Mupwaya R. Chisepo v People (Appeal 198 of 2014) [2015] ZMSC 166 (14 April 2015)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 198 OF 2014 (Criminal Jurisdiction) BETWEEN: MUPWAYA R. CHISEPO APPELLANT AND THE PEOPLE RESPONDENT CORAM: PHIRI, WANKI, AND MALILA, JJS On 4th November, 2014 and 14th April, 2015 For the Appellant: Mr. F. Tembo - Messrs. Frank Tembo and Partners For the Respondent: Mrs. M. K Chitundu - Acting. Principal State Advocate (NPA) JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO: Emmanuel Phiri -Vs- The People (1982) ZR 77. Katebe -Vs- The People (1975) ZR 13 (S. C.). Peter Lifunga Machilika -Vs- The People (1978) ZR 44. 1. 2. 3. 4. Mushemi Mushemi -Vs- The People (1982) ZR 71. Chiyovu Kasumu -Vs- The People (1978) ZR 253. 5. 6. Mwewa Murono -Vs- The People SCZ Judgment No. 23 of 2004. LEGISLATION REFERRED TO: 7. The Penal Code Chapter 87 of the Laws of Zambia. J2 The appellant herein was charged with one count of rape contrary to Section 132 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence alleged that the appellant on 18th November, 2012 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, had unlawful carnal knowledge of Kakusha Kakoma without her consent. The appellant’s conviction was based upon the evidence of six witnesses, namely; Kakusha Kakoma, PW1; Ruth Muzala Kakoma, PW2; Ngoni Kuku, PW3; Estella Chalwe Chinyama; PW4; Dr. Kumoyo Mulik, PW5; and Number 31939 Sergeant James Jacob Tembo. The summary of the prosecution evidence before the trial Court is that the appellant had sex with the prosecutrix in this matter without her consent. In her testimony the prosecutrix said that she was coerced to enter the appellant’s car and was later driven to Chongwe only to be returned later to her home in the evening. It was her story that in the process of the abduction the appellant forcibly had sex with her in the car on their way from J3 Chongwe. On her return she found her uncle at home and narrated what happened to him and later to her parents who returned around 23.30 hours on the material day. The matter was only reported to the police the following day. The appellant gave sworn evidence and called 3 witnesses. The summary of the evidence for the defence is that the prosecutrix on the eve of the fateful day asked the appellant to go and see her the next day. On the material day the appellant went to the prosecutrix’s home as arranged and met with her. She requested to escort the appellant to Chongwe as she was bored at home and the appellant accepted the request. On their way to Chongwe they were fondling. Whilst in Chongwe, the appellant bought condoms for use after booking a room in Lusaka. On their way back from Chongwe the fondling continued and the prosecutrix reminded the appellant that he was to take her home by 18.00 hours. Since the fondling was extreme and there was no time they decided to quickly have sex in the car. The appellant parked the car off the road and had sex with the prosecutrix who held the appellant tightly during the act and confirmed that she J4 enjoyed it. After having sex the appellant drove the prosecutrix back to her home and left her. At the close of the proceedings the trial Court delivered its judgment dated 10th April, 2014. In the said judgment the trial Court convicted the appellant of the subject offence and later referred the appellant to the High Court for sentencing. The High Court sentenced the appellant to 15 years. The appellant now appeals against the verdict. The appellant advanced three grounds of appeal as follows 1. 2. 3. The learned Magistrate was wrong to try and separate the complainant’s story concerning the alleged rape from the rest of her clearly untruthful account. The trial Magistrate misdirected herself by failing to look for corroboration specifically on the issue of consent. The learned Magistrate gave a bad reason for disbelieving the appellant. Counsel on both sides filed written submissions. The said submissions were resourceful. We are grateful to Counsel for the industrious arguments. We, however, find no need of reproducing the submissions here save to conveniently refer to them in the J5 course of this judgment where necessary. We propose to consider the above grounds of appeal together. Rape is defined by Section 132 of the Penal Code. The definition of rape in the said Section is to the effect that any person who has sex of a woman or girl, without her consent, or with her consent procured by means of force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by personating her husband, commits a felony namely rape. Simply put, any person who has sex with a woman or girl against her free will commits rape. To prove rape the requisite elements must be established. There must be carnal knowledge (sexual intercourse) and lack of consent on the part of the victim. In order to establish rape it is necessary to prove penetration (complete or partial) by the penis into the vagina. Therefore, penetration of the vagina using any object other than the penis is not rape. Further complete sexual intercourse is not necessary to prove rape. The critical point is that there must be penetration of the vagina fully or partially by J6 the penis. However, rubbing against the vagina entrance does not amount to penetration even if the emission of semen results there from. The fact that no semen was emitted is immaterial as long as there is penetration. Further the fact that the penetration was brief is also immaterial. The said carnal knowledge must occur without the consent of the victim. A person who has sexual intercourse with a consenting woman or girl commits no wrong. However, if such sexual intercourse occurs without the consent of a woman or girl rape is committed. Consent can be understood to be an act of human will acquiescing in a mental judgment or deciding to implement it. Consent always implies freedom of judgment, deliberation and freely given acquiescence in what is considered desirable. There is free consent only if the person is not subjected to duress of whatsoever form or deceit among others. The absence of consent at the time of the sexual intercourse on the part of the victim is the other limb for proving rape. Lack of Consent is what transforms the sexual intercourse into rape. The woman must show signs of resistance to the act. There is no J7 real consent if the woman yields to sexual intercourse under physical coercion or due to fear. Consent obtained by false representations as to the nature of the act is no consent. Similarly there is no consent where a man gets into bed with a married woman who gives him her body under the mistaken belief that the man is her husband. There is also no consent where a man has or attempts to have sexual intercourse with a woman while she is asleep and it is no defence that she did not resist. The position that evidence of the victim or complainant in sexual offences requires corroboration has been settled by judicial decisions. Corroboration is required both as to the commission of the offence and the identity of the offender so as to eliminate the dangers of false complaint and implication. To this extent it was held in EMMANUEL PHIRI -VS- THE PEOPLE W that:- “In a sexual offence there must be corroboration of both commission of the offence and the identity of the offender in order to eliminate the dangers of false complaint and false implication. Failure by the Court to warn itself is a misdirection.” We must state here that the rule requiring corroboration in sexual offences was designed to guard against the twin dangers of false complaint and false implication. J8 Where there are special and compelling grounds to convict on uncorroborated evidence of the victim the court is entitled to convict on uncorroborated evidence. In the absence of a motive for a prosecutrix deliberately and dishonestly to make a false allegation against an accused and if the case is in practice not different from cases in which conviction is dependent on the reliability of her evidence as to the identity of the culprit the special and compelling grounds are constituted, see the case of KATEBE -Vs- THE PEOPLE We now turn to the grounds of this appeal. This appeal raises issues touching on credibility and corroboration in the three grounds of appeal. We have examined the evidence which was before the trial Court in this matter. From the evidence in this matter it is clear to us that the credibility of the prosecutrix was not flawless. The prosecutrix’s credibility was affected by the rest of the evidence on record which was in substantial conflict with her evidence. In the circumstances of this case little weight could be attached to it as the prosecutrix was shown to be untruthful. We are fortified by our decisions in PETER LIFUNGA J9 MACHILIKA -VS- THE PEOPLE (3) where we said in part that “Once a complainant has been shown to be untruthful in very material.... her evidence can carry very little weight,.... ” and MUSHEMI MUSHEMI -VS- THE PEOPLE HI where we held that “the credibility of a witness cannot be assessed in isolation from the rest of the witnesses whose evidence is in substantial conflict with that of the witness.” It is our view that the prosecution evidence did not reveal any corroborating evidence to support the story of the prosecutrix. We found no evidence of early compliant on record as the uncle, who came in first contact with the prosecutrix, was not called as a witness. We, therefore, opine that there was a dereliction of duty on the part of the prosecution and it is proper to infer that the prosecutrix’s uncle would have given evidence favourable to the appellant. We call in aid the case of CHIYOVU KASUMU-VS- THE PEOPLE (5) where we said that:- “There having been a clear dereliction of duty there is a presumption that the evidence which was not obtained would have been favourable to the appellant.” J10 It is our view that in the circumstances of this case the twin dangers of false complaint and implication were not eliminated. It is also clear from the evidence on record that the appellant’s explanation at trial was plausible and the trial Court did acknowledge this fact. Having considered the evidence on record anxiously, we are of the firm view that the prosecution did not establish absence of consent and therefore did not discharge the burden of proof. We repeat what we said in the case of WEWA MURONO -VS- THE PEOPLE & that:- “In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from the beginning to end on the prosecution. The standard of proof must be beyond all reasonable doubt.” After our thorough examination of the evidence on record, we have come to the conclusion that this was a case of consensual sex. The trial Court therefore, erroneously convicted the appellant. We quash the conviction and sentence. We acquit the appellant and set him at liberty forthwith. JU This appeal succeeds. Gt S. Phiri, SUPREMECOURT JUDGE. . E. Wanki, SUPREME COURT JUDGE. '^M. Malila, So SUPREME COURT JUDGE.