Online Reporter
Danisa Masuku [email protected]
A MAN who was accused of raping his biological daughter has been acquitted of rape but found guilty of indecent assault and sentenced to two years imprisonment.
The man, who cannot be named to protect the identity of the 8-year-old girl, appeared on Wednesday before Bulawayo Regional Magistrate Ms Sibonginkosi Mkandla for sentencing.
He was acquitted of rape charges but found guilty of indecent assault.
The accused was sentenced to two years in jail. Six months were suspended on condition that he does not commit a similar offence within a period of five years.
The remaining 18 months were suspended on condition that he performs 630 hours of community service.
In delivering the sentence, Ms Mkandla stated that the State failed to prove the essential elements of rape but managed to prove the elements of indecent assault.
“A medical report tendered as an exhibit showed that there was no penetration or tear in her private parts. A medical doctor, Mr Dingumuzi Sithole, buttressed that by saying if the minor had been raped for two consecutive days there was supposed to be a tear of the hymen or bruises on her private parts.
“But he highlighted that the minor said there were fluids on her underwear and that shows her father tried to have sexual intercourse with her,” said Ms Mkandla.
Furthermore, the Magistrate stated that the medical doctor also told the court that the injury takes about seven days to heal, but in this case the minor had no injuries. Furthermore, the court noted that the complainant did not disclose the ordeal to anyone.
“The complainant stayed with her teenage brother and a relative but did not disclose to them that she was raped by her father. That defies logic and it is not expected of a rape victim,” she said.
The Magistrate said the court established that there was no one who saw the accused committing the crime.
“There is no witness who confirmed to this court that she saw the accused sexually assaulting the complainant,” said Ms Mkandla.
The accused has been legally represented by Mr Simbarashe Innocent Madzivire of Mashayamombe Law Firm.
In mitigation, Mr Madzivire said: “The accused is a family man with two children and has no previous criminal record. He is a law-abiding citizen and this incident, which he denies, has wrecked his reputation in his neighbourhood.”
In aggravation, Prosecutor Ms Tsungai Charmaine Mutapi submitted that the complainant is an innocent witness.
“There is no reason whatsoever for the minor to lie against her father that the he raped her. The crime that he is facing is serious and has become prevalent in society.
“The court has to send a strong message to would-be offenders so as to deter them. The State prays for a custodial sentence,” said Ms Mutapi.
Prosecuting, Ms Mutapi told the court that the offence occurred on 8 August.
“The accused, who sleeps in a separate bedroom, woke up during the night and furtively walked into the bedroom where the minor was sleeping, before carrying out the sickening attack. After that, he threatened to kill the minor if she ever divulged the incident to anyone.
“The complainant was later seen walking with difficulty. When a relative questioned her, she revealed that she had been raped by her father. The minor was rushed to hospital and the matter was reported to the police, leading to the suspect’s arrest,” said Ms Mutapi.
