THE State V Munyaradzi Muchenjeri

1
                                                                                HH 603-18
                                                                           CRB KADR 51/18




THE STATE
versus
MUNYARADZI MUCHENJERI



HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA & KWENDA JJ
HARARE 26, 27, 28 September 2018 & 4 October 2018


CRIMINAL REVIEW JUDGEMENT


         CHIRAWU-MUGOMBA J: The accused a 45 year old man was charged with the
rape of a 16 year old girl as defined in s 65 (1) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23]. He denied the charge. After a full trial he was convicted and
sentenced to 18 years imprisonment of which 3 years were suspended on the usual
conditions.
                It is trite that the standard of proof in a criminal matter is proof beyond a
reasonable doubt- See The State v Ngwanzura HH-162-16. Having reviewed this matter, it is
my firm belief that the state failed to prove the accused’s guilt beyond reasonable doubt. It
was alleged by the state that on 31 May 2017, the accused had sexual intercourse with the
complainant at Mugonhi Lodge without her consent. It was further alleged that the accused’s
wife assisted him to commit the offence by holding back the complainant’s hands at the back.
The accused person denied the charge. He stated that on an unspecified day, he found the
complainant in their bedroom sitting on their bed holding his baby. He queried why the
complainant was there and he was told that she wanted to obtain an identity document. He
further inquired whether the parents of the complainant knew and he was told that they did
not know and that the complainant instead of going to school had come to the accused’s
residence. He told his wife that this could later on cause problems as complainant was
prohibited from going to the complainant’s residence after allegations that she was in love
with the accused. He suggested that they give the complainant some funds to travel to
Kadoma. His wife stated that they should accompany her to Kadoma. They then travelled
                                                                                         2
                                                                                 HH 603-18
                                                                            CRB KADR 51/18


first to Chegutu in the company of his wife, the sick child and the complainant. They then
went to Kadoma. There, they left the complainant at the Registrar’s offices and they went to
the doctor with the sick child and were told to bring the child on the following day. The
accused proceeded to the Ministry of Mines to get his mining permits. When he returned, he
inquired if the complainant had finished her business and she advised him that she had not
been served. Accused person suggested that the two proceed to Ingezi to put up for the night.
He then paid $15 at a lodge and left them there. He denied having sexual intercourse with the
complainant.
        In her evidence–in –chief the complainant stated that she and the accused stay in the
same village and that he used to give her ‘piece’ jobs. She and the accused and his wife went
to Chegutu first then to Kadoma to obtain a national identity document. She was unable to
obtain it and they thus went to Mugonhi lodge with the two. She stated that the three of them
together with the sick child shared the same bed and that is when the accused raped her. She
tried to fend him off but he persisted. The accused’s wife then held her by both hands as she
lay on the bed and that is when the accused succeeded in raping her. After the rape, the
accused person left her and went away. She remained in the company of the accused’s wife.
On the next day she went to the Registrar’s office and managed to obtain the identity
document. When she got home she narrated the rape to one Leona Chisora who is her aunt.
Due to financial constraints she only managed to go for a medical examination four and a half
days later. Leona Chisora gave evidence on behalf of the state. She narrated how the
complainant made a report to her on the 1 June 2017.
        The medical report which was tendered as an exhibit shows that the complainant’s
hymen was attenuated with healed notches. The medical examiner concluded that penetration
was definite.
                The accused person who had initially indicated that he wanted to be legally
represented ended up conducting his own defence due to lack of funds to pay a legal
practitioner. He asked the complainant whether there was any blood when he allegedly raped
her and she responded in the affirmative. Upon asking her why she never mentioned this in
her evidence-in-chief, the complainant’s response was that she overlooked this aspect.
      After the evidence of Leona Chisora, the state closed its case.
                                                                                            3
                                                                                    HH 603-18
                                                                               CRB KADR 51/18


During the defence case, the accused remained adamant that he had not raped the
complainant. He stated that he believed the complainant and her parents connived to lay a
false charge of rape against him. The only reason why he travelled with the complainant to
Kadoma was that his wife convinced him that if she was present, no allegations would be
raised against him. When asked whether he would be calling any witnesses, the accused
person stated that he would call his wife. It is pertinent to point out that the accused person
had been remanded in custody. He provided her name and address. The matter was postponed
and the police and prisons were directed to assist the accused person in locating the accused’s
wife. The state through the prosecutor tried to assist the accused to locate his wife through
making a cellphone call but such efforts were in vain. The accused was granted a further 14
days to locate his wife but he failed. Constable Mapisa from ZRP Chingondo deposed to an
affidavit stating that ZRP Kadoma Central checked for this witness and she could not be
located. In the end the court proceeded with the case without hearing the evidence of the
accused’s wife.
           In convicting the accused person, the Magistrate found both state witnesses to be
credible. He accepted the medical report and also concluded that the accused wanted to call
his wife as a witnesses but she was not located.
          As stated in State v Mubvumba HH-338-18 by MUREMBA J, “Various factors or
reasons can motivate a complainant to lie about being sexually abused. These factors include
fear of one’s spouse or parent; the wish to protect a friend or a relative; wounded vanity and
spite against someone who has rejected one’s advances and the deceptive facility of a person
who tells a convincing story, the only false part of which is the identity of the perpetrator”.
This observation finds resonance in the 2013 Constitution in section 69 (1) which states that,
“Every person accused of an offence has the right to a fair and public trial within a
reasonable time before an independent and impartial court.” (emphasis mine). Section 56 (1)
of the Constitution also addresses equality before the law and the right to equal protection
and benefit of the law.
         Placing due consideration on the evidence led by the state, it is difficult to state with
certainty whether or not the accused person raped the complainant with the assistance of his
wife as claimed whilst a sick child was sleeping on the bed as well. The affidavit by
Constable Mapisa did not give details of the efforts made by the police in trying to locate the
                                                                                           4
                                                                                   HH 603-18
                                                                              CRB KADR 51/18


accused’s wife. The affidavit is lacking in detail and merely states that ZRP Kadoma checked
the ‘accused Sekai Mapfumo’ at her place of residence several times and was not located.
There are no details of which place of residence, how many people did they speak to, how
many times did they go to that place. With these scanty details it was imperative that the state
should have called Constable Mapisa to the witness stand thus giving the accused person the
opportunity to challenge evidence as per s 70 (h) of the Constitution. The state introduced
this evidence and based on my observation above, without calling Constable Mapisa to the
stand, an adverse inference that the accused’s wife was on the run because she knew that she
was an accomplice cannot be drawn. It is important to note that the accused’s evidence that
he went away after paying for the accommodation and did not put up with his wife and the
complainant was never investigated and disproved. It could have been a simple matter of
calling the personnel from the lodge who were on duty on the day in question. The
complainant stated that she was raped whilst lying on the bed without putting her pants on
and she bled because she was a virgin but there was no investigation as to what happened to
the bed linen. It could also have been a matter of calling the lodge personnel to get clarity on
this issue. The case is an example of one which raises more questions than answers. This
falls into what MUREMBA J called “half-half” and where, “the accused should benefit from
the doubt” – See State v Ngwanzura (supra).
       Accordingly I conclude that the conviction is unsafe and cannot stand.
       In the result, it is ordered as follows:

       The conviction be and is hereby quashed. The sentence imposed on the accused is set
       aside.
       A warrant of liberation for the accused is hereby issued.




KWENDA J agrees…………………………