Actor Wesley Sikabeko v The People (Appeal No.76/2020) [2020] ZMCA 195 (20 November 2020)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA Appeal No.76/2020 (Criminal J urisdiction) BETWEEN: ACTOR WESLEY SIKABEK AND THE PEOPLE - - · 2 o av tv , f I 00 7. .... APPELLANT RESPONDENT Chashi, Lengalenga, and Majula, JJA On 10th, 13th and 20th November 2020 For the Appellant: For the Respondent: Mr. G. Lungu of Muleza Mwiimbu & Company Ms. J. Banda - State Advocate, National Prosecutions Authority. JUDGMENT MAJULA JA delivered th e Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. 9. Mushemi Mushemi vs The People (1982) ZR 71 Stanley Kasungani vs The People (1978) ZR 260 (SC) Alfred Mauma vs The People (Appeal No.13 of2019 Madubula vs The People (1993/ 4) ZR 91 Nsofu vs The People (1973) ZR 287 Bwalya vs The People (1975) ZR 125 Daddly Fichite vs The People (SCZ Appeal No 21 of 2017) Winfred Mapapayi vs The People (SCZ Appeal No 191 of 2015). Mwanza vs The People (1977) ZR 221 10. Nzala vs The People (1976) ZR 221 11 . Lameck Mwanza vs The People (SCZ Appeal 261A of 2 014) 12. Peter Yotam Haa menda vs The People (1977) ZR 184 13. Madubula vs The People (1994) SJ 63 (SC) 14. Dickson Sembauke Changwe and !fellow Hamuchanje vs The People (1988-1989) ZR 144 (SC) Legislation referred to: The Penal Code, Chapter 87 of the Laws of Zambia 1.0 Introduction 1. 1 Actor Wesley Sikabeko (the appellant herein) on 20th March 2019, appeared before the Subordinate Court at Choma, charged with the offence of defilement contrary to section 138 of the Penal Code, Chapter 87 of the Laws of Zambia. It was alleged in the particulars of the offence that the appellant, on dates unknown but between 25th February 2019 and 11 th March 2019, did have unlawful carnal knowledge of M M a girl under the age of 16 years. He was subsequently convicted and sentenced to 25 years imprisonment with hard labour by the High Court (before Mrs. Justice C. Maka Phiri) 2.0 Evidence before the trial court 2.1 The appellant's conviction was based on the evidence of seven witnesses; namely, Melody Mambe , PWl ; M M , PW2; Helodia Mulumbe, PW3; Knobless Kanene , PW4; Erica J2 Hatembo PW5; Miyoba Hang'andu PW6 and Detective Inspector Sendai Mukela, PW7. 2.2 The summary of evidence that was adduced on behalf of the prosecution particularly from M M (the prosecutrix} was that on 6 th March 2019 she went to the appellant's shop. The appellant was the landlord for the house the prosecutrix's family was occupying. Upon arrival, he led her to his bedroom that was located within the shop. He then made her to lie down facing upwards. He removed his trousers up to the knees, undressed her and proceeded to have sexual intercourse with her. The prosecutrix described the ordeal as being painful. She later went home and kept the issue to herself. 2.3 The second encounter took place on 11 th March 2019 at the same venue around 21.00 hours. On this day, the appellant called the prosecutrix and informed her that he had a terrible heart burn. He then asked her to prepare ash mixture to help clear the same. She prepared the mixture gave him and later went home. When she returned to collect the cup, the appellant led her to his bedroom where he started fondling h er breasts. He thereafter removed his clothes and hers and proceeded to have sexual intercourse with her. 2 .4 Immediately after the incident, the appellant dressed up and went near the counter where he found Helodia Mulube (the prosecutrix's sister) standing by the door. According to J3 Helodia Mulube who testified after a voir dire, she saw the appellant doing 'bad manners' with the prosecutrix. 2.5 Evidence of the prosecutrix age was presented by way of oral evidence from the mother as well as letters from the head teacher of the school where the child was enrolled. 2.6 The matter was later reported to the Police where she was given a police report and referred to the Hospital. She was examined and thereafter the doctor endorsed his findings on the medical report form. 2.7 The appellant was thereafter apprehended after the prosecutrix named him as the perpetrator of the heinous sexual assault. 2.8 In his defence, the appellant gave sworn evidence and also called two other witnesses whose names were Obrien Chibenga Hamatanga and Cheelo Ndlobvu Mandalovana. The appellant distanced himself from the commission of the offence. He confirmed having spent some time with the prosecutrix on the dates mentioned and also having taken some ash mixture to ease his gaseous stomach. His position, however, was that he asked the children to go away after he was given the ash mixture. He totally d enied having sexual intercourse with the prosecutrix and maintained that he was at home with his wife around 21. 00 hours. J4 3.0 Findings of fact by the trial Magistrate 3 .1 After considering the evidence before him, the learned trial Magistrate found that the prosecutrix was aged 14 at the time the offence was committed. That the age of the prosecutrix was proved by way of the school documents and from the testimony of the mother. 3 . 2 He found corroboration of the commission of the offence from the medical report that was produced. He was satisfied that corroboration as to identity was proved by the testimony of Helodia Mulube and also inferred from the opportunity which the appellant had when he admitted that he was with the prosecutrix on the fateful night. 3 .3 The trial Magistrate was convinced that the essential ingredients of the offence had been proved by the prosecution as charged. He convicted the appellant and referred him to the High Court for sentencing. 4.0 Grounds of Appeal 4 . 1 Unhappy with the conviction and sentence, the appellant has advanced the following grounds of appeal: 1. "That the learned Magistrate erred in law and fact when he convicted the appellant of defile ment when the appellant had no carnal knowledge of the victim, M M and whose judgment was based on the inconsistent evidence. J S I 2. The court below misdirected itself both in law and in fact when it refused to believe the appellant when he raised an alibi as it was the duty of the state to investigate the same. 3. That the court below erred both in law and in fact when he con.firmed the age of the victim to be below 16 years in the absence of a birth certificate, under five clinic card or indeed without conducting a magnetic resonance imaging (MRI) to ascertain the actual age of the victim. 4. That the court below misdirected itself both in law and fact when it admitted the medical report into evidence without calling the Doctor who undertook the examination of the victim as a witness in court. 5. That the court below erred both in law and fact when he relied on an inconclusive medical report which required something more such as the condition or state of the vagina whether it was bruised, tender or many more as it was not enough to rely on the broken hymen alone. 5.0 Appellant's Arguments 5 . 1 On behalf of the appellant, learned counsel, Mr. Lungu filed written heads of argument in support of the appeal. He also made brief oral submissions at the hearing of the appeal on 13th November 2020. The kernel of the submissions in relation to ground one were that the J6 prosecution's evidence was replete with contradictions which should have been resolved in favour of the appellant. Among the contradictions highlighted by Mr. Lungu were that the appellant was a sick p erson who was very weak to perform sexual activities which require a lot of energy. That this was a contradiction with the evidence of DW3 who stated that: " .. . a sick person cannot do anything. A sick person can only do easy work, having sex is a big big job." 5.2 Mr. Lungu went on to state that the prosecutrix claimed that she felt pain when he inserted his penis during the 1st encounter on 6 th March, 2019. However, no blood stained bed sheets were produced to support the assertion. It was further argued that Helodia Mulube did not see the appellant having sexual intercourse as alleged on account of the fact that there was no need for the appellant to tell the prosecutrix to keep the issue a secret if Helodia had witnessed the incident. 5 .3 The other inconsistency highlighted was with regard to the date of birth for the prosecutrix. According to Counsel, Miyoba Hang'andu, (the mother to the prosecutrix) initially told the trial court that the prosecutrix was born on 1st December, 2014 but later changed in re-examination where she stated that the daughter was born on 1st December , 2004. J7 5.4 It was further submitted that according to Helodia Mulube, the appellant was not wearing anything during sexual intercourse while the prosecutrix testified that he removed his trousers up to the knees. Counsel contended that it was therefore wrong for the trial court to convict the appellant based on such conflicting evidence. 5.5 The case of Mushemi Mushemi vs The People1 was referred to where the Supreme Court held that a trial court faced with conflicting evidence must show on the record why it believed one witness in preference to another. It was further contended that the allegations leveled against the appellant were fabricated whose motive will be known in future. 5.6 As regards ground two, the argument was to the effect that the appellant had indicated an alibi to the police at an early stage which if the police had investigated, would have shown that the appellant was not at the scene of crime. The submission was that there was a dereliction of duty on the part of the police to investigate the alibi. 5. 7 In relation to ground three, Mr. Lungu submitted that following the conflicting dates of birth given by state witnesses particularly the mother, it was imperative to subject the prosecutrix to a magnetic resonance test in order to ascertain the age . Counsel asserted that the J8 possibility of the prosecutrix being over 16 years cannot be ruled out in casu. 5.8 With respect to ground four, the appellant is aggrieved with the fact that the medical doctor who conducted the examination on the prosecutrix was never called as a witness. That this was contrary to the guidance of the Supreme Court from the case of Stanley Kasungani vs The People2 where it was held: "It is highly desirable, save perhaps in the simplest of cases, for the person who carried out a medical examination of the victim of an assault, including a fatal assault, and prepared the report to give verbal evidence in court." 5.9 The gist of the argument in relation to ground five is that the court erred when it relied on an inconclusive report which required something more such as the state of the vagina, whether it was bruised or tender. To buttress his point, our attention was drawn to the case of Alfred Mauma vs The People3 where it was observed that the absence of the hymen alone is not enough. Other factors such as presence of semen, tenderness of the vagina lining, or bruises in addition to the absence of the h ymen can amount to corroboration of recent sexual activity. 5 . 10 In the final analysis Mr. Lungu prayed that the conviction be quashed and the appellant be set at liberty . J9 6.0 Respondent's Arguments 6.1 On behalf of the state, the learned state advocate Ms. Banda opposed the appeal and supported the conviction and sentence. To this end she filed into court written heads of argument that were a lso entirely relied upon at the hearing of the appeal. 6.2 In relation to ground one, Ms. Banda posited that there is sufficient evidence on the record to maintain the conviction of the appellant despite minor discrepancies in the prosecution's evidence. She asserted that the minor discrepancies alluded to by Mr. Lungu in his arguments do not go to the root of the case and thus not fatal to the prosecution's case . As authority for this proposition, we were referred to the case of Madubula vs The People4 where it was held that minor discrepancies in the prosecution evidence that do not go to the root of the case are not fatal to the prosecution's case. 6. 3 Counsel further argued that there was corroboration in both opportunity and lack of a motive to falsely implicate the appellant. She argued that the evidence of M was that she was alone with the appellant in the shop when she took the ash mixture to him. That this brought about the element of suspicion. The case of Nsofu vs The People5 was called in aid wherein it was h eld: JlO "mere opportunity alone does not amount to corroboration, but the opportunity may be of such a character as to bring in the element of suspicion. That is the circumstances and the locality of the opportunity may be such as in themselves to amount to corroboration." 6 .4 In relation to ground two Ms. Banda submitted that the only time that the defence of alibi arose was at the time that the appellant and his two witnesses testified in their defence. None of the prosecution witnesses were cross examined on any matter to do with the alibi. It was contended that although he might have informed the police when he was apprehended, this did not suffice as he did not give any material details to enable the police investigate the matter further. In order to persuade us on this argument Ms. Banda adverted to the case of Bwalya vs The People6 where it was held that: "simply to say I was in Kabwe at the time does not place a duty on the police to investigate." 6.5 On ground three it was submitted that the mother to the prosecutrix provided the best evidence on the age of the prosecutrix. She argued that there was an honest mistake when under cross examination, the mother agreed that the child was born on 1st December 2014. The mistake was rectified in re-examination where she said the child was born on 1st December 2004. Jl 1 6.6 Ms. Banda went on to submit that the age of the prosecu trix was therefore conclusively determined without the need for a magnetic resonance machine examination. 6. 7 With respect to ground four and five, the thrust of Ms. Banda's submission was that the fact that the hymen was torn but there were no bruises or tenderness does not mean that the results were inconclusive as it was shown that there was penetration. She relied on the case of Daddly Fichite vs The People 7 and Winfred Mapapayi vs The People8 . 6.8 She however conceded that the voire dire conducted for Heloida Mulube was defective and ought not to have been relied on by the trial court. We were implored to dismiss the appeal. 7.0 Consideration and decision of the Court 7.1 We have considered the submissions of counsel together with the authorities cited as well as the record of appeal. From the rival arguments that have been deployed by counsel, we consider that the fallowing issues arise for our determination; alibi, failure to call the medical Doctor who prepared the report after examination, proof of age of the prosecutrix and the issue of subjecting h er to magnetic resonance machine , discrepancies 1n prosecution evidence. J12 8 .0 Failure to call the medical doctor 8.1 The contents of the medical report revealed that the hymen for the prosecutrix was broken. Mr. Lungu has taken issue with the fact that the medical Doctor who attended to the child was not called as a witness to shed more light on his finding. In Mwanza vs The People9 , (also relied on by counsel for the respondent) it was held that "there may be cases in which the medical report will be sufficient to supply the information without it being necessary to call the doctor ... ". 8.2 From the holding in the Mwanza9 case it is clear that it is not in each and every case where a medical report is produced that the medical practitioner who prepared the report must take the stand. We are of the considered view that this is one such case where it was not necessary for the prosecution to call the Doctor. The contents of the medical report were self-explanatory. The report indicated that the hymen was torn at 07. O'clock and the findings were consistent with the alleged circumstances. 8 .3 The prosecution were not at fault, therefore, when they did not call the doctor as argued. There was no dereliction of duty. In any event, there was nothing to stop the appellant from calling the doctor if he so desired. J13 For the foregoing reasons, we cannot fault the trial magistrate on this basis. 9.0 Age of the prosecutri.x 9.1 It is trite that for an accused to be convicted of the offence of defilement, the ingredients that must be proved at trial are; age of the complainant, proof of penetration and positive identification of the assailant. In this case, it is true that there was contradiction in the oral evidence from the mother regarding the age of the prosecutrix. The mother initially stated that the prosecutrix was born on 1st December 2014 but later changed to say that she was born on 1st December 2004. The correspondence from the head teacher at Hakunkula Primary School marked exhibit 'P4' indicated that the prosecutrix was their pupil in grade one in the year 2011 and was aged 7 years at the time of enrollment. A simple calculation from 2004 to 2011 the result is that the child was aged 14 years at the time of the commission of the offence in March 2019. This therefore entails that the later position given by the mother was supported by an independent document from the school authorities which confirmed that the child was born in 2004. 9.2 In light of this evidence relating to the age of the prosecutrix, the learned trial magistrate thus was justified in arnv1ng at 14 years as the age for the J14 prosecutrix. We do not find it inimical for him to conclude that the disparity in the years given by the mother could have been as a result of a mistake. We therefore find no basis to assail the learned trial magistrate's finding that the complainant was 14 years at the time the offence was committed. The argument that the prosecutrix should have been subjected to a magnetic resonance machine does not hold water and 1s consequently dismissed. 10.0 Alibi 10.1 The second ground of appeal alleged that there was dereliction of duty on the part of the investigating police officer when he failed to investigate the appellant's alibi to the effect that he was not at the scene of crime as alleged. The benchmarks of the defence of alibi have been settled in a plethora of decisions of the Supreme Court. The celebrated case of Nzala vs The People10 is one such example where it was held: "where an accused person on apprehension or arrest puts forward an alibi and gives the police detailed information as to witnesses who could support that alibi, it is the duty of the police to negate it. 10.2 Further in Lameck Mwanza vs The People11 where it was held inter alia that: J15 "An alibi is a form of defense used in criminal cases wherein the accused attempts to prove that he or she was in some other place at the time the alleged offence was committed. The defence must disclose an alibi with sufficient time for the authorities to investigate the alibi.z. and with sufficient particularization to allow for meaningful investigation. " 10.3 The record shows that the appellant, in the warn and caution statement, informed the police that on 11 th March 2019, after taking the ash mixture from the prosecutrix, he went home around 20.00 hours. He however did not give the police detailed particulars of the persons he was with to allow the authorities conduct a meaningful investigation. We are satisfied that the appellant was not prejudiced by the alleged dereliction of duty as this was off-set by the evidence of the prosecutrix which placed him at the scene during the time of the incident. Furthermore the appellant himself does not dispute that he had been with the prosecutrix who had given him the ash mixture , there by placing himself at the scene of crime. We are fortified by the case of Peter Yotam Haamenda vs The People12 where it was h eld that: "Where the nature of a given criminal case necessitates that a relevant matter must be investigated but the J16 Investigating Agency fails to investigate it in circumstances amounting to a dereliction of duty and in consequence of that dereliction of duty the accused is seriously prejudiced because evidence which might have been favourable to him has not been adduced) the dereliction of duty will operate in favour of the accused and result; in an acquittal unless the evidence given on behalf of the prosecution is so overwhelming as to offset the preiudice which might have arisen from the dereliction of duty. )) (Emphasis added) 10.4 With that said, we are of the view that the trial magistrate was on firm ground to disregard the alibi that the appellant put forward in view of the overwhelming evidence t h at placed him at th e scen e. 11 .0 Discrepancies in prosecution evidence 1 1.1 The first ground of appeal a lleged that the judgment of the lower court was based on inconsistent evidence. The counter argument by the respondent's counsel was that the inconsistences highlighted did not go to the root of the prosecution's case. In Madubula vs The People1 3 it was held that: "Minor discrepancies in the prosecution's evidence that do not go to the root of the case are not fatal to the prosecution case." J1 7 11.2 In the case of Dickson Sembauke Changwe and Ifellow Hamuchanje vs The People14 the Supreme stated as follows : "For discrepancies and inconsistences to reduce or obliterate the weight to be attached to the evidence of a witness, they must be such as to lead the court to entertain doubts on his reliability or veracity either generally or on particular points." 11.3 We cannot agree more with counsel for the respondent on this point that the inconsistences highlighted were so insignificant and did not go to the root of the prosecution's case. Counsel argued that the appellant was a sick man and was therefore too weak to perform sexual activities which require a lot of energy. He said this was supported by the evidence of DW3. The view we take is that there is no medical evidence adduced that he was incapable of having sex. In any event, this issue should not be considered in isolation. There is other evidence which pointed to the commission of the offence by the appellant. 11. 4 Regarding the alleged inconsistency on the date of birth, we have already dealt with this in the course of this judgment and we shall make no further statement save to say that age of the prosecutrix was correctly determined to be 14 years. J18 11.5 Turning to the argument that the allegations against the a ppellant were fabricated and that the motive would be known in future , our short response is that the absence of motive at this stage for false implication of the appellant militates against him. 12.0 Verdict 12.1 All in a ll, in light of all the evidence that was adduced which had proved the essential ingredients of the offence we see no basis upon which the trial court's findings could b e assailed. We have found that all the five grounds of appeal are d estitute of merit and accordingly dismiss them. 12.2 We accordingly conviction and sentence imposed by the court e J. Ch hi COURT OF APPEAL JUDGE ......... B: .......... g ..... . F . M. Lengalenga COURT OF APPEAL JUDGE . ......... ~ I ! .. ............. . -. B·.rJ. JM;j~la COURT OF APPEAL JUDGE J19