IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CRIMINAL
APPEAL NO. 53 OF 2006

BETWEEN

GEORGE
KADWA…………………………………….. APPELLANT

-AND-

THE
REPUBLIC………………………………………RESPONDENT

From
the Principal Resident Magistrate Court sitting at Lilongwe. Being
Criminal Case No. 90 of 2006.

CORAM: HON
CHINANGWA, J

Mr.
Nkhono, Counsel for the Appellant

Mr.
Kachule, Counsel for the State

Mrs
Nakweya, Court Interpreter

Ms
Jalasi, Court Reporter

JUDGMENT

The appellant
George Kadwa appeared before the Principal Resident Magistrate Court
sitting at Lilongwe on 24^th
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
to 3½
years penal servitude. Trial was concluded on 26^th
April, 2006.

The appellant
through counsel Nkhono appealed against both conviction and
sentence. These are the grounds:

1. 
   The learned
   magistrate erred in law in convicting the appellant without warning
   himself the danger of convicting without corroborative
   evidence.

   
   

2. 
   There was
   insufficient evidence to warrant a conviction on the required
   standard.

   
   

3. 
   All in all
   the conviction is against the weight of evidence.

   
   

On 13^th
October, 2006 the conviction was quashed and sentence set aside.
Reasons for the decision were reserved to this judgment. This
is the
judgment.

Counsel Nkhono
representing appellant argued that there was no evidence to
corroborate that of the complainant. There was insufficient
evidence
to sustain a conviction. Taking into account time taken for victim
to report the offence. Again there was no proof that
the tools
tendered in court were the same used to procure the abortion of
complainant. Counsel Nkhono submitted that the sentence
meted out
was excessive because it disregarded the fact that appellant was a
first offender and his health. He prayed that conviction
be quashed
and sentence set aside.

Counsel Kachule
for the state contended that there is no rule of practice which
requires that in an abortion case the complainant’s
evidence should
be corroborated. Nevertheless the complainant’s evidence was
corroborated by other witnesses. He argued further
that the trial
court found as a fact that appellant committed the offence.

On sentence
counsel Kachule submitted that 3½
years was not excessive. He prayed that both conviction and sentence
be upheld.

The complainant
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
being physical
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
Kachule that
there is no rule of practice which strictly requires independent
corroborative evidence in abortion cases. Therefore,
it was
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 prosecution’s
case.

On the tools
exhibited in court. It is unclear where the police got them. The
complainant (Pw1) merely identified them in court.
Whereas
D/Sub/Insp Idesi Nyirenda tendered the same as exhibits. The problem
is that there is insufficient link between the exhibited
tools and
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.

PRONOUNCED in
Chambers today 20^th
October 2006 at Lilongwe.

R.R. Chinangwa

JUDGE