BERE J: On 25 January 2012 the appellant was charged with
the crime of rape at Harare Magistrates Court. The evidence having failed
to support the charge of rape, the learned magistrate returned a verdict of
guilty to aggravated indecent assault as defined in s 66(1) (a) (i) of the
Criminal Law (Codification and Reform) Act [Cap 9:23]. Following
upon his conviction the appellant was sentenced to 6 years imprisonment of
which 4 years imprisonment was suspended for 5 years on the usual grounds of
future good behaviour.
It is against this conviction and sentence that this appeal
has been lodged.
The basis of the appellant's appeal is that the evidence
tabled before the court a quo supported neither a conviction on rape
nor aggravated assault as found by the court a quo. The appellant
argued that a proper reading of the evidence screamed for his acquittal.
Mr E. Mavuto appearing for the respondent has
indicated through his papers filed of record that the respondent does not
support the conviction.
In coming to the conclusion of the guilt of the appellant
the learned magistrate sought to rely on the evidence of the complainant, her
mother, the appellant's wife and the medical report of the complainant.
The learned magistrate reasoned that his findings were consistent with the
various pieces of evidence put together.
It will be noted that contrary to the findings of the court
a quo, the complainant's evidence had several inconsistencies.
She struggled to confirm that the appellant penetrated her and by implication
caused the bruises on her private parts. In one breadth she said the
bruises on her thighs were not caused by the appellant but by her wearing of
tight pants a position which was flatly denied by her mother who wanted to
paint the picture that she always cared for the welfare of the complainant by
buying her the correct pant sizes.
Of major concern to the court was that the medical report
which was compiled by an expert did not show any interference with the
complainant's vagina as claimed by the complainant's mother. Even more
damning was the specific findings by the doctor in the medical report that the
complainant was still a virgin at the time of her examination.
The standard insertions in almost every medical report that
“sexual intercourse cannot be ruled out” must be looked at with heightened
caution and must be aligned with the evidence led and justifiably accepted by
the court.
If indeed there had been any interference with the
complainant's virgina the medical report would not have failed to pick it up
especially on the column that deals exclusively with the external genitalia
examination.
The inevitable conclusion which this court arrives at is
that if the evidence of the mother is inconsistent with the findings of the
medical report, then the former must be rejected.
It occurs to me that the allegations against the appellant
started gathering momentum and putting pressure on the complainant when word
started spreading around in the neighbourhood that she had slept with some
menas per the mistaken conclusion arrived at by the accused's wife after
employing some rudimentary examination of the complainant's private parts.
It was that pressure on the part of the complainant which
in my view led to the complainant, after persistent probing that she had been
raped by the appellant.
The other yarning gap in the evidence led in the court quo
sterns from the failure by the presiding magistrate to call Mrs Gutsi (the
sister in charge at Irvines Clinic) to whom the complainant was alleged to have
first disclosed that she had been raped by the appellant.
It was crucial for this witness to have presented herself
in court in order to fully explain the circumstances under which the
complainant made a disclosure of rape to her and her failure to be given a
platform to testify adds another dimension to the hopelessness of the state
case.
It is imperative in my view that where offences of a sexual
nature are involved courts remain cognisant of the fact that these offences
generally occur in the heart of privacy and that once raised they become
difficult to disprove.
Secondly, and as several precedents have noted, there are
many reasons why a complainant in a rape case may decide to frame the
accused. The reason are many and varried and no matter how hard we try as
courts we will never be able to exhaust such reasons.
If the complainant's evidence could not support a charge of
rape, it is equally true that her evidence could not have supported a charge of
indecent assault as correctly argued by Mr Mavuto in his written
submissions. The concession was well made by the respondent.
In conclusion the conviction in this matter is
unsafe. The conviction and sentence are both set aside and the appellant
is found not guilty and acquitted.
Messrs Chara and Associates, Appellant's Legal Practitioners
The Criminal Division of the Attorney General's Office, Respondent's Legal Practitioners
BERE J:……………………………………………………..
HUNGWE
J agrees:…………………………………………
