THE HIGH COURT OF MALAWI
APPEAL NO. 53 OF 2006
the Principal Resident Magistrate Court sitting at Lilongwe. Being
Criminal Case No. 90 of 2006.
Nkhono, Counsel for the Appellant
Kachule, Counsel for the State
Nakweya, Court Interpreter
Jalasi, Court Reporter
George Kadwa appeared before the Principal Resident Magistrate Court
sitting at Lilongwe on 24th
March 2006. It was on a charge of Attempts to procure abortion
contrary to section 149 of the penal code. Appellant pleaded not
guilty, but after trial he was found guilty, convicted, and sentenced
years penal servitude. Trial was concluded on 26th
through counsel Nkhono appealed against both conviction and
sentence. These are the grounds:
magistrate erred in law in convicting the appellant without warning
himself the danger of convicting without corroborative
insufficient evidence to warrant a conviction on the required
All in all
the conviction is against the weight of evidence.
October, 2006 the conviction was quashed and sentence set aside.
Reasons for the decision were reserved to this judgment. This
representing appellant argued that there was no evidence to
corroborate that of the complainant. There was insufficient
to sustain a conviction. Taking into account time taken for victim
to report the offence. Again there was no proof that
tendered in court were the same used to procure the abortion of
complainant. Counsel Nkhono submitted that the sentence
was excessive because it disregarded the fact that appellant was a
first offender and his health. He prayed that conviction
and sentence set aside.
for the state contended that there is no rule of practice which
requires that in an abortion case the complainants
be corroborated. Nevertheless the complainants evidence was
corroborated by other witnesses. He argued further
that the trial
court found as a fact that appellant committed the offence.
counsel Kachule submitted that 3½
years was not excessive. He prayed that both conviction and sentence
Grace Banda and appellant are husband and wife. Though the marriage
is unhappy one. The incident which is complained
off is alleged to
have taken place in 2000. After the alleged incident of abortion,
the complainant conceived again in 2001.
There is a child. At
present the parties are on separation on the allegation that
appellant is very cruel. The nature of cruelty
beating of complainant.
The problem is the
time that complainant took to lodge complaint to police. She only
did so in January 2006. That is almost 6
years after the incident.
There is no medical proof that complainant suffered as she claims.
Of course, it is not a legal requirement
that in a case of abortion
there must be medical evidence on the status of the woman.
Perhaps at this
juncture I should determine the ground that there was no
corroborative evidence. As rightly submitted by counsel
there is no rule of practice which strictly requires independent
corroborative evidence in abortion cases. Therefore,
unnecessary for the trial court to warm itself on the danger of
conviction on the testimony of complainant only. However,
in case it
is I who is unaware of this practice, counsel Nkhono would have done
better to cite authority to support his assertion.
When asked, he
replied that he had no authority. It is my view that corroboration
is not required as a matter of law or rule
of practice. However,
more cogent evidence was necessary to strengthen prosecutions
On the tools
exhibited in court. It is unclear where the police got them. The
complainant (Pw1) merely identified them in court.
D/Sub/Insp Idesi Nyirenda tendered the same as exhibits. The problem
is that there is insufficient link between the exhibited
the crime in issue.
The evidence was
insufficient to sustain a conviction. That is why the conviction was
quashed and sentence of 3½
years set aside. Appeal allowed.
Chambers today 20th
October 2006 at Lilongwe.