A 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 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 22nd January 2013 which was five days after the alleged defilement.
He said the prosecution did not explain 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.
Thanks judge Simfukwe – good job.
we need to put things together here,
FINDINGS
Rapist is blind
Girl did not shout
she remove clothes by herself
she had been done 5 time prior to reporting
no age proved
medical report said no bruises on the V.
CONCLUSION – girl is a woman ready for anything.
acquited on rape,,,what about incent??? the blind man is her grand father…even if she the victims was also enjoying it for more than five times
Incest? true. But that will have to mean that both of them are locked up. We don’t know the age of the girl and from the story it seems like they both did it willingly. We now remain with the question of the girls age. if the girl was above 16 then they both committed the crime of incest. The female is not always the victim in sexual crimes.
Poor Judge why didnt u talk about incest then?? The girl is definitely young and has no hymen meaning someone has eaten the first friut and that person is her grandpa! The girl is not mad so how can she just say such an imaginable thing that the granny has untitenned her?? Think through Mr Justice twapapata
A Hymen or the lack of it is no proof of anything.
She said she had sex five times with him but did not say its him who made her lose her verginity and besides she could have been doing it with other boys/men as well. Hymen,, science has it that you can lose it through other means such exercises for those in sports like athletix.
Disgusting.
Apusuka shikulu bantu uyu, but the family is destroyed, old man will not be respected in the family!!!
Poor Third world Zambia. In developed countries they have birth records covering many many years, the mother would have simply gone to the clinic where she was born and obtained a record of birth from the data bank there, a simple 5 minute task. Lack of bruises does not mean it was consensual sex and due to stigma many defilement cases are reported late. A good lawyer could have won this case but for poverty….
Walya kake aleye mulandu!!!!!
ee!
What about incest?
The duty of the magistrate was to determine the guilty of the accused for defilement, in short the prosecution did not complain of incest and therefore the magistrate had no right to raise a complaint on behalf of the prosecution. They should rearest the accused and charge him for incest then
Good answer. In law its not the duty of the judge to bring in matter not before him but to elaborate only on issues presented No hear says
The court was looking 4 a slight mistake to acquit da case
The judge was looking 4 a slight mistake to acquit da case
Weshikulu wei ! Kuti nolokotele kukwela pamutenge ? Olo pamwishikulu obe sure ? Olo nebo napapa ukweba ati buchili bulema at 80 years.Awe kwena mwaba notoloto shikulu.
ba LT. you should be capturing the pictures of those tuma girls, i am coming back home soon kuti waipuka muli akokine iwe ati nika v-irgin kashi shikulu alilya chisungu
There is sufficient doubt about this case, that it is difficult for the Judge to convict the accused. An 80 year old blindman is certainly frail and weak enough to be overpowered by a teenager. Maybe she’s the one who actually sexually molested him. She only reported the case after she to sick, and yet we are not told what sickness. Was it an STD? If so, was the old man examined to establish if he also had the same STD? She could have been sleeping with other men and she didn’t really know where she got it from. Age is not the only factor here. The Judge would have still found him guilty of rape if there was corroborated evindence. But there are a lot of questions left unanswered.
There is sufficient doubt about this case, that it is difficult for the Judge to convict the accused. An 80 year old blindman is certainly frail and weak enough to be overpowered by a teenager. Maybe she’s the one who actually sexually molested him. She only reported the case after she got sick, and yet we are not told what sickness. Was it an STD? If so, was the old man examined to establish if he also had the same STD? She could have been sleeping with other men and she didn’t really know where she got it from. Age is not the only factor here. The Judge would have still found him guilty of sexual assault if there was corroborated evindence. But there are a lot of questions left unanswered. Therefore, not guilty on the grounds of insufficient evidence.