HIGH COURT OF ZIMBABWE
HUNGWE ands BHUNU JJ
HARARE, 15 January and 25 February, 2004
Appellant in person
Mr Tokwe for the respondent
BHUNU J: The accused was convicted of two counts of rape perpetrated on the same complainant on two different occasions, that is to say on the lst February, 2002 and the 5thof February, 2002. For his pains the accused was sentenced to 7 years imprisonment on each count. Of the total of 14 years imprisonment 4 years were suspended for 5 years on condition of good behaviour.
He now appeals against both conviction and sentence. That the complainant was raped by the same person on the alleged dates as she was coming from school is not in dispute. The doctor in his medical report confirmed that penetration was effected.
The appellant however disputed that he was correctly identified as the rapist. Thus the only issue is whether or not the complainant correctly identified the appellant as her assailant.
At the trial the complainant identified the accused as her assailant by saying -
"I know him as I used to see him seated at the bridge. My friend and I used to pass through the bridge and he would frighten us. There were some people with him playing mbira …
There were two of them one with dreadlocks and the other one without Dread is lying if he denies raping me. He did it to me
I saw his face he was light in complexion and had short dreadlocks. He is the only one with dreadlocks at the blue house.
Dread was the first one to rape me. No one else told me to implicate the accused".
It is self evident that the complainant made it abundantly clear that she was raped by someone whom she knew well. She was not raped by a stranger. She even knew the accused's residence. She was 9 years old at the time such that possibility of mistaken identity was very remote.
In the absence of any suggestion that the complainant was deliberately lying against the appellant one cannot fault the magistrate's verdict.
As regards sentence the complainant was a young school girl of 9 years of age. The accused raped her not once but twice. Rape is a heanious crime which dehumanizes the victim and exposes her to deadly diseases such as AIDS. The sentence imposed on the accused is not out of step with current sentencing trends in cases of this nature. The sentence perfectly suits the offender and the offence committed. There is no basis for interfering with both conviction and sentence.
That being the case the appeal cannot succeed. The appeal is accordingly dismissed. Both conviction and sentence are confirmed.
HUNGWE J, agrees.