Criminal
Appeal
PATEL
J:
This
is an appeal against the conviction of the appellant on one count of
rape by the Regional Magistrates Court, sitting at Bindura. The
appellant, who was legally unrepresented, pleaded not guilty to the
charge.
He
was convicted and sentenced to a term of 8 years imprisonment of
which a period of 2 years was suspended on condition of good
behaviour.
The
Facts
The
complainant in this case is Barbra Mukadyata, a female juvenile aged
16 residing in Zvomuya Village, Madziwa. The appellant is a male
adult aged 23 staying in the same village. He is employed as a
soldier at 4.2 Battalion, Gutu. The appellant and the complainant
were in love with one another.
It
is common cause that on the 28th
of November 2004, at about 7.30 p.m. the appellant met the
complainant on her way home from Madziwa Township. The appellant had
sexual intercourse with the complainant within a bushy area near the
road.
The
State case was that the appellant coerced and subdued the complainant
into having sex with him and that the complainant did not consent to
the act of sex. The complainant later reported the matter to her
sister. A few days thereafter, the police were notified and the
appellant was then arrested. According to the medical report
subsequently compiled and produced at the trial, the complainant's
hymen was torn and penetration had been effected.
The
appellant's defence was that on the day in question he and the
complainant walked together along the road until they arrived at a
secluded place. They then had consensual sexual intercourse.
Thereafter, he walked with her and they parted when they were close
to her home.
Subsequently,
at a gathering of their respective families, he confirmed that they
were in love and that they had had sexual intercourse. He then took
her home, in accordance with customary norm, and they voluntarily
stayed together as husband and wife. Three days later, the
complainant left his residence and reported the alleged rape to the
police.
The
Arguments
Counsel
for the appellant submits that his conviction is unsustainable for a
number of reasons.
The
complainant did not raise any alarm at the time of the sexual
encounter even though other persons were passing nearby. Moreover,
there was no sign of any struggle at the scene of the alleged rape.
The complainant's report to her sister was not spontaneous but was
induced in order to justify her sexual misbehaviour. She only
reported the matter to the police after she felt ill-treated by the
appellant's family and after her intended marriage to the appellant
did not materialise. She therefore had a strong motive to incriminate
the appellant.
Counsel
for the respondent submits that although the complainant was in love
with the appellant, she was surprised by the sexual encounter. Her
clothes were soiled and she reported the rape to her sister at the
earliest opportunity. The appellant acted in the manner that he did
because of the local customary practice whereunder whichever man
first had sexual intercourse with a virgin was entitled to take her
as his wife. The appellant feared the possibility of some other man
deflowering and claiming the complainant as his wife. The fact that
the matter was temporarily settled as between the two families does
not detract from the complainant's lack of consent at the time of
the alleged rape.
The
Complainant's Evidence
Most
of the facts in
casu
relative to the relationship between the appellant and the
complainant and the events that occurred well after the alleged rape
are common cause. What is in dispute is the nature and circumstances
of the sexual encounter in question. In this respect, the
complainant's evidence-in-chief as to what transpired at that time
and immediately thereafter is highly pertinent. At pages 4 to 5 of
the trial record, she states as follows:
“As
we were going down the dust road we got to some place where there
were some mukute
trees. Accused person asked me if I was not prepared to go to his
place of residence, but I told him I wasn't because his parents
talk a lot. As we were standing there, he then grabbed me and dragged
me to the side of the road. He grabbed me yet again and placed me yet
on another point besides the road. He then fell me to the ground, he
then had sexual intercourse with me. After doing that I asked him why
he had done that to me when I had not consented.
……..
Soon after he had finished I could not wear my shoes. I held them as
we walked together. When we got to a point in between our homes, he
then told me that he was going home. I asked him how he could leave
me like that after having had sexual intercourse with me because by
then I was bleeding. My pair of pants was soiled with blood as well
as my skirt. He then left for his place of residence leaving me alone
standing there. I was stranded. I was afraid to go home because this
time then my sister was looking for me. I was afraid to go home
because it was my first time to have had sexual intercourse with a
man. When my sister saw me she asked me why I delayed in coming home
that day. I was afraid to tell her. She got a switch intending to
assault me. I asked her to stop assaulting me. I then explained
everything what had happened to her.”
As
regards the complainant's relationship with and feelings towards
the appellant after the alleged rape, she had this to say, at pages 6
to 7 of the trial record, in response to questions from the
prosecutor:
“He
is saying you later stayed with him for three days as husband and
wife. Did that happen?
Yes your Worship. I went to
his place of residence. Upon my arrival, the father of the accused
person started (ragging) against the accused and myself blaming him
for having brought me home as his wife, but Givemore told his father
that this was the woman that he wanted for marriage, but the father
suggested that he wanted the girl from Bindura. Givemore was against
this. They argued over this up until Givemore left me there and came
to Bindura. When I remained behind, the parents could not give me
anything, not even food or water.
Why
did you go to his house?
My parents said that I should
go to my husband. I agreed your Worship and proceeded to my husband,
but on getting there, the parents to the accused person said they
didn't want to see me.
Why
were you approaching him as your husband after he raped you?
Your Worship I had given my
life to him as he was the first man to have sexual intercourse with
me and, therefore, he was the man I was supposed to have married, to
go into marriage and not any other.
But
you insist he had raped you?
Yes your Worship, I had not
consented but I had given my life to him. I want him to be my husband
because he is the only one who had sexual intercourse with me. I
cannot go to any other man for marriage now except him.
You
first reported the matter to your sister. …….. She got hold of a
switch intending to assault you. Why did she want to assault you?
She wanted me to tell her the
truth of what had happened because I was rather reluctant to tell her
because I was afraid.
I
am not clear. Did she want you to tell her why you delayed coming
home?
Yes.
So
you gave a report of rape to her voluntarily. It was not, the assault
was not calculated to solicit that report from you but to solicit
satisfactory reply as to why you had ….?
She wanted me to tell her why
I had delayed in coming home which was unusually of me. That is why,
that is when I asked her to stop so that I could tell her everything
what had happened.
When
was the report made to the police? How long after you had been
ravished?
It was after two days. It was
after I had been chased away from home by accused's parents and I
didn't know where to go.”
Decision
It
is clear from the complainant's testimony that she was and
continues to be in love with the appellant. Their meeting on the
night in question was not unusual and entirely voluntary. After the
alleged rape, she walked with the appellant and wanted him to remain
with her.
One
of the principal features of evidence against the appellant was the
fact that he effected penetration without the complainant's pants
having been removed. This fact was relied upon to draw the inference
that sexual intercourse took place without the complainant's
consent. In the circumstances of this case, I take the view that the
trial court's approach in this respect was misdirected.
In
criminal cases, it is a well established principle that guilt by
inference cannot be concluded unless the inference sought to be drawn
is consistent with other proven facts and those facts exclude the
possibility of any other inference. See S
v Blom
1939 AD 188; S
v Phiri
S 78-88.
The
inference of non-consensual sex drawn in
casu
is inconsistent with the surrounding circumstances, viz. the
pre-existing relationship between the parties and the absence of any
sign of struggle or cry for help at the time of their sexual
encounter. Moreover, the facts as proven do not exclude the
possibility that the complainant's pants were not removed during
the act of sex because of its illicit and surreptitious nature
coupled with the fact that it was performed alongside an open road.
What
is critical in
casu
is the manner and circumstances in which the complainant made her
report to her sister.
She
was obviously confused and ashamed of what had happened and was
understandably afraid to explain her delay in returning home that
night. Her confusion was compounded by the fact that her sister
threatened to assault her. Her evidence suggests that her sister
might well have already begun to beat her.
In
these circumstances, it cannot be said that her report was voluntary
and spontaneous. It is possible if not probable that it was the fear
of her sister's wrath and chastisement that induced the complainant
to declare that she had been raped by the appellant.
As
regards the complainant's subsequent report to the police, there is
a strong possibility that she acted in a recriminatory manner
following her rejection and ill-treatment at the hands of the
appellant's parents. Her report to the police may well have been
made in order to rehabilitate herself in the eyes of her own family.
It
is trite that a complainant in a rape case should make her complaint
or report freely and voluntarily and without any undue influence. See
R
v Gittleson
1938 SR 165; S
v Mbanje
S75-89; S
v Zaranyika
1997 (1) ZLR 539 (H) at 557.
Having
regard to the complainant's own evidence, I am satisfied that her
reports of the alleged rape, both to her sister and later to the
police, were neither voluntary nor spontaneous. The learned Regional
Magistrate should have guarded against the great likelihood and
danger of false incrimination. See S
v Ziyando
S79-89.
Taking
all of the evidence into account, I am in agreement with counsel for
the appellant that the evidence lead by the State did not rebut the
possibility of consensual sexual intercourse having taken place
between the parties. The appellant's version of what transpired on
the night in question was reasonable and within the bounds of
possibility. He should have been given the benefit of the doubt and
acquitted on the charge against him.
See
S
v Moyo & Anor
S12-93, where it was observed as follows:
“A
court cannot also decide on the basis of whose story is more probable
and credible because of the burden of proof. If the defence version
could reasonably possibly be true although improbable, the accused
must be acquitted.”
In
the result, I am of the view that the State failed to establish the
accused's guilt beyond a reasonable doubt at his trial and that his
conviction on the evidence before the court a
quo
is unsafe and cannot be allowed to stand.
The
appeal is accordingly allowed. The conviction in
casu
is quashed and the sentence imposed is set aside.
HUNGWE
J: I agree
