JOIN DRIVERN TAXI AS PARTNER DRIVER TODAY!
Appearing before Luwingu magistrate Davy Simfukwe was John Chibawa 36 who is a traditional healer by occupation.
Chibawa is allegedly to have committed on 25th December 2013 by means of fraudulent trick did obtain K1, 750. 00 cash from Patrick Chama a council employee.
Particulars of offence were that Chibawa fraudulently trick and obtain k1750 cash alleging that he was able to find a person who stole three motor vehicle batteries through the use of magic which he failed to do.
Magistrate Simfukwe explained that the prosecution bears the burden to prove its case against the accused person beyond reasonable doubt adding that there is no burden on the part of the accuse to prove his innocence.
“Should there be doubt in my mind as to the guilty of the accused person I shall be exercise that doubt in his favour and shall be entitled to an acquittal,” he warned.
The magistrate said in his 45minute judgment that the prosecution called on three witness, the first being complainant Patrick Chama 36 year old of Maiteneke compound.
Chama told magistrate Simfukwe that his two young brothers namely Ignatius Chama and Victor Chama were accused of having stolen batteries but the two refused and advised to go to the tradition healer who had camped in a nearby village.
The two accused brothers went to the traditional healer who promised them to perform rituals and help apprehended the actual people who stole the batteries.
Chama followed his brother to the traditional healer where he was also told that the task was very simple to perform and people who stole the batteries would be caught on condition that he paid k1, 400 cash.
Magistrate Simfukwe said after a lengthy discussion and the assurance made by the accused person, Chama paid cash in presence of his brothers and the traditional healer prepared his charms which looked like a snail and applied lime on it.
He said the traditional healer later gave the charm to Ignatius Chama being one of the accused people of having stolen the batteries to go and place were the batteries were stolen from.
Mr. Simfukwe explained that Ignatius Chama went home hopping that the culprits who stole the batteries will be caught through the application of magic charm so that he is exonerated from the allegations leveled against him and his brother.
After applying the charm to the place where the batteries were stolen, they waited until they decided to get back to the traditional healer.
The traditional healer told them that the charm had being destroyed and asked them to pay extra K700 cash for another consignment of charms.
Chama a council employee pleaded with the traditional healer and the amount was reduced to K350, which he paid, and the traditional healer made another concoction by mixing some herbs with water and putting the mixture into a bottle.
He then instructed Chama to put the bottle on the table adding that within a day people who stole the motor batteries would be found and the following day nothing happened.
Chama went back to the traditional healer demanding for a refund but the traditional healer warned him that if he demands for his money he will be initiated into Satanism and reported the matter to police.
Having summarized the whole evidence in this case, magistrate Simfukwe said that it was not disputed, that on the date in question the brothers meet the traditional healer at a certain house, the accused was given a total of K 1, 750 for him to perform his magic, the accused prepared some charms and gave the complainant herein assuring him that the people who stole the batteries would found and despite being paid the accused magic did not work.
Magistrate Simfukwe said cheating is defined under section 311 of the penal code that any person who by means of any fraudulent trick, or device, obtain from any other person anything capable of being stolen or induces any other person to deliver to anything capable of being stolen of deliver to any person money, goods or any greater sum of money or greater quantity of goods then he would have paid or delivered but for such a trick or device is guilty of a misdemeanor and liable to imprisonment for three years.
“In order for the prosecution to prove the charge against the accused person, the following ingredients must be established such as the accused person did by fraudulent trick make a statement to the complainant that he would by way of magic perform some art to benefit the complainant.
Mr. Simfukwe explained that as the result the complainant was induced and parted away with some money or goods capable of being stolen and that the accused did not do his task as promised but for such a trick.
“In the case at hand the accused elected to remain silent. I do not lose sight that the accused bears no burden to prove his innocence and he was therefore perfectly within his defence right to elect to remain silent,” he said.
Magistrate Simfukwe however said, the prosecution has adduced overwhelming evidence directly connecting accused to the offence of cheating and found the evidence of the state prosecution as credible and reliable.
Mitigation Chibawa pleaded for leniency saying he regretted for what he did adding that his children will suffer when he will saving custodial sentence.
And sentencing Mr. Chibawa, magistrate Simfukwe said that has taken into account the mitigation by the convict adding that being a first offender was entitled to leniency but the case committed carries a maximum sentence of three years with hard labour.
“I am duty bound to protect the society caging people like the convict who moved all the way from Congo DR just to come and steal from Zambians through magic,” he added
Mr. Simfukwe said the tradition healer deserves to be punished in order to deter would be offenders, he sentenced him 30 months imprisonment with hard labour from with effect from 02 January 2014.
