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Simololang v S (CLHFT-000035-12) [2013] BWHC 55 (15 March 2013)

MMB Advocates > Uncategorized  > Simololang v S (CLHFT-000035-12) [2013] BWHC 55 (15 March 2013)

Simololang v S (CLHFT-000035-12) [2013] BWHC 55 (15 March 2013)





15 MARCH 2013

In the matter




Applicant in

Mr C Mbenda for
the Respondent



1. This is an
application for leave to appeal to the Court of Appeal, the
Applicant’s appeal to this Court having been dismissed
on 26
September 2012. The grounds relied upon by the Applicant for leave
are as follows:

1. That none of the
prosecution witnesses have seen me as their assailant.

2. That on both two
counts of rape medical report forms was not produced as part of the

3. That in both
counts of burglaries nothing connected me with offences even theft.

4. That the sentence
is too harsh but the court didn’t bother.

2. Additional
grounds were subsequently filed as follows:

1. The learned
Magistrate erred by convicting me by the evidence of pointing out,
which was brought before court through back door,
without the
provision of section 228 of the criminal procedure and evidence act
(Cap 08:02)

2. The learned
Magistrate erred by convicting me for the rape cases while there was
no evidence that shows that indeed the complainants
were penetrated
or were sexually assaulted.

3. The magistrate
erred in relying on the evidence that was brought by the prosecution
even though the complainants failed to identify
me as the person who
attacked them.

3. Save for ground 2
of the original grounds to the effect that the medical reports in
respect of the two complainants in the rape
cases were never produced
in evidence, ground 4 to the effect that the sentence is too harsh,
and additional ground 1 to the effect
that the evidence of pointing
out was admitted contrary to section 228 of the Criminal Procedure
and Evidence Act, the main substance
of all the grounds of appeal is
that there was no evidence connecting the Applicant with the offences

4. I must point out
that the Applicant is mistaken that the medical reports were not
produced in Court because the record of proceedings
at pages 86-88
shows that they were produced.

5. The question of
the sentence being too harsh was adequately dealt with when I
dismissed the appeal and therefore I see no cause
for re-visiting it.

6. The conviction of
the Applicant was largely based on circumstantial evidence, as none
of the victims could positively identify
him as their assailant,
since the attacks took place during the night when their vision was
seriously impaired by darkness. The
prosecution to a large extent
relied on the pointing out at the scenes of crime by the Applicant
which he challenges.

7. With regard to
counts 1 and 2, the prosecution led evidence to the effect that the
Applicant came in the company of the police
and pointed out how he
gained access into the complainant’s house and dragged her out of her
house to the place where he raped
her. As she was being dragged, she
called the name of her daughter-in-law Sekanka who gave evidence as
PW6. Sekanka told the court
that she peeped through her window and
saw a man dragging her mother-in-law and when they got near her
bedroom window he threw
her to the ground and raped her. She called
the police who responded quickly and came while he was still on top
of her and he ran

8. She subsequently
saw him demonstrate where he took the complainant to. The pointing
out by the Applicant merely confirmed what
PW6 had seen on the night
of the attack, although she could not identity the person who was
dragging her mother-in-law.

9. The Applicant
went to the home of the complainant in Counts 3 and 4 where he also
demonstrated how he gained access to the house
through a window that
he opened by means of using a phone scratch card. He demonstrated how
he opened the window with a scratch
card and that to me seems to be a
novel method not commonly used.

10. Further, the
items stolen from the house of the complainant in counts 3 and 4,
were found at the scene where the complainant
in counts 5 and 6 was
raped. This particular complainant put up a brave fight against the
Applicant, although he eventually overcame
her, he did not go away
unscathed. She bit his thumb which was found to have a fresh wound
upon his arrest. In addition to the
pointing out of the scene of
crime by the Applicant, the injury inflicted by the complainant on
the Applicant testified to by the
complainant convinced the court
beyond doubt that he was her assailant that particular night.

11. The items
recovered at the scene of rape of the complainant in counts 5 and 6
and the demonstration of how he opened the window
to gain access into
the house of the complainant in counts 2 and 3 when taken together
confirm beyond doubt that the applicant
was the person who burgled
the house of the complainant in counts 2 and 3.

12. In the
circumstances the totality of the evidence led by the prosecution was
such that it satisfied the trial court that the
applicant was the man
on a rampage in Shoshong that particular night.

13. For this court
to allow applicant to appeal to the Court of Appeal, it must be
satisfied that he has an arguable case or he
has reasonable prospects
of success. I am not persuaded that he has an arguable case or
reasonable prospects of success and therefore
I refuse to grant leave
to appeal to the Court of Appeal.


MARCH 2013.


Applicant in

DPP Attorneys for
the Respondent

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