Criminal
Appeal
MOYO
J:
The
appellant launched an appeal against conviction and sentence in this
matter in person.
The
appellant was convicted of rape as defined in section 65 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23].
The
allegations against the appellant were that he raped his daughter
aged 7 years when he was left with her whilst his (appellant's)
mother had gone to their rural home. Appellant slept with the
complainant in the sitting room wherein he raped her.
The
appellant was convicted after a full trial and was sentenced to 16
years imprisonment with 5 years imprisonment suspended on the usual
conditions. This left him with 11 years imprisonment effective.
Dissatisfied
with both conviction and sentence the appellant approached this court
in person. In his notice of appeal he raises the following issues:
1.
that the complainant as a young child had been taught what to say.
2.
that his mother framed him so as to punish him for his bad behaviour
generally.
3.
the doctor's evidence does not support the state case.
4.
that his uncle found him sleeping with the child and did not suspect
anything unusual.
I
have summarised the points raised in the notice of appeal as I could
not quote them due to bad English and numerous grammatical errors.
The
complainant told the court that his father returned from the shops
and raped her.
Complainant
gave a credible story and was not shaken under cross-examination. In
fact at the beginning of the cross-examination when the appellant
greeted the complainant she started crying after he had asked her if
she hates him. The case had to be adjourned to the following day.
The
grandmother confirmed that she left the complainant with appellant
and an uncle when she went to the rural areas and that when she came
back, when they were bathing the complainant, said to her
“grandmother look at my pant, how it looks”. She then enquired as
to whether the complainant had been raped or played with the boys,
she said she had not done so. Complainant kept on lifting her clothes
and looking at her private parts, she said to her grandmother
“grandmother its daddy who injured me”. The grandmother asked her
how she had been injured and she started crying, she then went and
made a report with the police.
It
is important to note at this juncture that complainant told her
grandmother about the rape, the same date the grandmother arrived
from the rural areas.
Accused's
uncle, simply confirmed that the previous day, that is the day prior
to the grandmother's arrival, which was on Friday she found the
complainant sleeping with the appellant on the floor and not on the
sofa where she would normally be.
The
uncle also confirmed that both appellant's mother and the
complainant loved him (appellant) so much that there could be no
question of them lying against him.
It
is important to note that in his defence outline the appellant does
not allude to any bad blood or grudges between him and his mother
that could result in a fabrication of the allegations he faced.
In
fact also in his defence outline he tells the court that the
complainant slept on the sofa and he slept on the floor.
He
did not challenge the uncle's testimony that he in fact found the
complainant sleeping with appellant on the floor the night before the
arrival of the grandmother.
Neither
did the appellant challenge the uncle's averment that his
(appellant's) mother and the complainant loved him so much they
could not lie against him.
Under
cross-examination the appellant admitted that upon being confronted
by his mother he admitted to the rape allegations.
We
then move on to deal with the law as it relates to the issues raised
in the notice of appeal:
1.
The evidence of the complainant in this matter who was a girl aged 7
years
The
appellant contends that the complainant as a child could have been
taught what to say. Not only does the record lack any pointer towards
this but the law relating to the evidence of children is very clear.
The
complainant in this case was in fact credible, she clearly told the
court what had transpired and nothing much arose under
cross-examination.
Young
children do not fantasize about being raped or other unusual horrific
experiences. Refer to the case of Musasa
v S
HH52-02.
We
are of the view that the complainant is a 7 year old girl who could
not concoct a rape story that would stand, this is especially in view
of her credibility.
2.
Medical evidence in rape cases
The
appellant contends that the medical evidence did not prove that
penetration had been effected.
This
in our view is neither here nor there.
The
doctor who conducted the medical examination on the complainant and
prepared a medical report was called and he told the court how he
concluded that there was no medical evidence of penetration that was
visible but that it was still possible that penetration had taken
place. He stated that there are instances where sexual intercourse
takes place but the hymen remains intact.
With
regard to the issue of penetration in rape cases it is important to
note the following:
In
the case of S
v Torongo
SC206-96 K JA at page 7 of the cyclostyled judgment had this to say:
“As
far as the law is concerned placing the male organ at the orifice of
the female organ, resulting in the slightest penetration constitutes
rape.”
In
the case of S
v
Sabawu
1999 (2) ZLR 314 (H) at 316, CJ stated thus:
“It
is trite position that for the purposes of the crime of rape,
penetration is effected if the male organ is in the slightest degree
within the female body. It is not necessary to prove that the hymen
was raptured…”
In
the case before us the complainant said that the appellant injured
her, she felt pain and the doctor also confirmed that the complainant
complained of genital pain.
We
conclude therefore with the support of the afore-named cases on what
constitutes penetration, that indeed, the appellant raped the
complainant as per the provisions of the law.
On
the issue of the mother framing him, we can only throw away that
assertion, as clearly he did not substantiate this point, neither was
it ventilated during the trial.
The
mother was called and she was never asked about that issue by the
appellant.
Also,
his uncle testified that the appellant's mother and the complainant
loved him so much according to his knowledge that they would not
frame him in the manner he was alleging.
In
our view this is just an after-thought, the appellant is clutching at
straws in a bid to extricate himself from the consequences of his
criminal conduct.
We
also wish to point out that the uncle gave his evidence well and was
never challenged at all by appellant.
On
Sentence
On
the issue of sentencing, it is our considered view that in such cases
an effective sentence of 11 years imprisonment meets the justice of
the case.
In
the case of S
v Nyamimba
2002 (2) ZLR 607 it was held that a rape perpetrated on a young girl
should attract a sentence of at least 10 to 12 years imprisonment.
Also
in the case of S
v Makorisha
HH130-04 it was stated thus:
“Given
the dangers to which a rape victim is exposed, a rape perpetrated on
a young girl should attract a sentence of at least 10 to 15 years
imprisonment.”
We
accordingly find no fault in the sentence imposed by the trial court.
In
any event sentencing is the prerogative of the trial court and appeal
courts would intervene sparingly with such prerogative only in those
cases where the trial court would clearly have misdirected itself.
The
appeal fails in its entirety for the afore-stated reasons.
We
accordingly dismiss the appeal in its entirety.
MUTEMA
J……………………………… I agree
Prosecutor
General's Office,
respondent's legal practitioners
