Robert Chirwa v The People (APPEAL NO. 06/2024) [2024] ZMCA 304 (15 November 2024)

. L C . L 11,;;J ' - " V V .1'. . L V r .... 11 iOLDEN AT NDOLA Criminal Jurisdiction) .n.r-C' .1:.t.n.. LI V r oCJ.n.. LU . D J..n. 3ETWEEN: iOBERT CHIRWA APPELLANT \. ND rHE PEOPLE RESPONDENT CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 11th November, 2024 and 15th November, 2024. 'i'or the Appellant: Mrs. M. Makayi, Senior Legal Aid Counsel, Legal Aid B .'i'or the Respondent: M rs. Y. Banda - State Advocate, National Prosecutions Authority JUDGMENT jQULUBE, JA delivered th e Judgment of th e Court. Cases referred to: 1. Adam Berejena vs The People (1984) ZR 19 2. Emmanuel Phiri vs The People (1982) ZR 77 3. Machipisha Kombe vs The People (2009) ZR 184 4. I vess Mukonde vs The People - SCZ Judgment No. 11 of 2011 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. L. O INTRODUCTION l .1 Robert Chirwa, the appellant appeared before the Subordi1 Court sitting at Chipata charged with one count of the offenc Defilement, contrary to section 138(1) of the Penal Code. particulars of the offence allege that on 26 May, 2022, at ChiI in the Chipata District of the Eastern Province of the Republi Zambia, the appellant had unlawful carnal knowledge of a below the age of sixteen years. LO EVIDENCE BEFORE THE TRIAL COURT ~. l The evidence before the trial court was that on 26 May, 2022, P Rosemary Miti was at home with her daughter, the prosec-L who was aged 4 years. The child told her mother that she wai to go to the toilet and PWl undressed her daughter and told to go and use the toilet which was outside the house. The ti was behind the appellant's house and was shared with appellant. PWl testified that the appellant was a lso at his he at the time, which was about 120 metres away from her hous 2.2 After a short while , PWl called her daughter so that she ci help her to dress and she noticed a white substance coming 01 J2 ner aaugnters pnvate parts. ~he tnect to wash her daughter the child refused, stating that her private parts were sore. ~.3 PWl asked Precious to examine the child and when she did, it discovered that the child was defiled. PW 1 stated that daughter was born on 23 February, 2017, and was aged 4 y< when she was defiled. The court conducted a voire dire and satisfied that the prosecutrix was possessed of suffic intelligence to justify the receipt of her evidence on oath and 1 she understood the duty to speak the truth. The prosec1.: testified (PW2) that the appellant defiled her and that no one was around when this occurred. \.4 PW3, Precious Phiri's testimony was that on 26 May, 2022 at al 19:00 hours, she rushed home at the request of her friend, l whose child was unwell. She examined the child's private p and noticed that there was a discharge coming out. The follo, morning, the child told PW3 that when she went to the toilet previous day, she was defiled by the appellant. The child taken to the hospital where she was examined and it confirmed that she was defiled . J3 ~.:::> .t'W'+, vosta 1v1u1enya·s testimony was that the appellant denied charge and stated that he could not have defiled the child on material day because he was at work. PW4 stated that distance between the appellant's house and his work place about 500 metres. He also confirmed that the appellant and prosecutrix's mother were neighbours. ~.6 In his Defence, the appellant denied defiling the prosecutrix. maintained that he was at work on the material day. tO CONSIDERATION OF THE MATTER BY THE LOWER COl AND DECISION L 1 The lower court considered the evidence before it and conch: that the prosecution had proved its case against the appel beyond all reasonable doubt and he was convicted according!~ 3.2 Following his conviction, the appellant was committed to the I Court for sentencing and the Learned High Court Judge found the age of the prosecutrix was an aggrava ting factor . He accordingly sentenced to 35 years Imprisonment with I Labour. J4 +. U T.tt~ A.t'.t'~AL L 1 The appellant was dissatisfied with the sentence that was m out by the High Court and he appealed to this court advancing ground of appeal couched as fallows - 1. The lower court erred in law and fact when it sen ten the convict to 35 years being a first offender 1 deserved the leniency of the court. ;.o APPELLANT'S ARGUMENTS 5. 1 In arguing the sole ground of appeal, it was submitted that sentence of 35 years imprisonment with Hard Labour that meted out to the appellant was too harsh as the appellant w first offender who d eserved the court's leniency. ,.2 The case of Adam Berejena vs The People1 was referred to , wl the court held that - "An appellate court can interfere with a lower cot sentence only for good cause - To constitute good ca the sentence must be wrong in law, in fact or in princ or it must be so manifestly excessive or so inadeq1 that it induces a sense of shock or there must be ~ exceptional circumstances so as to justify interferen JS >.-=> u was suomruea 1nai: 1ne sen1ence 01 00 years s n ou1a come to court with a sense of s h ock for being manifestly excessive as appellant was a first offender. It was argued that the lower c< meted out a harsh sentence which ought to be interfered wit] the interest of justice. ;_4 The court was urged to quash the sentence and replace it wi· more reasonable sentence in the circumstances. ;.o RESPONDENT'S HEADS OF ARGUMENT >. l The respondent filed heads of argument on 8 th November , 2( Responding to the sole ground of appeal, it was submitted · although the appellant was a first offender, there were aggrava factors in the matter, which made the court depart from minimum mandatory sentence of fifteen years. , .2 It was submitted that the lower court took into consider ation age gap as the appellant was aged 32 years while his victim, prosecutrix, was aged 5 years. :>.3 It was argued that the lower court's sentence was reflective oi appellant's conduct as h e abused his trust as the prosecut mother's neighbour. Further, the age of the prosecutrix was J6 Lu ue aggravaung anu runner, sne sunerea pnys1ca.1 ana me trauma. >.4 It was submitted that the lower court acted within the law wh< sentenced the appellant and we were urged to dismiss the ap and uphold the lower court's sentence. r.o HEARING OF APPEAL '.1 At the hearing of the appeal, the learned Counsel for the appel submitted that she would rely on the sole ground of appeal heads of argument filed. The learned State Advocate submi that she would rely on the heads of argument filed. Both cou briefly augmented their arguments and when they wer e aske comment on whether there was corroboration, they submitted they would leave it to the wisdom of the court. tO CONSIDERATION AND DECISION OF THE COURT L 1 We have considered the evidence on record , the respe< arguments of learned counsel and the impugned judgment. appeal is against sentence but this court is under an obligatic consider whether the con viction was sound. ~-2 The requirement for corroboration of the evidence of both commission of the offence and the identity of the perpetrator J7 prov1aea ror 1n tne case or l!;mmanuet l'ntn vs ·1·ne l'eopte~ w1 the Supreme Court stated that - "In a sexual offence, there must be corroboration of l the commission of the offence and the identity of offender in order to eliminate the dangers of fi complaint and false implication." L3 Regarding the commission of the offence, there was the evid<: of PW2, who examined the prosecutrix and found a wa discharge oozing from her private parts. She was taken to hospital where she was examined and treated. The medical re that was obtained and subsequently produced by the prosecu confirmed that the prosecutrix was indeed defiled. t4 What is in dispute is the identity of the offender. The prosecu relied on the evidence of the prosecutrix who was aged 4 yeai the time to secure the conviction of the appellant. The prosec1 stated that the appellant took her to his house and defiled there. There is no other evidence on record that corroborateE prosecutrix's account regarding the identity of the offender. evidence of the prosecutrix needed to be corroborated as a me of law, to avoid the dangers of false implication. J8 >.o vn Lne 1accs 01 1n1s case, rnere 1s no aouor rnar rne prosect was defiled and this was corroborated by the medical evide The question that begs an answer is whether the prosecut evidence of identification of the offender was corroborated. We of the firm view that the prosecutrix's identity of the offend~ insufficient to link him to the commission of the offence. ~. 6 Corroboration could be found in something more as was guide, the Supreme Court in Machipisha Kombe vs The People3 several factors which, wh en put together, link the appellant to commission of the offence of defilement and amount corroboration. In the case of Ivess Mukonde vs The People4 Supreme Court held that - "Whether evidence of opportunity is sufficient amount to corroboration must depend upon all circumstances of a particular case. The circumsta1 and the locality of the opportunity may be such thCJ themselves amount to corroboration." ~. 7 We found no such factors in this matter. We equally found fact that the appellant was at his home at the time the prosec1 was defiled not to be an odd coincidence or something more J9 our view, lne ev1aence 01 opponunny was not aaequate 1n circumstances as there was nothing suspicious about appellant being at his house at the time . 3.8 It is our considered view that the prosecution did not prove its , against the appellant beyond all reasonable doubt as there wa corroboration of the identity of the appellant. ~. 9 We the ref ore find that the conviction was unsafe as the appel was not sufficiently identified. J. O CONCLUSION ) .1 Having found merit in the appeal, the net result is that the ap is allowed. The conviction is quashed and the sentence is aside. The appellant is acquitted and set at liberty forthwith. f!3LJk P. C. M. NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDG. JlO