Headmaster not guilty of rape - Appeal Court
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Senior Bulawayo High Court judge Justice Nicholas Ndou with Justice Maphios Cheda agreeing also set aside the sentence imposed on Rabson Matimbire.
In his ruling Justice Ndou said the trial magistrate did not carefully examine all the evidence adduced by all the witnesses.
"He (trial magistrate) dwelt at some length on the inconsistencies by the appellant (Matimbire) and his defence witness. He subjected such evidence to microscopic scrutiny yet he did not place the prosecution testimony on the same standard.
"If he had done so, he would have seen the glaring material inconsistencies in the said evidence. It is not sufficient to make findings that I believe some witnesses and do not believe others. All the evidence should be carefully examined and a determination made whether the State had proved its case beyond a reasonable doubt," said the judge.
The judge said if there is doubt, the accused should be given the benefit of that doubt, adding that it was not safe to convict Matimbire in the face of glaring inconsistencies in the prosecution case.
Matimbire (33), of Number 3521 Garikayi, Torwood, Redcliff, had pleaded not guilty to rape but was convicted by a Gweru regional magistrate and sentenced to 10 years in prison.
Three years of his sentence were suspended for five years on condition of good behaviour.
Not happy with the conviction, Matimbire filed a Notice of Appeal through Gundu and Dube Legal Practitioners, arguing that the trial court erred in convicting him when there is no evidence to that effect.
Mrs Ntokozo Dube-Tachiona, of Dube-Tachiona and Tsvangirai Legal Practitioners instructed by Gundu and Dube, argued that there were a number of inconsistencies in the State case.
Mrs Dube-Tachiona argued that even the medical evidence before the court cast a lot of doubt on whether the complainant had been sexually abused.
In his ruling the judge noted that it was apparent that the complainant's problems were to do with boys.
"Even the medical report evinced a young girl who was sexually active. According to Dr Maponga, who examined the complainant two days after the alleged rape, she admitted to him that she had had sexual intercourse twice in April with her boyfriend. Her examination was easy and she had no injuries," said Justice Ndou.
He said it is trite that the onus is on the State to prove its case and not on the accused to prove his innocence, adding that there was no onus on Matimbire to establish some defence.
Ms Angeline Munyeriwa, of the Attorney General's Office, argued that State witnesses were not bound by statements authored by police officers that the State relies on.
She further argued that the trial court properly assessed the evidence led at the trial and found the complainant to be a credible witness.
The State case was that on 9 October 2007, at around 7pm, Matimbire went to the girls' quarters and asked three girls to escort him to the boys' dormitories as there was a problem there.
He told the complainant to remain guarding the other girls' property since it was at night.
After about 10 minutes, Matimbire went back to the girls' quarters and called the complainant and told her to follow him.
The complainant, believing that they were going to the boys' quarters, followed him but she was surprised to see him taking a different direction from the boys' quarters.
He grabbed her by the hand and dragged her to his house at the school and when they got into the house, he locked the door and made her sit on the bed.
He started fondling her breasts and buttocks as they sat side by side and when she tried to resist, he overpowered her and removed her panties before raping her once.
He later unlocked the door and told her to go to her quarters and promised to give her something if she did not tell anyone about what had happened.
The following morning, the girl told a friend about what had happened and the friend advised her to inform her parents.
On 10 October 2007, the girl went home and told her mother who in turn informed the father. The father went and made a report to the police.
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