A Ndola man who was accused of forcing his step son to suck his manhood has been acquitted by the High Court which has ruled that the lower court erred when it convicted him.
In this case, Philemon Bwalya, 26, was charged with unnatural offences contrary to the laws of Zambia.
Particulars were that on July 13, 2019, the victim’s mother left the child in the custody of her husband (Bwalya) and when she returned, she found sperms on her child’s mouth and on his clothes.
During trial, the boy’s mother told the court how her husband forced his two-year-old stepson to swallow his sperms for him to get rich.
Ndola Magistrate Monica Mutinta then found Bwalya with a case to answer and placed him on his defence.
“Yes, I admitted the charge. I admitted because I was beaten badly. In Kapiri Mposhi, I did it but not in Ndola. I did not dispute the fact of what I did. That is all in my defence and I close my case,” said Bwalya in his defense.
After his defence, Magistrate Mutinta convicted Bwalya and committed him to the High Court for sentencing saying the state had proved the case beyond reasonable doubts.
But when the matter came up for sentencing in the Ndola High Court, Justice Derrick Mulenga said the lower court erred when it convicted Bwalya.
“I take judicial notice that the mother who had lived with the accused for a year would have identified that the substance is sperm. Clearly, the findings of the lower court should be addressed in a manner of fact. Only matters of general fact can take judicial notice. It was a misdirection of the lower courts to take judicial notice that the mother, by being married for one year was able to tell that what she saw on the coat was sperms. How would she have differentiated fermented milk on a coat?” Justice Mulenga asked.
“I find that the magistrate seriously misdirected herself in taking judicial notice in such a matter. The police did not prove that those were sperms.”
He said it was unsafe to uphold the conviction.
“I am mindful from the way the court convicted the convict, that she relied on what the convict had confessed. I must state that from the record, I have not seen any evidence taken as a confession. I find the conviction unsafe to uphold, I hereby be quash the conviction and acquit the convict and set him at liberty,” said Justice Mulenga.