Francis Mulenga v The People (Appeal No. 40 of 2010) [2011] ZMSC 43 (12 July 2011)

J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO, 40 OF 2010 (Criminal Jurisdiction) BETWEEN: FRANCIS MULENGA -VS- THE PEOPLE APPELLANT RESPONDENT CORUM: CHIRWA, AG. DCJ, WANK. I AND MUYOVWE, JJS On 3rd May, 2011 and 12th July, 2011 For the Appellant: Mr. H. Mweemba, Senior Legal Aid Counsel For the Respondent: Miss M. Bah, Senior State Advocate JUDGMENT WANKI, JS, delivered the judgment of the Court. CASES REFERRED TO: 1. Noah K.ambobe -Vs- The People, (2002) ZLR 57. 2. Saluwema -Vs- The People, (1965) ZLR 4. 3. Peter Yotamu Haamenda -Vs- The People, (1977) ZLR 184. 4. Chiyovu Kasamu -Vs- The People, (1978) ZLR 252. STATUTES REFERRED TO: 5. The Penal Code, Chapter, 87 of the Laws of Zambia. The Appellant Francis Mulenga was convicted of Defilement, by the Subordinate Court of the first class sitting at Siavonga. As the offence attracted a minimum sentence beyond the jurisdiction J2 of the trial Magistrate, he was referred to the High Court for sentence. The High Court, sitting in Lusaka, sentenced the Appellant to a term of 30 years imprisonment with hard labour with effect from 19th July, 2009, the date on which he was arrested. It is against his conviction and sentence that the Appellant has now appealed to this Court. The prosecution's evidence before the trial Court was solicited from five witnesses, the first of whom was E N (PW1). She was the child, who was defiled on 15th December, 2008. Her testimony was that on 13th December, 2008 the Appellant whom she knows came to Siavonga where she was on holiday to pray for people and most of the time he used to come there to pray for other people and for her entire family. The Appellant used to lodge at Aunt Alice's place. When the Appellant came to prophesy to people he told her that she was barren and that he intended to pray for her. He then told her to fast for three days starting from 13th December, 2008, the day that he came. She then fasted for three days as he told her. On the 15th December, 2008 around 10.00 hours, she went to where he was lodging so that he could pray for her. She found him in the sitting room watching TV where he asked her to sit for a while. After that he told her to follow him to the bedroom so that he could pray for her. When they entered into the bedroom, he closed and locked the door. He then told her that he would pray for her so that the problem of being barren can go and so that no one could disturb J3 them. He told her that he was going to anoint her private part because that is where the problem was. He then got the anointing oil. After that he told her to remove her skirt and pant and lie on the bed and close her eyes. She did as he told her, but then she opened her eyes and saw him with the anointing oil and he put it inside her vagina as he said in the name of the Father, the Son and the Holy Spirit. He then removed his trousers and put his penis into her vagina and started having sex with her. When he finished, he got up and told her to dress up quickly. When she checked on her private part she found blood. He then told her that God had told him that there was too much dirt in her womb and it would come out through her periods and the blood she was seeing was the dirt that was coming out of her womb. She did not inform anyone about what happened because he told her that she was not to tell anyone the secret until she died. In January, 2009 and February, 2009 she did not have her periods. When she told him, the Appellant told her that she should wait. That continued until June, 2009 when she told her brother who took her to UTH, where she was told that she was eight months pregnant. The matter was then reported to the Police and the Appellant was arrested. Under cross-examination, PWl testified that she came alone when the Appellant asked her to come so that he could pray for her. He told her that there was dirt in her womb; and that she was barren and she would never have children; and that she should abort. J4 The second witness, (PW2) was Arnold Tutu Sichilongo, PWl's brother. His testimony was that, PWl was born on 20th September, 1993. On 17th June, 2009, he got a call from PW 1 to the effect that she had not been having her monthly periods and that her tummy was swelling. Upon receiving the information, he was worried and phoned the School Headmaster and asked him to ask PWl to come to Lusaka. When she came she narrated to him the events that took place in December, 2008. After that he took her to UTH where she was pronounced pregnant. He then reported the matter to the Police. Thereafter, the Appellant was apprehended. Under cross-examination, PW2 testified that when he met him following his apprehension, the Appellant said that they should take PW 1 to the hospital so that they could remove what was growing in her womb by way of abortion and it was for that reason that he phoned the Police to co111e and assist in the apprehension. The Appellant did not use the word pregnant, he just said that something was growing in her worn b and it should be removed. The third witness, (PW3) was Alice MUTEYA. Her testimony was that she knew the Appellant as a prophet; that he used to come to her place in Siavonga where they used to gather for prayers; and that he came to her place in December, 2008. In cross-examination, PW3 testified that there were usually people at her house including her maid, nephew and niece. All the time she saw PWl come to her place she was in the company of her parent. J5 The fourth witness (PW4) was Eunice Sichilongo, PWl 's mother. Her testimony was that in December, 2008 the Appellant phoned her to say he would be in Siavonga to pray for PW 1 over her stomach problems. PWl continued to attend prayers with the Appellant. She asked the Appellant if she could take PWl to the clinic but he refused saying that he would be praying for her. The Appellant told them that PWl had a lizard in the womb but the doctor said that she was pregnant in March. Under cross-examination, PW4 testified that they did not take PWl to the hospital because the Appellant told them that they should not take her to the hospital, he would be praying for her. The Appellant told PW 1 not, to tell them that she was pregnant or missing her periods. Under re-examination she testified that they believed the Appellant that he was going to pray for PWl because they knew him as a prophet. The case was investigated by PW5 Constable Tamila NAKAZWE of Emmasdale Police Station after a report was made by PW2 on 13th June, 2009 that his sister PWl aged 15 years had been defiled. She opened a docket and she was led by PW2 to a place where the Appellant was to be found. They went and apprehended the Appellant and took him to the Police Station. Later, she conducted interviews, and during the interview, the Appellant told her that he was a prophet of God and he had prophesied that PWl at 15 years was barren and that he advised her on the 13th December, 2008 to fast for three days and on the J6 third day on 15th December, 2008 they went and prayed for her. He said this occurred at Sister Alice's place in Siavonga. He further said that in his prayers he had to anoint her private part using fingers behind a closed door in fear of disturbance; and that he used the same finger to penetrate into her vagina. After the interview, she made up her mind to charge and arrest him for the subject offence. Under warn and caution in Bemba he denied the charge. Further she produced the medical reports. The Appellant was found with a case to answer and he opted to give evidence on oath and to call one other witness. In his evidence, he said he used to go to Siavonga to the mountain to pray. In December, 2008 the mother to PWl called and told him that PW 1 had a problem with her stomach; and that she had not had her monthly periods from November, 2008. He told her that before he prayed for her, they should first take her to the hospital for the doctor to diagnose what the problem was. From the time he knew her, PWl was staying in Siavonga; and all the time he wanted to see her she used to come with her parents. On Sunday they went to the mountain to pray and PW 1 came with her parents. Then her parents asked him to pray for PWl before they went to the mountain. On the day he prayed for her the room they used was the bedroom in the middle of two other bedrooms. He was with Teddy Mvula. PWl and the mother told him that when she was menstruating waterish substance used to discharge from her vagina. He asked PW 1 if she could allow him to anoint her private J7 part and she agreed. He did not insert his finger in the vagina; it was just on the side and he put anointing oil on his fingers. It was his further evidence that when he went to Siavonga, in March, 2009 her mother told him that PW 1 had her menstrual periods for December, 2008 and January, 2009 respectively. In the anointing room, PWl removed her clothes on her own. He did not insert a finger; he just put it on the side. After anointing her, they went outside and he told her parents that he touched her private part when anointing her. He did not have sexual intercourse with her. Under cross-examination, he testified that he had been a prophet for about six to seven years. He had cured several people for barrenness since he stated prophesying. He had anointed several people in the similar manner as PWl before. The anointing occurred in the house of Aunt Alice, PW3. They were three in the anointing room, who included, PW 1, Teddy Mvula and himself. The door to the anointing room was closed but not locked. When he was anointing PWl, Teddy Mvula was touching PW 1 over her head. He remembered that PWl told the Court that after he inserted his finger into her vagina; he undressed himself; and inserted his penis in her vagina. Teddy Mvula was not fictitious; he is real. His main role in the room was to assist him. The defence's second witness, DW2 was Teddy Mvula. JS His testimony was that he knew the Appellant in 2005 when his family had a problem. He prayed for them and the problem disappeared. On 13th December, 2008, the Appellant came to Siavonga. Then PW4 called the Appellant to say her daughter had not been having her menstruation. On a Sunday they were going to the mountain for prayers and PW4 and her daughter, PWl came and they were asked to pray for her. They refused to do so but she forced them. They then took PWl into a room where they prayed for her. He touched her on the forehead and the prophet was in front of her. When they had finished they went to the mountain for prayers. Under cross-examination, he testified that PW 4 phoned the prophet to come and pray for her daughter. What he saw was that the prophet anointed PWl on the stomach not on her vagina. They were praying for PWl because she had missed her monthly periods for two 1nonths. He would agree that a fe1nale would miss her periods if she is pregnant. Under re-examination, he stated that, after praying for PWl in the house they all came out and went to the mountain. The Appellant never prayed for anyone when he was alone. PWl 's parents refused to go inside the house where they were praying for her. After evaluating the evidence on record, the trial Court found that the prosecution had proved beyond any reasonable doubt that PWl was a child; that she had been defiled; and that the Appellant J9 defiled PWl and accordingly, found him guilty and convicted him as charged. In his notice of appeal filed on 16th June, 2010 the Appellant filed three grounds: - 1. The learned trial Magistrate erred in law and fact by relying on insufficient and contradictory evidence relating to the defilement offence that the Appellant is alleged to have committed. 2. The Honourable sentencing Court was misled on the facts of the matter in that what was read by the sentencing Court was different from what was said during trial. 3. The trial Court erred by convicting me even in light of the graveness of the offence of defilement laid against me, trying and convicting me without my legal representation. However, in the grounds of appeal and heads of argument that was filed on 29th April, 2011, it was indicated that they wished to substitute the three grounds of appeal by the Appellant into two new grounds of appeal: - 1. The learned Judge erred in fact when he sentenced the Appellant to 30 years imprisonment. 2. The learned Magistrate erred when he convicted without considering the logical and reasonable explanation of the Appellant thereby shifting the burden of proof and further that the complainant should have been subjected to forensic tests since the pregnancy was on exhibit which was denied by Appellant. In support of the first ground, it was submitted according to page 37 paragraph 7 of the record of appeal, it was clear that the learned Counsel made mention of the aspect of the Appellant being a first offender but to no avail and in the mind of the Judge 30 years was what was deserving of the Appellant. It was pointed out that the Appellant as a first offender was entitled to leniency when JlO the Court passed its sentence, unless there were aggravating circumstances. It was submitted that this is not reflected in the learned Judge's sentence. It was argued that the sentence is excessive and does not reflect the leniency deserving of a first offender which is a matter of law. In support, we were referred to the case of NOAH KAMBOBE - VS- THE PEOPLE t1l in which we decided that: "Leniency when sentencing should be considered to first offenders." It was pointed out that in that case, this Court reduced the Appellant's sentence of 32 years to 10 years. It was further submitted that considering that the complainant was about 15 years old which is just the boardering and the sentiments by the Judge at page 37 lines 21 - 28 of the record can never be aggravating circumstances to warrant a shocking sentence of 30 years. In support of ground two, it was submitted that it is a matter of law that the burden of proof in criminal cases in Zambian jurisdiction rests always on the prosecution and under rare circumstances does the burden shift on the accused we were referred to our holding in the case of SALUWEMA -VS- THE PEOPLE, (2):- "If the accused's case is reasonably possible; although not probable, then a reasonable doubt exists, and the prosecution cannot be said to have discharged its burden of proof." Jll In the light of this case, the Court was urged to find the Appellant's case reasonably possible and grant the benefit of doubt in his favour. It was argued that under the circumstances it was imperative that since the only link without which the Appellant could not have suffered the conviction; and the Appellant having disputed the allegations was the pregnancy. The prosecution must have gone further to carry out some tests to prove that infact the Appellant was responsible for the pregnancy. A DNA test should have been conducted and failure only resulted in a dereliction of duty by the investigator. In aid, the Court was referred to the case of PETER YOTAMU HAAMENDA -VS- THE PEOPLE (3J in which we held that:- "Where the nature of a given criminal case necessitates that a relevant matter must be investigated but the investigating Agency fails to investigate it in circumstances amounting to a dereliction of duty, the accused is seriously prejudiced because evidence which might have been favourable to him has not been advanced, the derelictions of duty will operate in favour of the accused and result, in an acquittal, unless the evidence given on behalf of a prosecution is so overwhelming as to offset the prejudice which might have arisen from the derelictions of the duty." Further the Court was referred to the case of CHIYOVU KASUMU -VS- THE PEOPLE (4l in which it was held that:- "An examination of the knife for finger prints might have disclosed evidence conclusive in the Appellant's favour, or conclusive against him, or neutral. Although the evidence, had it been obtained, might have proved neutral, and since there had been a clear dereliction of duty, the presumption was raised that the evidence which was not obtained would have been favourable to the Appellant. This presumption could be displaced by strong evidence." J12 It was contended that the investigation under the light of circumstances should have actually subjected the Appellant and the complainant to certain forensic tests to ascertain the truth of the matter. The dereliction must be favourable therefore to the Appellant. When the appeal came up for hearing, MR. MWEEMBA on behalf of the Appellant started by indicating that on the notice of appeal filed by the Appellant there are three grounds of appeal. They had filed two grounds of appeal against conviction and sentence. They, therefore, urged the Court to ignore the earlier grounds. He further indicated that they would rely on the arguments filed. On behalf of the Respondent MISS BAH indicated that they do support the findings of the Court below and the sentence that was imposed on the Appellant. In response to ground two, MISS BAH submitted that the issue of PW 1 being pregnant in relation to the case of defilement was not in dispute. There was therefore no need of carrying out a DNA test. The evidence by PWl that she went to the Appellant to pray for her, but to her surprise she was asked to undress; and had intercourse with him; and that she tried to shout but no one came to her assistance disqualified the evidence by the Appellant and DW2. Their submission was to show that the evidence of penetration had been established. J13 The learned Senior State Advocate further submitted that, the trial Court warned itself against the dangers of relying on the evidence of PWl which was uncorroborated. The evidence of PWl was the same as the Appellant's evidence; and the Appellant placed himself at the scene of crime. The learned Senior State Advocate finally submitted that, the offence of defilement was proved. They therefore supported the conviction of the Appellant. In reply, MR. MWEEMBA submitted that in respect of the counter argument in relation to ground one, they urged the Court to consider their arguments. The Appellant was a first offender and the victim was aged 15 years. In relation to ground two, the learned Senior Legal Aid Counsel submitted that, they repeated that there was supposed to be corroboration considering that the matter was reported more than six months later. The prosecution was supposed to seal up the loophole. They, therefore, contended that there was dereliction. We have critically considered the evidence adduced before the trial Court; the grounds of appeal; the submissions by Counsel; the judgment of the trial Court; and the order of sentence by the High Court. In ground one, the Appellant has attacked the sentencing High Court Judge for sentencing him to 30 years imprisonment without considering that the Appellant was a first offender and other principles related to sentencing. J14 We have considered ground one, the arguments and we have looked at the case record and the case(s) cited by the learned Appellant's Counsel. In the present case, the learned sentencing Judge addressed his mind to the following facts which he considered to be aggravating. The first is that the convict was a person well known in his community as a pastor who prayed for the victim and her parents at his house and in the mountains in Siavonga before he defiled her; the second, was that the convict purported to use the word of God and succeeded in duping his victim into submitting to his defilement until she became pregnant; and the third was that the convict used his self advanced power of prayer as a prophet in order to defile his victim. Having considered the foregoing, the learned Judge concluded that the mitigating factors in the case far out weighed the mitigating factors such that any leniency consideration was wiped out. Accordingly, he sentenced the Appellant to 30 years imprisonment with hard labour with effect from the date of arrest. The maximum sentence for defilement is life imprisonment. On the facts of this case, the sentence of 30 years imprisonment with hard labour does not come to us with a sense of shock. We uphold it and dismiss ground one as it lacks merit. In ground two, the Appellant has attacked the learned trial Magistrate when he convicted him without considering the logical and reasonable explanation of the Appellant thereby shifting the burden of proof; and further that the complainant should have been JlS subjected to forensic tests since pregnancy was an exhibit which was denied. We have considered ground two; the arguments and submissions; the evidence adduced before the learned trial Magistrate; and the judgment appealed against. We have found that there was no much dispute between the evidence that was adduced by PWl and that adduced by the Appellant in relation to PW l's going to the Appellant's house for prayers. It was also not in dispute that PWl removed her skirt and under pant; and that the Appellant anointed PWl 's private part; and that PWl was defiled. The only issue in dispute was the identity of the defiler. PWl in her evidence testified that it was the Appellant who defiled her. On the other hand, the Appellant in his evidence denied that he defiled PW 1. The learned trial Magistrate had an option as to who to believe and he opted to believe PWl. With the evidence available, the learned trial Magistrate cannot be faulted. The Appellant had the opportunity to defile PWl. In relation to the argument that PWl was supposed to be subjected to forensic tests we would agree that, that was not an issue before the trial Court. There cannot therefore be dereliction of duty on the part of the Investigators. It was not in dispute that PWl was impregnated by the Appellant. In fact the Appellant tried to persuade PWl, to abort and he with his mother tried to plead with PW2 and PW4. J16 In the circumstances, we have found no merit in ground two. It is, accordingly, dismissed. In the circumstances, we have found no merit in the appeal which is, accordingly, dismissed. D. K. Chirwa, ACTING DEPUTY CHIEF JUSTICE / ............ .......................... . E. C. N. Muyovwe, SUPREME COURT JUDGE