The ManicaPost
Lovemore Kadzura Post Correspondent
A SENIOR Mutare High Court senior, Justice Hlekani Mwayera, has freed a Rusape man who had been jailed for rape after noting that he was wrongly convicted by the lower court.
Justice Mwayera ruled that Makombe Matutu ( 39) who was slapped with a 15-year jail term by Rusape regional magistrate, Mr Livingstone Chipadza, was erroneously incarcerated.
Matutu had served three years of the sentence.
She said the accused person’s case was littered with loopholes which did not warrant a conviction.
Matutu who was charged with two counts of raping his niece was represented by Mr Munyaradzi Manyengavana of Chiwanza and Partners who also appealed against the conviction.
In his appeal, Mr Manyengavana said the lower court erred by relying on the complainant’s evidence which was only obtained through compulsion in the form of assault.
He said a police constable assaulted the complainant to give evidence and also inserted an egg into the 14-year-old girl’s private part to test virginity.
“It is apparent from the record that the appellant was allegedly raped on 6 November and 1 December 2017. The matter was only revealed on 9 January upon intense questioning of the complainant by her mother and then the police constable Rosemary Nyamukondiwa.
The complainant further narrated that an egg was inserted into her private parts by the constable as a way of testing virginity. What emanated from the complainant’s evidence is that she did not voluntarily make a report of rape to the person(s) to whom she would ordinarily be expected to make a report at the earliest opportunity.
“A close look at the court’s reasons for judgment displays lack of due diligence and caution as conviction appears to have been anchored on the fact that complainant was a juvenile aged 14 years old and had no reason to falsely incriminate her aunt’s husband.
‘‘The judgment ignored the basics on assessment of evidence in sexual offences.
“Once the accused’s story is reasonably true then he ought to be granted the benefit of doubt and is entitled to acquittal. Where there is doubt in complainant’s evidence and where there are unexplained contradictions it is preferable to give the benefit of doubt to the accused for the obvious danger of false incrimination.
“Given the accused’s defence of alibi which was not investigated and no evidence placed before the court to refute that he was in Harare the question is, was it safe to convict.
“The state has to prove its case beyond reasonable doubt and once that standard is not met then there is no room for patching up on otherwise weak state case and conviction on assumptions.
‘‘It is not enough to show that the complainant’s hymen was torn as conclusively given in the medical evidence. The crux of the matter is if it was through sexual violation and who violated the complainant against her wish.
“In this case no sufficient evidence was placed before the court as regards whether or not the accused raped the complainant.
‘‘To that extent the appellant ought to benefit from the doubt and the conviction must not stand.
‘‘There is evidence that an egg was inserted into complainant’s private parts.
‘‘That assertion ought to be investigated for if it happened then the perpetrator should be charged for aggravated indecent assault,” ruled Justice Mwayera.
