The State has lost a case in which it had appealed a ruling by the Magistrate court where Dennis Bwale, 28, was acquitted of having raped Melon Mulinda.
Mr Bwale was on May 10, 2013 acquitted by the Magistrates court of a rape charge which is contrary to section 132 of the laws of Zambia.
On July 20, 2012, Mr Bwale was alleged to have had carnal knowledge of Melon without her consent.
He was however acquitted prompting the State to appeal the ruling in the Lusaka High Court.
According to the notice of appeal filed by the State, the decision was premised on two grounds namely that;
“The trial court misdirected itself when it ruled there was no collaboration as the medical doctor and the arresting officer did not corroborate the evidence of the complainant ( Melon)” and Secondly that; “the court misdirected itself when it ruled that it took Melon’s parents to report the matter to the police when the complainant (Melon) stated that the incidence happened when Melon’s parents went to the farm and reported the matter to the elders of the church so the delay was caused by the church and not the prosecution”.
At the hearing of the appeal on May 22, 2014, the State relied on the heads of arguments which were filed into court on May 19, 2014.
In arguing the matter, the State on the first ground of appeal drew the attention of the court to page 16 of judgment where the trial magistrate stated that there was no independent evidence suggesting that Mr Bwale had carnal knowledge of Melon.
And according to the Doctors’ findings, it was stated that it was a challenge to determine whether it was rape or not.
In her testimony, Melon told the court that she had a previous affair with Mr Bwale.
She said on the material date, Mr Bwale called her as he wanted to see her.
Melon said as Mr Bwale was escorting her home, he pushed her to the ground and allegedly raped her.
She said she went home crying and found her cousin to whom she disclosed what had transpired but that the matter was only reported to the Police after two months.
But Mr Bwale told the court that he never raped Melon.
He said Melon implicated him because Bwale told her that he was never going to marry her.
In his ruling High Court Judge Justin Chashi said that Melon’s testimony that when she was raped by Mr Bwale, she went home crying and told her cousin was not enough evidence to satisfy the court.
Judge Chashi said it was not clear which cousin this was and what exactly Melon told her.
He said it was also not clear whether a struggle did happen or whether the complainant cried for help so as to eliminate the issue of non-consent.
Judge Chashi said what made the situation even more curious is Melon’s evidence that she cleaned herself and cleared the blood on her pant thereby eliminating some of the corroborative evidence.
He said the Medical Doctors’ findings were evident enough to doubt whether Melon was raped or not but she could have implicated Mr Bwale or even staged managed the act.
Judge Chashi said the trial Magistrate was on firm ground when it dismissed the case.