Kalua v S (96 of 2014) [2015]
MWHC 440 (30 March 2015);
REPUBLIC OF MALAWI
IN THE HIGH COURT OF MALAWI
MZUZU DISTRICT REGISTRY
CRIMINAL APPEAL NO. 96 OF 2014
(Being Criminal case no 100 of 2013 Rumphi FGM
Court)
THOMSON KALUA
VS
THE STATE
Coram

:

HON. MR. JUSTICE D.T.K.

MADISE
Mr. W. Chirwa, Counsel for the
Appellant
Mr. W. Nkosi, Counsel for the State
Mr. I.Z. Bondo/Chaupe
Chawinga, Interpreters
Mrs. F. Silavwe (Mrs.), Court
Reporter
Madise, J
JUDGMENT
1.0 Introduction
1.1 The Appellant in this matter was arrested and
charged with the offence of defilement contrary to
Section 138(1) of the Penal Code. The allegations
were that the Appellant on or about the 15th day of
March, 2013 at Chatumbwa Village in the District
of Rumphi had unlawful carnal knowledge of a girl
under the age of 16 years. The Appellant pleaded
not guilty and after a full trial he was found guilty,
convicted and sentenced to 10 years imprisonment
with hard labour. Being unsatisfied with the
decision of the court below he now appeals to this
court against both conviction and sentence.
2.0 Appeals in this Court
2.1 In criminal matters appeals to the High Court
from subordinate courts are provided for in section
346(1) Criminal Procedure and Evidence Code.
(1) Save as herein provided, any person aggrieved
by any final judgment or order or any sentence
made or passed by any subordinate court may
appeal to the High Court.
2.2 Suffice to say that appeals in the High Court are
by way of re hearing of all the evidence, the law
applied and all that which took place in the court
below so that the appellate court is fully satisfied
that the trial court was within the parameters of the
law in arriving at its conclusion.
3.0 Grounds of appeal
3.1 The Appellant filed five grounds of appeal
which we reproduce as filed
1. THAT the prosecution did not discharge its
burden of proving the case to the requisite
standard.
2. THAT the court erred by convicting the
appellant when there was no corroborating
evidence against him.
3. THAT the lower court erred in using
circumstantial evidence in the case.
4. THAT in all the circumstances of the case the
findings of the magistrate were wrong in both
law and fact and were against the weight of
the evidence.
IN THE ALTERNATIVE the sentence of 10 years
IHL for defilement is manifestly excessive regard
being had to the circumstances of the case.
WHEREFORE the appellant prays before this
Honourable court:1. THAT the conviction of the appellant be
quashed.
2. THAT the sentence imposed by the
magistrate court be reduced.
4.0 The issues
4.1 There basically two issues for determination in
this appeal.
1. Whether the conviction was safe regard
being had to the totality of the evidence.
2. Whether the sentence of 10 years was
justified.
5.0 The evidence
5.1 Girl X’s story was that on 15 March 2013 the
Appellant took her to his home on her way home.
While inside the Appellant took her into his
bedroom where he inserted his penis into her
vagina. After the incident she returned home where
she told Fiskani Mtambo about the incident and
Tionge Gondwe was also present. Girl X was 7
years at the time.
5.2 Tionge Gondwe a neighbor to Girl X told the
court that on the material day at around 17 00 hours
they were playing bawo and Girl X sat carelessly
exposing her vagina. PW 2 noticed some whitish
discharge coming from Girl X’s vagina. PW 2 later
reported to Girl X’s grandmother about what she
had seen. The grandmother, Rosemary Mtambo
stated that she was approached by PW 2 a day after
the incident about the whitish stuff she had seen on
Girl X’s vagina. The grand mother took Girl X to
the hospital where it was confirmed that she had
been defiled. In conclusion the state summoned
A/D Constable Teputepu of Rumphi Police. He
stated that he had received a report on 16th March,
2013 about an incident where the Appellant had
defiled Girl X.
5.3 The Appellant was arrested by members of the
community policing forum and later taken to the
police where he was cautioned and charged with
the present offence which he denied. The medical
report (Ex P3) was tendered in evidence by
Shadreck Ngwira a Clinical Officer at Rumphi
hospital. He stated that he examined Girl X on
18th March, 2013. He found traces of semen on
her vulva and her hymen was torn. The vulva was
also inflamed. At the close of the prosecution case,
the trial court found that there was a prima facie
case which called upon the Appellant to give a
defence.
5.4 In his defence the Appellant stated that on 15th
March, 2013 at around 16 00 hours, he went to
school to write examination. He finished the
examination around 20 00 hours. The following
day he was at home studying and he was arrested
on 17th March, 2013. He denied defiling Girl X.
6.0 The law
6.1 The burden and standard of proof in criminal
matter is set. It is beyond a reasonable doubt. The
relevant provision is Section 187(1) of CP&EC.
The relevant case authorities are Woolmington vs.
DPP [1935] AC 462 and Namonde vs. Rep [1993]
16(2) MLR 657. Section 187(1) of the Criminal
Procedure and Evidence Code provides:
The burden of providing any particular fact lies on
the person who wishes the court or jury as the case
may be to believe in its existence, unless it is
provided by any written law that the proof of such
fact shall lie on any particular person.
Provided that subject to any express provision to
the contrary in any written law the burden of
providing that a person is guilty of an offence lies
upon the prosecution.
6.2 The charge Section is 138(1) of the Penal Code
which provides as follows;
Any person who unlawfully and carnally knows any
girl under the age of 16 years shall be guilty of a
felony and shall be liable to imprisonment for life.
6.3 The elements of the offence are that there must
be penetration of the male sexual organ into the
sexual organ of a girl under the age of 16 years.
Consent is not consequential as girls under the age
of 16 years are incapable of giving consent due to
immaturity.
7.0 The finding
7.1 Girl X aged 7 did not take oath but gave
evidence after a voir dire examination. She told the
court below that the Appellant was her neighbor.
That on the material day the Appellant invited her
into his home where she was defiled. PW 2
another girl aged 13 told the trial court that at
around 17 00 hours she had noticed that her friend
Girl X was discharging some white stuff from her
vagina. She reported to her grandmother the
following day. The medical report confirmed that
indeed Girl X was defiled. There was semen on her
inflamed vulva and her hymen was torn. All this
confirms that indeed Girl X was defiled. The
question before me is by whom?
7.2 Girl X told the court that she was defiled by the
Appellant. When her grandmother took the stand
she confirmed that she was alerted by PW 2 about
the white stuff on Girl X’s vagina. When she went
to confront the Appellant he had apparently run
away. The next question is whether there was
corroboration of Girl X’s story?
7.2.1 Corroboration
7.2.2 It is trite that evidence in corroboration must
be independent testimony which affects the accused
by connecting or fending to connect him to the
crime. It is evidence which implicates the accused
and confirms in some material way not only that a
crime has been committed but that it was the
accused who committed it. This type of evidence
can be direct or circumstantial depending on the
facts of the case.
7.2.3 I am mindful of the need for a trial court to
warn itself of the dangers of convicting an accused
in the absence of corroboration. Where there was
no such warning a conviction is normally quashed
on appeal. The operative word is normally and not
always. As a judiciary and I say this in obiter that
we need to rethink the need for such a warning.
Should a conviction be quashed on the mere
premises that the trial court did not give a warning
even if the case is proved beyond reasonable
doubt? The law seems to be in conflict with itself.
8.0 Conclusion
8.1 In this matter the trial court convicted the
Appellant without necessarily giving a warning in
the strictest sense of the dangers of convicting the
Appellant in the absence of corroboration.
However, the trial magistrate stated in his judgment
that he believed the story Girl X had said in court.
He concluded that the girl was saying the truth
based on her demeanor in court. The trial court
made this statement.
I m again mindful of the requirement of the law
that unsworn evidence of a child and also evidence
in sexual offences need to be corroborated.
8.2 I think this was a warning enough as the trial
magistrate was clearly aware of the need for
corroboration in sexual offences. I m of the
considered view that the evidence of PW 2, PW 3
and PW 5 had corroborated Girl X’s story that she
had been defiled. Girl X neighbor to the Appellant
she knew him very well and there was no way she
could have made a mistake about the identity of the
Appellant.
8.3 This sad story indeed took place on 15 March
2013. It is very unfortunate that the Appellant aged
52 decided to release his sexual pressure and desire
on a girl aged 7 years. It is the duty of courts of this
Republic to protect young girls such as these. I
therefore see nothing wrong with the decision of
the trial court. The trial court had rightly found
that there was corroboration of the victim’s story. I
further find that State had proved this case beyond
a reasonable doubt. I now uphold the conviction.
This appeal must fail.
9.0 Sentence
9.1 The maximum sentence for defilement is life
imprisonment. When passing a sentence the court
must look at the objective to be achieved. Whether
deterrence, public protection or reformation is the
objective, courts must first of all have regard to the
nature and circumstances of the offence, the
offender, the victim and the public interest. In
simple terms, courts look at the aggravating and the
mitigating factors of the offence as well of the
offender. The sentencing court must therefore
weigh the two and come to an informed conclusion
as to the type of sentence to impose.
9.2 It is important to note right at the outset that the
policy of the law is not to imprison first and young
offenders unless circumstances dictate otherwise.
Subordinate courts are specifically called upon by
the law to desist from sending first offenders to
prison unless there is no any other sentence to fit
the offender and the offence. The law as provided
for under section 340 (1) of the Criminal Procedure
and Evidence Code generally does not promote the
imprisonment of first offenders unless otherwise
stated by law or precedent. Where a court intends
to forego the provisions of section 340 (1) good
reasons must be given as to why a non custodial
sentence was inappropriate.
9.3 In the present case the trial court imposed a
sentence of 10 years imprisonment. The court
stated that the offence of defilement was on the
increase in Rumphi and that in this particular case
the Appellant had planned this offence with the
view to cause mental and physical harm to the little
girl.
9.4 Looking at the aggravating and mitigating
circumstances of this case, I m of the view that 10
years was manifestly excessive for a first offender
and a person of advanced age. I therefore proceed
to reduce it to a prison term of eight (8) years
Imprisonment with effect from the date of arrest.
This ground of appeal must succeed.
I so order
Pronounced in open Court at Mzuzu in the
Republic on 30 March 2015
Dingiswayo Madise
Judge

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