The
appellant was charged before a Bulawayo Regional Magistrate of five (5) counts
of rape. He was convicted on all these counts and sentenced to 18 years
imprisonment for Counts 1, 2 and 4 and 18 years imprisonment for Counts 3 and
5. Of the total 36 years imprisonment, 6 years was suspended on the usual
conditions of good future behavior.
The
allegations are briefly that the appellant raped the first complainant thrice
and the second complainant twice. These complainants are siblings and were aged
7 years and 4 years respectively at the time of the offences.
It
is trite law that evidence of such children in sexual cases should be treated
with great caution and care. The court should only convict where it is
satisfied that the evidence in question can safely be relied upon and that the
dangers inherent in such testimony have been eliminated – S v Sibanda SC55-94.
In
casu, the first complainant told the court in her evidence that she was raped
by the appellant three times. She told the court that on the first two
occasions she was with the second complainant and the two had gone to fetch
firewood. On the last encounter she was on her own. But when she described the
rapes that were perpetrated on her, she only described what amounts to one
sexual act. The prosecution was very superficially and scant evidence was
extracted from this complainant. The learned Regional Magistrate was not of
assistance in this regard resulting in the first complainant's testimony being
characterized by gaps. The witness did not give any further details. The other
counts are not described at all.
No
efforts were made to probe the witness any further.
Had
the witness been probed further, the circumstances under which she was allegedly
raped in the other counts would have been clearer. All that the testimony
reveals is one sexual act. Unfortunately, no medical evidence was adduced
during the trial in respect of this witness. We cannot understand why a medical
report was not produced in such a serious case of rape on a minor child….,. At
the end of the day all we have is testimony that the appellant got on top of
the first complainant and there was some form of contact by his male organ with
her body around her private parts. Whether this contact was sufficient to
constitute legal penetration is not clear. This could have been easily
clarified if there was adequate probing of the witness, or, better still, with
the production of medical evidence. There is doubt as to whether there was
legal penetration and the appellant is entitled to that doubt. Whether there
was penetration or not, the evidence clearly establishes that the appellant got
on top of the first complainant and there was some form of contact with her
body via his male organ.
It
is for that reason that we reduced the conviction to a permissible one in terms
of section 275 as read with the Fourth Schedule of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. Section 70 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] is a competent verdict on a charge
of rape. The sentence was also reduced to reflect that the appellant was
convicted on one count of a lesser charge.
In
respect of the second complainant, she told the court that she was raped twice
by the appellant when she was in the company of the first complainant. On page
15 of the record of proceedings she was asked:-
“Q
- What did he do to you?
A
- He made me lie down and mounted me. He put a stick in my tobacco and mounted
me.
Q
- Did you see where he took the stick from?
A
- From a tree.
Q
- Where did he put it in you?
A
- In my tobacco.
Q
- What do you use your tobacco for?
A
– Urinating.
Q
- How did the stick look like?
A
- It was big.
Q
- What did he do with it?
A
- He put it in my tobacco and mounted.
Q
- What happened first mount or stick?
A
- He first put the stick.”
Further,
the witness says when the appellant was through, he went away and dug a
hole, put the stick and covered with soil. She also went on to say that she
later went there, dug and saw the stick.
When she was asked to demonstrate to the court on the anatomically-correct
doll, she indicated by inserting her finger in between the thighs of the doll.
When asked if she could see the stick on the doll, she pointed to the testicles
on the doll and not the penis. The evidence, as given by the second complainant,
also points to indecent assault on a young person. From the abovementioned
dialogue, the second complainant mentions a stick and not a penis being
inserted into her tobacco. When asked to demonstrate what the appellant had
done to her, her demonstration pointed to something other than a sexual
intercourse. On page 16 of the record, the second complainant's evidence was to
the effect that she had been injured by the appellant with a stick at the
back of the knee. No clarification was sought from the witness as to what
she meant by that. It is not clear whether it was the same stick that was used
on the back of the knees and on her tobacco. It was also important for the
court to ascertain what sort of injury the complainant had suffered on the back
of the knee and whether or not the injuries had been sustained on the same day
or on a different day. As alluded to above, there was no medical evidence
adduced apart from a “doctor's notes.”…,.
Be
that as it may there is evidence that the appellant got on top of the second
complainant and inserted a “stick” into her tobacco or thighs. This is indecent
assault on a young person as defined in section 70 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23].
It
is for these reasons that we amended the conviction and sentence in the manner
described above.
