TAGU J: On 24 February 2012 the appellant was convicted at
Harare in respect of two counts of rape as defined in s 65 of the Criminal Law
(Codification and Reform Act) [Cap 9:23] after a contested trial and
was sentenced to 12 years imprisonment of which 3 years imprisonment were
suspended for 5 years on the usual conditions of good behaviour.
Irked by the whole judgment of the court a quo the
appellant has appealed against both conviction and sentence. The appeal is
opposed by the state.
The grounds of appeal are that-
“1.The court a quo erred and misdirected itself in
failing to consider the evidence of the medical practitioner which clearly
raised doubts as to whether there was evidence of sexual assault against the
complainant.
2. The court a quo erred and misdirected itself
when it failed to take into consideration the evidence adduced in court on the
possibility that there could have been another perpetrator as the complainant
was not of fixed abode which exposed her to different men and different
environments.
3. The court a quo misdirected itself because it
failed to acknowledge the inconsistencies that were presented in the
complainant's testimony.
4. The court a quo erred and misdirected itself
when it failed to consider that more than four years have passed since the
alleged incident occurred which meant that evidence was destroyed and which
seriously raised doubts in the state's case.
5. The court a quo misdirected itself by failing
to appreciate that a sentence of 12 years was harsh in light of the age and
personal background of the appellant.”
The argument by the appellant is quite persuasive if regard
is had to the submissions by the respondent's counsel. Mr R. Chikosha for
the respondent made the following submissions in his heads of argument-
“………………………
5. (c ) Shorai Sandu at one stage witnessed complainant
limping, examined her and took her to Makumbe hospital where she was further
advised to take complainant to Harare hospital which she did not do.
(d) Complainant was examined by Doctor Gwiza who diagnosed
that complainant had a urethral prolapsed and nothing else of
significance. He said such a condition can occur on its own or because of
sexual abuse and it wasn't conclusive whether it could be linked to sexual
abuse.
(e)Doctor Gwiza commented that a prolapse which occurred in
2008 could not be present in 2011 because it can resolve on its own evidence of
sexual abuse could have disappeared due to lapse of time. Complainant had
no infection.
(f) Medical evidence of abuse is inconclusive but possible,
hence possibility of legal penetration was relied upon in the judgment of the
court a quo. See Khupe and Another HB 30 /83.
(g) The court ruled that complainant had no permanent fixed
abode at the time of the commission of the offence.
(h) There is no tangible reasonable excuse why this matter
was not reported in 2008 when the complainant was found to be limping.
(i) It is not abundantly clear as to what led to the
offence being reported three (3) years later.”
What can be gleaned from the respondent's submissions and
the evidence is that there was a serious delay in the reporting of the matter.
It is not clear how the matter was finally reported. There was also this aspect
of inconsistencies in the years when the offence actually took place. Not only
that, there was no conclusive evidence that the injury observed by the doctor
was as a result of rape. The mother of the complainant said she observed some
infection but this was disputed by the doctor. There was no evidence of
penetration.
The court sought to justify its findings by relying on the
case of State v Nyirenda 2003 (2) ZLR 64 and S v Mpetha
and Others 1983 (4) SA 262. It is true that issues to do with the
credibility of witnesses are generally the dormain of the court a quo,
but this should not be taken too far.
In casuthere was real
doubt whether the rape was committed. If it was committed there was no
sufficient evidence to link the appellant given the finding by the court that
the complainant had no fixed abode at the time of the commission of the
offence. Somebody else could have abused the complainant.
The appellant should have been given the benefit of the
doubt. The appeal succeeds and the appellant is found not guilty and acquitted.
Legal Aid Directorate,
appellant's legal practitioners
Prosecutor General's Office, legal practitioners for the respondent
TAGU
J
………………………………………
BERE
J agrees ………………………………………
