
Hospital (UTH).
PW2, Emma Chilufya confirmed in her evidence that she checked the child
and saw dry semen on her thighs. She was the one who took her for medical
examination to UTH. She was told that the child was abused but there was
no penetration. The appellant was apprehended when PW2’s young brother
went to his house after the children led him there. PW2 admitted beating
the youngest child and then the prosecutrix revealed that the appellant used
to put his manhood on her. She confirmed that the child took a bath at
PW2’s home in Garden Compound and also washed her pant. She, however,
stated that the pant also had little semen than the thighs. According to the
child, the appellant sexually assaulted her on numerous occasions by placing
his penis on her vagina.
PW3, the prosecutrix testified on oath after a voire dire was conducted.
She narrated how she was first called by the appellant when she was playing
with her friends. He called her to his house to do some works but instead
once they were inside the house, he undressed himself and undressed her
and then slept on top of her. PW3 said that he slept with her six times and
that he would give her money every time, K50 000.00. She also said that
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she did not report what was happening because the appellant threatened to
turn her into a monkey if she revealed what was happening.
PW4, an eleven year old and PW1’s daughter and sister to the prosecutrix
testified that the prosecutrix used to go home with money whenever she
came from the appellant. She said that they used to go to Manda Hill to buy
dolls and doughnuts from the money. PW4 also confirmed that she used to
remain outside.
PW5, Ian Nyendwa Mofya Kambale testified that on 29th January, 2010
Anna told him that his nieces used to bring home rice, mealie meal, yoghurt,
dolls and sometimes K50 000.00. When he threatened them with a beating,
they revealed that they got the items from the appellant.
PW6, Sergeant Eddie Chile of Emmasdale Police Station received a report
from Anna Chilufya that her niece had been sexually assaulted. He took up
the case, issued a medical examination report to the prosecutrix.
He
subsequently charged and arrested the appellant for indecent assault on a
female on the strength of the contents of the medical report. He said that
the medical report from the hospital stated: “possible sexual abuse on
the child.” PW6 explained that he was not the one who granted bond to
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the accused when he was queried about the charge of defilement indicated
on the bond document.
In his defence, the appellant testified on oath to the effect that on 29th
January, 2010 around 19:00 hours he was in his house. Then a car parked
in front of his house and he went to see who it was. Two men got out of
the car and went to where he was and one of them asked him whether he
was Mr. Kabwita. He refused to answer until they introduced themselves.
He asked him why he wanted Mr. Kabwita and he said that they were from
the police and they had gone there to pick Mr. Kabwita. He later told them
that he was Mr. Kabwita and then the man who was rude to him told him
that he had received a report that he had defiled his daughter. Thereafter,
he accompanied the police officer after locking his house. When he was
ushered into the car, he noticed two girls seated at the back of the car. They
drove to Garden Police Post where he learnt that the police had received a
report that he had defiled a girl. The appellant stated that in his presence
PW5 told the police that on 29th January, 2010 he had received a report from
his sisters, PW1 and PW2 that he had defiled their daughter PW3. He said
that he was accused of having given her rice, mealie meal and some money.
He said that PW5 beat up PW3 and PW4 and forced them to implicate him
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in defilement. The appellant said that he denied the charge or allegation
that he defiled the girl.
He was later released on police bond pending
investigations. On 11th February, 2010 when he went to report to police he
was referred to the CIO (Criminal Investigations Officer). He found him with
PW1, PW2, PW4 and PW5 and the CIO told them that the police had
established that the defilement was a false case. The appellant stated that
the police dropped the charge against him but his accusers were a bit
desperate, they asked him in the presence of the CIO that they wanted to
settle the case outside through negotiations. He rejected the offer.
The appellant testified that the defilement charge was later substituted
with one for indecent assault of PW3. He claimed that he argued with the
CIO that that was an act of intimidation. He stated that the evidence of the
two children was not true because children in the compound play everywhere
around and that it was not his task to see where children play. He denied
giving money to the two children.
He disputed PW5’s allegation that he attempted to run away and he
claimed that he was at his house. He also denied that he knew PW1 and
PW2 prior to his apprehension. He said that he did not know PW5. The
appellant stated that he had been married before but his wife died in 2001
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after he had just retired.
He said that since then he stayed with two
nephews, namely Joseph and Mike even though he had told the court that
earlier. He insisted that the girls stated at the police station that they were
beaten so that they could point at him as the one who defiled them. The
appellant was cross-examined at great length.
The appellant was later convicted.
In the appellant’s head of arguments, Counsel for the appellant, Mr. R. K.
Malipenga addressed a number of issues.
The first is the credibility of witnesses and witness with interest to serve.
He submitted that out of the six prosecution witnesses, five of them, namely
PW1, PW2, PW3, PW4 and PW5 were witnesses with an interest to serve.
He submitted further that when the defilement charge failed and was
dropped, the appellant’s accusers became desperate and asked him in the
presence of the Chief Investigations Officer (CIO) to settle the case outside
court (see record of proceedings page 51 and lines 27 to 30).
He further submitted that the appellant’s evidence was not challenged.
Learned Counsel for the appellant argued that the trial court had a duty to
call the Chief Investigations Officer as a witness who the accused did not call
in the interest of justice.
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Mr. Malipenga submitted that the trial court and the High Court Judge
both stated that the prosecution evidence was corroborated. He argued that
PW1 to PW5 were family members with an interest to serve and as such
could not corroborate each other’s evidence. He contended, therefore, that
there was no independent evidence to corroborate the prosecution evidence.
He submitted that the police should have interviewed the prosecutrix,
PW3’s friends who she named at pages 27, 28 and 29 of the record.
Learned Counsel for the appellant argued that although PW2 alleged to
have seen semen on PW3’s thigh and on her pant, PW1 did not mention it.
He argued further that not even the police saw the semen because there
was no female officer. He submitted that both the trial court and the review
court accepted that there was semen on PW3. He contended that the story
of semen was concocted and that this Court should reject this evidence.
Mr. Malipenga contended that there were contradictions in the evidence
of the prosecution witnesses, especially PW3 and PW4. He referred us to
page 30, lines 10 to 13 and page 35, lines 13, 14, 17 and 18 of the record.
He submitted that the learned trial magistrate could not make an expert
medical opinion on “P1,” the medical report. He referred us to the learned
trial magistrate’s comments at page 75 lines 18 to 21:
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“Further P1 states that defilement could not be ruled out despite
the findings. Where defilement cannot be ruled out, it entails an
element of indecency on the victim in this case amounting to
indecent assault. This is because private parts of the victim are
tampered with in an immoral sense.”
Learned Counsel for the appellant argued that the learned trial magistrate
and the High Court Judge did not address itself to the ingredients of indecent
assault when they considered “P1” in the absence of attending medical
doctor expert opinion.
He argued that “P1” is unreliable because it was not authenticated by
anyone from UTH.
Mr. Malipenga further contended that the evidence from PW3 and PW4
was procured through threats, beating and duress by PW1 with a view to
frame up the appellant.
He submitted that the trial court neglected to
consider what effect the threats and beatings had on the children.
He
argued that the weight to be attached to evidence of children of tender age
who are beaten in order to testify should be less.
Learned Counsel for the appellant submitted further that PW2 and PW3
had a negative image of the appellant who they labelled a witch.
In conclusion, he submitted that this appeal has merit and he invited
this Court to examine the inconsistencies, lies, lack of corroboration to
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support indecent assault. He urged the Court to allow the appeal and acquit
the appellant. He further submitted that the medical report “P1” has no
evidential value in relation to the charge the appellant was convicted of.
Learned Counsel for the appellant relied on the case of NJAPAU v THE
PEOPLE1 to support his argument that the learned trial magistrate did not
state and establish the ingredients of indecent assault. He submitted that
the same were not present in this case.
Counsel for the respondent, Miss N. T. Mumba, Senior State Advocate
submitted that she fully supports the appellant’s conviction by the trial Court
as there is overwhelming evidence justifying the conviction. She stated that
it is evident from PW3’s testimony that the appellant used to call her to his
place where he would sleep on top of her doing whatever he was doing. She
argued that those circumstances prove the offence of indecent assault which
was confirmed by medical report “P1” which stated that although the hymen
was present, defilement could not be ruled out.
Miss Mumba submitted further that the appellant’s act of undressing
the prosecutrix and undressing himself amounted to indecency.
She
submitted, therefore, that the learned trial Court was on firm ground when
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it found that the appellant’s conduct amounted to indecent assault. She
urged us to confirm the findings of the trial Court.
With regard to corroboration, learned Senior State Advocate submitted
that PW3’s evidence was corroborated by PW2 and PW4’s evidence. She
submitted further that the corroborative evidence was properly found by the
trial Court to consist of all the things the prosecutrix used to take home every
time she was called by appellant to his house.
She further submitted that the absence of independent witnesses to
testify as to the indecent assault, is not fatal on its own. To support this
argument Miss Mumba relied on the case of KATEBE v THE PEOPLE2 where
this Court held that in sexual offences an accused may be convicted on
uncorroborated evidence of the prosecutrix if there are special and
compelling reasons to do so. She contended that in this case there are
special and compelling reasons to do so, namely the absence of any motive
to falsely implicate the appellant from all the men in the area where both
the prosecutrix and the appellant lived.
Learned Senior State Advocate submitted that further corroborative
evidence was from PW5 to the effect that the appellant tried to run away at
the time of apprehension. She rejected the appellant’s allegation that he
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was asked by PW3’s relatives in the Chief Investigations Officer’s presence
to settle the matter.
With respect to the appellant’s plea that “P1” the medical report
should be disregarded on the ground of not being authentic, Miss Mumba
argued that it was not only duly signed by Dr. J. K. Mwansa but it bears the
University Teaching Hospital official date stamp (30th January, 2010). She
submitted that it was also admitted in evidence in accordance with section
191A of the Criminal Procedure Code, Cap. 88 of the Laws of Zambia.
Learned Counsel for the respondent submitted further that “P1” was
admitted in evidence without objection from the appellant.
In response to the appellant’s contention that PW3 and PW4 testified
against him because they were threatened and beaten, Miss Mumba argued
that according to the record, PW3 was beaten so that she could reveal the
source of the things she used to take home and for leaving PW1’s home
without permission. She further submitted that there was nothing on record
to indicate that PW2 perceived the appellant as a wizard. Hence she could
not have framed him on that account.
Learned Counsel for the respondent submitted that the appellant was
properly convicted by the trial Court on the overwhelming evidence on
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record. She further relied on EMMANUEL PHIRI AND OTHERS v THE
PEOPLE3 to support her argument that there was sufficient corroboration.
In conclusion, she submitted that the learned trial Court was on firm
ground when it convicted the appellant. She, therefore, prayed that this
Court uphold the appellant’s conviction and dismiss his appeal.
We have carefully considered the evidence adduced at trial and the
submissions made on behalf of the appellant and the respondent. We are
grateful to Counsel for the submissions.
It is not disputed that out of the six prosecution witnesses, five were
family members. PW3 was the prosecutrix who was thirteen (13) years old
at the time of the alleged commission of the offence. PW4 was the eleven
(11) year old child witness who corroborated PW3’s evidence of how they
used to go to Manda Hill to buy all sorts of items from the money that PW3
used to receive from the appellant. She had also testified that she used to
go near the appellant’s house and wait outside whilst PW3 went inside. PW4
confirmed that sometimes PW3 used to come out of the appellant’s house
with mealie meal and rice. Further, we noted that in cross-examination by
Defence Counsel, PW4 explained that she was beaten by her auntie for going
to the appellant’s house and not so that she could implicate the appellant.
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Counsel for the appellant challenged the credibility of PW1 to PW5’s
evidence since they were family members. He contended that they were
witnesses with an interest to serve especially when the complaint of
defilement failed. We accept that PW1, PW2, PW4 and PW5 being relatives
of the prosecutrix, PW3 were suspect witnesses in terms of the definition in
the case of KAMBARAGE MPUNDU KAUNDA v THE PEOPLE4 where this
Court held inter alia:
“Prosecution witnesses who are friends or relatives of the
prosecutrix may have a possible interest of their own to serve
and should be treated as suspect witnesses. The Court should,
therefore, warn itself against the danger of false implication
of the accused and go further to ensure that that danger has
been excluded.”
In the present case, the learned trial magistrate observed that the parents
testified on what they observed. She observed that PW3 and PW4’s evidence
of identity of the appellant was corroborated by the appellant himself who
accepted in his defence that children played from his home.
PW3 testified on oath of how the appellant on several occasions used
to either undress her or tell her to undress while he undressed in the
bedroom and then he would sleep on top of her but would not penetrate her
vagina with his manhood. This was consistent with the charge of indecent
assault on a female. In terms of corroboration of PW3’s evidence, we accept
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that it was corroborated by PW2 and PW4’s evidence and the items that PW3
used to take home every time she came from the appellant’s house.
We further accept the learned Senior State Advocate’s argument that
in sexual offences, an accused may be convicted on uncorroborated evidence
if there are special and compelling reasons to do so, based on this Court’s
decision in KATEBE v THE PEOPLE. We accordingly, accept Miss Mumba’s
submission that there was no motive for PW3 and PW4 to falsely implicate
the appellant out of all the men in the area where the prosecutrix and
appellant lived.
Further, when PW5, Ian Nyendwa Mofya Kambale, the prosecutrix’
uncle went to confront the appellant and to inform him that he wanted to
take him to the police, he ran away but was apprehended by PW5. We find
that this act by the appellant was a special and compelling reason and also
amounted to something more to corroborate PW3’s evidence. Why else
would the appellant run away after confirming that he knew PW3 and PW4
other than guilt?
From learned Counsel for the appellant’s arguments, we observed that
he took up issue with the medical examination report “P1” and argued that
it was not authentic as no-one from the University Teaching Hospital had
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authenticated it.
We reject Mr. Malipenga’s argument and accept Miss
Mumba’s submission that “P1” was duly signed by Dr. J. K. Mwansa and
date stamped 30 Jan 10 with the University Teaching Hospital official stamp.
She further submitted that “P1” was admitted in evidence without objection
from the appellant. We, therefore, find that “P1” is not only authentic but
that it was duly admitted in evidence without objection from the appellant.
Our perusal of “P1” indicated that the hymen was intact but the doctor
stated that “defilement could not be ruled.” We are of the considered
view that the evidence of presence of the hymen is consistent with PW3’s
evidence of indecent assault.
Learned Counsel for the appellant argued that PW3 and PW4’s
evidence was procured through threats and beatings by PW1 with a view to
frame up the appellant. Miss Mumba countered that argument by submitting
that there is evidence on record to indicate that PW3 was beaten so that she
could reveal the source of the items she used to take home and for leaving
PW1’s house without permission. We also observed from PW4’s testimony
that she stated in cross-examination by Defence Counsel at page 36 and line
21 of the record that her auntie beat her because they were going to
Kabwita’s house. Therefore, we do not accept that PW3 and PW4 were
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threatened and beaten in order to implicate the appellant. Further, they
were threatened and beaten in order to reveal the source of the items they
used to take home, for leaving PW1’s house without permission and going
to the appellant’s house.
Finally, we turn to the appellant’s allegation that after the police
dropped the charge of defilement, the prosecutrix’ family out of desperation
tried to settle the case outside court through negotiations. Our perusal of
the court record at page 45 and lines 6 to 7 shows that PW6, Sergeant Eddie
Chile, № 30046 denied that the relatives to prosecutrix wanted to settle the
matter with the accused ex-curia.
In fact, from the evidence in cross-
examination, PW6 explained why he charged the appellant with the subject
offence as opposed to the defilement that was not ruled out by the doctor.
Therefore, we do not accept the appellant’s evidence in his defence that it
was the prosecutrix’ family that demanded a substitution of the charge. We,
are further of the considered view that if the appellant was initially truly
charged with defilement and the charge was dropped, then there was
nothing to settle outside court as alleged.
In conclusion, this Court dismisses the appellant’s arguments on lack
of credibility of the prosecution witnesses and corroboration, procurement
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of PW3 and PW4’s evidence through threats, and beatings. We find that the
learned trial magistrate was on firm ground in convicting the appellant. We
find that the whole appeal lacks merit. The appellant who was aged 64 years
and was a neighbor to PW2, the auntie to the prosecutrix, on several
occasions between 1st January and 2nd February, 2010 shamelessly enticed
the thirteen (13) year old prosecutrix with money and gifts in the form of
food. Thereafter, he indecently assaulted her on several occasions and even
went to the extent of threatening to turn her into a monkey if she told
anyone. She believed the threat and she was afraid since she said that
people used to say that the appellant was a wizard.
Therefore, for the reasons stated, the appeal is dismissed for lacking
merit. We, accordingly, uphold the conviction. However, with respect to the
sentence, we find that it was wrong in principle in that the learned
sentencing Judge imposed a sentence of fifteen (15) years simple
imprisonment instead of hard labour. We, accordingly, set aside the earlier
sentence of fifteen (15) years simple imprisonment and substitute it with one
of fifteen (15) years imprisonment with hard labour effective from date of
arrest.
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………………………………………………….
M. E. Wanki
SUPREME COURT JUDGE
………………………………………………………..
M. Lisimba
ACTING SUPREME COURT JUDGE
…………………………………………………………
F. M. Lengalenga
ACTING SUPREME COURT JUDGE