HIGH COURT OF ZIMBABWE
HARARE, 2 September 2011 & 21 September 2011
MrMacharaga, for the applicant
MrMasamha, for the respondent
BHUNU J: The accused was convicted after contest of raping his friend’s 13 year old sister on 18 October 2008. He was allegedly caught red handed having sexual intercourse with her by the child’s stepfather.
The complainant had allegedly had previous sexual encounters with the accused on numerous occasions without making any report to anyone. This alleged offence only came to light because she was found in a compromising position with the accused by her stepfather in the house.
When confronted by the father in circumstances which clearly proved that the two were in the act of having sexual intercourse the complainant’s immediate reaction was to deny that the two were having sexual intercourse. She instead sought to defend the accused saying that he was merely sleeping beside her .Her stepfather who was the State’s star witness categorically stated that the complainant was obviously lying in this respect This is what he had to say at p 32 of the record of proceedings:
“I questioned the complainant the position of the boy (accused), she then indicated that he was beside her and this was not the real truth. I then told Margret that is what I had seen. All I saw the boy was on top of the girl. After that I then left the room and later the accused got out. I did not manage to ask complainant what was happening since I was already confused.”
The accused took up the complainant’s behaviour in this respect as being corroborative of his defence. In my view his attitude in this respect is entirely logical. Under cross-examination at p 43 of the record he was asked:
“Q. When the father returned with the tenant he asked you to position yourselves.
A. The daughter told the truth that she was beside me.
It was the complainant’s evidence that the accused threatened her with a knife and her father saw him threatening her with the knife. This however did not find corroboration from the stepfather who denied having seen the accused threatening her with a knife. To make things worse the knife was never found.
The evidence clearly suggests that when caught red handed in the act of having sexual intercourse with the accused the complainant did not allege that she was being raped. She only alleged rape after she had interacted with her female relatives long after the event. This led the prosecutor to suggest that there might have been consensual sexual intercourse. This is depicted at p 44 by the following exchanges:
“Q. There was sexual intercourse between you and complainant and it might be consensual
Q Medical affidavit confirmed sexual intercourse.
A. I do not dispute that. She may have been raped by someone else”
From the foregoing it is apparent to me that there bright prospects of success on appeal. That being the case the accused is entitled to bail pending appeal. It is accordingly ordered:
- That the accused deposits US$50.00 (Fifty) with the Clerk of Court at Harare Magistrates Court
- That he resides at house number 5278 Dzivarasekwa Extension, Harare until this matter is finalized.
Mupundu Legal Practitioners, applicant’s legal practitioners
The Attorney General’s Office,respondent’s legal practitioners