HARARE High Court judge Justice Owen Tagu has thrown a lifeline to a Glen View man, Dennis Chihwayi, after quashing his conviction and sentence on allegations of sexually abusing his brother’s six-year old daughter five years ago.
BY CHARLES LAITON SENIOR COURT REPORTER
The judge said Chihwayi was wrongfully convicted and sentenced to 14 years imprisonment with labour after the magistrate who tried him failed to consider important evidence that was presented during the trial.
Justice Tagu’s decision was also supported by the Prosecutor-General (PG)’s Office which also criticised the lower court’s findings on the rape trial. “Mr Innocent Muchini, for the respondent (State), has given notice to the effect that the PG does not support the conviction in terms of section 35 of the High Court Act.
“He also attached his detailed reasons why they do not support the conviction,” Justice Tagu said.
Chihwayi (49) was slapped with an effective 10-year-jail term on January 28, 2009 after four years were suspended on condition of good behaviour by former regional magistrate Daniel Shonhiwa.
However, after serving almost two years of his prison term, Chihwayi was granted bail pending appeal.
“We are in total agreement with the reasons advanced by the counsel for the respondent (Harare lawyer Vasco Shamhu).
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“This record is riddled with several and serious contradictions. Especially, at least three different explanations were given by the complainant as to who raped her or caused her injuries noted by the doctor,” Justice Tagu said.
The judge further noted that key State witnesses had not been called to testify during the trial raising more questions on how the trial magistrate reached the conclusion that Chihwayi was guilty.
“In any case it is clear there was evidence of bad blood among the relatives.
“At one time, the complainant made the false report of rape against another relative, which was later not pursued and an apology was given.
“Given that state of affairs this appeal will be allowed without any further participation of the parties,” Justice Tagu said.
In his submissions through his lawyer, Shamhu, Chihwayi had said: “The learned trial magistrate erred in that he failed to sufficiently and adequately consider the absence of infection on the complainant if any rape took place as the appellant was HIV positive at the material time.”