BERE J: The appellant is a
registered and practising medical doctor. On 16 April 2012 the appellant
was arraigned before the regional court sitting at Harare charged with the
offence of raping his 21 year old patient. He was found guilty of the
offence charged and sentenced to 15 years imprisonment of which 4 years were
suspended for 5 years on the usual conditions of good behaviour.
Aggrieved by both the conviction and
the sentence he lodged an appeal to this court for redress.
At the nerve of the appeal is the
averment that the learned magistrate erred in making a finding that the
complainant was a credible witness when her own record of proceedings pointed
to the contrary.
The State Counsel has made a
concession of the filed appeal in terms of s 35 of the High Court Act [Cap
7:06].
There is no doubt in my mind that
the concession was well made.
This is one case where the learned
magistrate fell into the usual common error of properly identifying and
defining the applicable legal principles but fails to apply such principles of
law to the facts presented at trial.
Having properly made the numerous
specific findings pointing against the credibility of the complainant it was
not possible for the trial court to turn around and conclude that the
complainant's story supported a conviction of rape.
The conviction was clearly against
the weight of evidence and I have no doubt that on reflection the learned magistrate
would be surprised by the conviction and would not be able to support it.
There was no need for the presiding
magistrate to speculate on the possible effect of the injection administered on
the complainant when the prosecution itself had failed to lead evidence
contrary to the assertion made by the appellant that such injection was
necessary to enable the appellant to examine the complainant.
The court made inferences of guilty
when the evidence led left room for several other reasonable inferences that
could have been made in favour of the accused person.
There was no cogent reason advanced
as to why the complainant did not grab the first opportunity presented to her
to report the rape case before she swiftly moved to embark on action that
clearly destroyed any evidence of the alleged rape.
In all the probabilities of this
case, the appellant ought not to have been convicted and for these reasons the
conviction against the appellant cannot stand. It is accordingly set
aside and substituted by a verdict of not guilty.
The appellant is accordingly found
not guilty and acquitted.
BERE
J
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HUNGWE J concurs
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