An elderly woman alleged that on May 20, 2014, two men tied her up and took turns to rape her. She says this happened in the presence of her 10-year-old daughter. According to her evidence in court, one of the men slapped her and the other one proceeded to beat her.
The two then pulled her outside, tore her clothes and removed her pants, tied her legs and raped her. She told court she screamed and pleaded with the men to leave her, but they refused and threatened to kill her.
She further testified that she managed to untie herself and ran away naked to a nearby house, where men followed her. The owner of the house, however, screamed attracting the attention of other people and this forced the perpetrators to run away.
The following day, she further stated, she reported to hospital and was given medication. According to her evidence, she reported to police and was given a police form, which was duly filled.
The victim’s evidence was corroborated by the testimony of her child, a minor, aged 10. The child gave unsworn evidence after court determined that she did not understand the meaning of giving evidence under oath.
The child told court that the accused man tied her mother’s legs and hands, removed her clothes and covered her with thorns and told her they would kill her. The child also narrated in court that the men lay on top of her mother and raped her. That after the rape, her mother run away.
The victim, however, reported the case to police a week later, on May 26. Her complaint then was that she had been assaulted by a person known to her and that she had spotted the person at the market, whereupon the alleged assailant was arrested and the complainant was given a police form for a medical examination.
A health worker, who examined the victim and documented her injuries, noted that the victim had tears on her labia and that the tears were in the process of healing and were about one week old.
The health worker also reported a foul smelling vaginal discharge, suggestive of infections and concluded that the medical evidence showed sexual intercourse and the injury showed that the act was vigorous. According to the health worker, the injuries indicated that the elderly woman had been sexually abused.
In court, the alleged rapist was put to his defence and he chose to give an unsworn statement. He denied committing the offence and stated, in no uncertain terms, that there was no evidence of rape and wondered why the charges were changed from assault to rape in the course of the trial. He also wondered why the complainant reported the matter one week after the alleged offence.
The trial court concluded that the prosecution evidence in this case was truthful and well-corroborated to prove beyond reasonable doubt the charge of rape. To the court prosecution had proved its case by oral evidence of the victim and circumstantial evidence.
Court proceeded to find the accused guilty of the offence of rape and on the July 10, 2015, sentenced the accused person to 10 years of imprisonment. The convicted man appealed the conviction and sentence.
One of the key issues for the appellate court to determine was whether there was evidence to the required degree of cogency to prove the allegation of rape against the convicted person.
The presiding judge examined the evidence presented before the trial court, but gave allowance to the fact that he did not have the opportunity to see or hear the witnesses testifying before court. He, as a result, deferred to the trial court on any observations made by the witnesses. The appellate court noted that the man was on May 28, 2014, initially charged with the offence of assault, causing actual bodily harm, which charge he denied.
The charge was, however, substituted with one of rape after the complainant testified and told court that she had been raped, in turns, by the man and another man.
To the appellate court, there was no apparent explanation as to why the man was charged with assault, if the offence allegedly committed was truly one of rape, as charged in the substituted charge.
Court noted that the evidence relating to the alleged rape by the accused and co-suspect had gaps, inconsistencies and major contradictions.
The complainant told the trial court that her legs were tied, but did not give any detailed and convincing explanation as to how the men were able to have sex with her with tied legs.
The daughter of the complainant told the trial court that her mother’s legs and hands were tied up, but similarly, there were no details on how she managed to untie herself and flee.
There was no explanation why the complainant did not report the alleged rape on May 20, 2014, until one week later, on May 26, 2024, according to the evidence of the arresting officer. Yet in the complainant’s evidence in court, she claimed to have reported the assault the following day, which would have been on May 21, 2014.
The police form issued to the complainant was dated May 26, 2014 and did not indicate that she had previously checked into any hospital, contrary to the evidence she gave in court. The complainant only reported a case of assault and the police form clearly indicated her allegation as that of assault.
In a previous rape case, court noted that a report to the police, as soon as possible after the incident, shows consistency of the witnesses’ evidence. It was held then that evidence of first complainants to persons in authority, are important because they provide a good test by which the truth and accuracy of subsequent statements may be gauged and provide a safeguard against later embellishment or made-up case.
The demeanor of a complainant may corroborate her evidence in a sexual offence. To the appellate court, there was, however, no credible evidence recorded by the trial court to this effect to corroborate the allegation of rape.
The appellate court delved deeper into the facts of the case before the trial court. The evidence of the neighbour to whom the complainant fled, was that she was bleeding on the head and pursued by the accused persons, who had broken sticks. The medical report also recorded injuries below the left ear and right knee and these were classified as harm.
To the appellate court, the irresistible conclusion on evidence in this matter was that the charge of rape was a frame up to get back at the accused person, who appeared to have beaten the complainant, following some disagreement over an unclear matter. The complainant appears to have been evicted from the home of the co-accused, whose wife had given her refuge.
On October 15, 2018, the appellate court did not find the prosecution evidence on the alleged rape of the complainant by the accused to be credible. Instead court found the accused guilty of a lesser offence of assault. The accused was released immediately as he had served the entire sentence in full for assault.
