An 80 year old blind man of Fitaliyano village in chief Chipalo of Luwingu district in the Northern Province who was accused of defilement of a girl below the aged of 16 years has been acquitted by Luwingu magistrate court.
Magistrate Davy Simfukwe acquitted Anderson Mutambo because of lack of corroborative evidence and the prosecution failed to establish beyond reasonable doubts the age of the girl.
Mutambo was facing one count of defilement contrary to section 138(1) of the penal code chapter 87 of the laws of Zambia as read together with the act number 15 of 2005.
Particulars of the offence were that Mutambo on 17th January 2013 did have unlawful carnal knowledge of a girl under the age of 16 which he pleaded not guilty.
The girl told that court that Mutambo defiled her when her mother had gone to the funeral and she remained alone at home.
She told the court that her grandfather called her to his bed room where she was asked to undress and they started having sexual intercourse.
She explained to the court during the sexual intercourse, she did not cry neither did she shout for help because she had sex with Mutambo on five different occasions in his bedroom and she did not reveal to anyone in the village.
The girl however only revealed her ordeal when she became sick and the matter was reported to the Zambia police station.
Delivering a 30 minutes judgement Magistrate Simfukwe said ther biological mother to the girl Ivy Mwamba told the court that she could not remember the exact date and the month when her daughter was born but only remembered the year of which she was born.
Mwamba 35 of Fitaliyano village said that her daughter was born in 1999 and that she could not produce an under-five clinical card to prove the age because her house was set ablaze by unknown people resulting to an under-five clinic card and other items burnt in an inferno.
Another witness a medical doctor Dr Brian Chibosha told the court that he attended to the girl on 22nd January 2013 and his findings were that, there were no visible bruises on her private parts but the hymen was broken.
Mr. Simfukwe said that according to Dr Chibosha’s opinion there was no penetration and there was no spermatozoa found in the vagina.
“having summarized the whole evidence in this matter I will now state findings of the fact, the girl was defiled by somebody as per medical evidence produce herein and marked P1, at the time of the alleged defilement the girl was said to be 14 years old having been born in 1999,” he said
“There was no proof of the exact age of the girl as the mother could not remember the day and the month when the girl was born and no documentary evidence was adduced to that effect, the girl was examined by a medical doctor on 22nd January 2013 five days after the alleged defilement had occurred,” magistrate Simfukwe observed.
Mr. Simfukwe said having stated the facts of the case, the fundamental question that ought to be answered everyone is who defiled the girl.
“In an attempt to answer the above question I will proceed to apply the law to the above facts. In order to approve the offence of defilement the following ingredients must be established that the girl was below the age of 16 at the time of the alleged defilement, the accused had unlawful carnal knowledge and that there was penetration of the manhood into the vagina of the girl,” he explained.
Mr. Simfukwe explained that in resolving the case the following legal issues must be contained such as the identity of the offender, the age of the girl and the issue of corroborative evidence respectively.
“In sexual offences there must be corroboration of both the commission of the offence and the identity of the offender in order to eliminate the dangers of false complaint and false implication,” he added.
And passing judgement, Mr. Simfukwe said there was no corroboration of the girl’s evidence in this case and coming to the medical examination, the girl was alleged to have been defiled on the 17th January and was only medically examined by a medical doctor on 22ndJanuary 2013 which was five days after the alleged defilement.
He said the prosecution did not explained why it took five days before the victim could be examined adding that it was difficult for the court to conclusively hold that there was no any other person apart from the accused who tempered with the girl during five days period before she was medically examined.
“There is no court properly directing its mind to the facts of this case and the law applicable that could uphold conviction. Having said that I hold that lingering doubts have been created in my mind as to the guilty of the accused person,” he said.
Mr. Simfukwe said court found Mr. Mutambo not guilty of the offence and acquitted him forthwith and set him at liberty.