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Chief Court Reporter
An HIV-positive man breathed a sigh of relief after the High Court quashed his conviction and a 14-year jail sentence imposed on him for allegedly raping his brother’s six-year-old daughter. Dennis Chihwayi walked out of court a free man after Justice Owen Tagu, sitting with Justice Francis Bere, ruled that he was improperly convicted of the alleged offence.
He was found not guilty and acquitted.
The appeal was allowed without hearing arguments on the matter because the judges had satisfied themselves that both the conviction and sentence were improper.
In terms of Section 35 of the High Court Act, a judge is empowered to peruse the Prosecutor-General’s notice and reasons together with the appeal record and decide on the matter promptly.
The judges were in total agreement with the reasons given by the prosecution.
Justice Tagu said the record placed before them was riddled with several and serious contradictions.
Given that state of affairs, he ruled, the appeal should succeed without any further participation of the parties’ legal representatives.
“In view of the respondent’s (State) concessions which we are satisfied were properly made, the appellant’s appeal is upheld,” he said. “His conviction and sentence are set aside. He is found not guilty and acquitted.”
Mr Vasco Shamu, who represented Chihwayi, stated in the appeal that the trial magistrate misdirected himself on both facts and the law when he convicted his client on the basis of circumstantial evidence and inferences he drew from the testimonies of witnesses which clearly raised serious contradictions and were open to doubt.
Prosecutor Mr Innocent Muchini conceded in his papers that Chihwayi was improperly convicted.
He said the prosecution and the trial magistrate should have called for sufficient evidence to guard against inherent dangers of false incrimination.
Mr Muchini said Chihwayi was resolute in his defence throughout the trial.
“His conduct in taking the complainant to the clinic, police and to other family members does not seem consistent with a rape perpetrator,” he said.
The prosecution in the lower court, said Mr Muchini, failed to prove the crime beyond any reasonable doubt that Chihwayi raped the minor and caused the injuries sustained on her genitals.
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