TAGU J: This is an appeal against conviction only. The
appellant was convicted by a regional magistrate at Bindura on a charge of rape
in contravention of s 65 of the Criminal Law (Codification and Reform) Act [Cap
9:23]. The allegations are that the appellant raped a 33 year old complainant
in a field on 28 February 2013. The appellant was sentenced to 10 years
imprisonment of which 3 years imprisonment was suspended for 5 years on the
usual condition of good behaviour.
The appellant is attacking the grounds upon which he was
convicted. His argument is that the complainant was in love with the accused.
The complainant was also in love with one Mandovha who is said to be a star
witness in this case. It was the appellant's argument that this was a case of a
love triangle that went bad and complainant wanted to fix him.
The prosecution does not support the conviction in this
case. The state counsel Mr I. Muchini sent a notice to the Registrar
of the High Court in terms of s 35 of the High Court Act [Cap 7:06] to
the effect that the Prosecutor General does not support the conviction.
The prosecution agrees with the appellant that the manner,
facts and circumstances of the commission of this offence, the report and
arrest of appellant leaves one with some doubt if indeed a Rape was committed
or not. In particular, despite having been told of the identity of the attacker
she did not make the report to the police or her husband, a person she would
reasonably be expected to make a report at the earliest possible opportunity.
In her evidence the appellant was portrayed as a stranger.
But in the light of appellant's defence one is left with the following
questions unanswered. If complainant knew appellant as someone who sold eggs at
her work place every day some years back why did she not just tell Mandovha
that she knew the attacker but did not know his names? If on the other hand
Mandovha correctly identified the appellant as the rapist on the day of the
rape why did it take several days before the report was made? Why did Mandovha
who is said to be a total stranger undertook to investigate the matter himself
without reporting to the police since he said he was a member of the
neighbourhood watch committee?
We therefore agree that this is one case in which doubt
still remains whether appellant committed the offence or it was a 'love
triangle' gone bad as alleged by the appellant. We doubt if the presence of
Mandovha at the scene of rape was just a coincidence.
We agree with the prosecution that it is trite that the
cautionary rule in sexual offences is no longer part of our law but as noted in
S vBanana 2000 (1) ZLR 607, each case has to be treated on
its own facts. The onus of the state in all criminal cases still remains to
prove beyond a reasonable doubt the guilty of an accused.
Even if we may be wrong, which we doubt we are, we are
fortified in our belief by the dicta of the court in L v V
2003 (1) SA 16 (SCA) where it was said-
“In my view, there is simply not enough evidence to prove
the appellant's guilty beyond a reasonable doubt, the result will of course be
a grave injustice if the appellant in fact raped the complainant. But that does
not justify the commission of an even more serious injustice of convicting a
person without his guilty having been established beyond reasonable doubt”
It is for the above reasons that we believe the concession
by the state was well made. The appeal succeeds and the appellant is found not
guilty and acquitted.
Gumbo and Associates, appellant's legal practitioners
Prosecutor General's Office, respondent's legal
practitioners
TAGU J………………………………………………………
BERE
J agrees…………………………………………………
