A man of Mumbwa who was convicted and sentenced to 40 years imprisonment for defiling a six-year old girl has been set free after the Court of Appeal declared the victim’s evidence as defective.
Gift Chipunde was convicted of defilement by the Mumbwa Subordinate Court and was subsequently committed to the High Court for sentencing.
Particulars of the offence were that on July 20, 2020, in Mumbwa, Chipunde unlawfully had carnal knowledge of a girl under the age of 16.
During trial, the child, after the court conducted a voire dire (a preliminary examination to determine the competency of a child witness), testified that Chipunde invited her to his one room house, undressed her and had carnal knowledge of her, an act she described as ‘bad manner’.
The child’s mother also testified how she learnt of her daughter’s defilement while travelling from Mumbwa to Lusaka.
She said when she asked Chipunde why he defiled her child, he allegedly stated that he did know what ‘devil entered him.’
However, in his defence Chipunde denied defiling the child, he said on the material day, he visited the child’s father at his house.
Chipunde said after the visit, the child followed him, insisting on being given K1.
He said the child entered his house as he was cooking his food.
Chipunde said he was later apprehended by the child’s father who accused him of defiling the minor.
After trial, the lower court convicted him after the State proved the case beyond reasonable doubt.
The court indicated that the medical report showed that the child’s hymen was missing and she had a urinary tract infection.
On committal to the High Court for sentencing, Chipunde was slapped with a 40-years jail term.
And when the case came up before the Court of Appeal in Ndola recently, Chipunde argued that the trial court erred in law and in fact when it received evidence from a child on oath after a defective voire dire.
Chipunde said during the examination when the child was asked if she knew what happened to liars, her answer was that she did not know.
In ruling, Court of Appeal judges, Catherine Makungu, Dominic Sichinga and Kelvin Muzenga set Chipunde at liberty.
“It is apparent from the questions asked by the trial court that there was no response as to the duty to speak the truth. The child simply stated that she was not a liar, and in its conclusion, the trial court stated that she understood the importance of telling the truth, It is therefore evident that the trial court did not make a finding in conformity with section 122 of the juvenile Act. We are satisfied that the voire dire was in fact defective and, as such the evidence of the prosecutrix (a female prosecutor or plaintiff) is discounted entirely meaning it is void ab initio (was void from the beginning,” judge Makungu stated.