Criminal
Appeal
MOYO
J: The
appellant in this matter was convicted of indecent assault and
aggravated indecent assault, that is contravening section 66 and 67
of the Criminal Law Codification and Reform Act [Chapter
9:23].
He
was sentenced to 6 months on the charge of indecent assault and 10
years on the charge of aggravated indecent assault. Four years of the
sentence was suspended on the usual conditions leaving him with 6
years and 6 months effective.
Dissatisfied
with both conviction and sentence he then approached this court.
The
allegations against him are that sometime during the month of August
2012, the appellant firstly on 8 August 2012, raised the
complainant's clothes exposing her underwear and that he said that
he wanted to see how grown she was. The complainant had allegedly
visited her aunt (the appellant's wife) in Plumtree when the said
assaults took place.
The
complainant was ordinarily resident in Bulawayo with her parents. The
complainant's aunt is a sister to the complainant's mother.
The
complainant went to visit her aunt with her grandmother (who is the
mother to both complainant's mother and her aunt). The allegations
on the charge of aggravated indecent assault are that the appellant,
inserted his finger into the complainant's private parts in the
kitchen while complainant prepared tea for the appellant. This, it is
alleged was on the following day after the initial incident of
indecent assault. It is alleged that the assaults occurred on 8 and 9
August 2012.
The
material points in the complainant's evidence are as follows as per
the court record:
“Q;
May you tell the court the events you allege he was abusing you.
A:
We were in the kitchen with a maid on 8 August.
Q:
Who were you with?
A:
I was with Concilia and my sister's child.
---
On 9 August I was told to prepare tea for my uncle. I refused. One of
my sisters told me to go. I then went. I prepared food. He kept on
lifting up my clothes and inserting his finger in my tobacco.”
---
He fondled my breasts and my buttocks and he told me it was between
ourselves and said he wanted to see if I was grown up.
Q:
How many times did accused fondle your breasts?
A:
Several times.
Q:
How did it come out that accused was abusing you?
A:
Concilia and myself told our grandmother.”
It
was the complainant's evidence that the assaults occurred in the
presence of Concilia the maid, Immaculate, and accused.
It
was also her evidence that Concilia and herself told the grandmother
about the assaults. It was also the complainant's evidence that the
other children together with the maid were also indecently assaulted
by the appellant.
The
difficulty with this case is that the maid Concilia Moyo, disputed
that assaults ever took place as alleged by the complainant, that she
was never assaulted herself and she never observed the appellant
indecently assaulting the complainant.
It
was also the maid's case that infact the appellant stays in and
runs a shop in Dombodema, and that at the material time he only came
once and not twice as alleged by the complainant. That when he came
he spent about an hour or 1 and half hours as he had come for orders
for his shop and he then went back.
Immaculate
Ngwenya also disputed the evidence of the complainant. Even where the
complainant's mother says Immaculate called her and she asked to
speak to the complainant who then started crying on the phone,
Immaculate disputes this, she says that never happened.
Concilia
Moyo also disputed that complainant ever spoke to her mother on the
phone whilst crying.
The
grandmother was also called and she denied ever being told by the
children about any assault perpetrated by appellant on the
complainant.
It
could be a question of collusion amongst the defence witness but that
still has not been proven on the record.
The
complainant's mother's conduct did not assist the case either,
she made a report to the police the day following the one which the
complainant had told her about the alleged assaults, but told them
not to open a docket until after 3 months. She also told the court
that she never asked the grandmother about the allegations made by
the complainant. The complainant's mother also says;
“I
opened the docket after 3 months, I had given accused and his family
time to come to us so that we sit down and talk about the matter.”
This
statement creates a problem in that it gives the impression that
complainant's mother did not really want to open a docket but she
wanted accused and his family to sit down with her and talk about the
matter.
What
was there to talk about?
If
the child had been abused by accused, a report made to the police,
what else would be there to talk about save for that the law should
then have been allowed to take its course?
She
only pursued the matter when the “talk” she had wanted had not
materialized.
What
do you talk about after a child has been abused?
There
is nothing to talk about except to report the matter and let the
police do their work.
The
trial magistrate based his findings of guilt in this matter on the
fact that all the family members stated that their relationship was
good and therefore it was the court's finding that there was no
reason for fabrication of the story against the appellant.
He
found that all the other witnesses who were allegedly present or were
also alleged to have been abused by the appellant were in fact being
looked after by him so they could have decided to protect him or
forebear the abuse they suffered at his hands.
It
is our considered view, that looking at the complainant's mother's
behavior in dealing with the complaint, that is her holding of the
matter in abeyance for 3 months while she sought to “talk” with
the appellant's family.
Also,
the fact that she did not discuss the issue with her mother who was
allegedly informed by the complainant about the alleged assault.
If
you consider that it is common cause that appellant did not spend
time in his house where complainant had visited, and that those who
were allegedly present at the time the assault took place deny that
this is true.
Also
if you consider that the complainant told the court that Concilia
Moyo was also abused by the appellant but Concilia came to court and
disputed all that.
One
would be persuaded from the aforementioned instances to find that
doubt is cast on the state case by same.
It
cannot be found in light of the aforegoing that the appellant's
guilt was indeed proven beyond any reasonable doubt.
It
is in such cases that the appellant must be given the benefit of the
doubt for there is a real danger of sending an innocent man to prison
on the aforegoing facts.
This
is a case in our view wherein the accused must be given the benefit
of the doubt. Refer to S v Makanyanga 1996 (2) ZLR 231.
We
accordingly find that the state failed in this case to prove the
appellant's guilt beyond any reasonable doubt and we accordingly
allow the appeal. The conviction and sentence by the court a
quo
are accordingly set aside.
TAKUVA
J agrees…………………………………………….
R.
Ndlovu and Company,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
