Online Reporter
Danisa Masuku [email protected]
A man accused of raping his eight-year-old biological daughter has been acquitted of the rape charge but convicted of indecent assault and sentenced to two years’ imprisonment.
The man, whose identity cannot be disclosed to protect the minor, appeared before Bulawayo Regional Magistrate Ms Sibonginkosi Mkandla for sentencing after the court found him guilty of indecent assault. He was acquitted of rape after the court ruled that the State had failed to prove the charge beyond reasonable doubt.
Ms Mkandla sentenced him to two years in prison. Six months of the sentence were suspended for five years on condition that he does not commit a similar offence during that period. The remaining 18 months were suspended on condition that he completes 630 hours of community service.
In passing sentence, Ms Mkandla said the evidence presented by the State did not establish the essential elements required to secure a conviction for rape, although it proved the charge 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.
The magistrate further noted that the medical evidence did not support the rape allegations.
Furthermore, she said the medical doctor testified that injuries associated with sexual assault could take up to seven days to heal, but the complainant had no visible injuries when she was examined.
The court also considered the fact that the complainant did not immediately disclose the alleged incident.
“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.
Ms Mkandla also noted that there was no eyewitness testimony linking the accused to the alleged rape.
“There is no witness who confirmed to this court that she saw the accused sexually assaulting the complainant,” said Ms Mkandla.
The accused was represented by Mr Simbarashe Innocent Madzivire of Mashayamombe Law Firm.
In mitigation, Mr Madzivire urged the court to exercise leniency, citing his client’s personal circumstances.
“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,” he said.
In aggravation, Prosecutor Ms Tsungai Charmaine Mutapi argued that the complainant had no reason to falsely accuse her father and called for a custodial sentence.
“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.
Presenting the State’s case, Ms Mutapi told the court that the offence occurred on August 8.
“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.
