Mduduzi Sibanda, 23, of Mkubazvibi village under Chief Bango area was convicted of four counts of rape by the then Bulawayo regional magistrate Owen Tagu and sentenced to an effective 15 years in jail after five years were suspended on condition that he did not within that period commit a similar crime.
Justice Lawrence Kamocha set aside both conviction and sentence following an appeal that Sibanda filed on April 24, 2013, arguing that the evidence by state witnesses was unreliable and full of inconsistencies.
In his ruling, Justice Kamocha, who was sitting with Justice Martin Makonese during the criminal appeals court yesterday, said although the trial magistrate believed that Sibanda had raped the victim, there was no basis to substantiate the alleged crime.
“We are of the view that conviction cannot be allowed to stand and in the circumstances the appeal is allowed and both conviction and sentence are set aside,” ruled Justice Kamocha.
Sibanda, in his grounds of appeal, denied the charge, arguing that the victim was his girlfriend and they had consensual sexual intercourse.
“The complainant was my girlfriend and we had on that particular night made arrangements to meet and spend the night together at my home until the following morning. However, out of fear that her parents would punish her for sleeping out, she then decided to lie that I raped her to avoid their wrath,” he argued.
Sibanda, who was not represented, told the court that he had love messages contained in his cellphone to prove that he was in love with the complainant. He argued that he was not given an opportunity to produce the text love messages in court as evidence during the course of the trial.
Sibanda also argued that he was not served with the State papers hence he did not have enough time to prepare his defence.
“Respondent is not convinced that the conviction was safe in the first instance. Appellant’s defence was that he and the complainant were lovers and had hatched a plan on that particular day to spend the night together during which they had consensual sex. The respondent is of the view that defence of the appellant has some truth in it,” said Hove.
The State in its heads of argument noted that there were too many unconvincing elements of the complainant’s story for the appellant’s defence to be discounted off hand as being totally untruthful.
“The respondent is of the alternative view, that it is quite probable that the two (Sibanda and the complainant) truly made plans to spend the passionate night together. Out of fear of her parents the complainant claimed that she was raped and this story just seems more probable than the complainant’s tale and as a result the respondent prays that this appeal be upheld,” said Hove.
Allegations against Sibanda were that on February 9, 2013 shortly after 8PM, he arrived at the complainant’s homestead and tapped on the window of her bedroom hut.
Sibanda called the complainant’s name in a hushed voice and out of fear, the girl quickly phoned her brother. He then disappeared on seeing the girl’s brother.
The court heard that two hours later, the complainant developed a stomach problem and decided to go to the toilet. Sibanda allegedly ambushed her as she made her way to the toilet, grabbed her and force-marched her to his home amid threats to assault her with a knobkerrie, if she resisted.
Sibanda allegedly detained the complainant the whole night during which he raped her four times before releasing her on the following morning.
The court was told that on her way back home at around 5AM, the complainant met her brother and narrated her ordeal. They informed their parents who in turn reported the matter to the police. chronicle