adminMashudu Netsianda, Senior Court Reporter
THE High Court has acquitted a handicapped Gweru man who was convicted by a lower court for breaking into an abandoned council beer garden before stealing electrical equipment worth $1,105 after disconnecting power.
Benjamin Pisirayi, 52, of no fixed abode, was in February convicted by a Gweru magistrate Musaiona Shotgame of unlawful entry and vandalising and interfering with apparatus for transmission, distribution or supply of electricity in terms of the Electricity Amendment Act.
However, since a lower court has no jurisdiction to pass the sentence, the matter was referred to the High Court in terms of section 226 of the Criminal Law Procedure and Evidence Act.
In his judgment, Bulawayo High Court judge Justice Nicholas Mathonsi, sitting with Justice Martin Makonese, ruled that it was highly impossible for Pisirayi to have committed the crime since he was incapacitated by disability on both hands.
Justice Mathonsi said Pisirayi’s conviction was improper.
“The conviction of accused person was improper. He is incapacitated by disability and he had no tools for the job. As a result it is ordered that the conviction is hereby quashed and the verdict of the magistrate’s court is substituted with a verdict that accused is hereby found not guilty and is accordingly acquitted,” ruled Justice Mathonsi.
The judge said the state failed to prove its case beyond reasonable doubt.
“The accused did not bear the onus to prove anything and neither does the law impose upon him the obligation to prove his innocence. In fact, it is the state which bears the onus to prove him guilty beyond reasonable doubt and it failed to discharge the onus,” said Justice Mathonsi.
The judge said Pisirayi was a victim of circumstances who was falsely accused of a crime that he did not commit.
It was the state case that on November 9, 2015, Pisirayi broke into the disused Runyararo beer garden in Mkoba suburb. He was alleged to have disconnected a three-phase commercial electricity meter reader, breaker and electricity cables resulting in an explosion and blackout in the neighbourhood.The disturbing sound caught the attention of a security guard and two police officers who were on patrol.
In his defence, Pisirayi who was a self-actor, denied the charge of tampering with electricity, arguing said he only entered the premises to avoid being arrested by police for public drinking.
derick.khumalo