Abel Musonda v People (APPEAL 41/2019) [2019] ZMCA 425 (20 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL 41/2019 HOLDEN AT NDOLA (Crimina l Jurisdiction) BETWEEN: ABEL MUSONDA PPELLANT AND THE PEOPLE 0 AUG 2 -Gt RESPONDENT CORAM: Makungu, Mulongoti and Siavwapa, JJA On 25th June, 2019 and 20th August, 2019 For the appellant: For the resp ondent: Mrs. L. T. Tindi, Legal Aid Counsel - Legal Aid Boa rd M r. K. Sifali, Senior State Advocate-National Prosecution Authority JUDGMENT MULONGOTI, JA, delive red the Judgment of the Court Cases referred to: 1. Barrow and Young v The People (1966) ZR 43 2. Dorothy Mutale v The People (1997) SJ 51 3. Nyampande and another v The People (1988-1989) ZR 163 4. Mavuma Kambanje Situna v The People (1982) ZR 115 5. Benson Phiri and Sonny Mwanza v The People SCZ Judgment No. 25 of 2002 6. Davies Chiyengwa Mangoma v The People SCZ Appeal No. 215/ 2015 7. Darius Sinyinza v The People SCZ Judgment No. 2 / 2009 8. Kombe v The People (2009) ZR 96 9. R v Allen 9 C and P31 The appellant Abel Musonda, was found guilty of defilement by the Subordinate Court and sentenced to 25 years imprisonment with h ard labour by the High Court. The particulars alleged that on the 31 st day of March , 2017 at Ndola in the Nd ola District of th e Republic of Zambia the appellant had unlawful carnal knowledge of 'GK', a girl u nder the age of 16 years. He pleaded not guilty to the charge after the proviso had been duly read and explained to him. Below is a summary of the evidence, upon which he was convicted. The prosecutrix' s mother (Sharon Nkoma) PW 1 testified that on 3 1st March, 20 17, she was in Masala working, when she was called by her neighbour who told her to go to the clinic as h er only daughter, 'GK', aged 3 years and 8 months had been defiled. She booked a cab and went to Kambeba Police Post where she found the appellant surrounded by a mob and her daugh ter was J2 brought to her. She stated that a medical report was issued and she and a female police officer went to Arthur Davison Hospital where the prosecutrix was examined and the doctor PW3 wrote down her findings on the medical report, which PWl identified in court. PW2, Mpundu Chiti, testified that on 31 st March, 2017, she was on her way home when she found some ladies peeping through some flowers . She asked what was going on but they signalled to her to keep quiet by placing a finger on their lips. They then told her that they were peeping at Abel, who was having sexual intercourse with a child. PW2 stated that she saw Abel holding the child's mouth as he was naked in the maize field with the child she identified as 'GK'. PW2 said she was concerned as the child was too small so she approached where Abel was and noticed that he was having sexual intercourse with the child. PW2 stated that Abel had laid the child on the ground in the maize field and she could hardly scream. PW2 confronted Abel and asked what he was doing and he just asked what her problem was. PW2 then held Abel and the other two ladies grabbed the child who had no pant on. PW2 struggled with Abel who tried to hit her with his fist but she swerved and he missed J3 and she started shouting for help. Abel managed to run into his house . However, he was later apprehended by a mob and taken to the police station. PW3, a medical doctor, testified that she examined 'GK' on 31 st March, 2017. 'GK' appeared withdrawn, but her vagina and vulva appeared normal. The labia folds showed no bruises but the hymen was absent. PW3 opined that the hymen being absent corroborated with the events that were recounted to her by PWl and others. The appellant gave sworn evidence. He denied the charge and said he and PW2 had differed prior to the incident. He admitted that on 31 st March, 2017, he was apprehended from his parent's house by a mob. He was accused of defiling the child 'GK'. He also admitted that he had an altercation with PW2, on the material day over allegations of defilement of the child. After analysing the evidence, the trial magistrate found the appellant guilty and convicted him. He was sentenced by the High Court to 25 years imprisonment with hard labour. Dissatisfied with the conviction, the appellant has appealed to this Court on two grounds as follows: J4 1. The learned trial court erred in law and fact when it convicted the appellant for the offence of defilement based on uncorroborated and insufficient evidence. 2. The learned trial court erred in law and fact when it failed to take into account the possibility of false implication when considering the evidence of PW2. Both parties filed heads of argument, for and against the grounds of appeal. The learned legal aid counsel, Mrs. Tindi, who appeared for the appellant, argued in relation to ground one; that there was no corroboration of the commission of the offence. That PW3, a medical doctor stated in her findings that upon inspection the vagina and vulva were normal. The labia folds showed no bruises though the hymen was absent. According to counsel, the fact that the hymen was a bsent, is not conclusive evidence that the child was carnally known. It was the further submission of counsel that s ince the evidence of PW 1 and PW3 is contradictory on the condition of the prosecutrix's vagina, this ought to be resolved in favour of the appellant to the effect that there was no defilement. JS The cases of Barrow and Young v The People l and Dorothy Mutale v The People2 were relied u pon as authority that wh ere two prosecution witnesses give evidence, one against the accused and the other for, and there are lingering doubts, the Court should rule in favour of the accused. According to counsel, the court below erred when it found that the evidence of PW2 was corroborated by the doctor's finding that there was sexual intercourse. Learned counsel amplified that the absence of the hymen, in any female young or old, is not conclusive evidence that such a female had sexual intercourse as it can be raptured by activities like jumping, gymnastics etc. The lack of bruises on the vagina of the prosecutrix proved that no sexual intercourse took place. On ground two, it is argued that there was no corroboration as to the identity of Abel, as the perpetrator of the offence. No one corroborated PW2's testimony in this regard. It is the further submission of counsel that PW2 could have falsely implicated Abel. However, the court below, erroneously neglected to address this issue in its judgment. The case of Nyampande and anothe r v The People3 was relied upon in which the Supreme Court observed that: JG "In the case where the witnesses are not necessarily accomplices, the critical consideration is not whether the witnesses did in fact have interests or purposes of their own to serve, but whether they were witnesses who, because of the category into which they fell or because of the particular circumstances of the case, they may, have had a motive to give false evidence. Where it is possible to recognise this possibility, the danger of false implication is present and it must be excluded before a conviction can be held to be safe. Once this is a reasonable possibility the evidence falls to be approached on the same footing as for accomplices." According to counsel, it was th erefore, not sufficient for the court below to state th at the appellant did not challenge the evidence of PW2, without analysing all the evidence before it as h eld in Mavuma Kambanje Situna v The People4 . We were urged to allow the appeal, quash the conviction, set aside the sentence and set the appellant, at liberty. In response , the learne d senior state a dvocate, Mr. Sifali, who appeared for t h e responden t, argued on ground one that PW2 found the a ppellant half naked, with the prosecutrix lying on th e ground. When PW2 confronted the a ppellant, he took to his h eels, after a struggle . PW2 had known the appellant for a long time. Thus h er testimony was corrobora ted as she knew the J7 appellant prior to the incident in issue. The case of Benson Phiri and Sonny Mwanza v The People5 was cited as authority that: "The testimony of a single witness who knew t he accused prior to the incident a t issue is adequate to support the conviction." On ground two, counsel argued that the court below analysed the available evidence before her. She noted that the appellant was a neighbour to the prosecutrix and that he was well known to PW2 . No evidence was adduced to show that PW2 could have falsely implicated the appellant. We have considered the Judgment and submissions by counsel. We will consider the two grounds simultaneously as th ey are interrelated. A perusal of the record s h ows that Abel, the appellant herein, was apprehended on 31 st March, 2017 from inside his parent's house, by a mob. It is also clear that he was apprehended on allegations of defilement of a child. According to PW2, she saw Abel naked, while holding the child . He later inserted h is penis into the child 's vagina, as the child lay on the ground. JS The appellant, Abel, confirmed PW2's t estimony that he was apprehended from inside his parent's home. He also admitted that he had an altercation and a struggle with PW2 over allegations of him defiling 'GK' . He testified that as he and PW2 were arguing, PW2 started screaming for people to come and see him defiling a child. People came and started manhandling him. He told them to take him to the police instead and he went inside the house. However, the people followed him and surrounded the house, some followed him inside and apprehended him. It is clear to us that PW2's testimony about the appellant's apprehension over allegations of defilement, was corroborated by appellant himself. PW2's testimony that she saw the appellant insert his penis in the vagina of the child was corroborated by the medical report as testified by PW3 the author; that the hymen was absent. PW3 stated that this was consistent with the alleged case of defilement. We are of the considered view that the trial magistrate was on firm ground when she found the appellant guilty of defilement of 'GK'. J9 It is settled law as submitted by counsel, that in sexual offences there must be corroboration as to the commission of the offence and identity of the offender. In Davies Chiyengwa Mangoma v The People 6 , the Supreme Court held that: "The core issue in sexual offences of this nature, as we pointed out in Emmanuel Phiri v The People, is whether there was corroboration of both the commission of the offence and identity of the offender in order to eliminate the dangers of false complaint and false implication, and a recognition that failure by the trial court to warn itself is a misdirection ... " The trial magistrate found PW2 to be a credible witness as sh e was an indep endent witness who saw the accused insert his penis in 'GK's vagina. Reliance was placed on Darius Sinyinza v The People7 to that effect. Furthermore, the magistrate found that PW2 's evidence of an argument and physical confrontation with Abel was common cause. The magistrate therefore excluded the danger of false implication . The trial magistrate concluded that PW2's evidence was corroborated by t h e medical evidence as to the commission of the offence. As to identity, the altercation she had with the JlO appellant on the material day over allegations of defilement and circumstances of his arrest corroborate his identity as the perpetrator. We cannot fault the trial magistrate for the approach she took. We are fortified by the case of Kombe v The People 8 that corroboration can be found in something more which tends to show that the witness is telling the truth. We uphold the trial magistrate's finding that PW2's testimony was corroborated as to the commission of the offence and identity of the offender. Mrs. Tindi's argument that the hymen could have been broken by other activities is not supported by the evidence on record. We equally dismiss her arguments that since there were no bruises on the vagina and no penetration, the offence was not proved. We are of the considered view that it is not the position of the law that there must be bruises on the vagina, and penetration for the offence of defilement to be established. As even partial penetration would suffice. We are fortified by the case of R v Allen9 wherein it was held that even the slightest penetration suffices to constitute penetration at law. We find no merit in both grounds of appeal and dismiss them. Jll Before we leave this appeal, we are duty bound to consider the sentence imposed by the court below. Having regard to the age of 'GK' of 3 years and 8 months and the appellant then aged 25 and a neighbour who abused his trust by defiling the child, we are inclined to interfere with the sentence of 25 years. The sentence comes to us with a sense of shock considering the tender age of the prosecutrix. We accordingly set it aside and substitute with life imprisonment. The appeal is devoid of merit and is dismissed. C. K. MAKUU COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE M. J. SIA APA J12