The First Grade Magistrate Court sitting at Balaka has acquitted Issah Josephy who was accused of having carnal knowledge of his daughter who is said to be below the age of 16.
When he was arrested, Josephy was taken to Court and was charged with the offence of defilement which is contrary to section 138(1) of the Penal Code.
He sought legal aid and his matter was handled by Senior Legal Aid Advocates Alfred Masamba and Hanleck Ching’anda, and Assistant Legal Aid Officer Takondwa Mapemba.
In court, Josephy pleaded not guilty and the matter went to full trial. The state paraded five witnesses to prove its case, and in his defense, the defendant paraded two witnesses including himself.
The genesis of the matter is that one of the prosecution witnesses, a neighbour to the accused, alleged to have seen him fondling the breasts of his daughter and also touching her buttocks outside the house of the accused. At that particular time, the victim’s mother was not at home and the said witness reported the matter to the landlord of the compound who then reported it to the police.
It transpired in Court that the victim, who was the first prosecution witness, was summoned to the police where she was asked if her father had ever had sex with her, to which she responded affirmatively.
But she told the Court that she responded that way at the police because she had been coached by a neighbour, Mai Chanthunya, to frame her father if asked on the same. She emphasized that the fact of the matter is that she has never had sex with her father.
In cross-examination by counsel from the Bureau, she told the Court that she was told to frame her father on the promise of clothes and that should she reveal the truth, she will be killed. She also confirmed to have had a boyfriend before and that she has had sex with the said boyfriend several times before.
The mother of the victim, who appeared before the Court as a witness, denied having any knowledge of the matter as she was not home at the time of the said incident. She further told the Court that at the police, when being questioned by the police, she was in a separate room and she did not hear what the girl told the police.
The neighbor on her part told the Court what she saw regarding the accused fondling the breasts of his daughter. In cross-examination, counsel wondered how the woman was the only one to witness the occasion in a compound of several houses and why she did not report to the mother of the victim.
A medical practitioner who also appeared before the Court confirmed that the victim’s sexual organs have ever been penetrated before. In defense, the accused told the Court that he has never had sex with his daughter nor fondled her breasts.
In the Bureau’s submissions, the Court was invited to consider the evidence of the victim who herself denied having had sex with the accused but confirmed to have had sex with her boyfriend.
Counsel argued that the victim, though of young age, was elaborate when she was cross-examined to give more details of her encounter with the boyfriend such that she ably told the court how, when, and where the two had sex. If indeed she had sex with her father, the victim would have been able to give the same elaborate details to the Court.
Further, counsel argued that although penetration was proved to a sufficient degree, it is required that there must be proof that the same was done by the accused. It was stressed that in the matter at hand, the victim denied having had sex with the accused but she did confirm to have had sex with her boyfriend. Thus, it is the boyfriend and not the accused who had carnal knowledge of the victim.
The Court agreed with the Bureau and in its judgment, the Court even wondered how the accused could fondle the breasts of his daughter outside his house when no one was at home. If indeed he wanted to do that, he could have done it in the house.
On judgment, the Court found that the prosecution has failed to prove beyond reasonable doubt that the accused committed the offence charged. Issah Josephy was accordingly acquitted.
