By Mary Taruvinga
- Had served six out of a 20-year-jail term
A CONGOLESE refugee who was caught raping an eight months old baby has been freed by the High Court following a technical blunder by the prosecution and magistrate who convicted him.
High Court judges of appeal, Justices Benjamin Chikowero and Bongani Ndlovu ordered the immediate release of Kabamba Kibukile of Tongogara Refugee Camp in Chipinge after he had served six years of his 20 year jail term.
Kibukile, now aged 46 was 35 when he committed the offence.
The victim’s sister aged 12 witnessed him abusing the toddler who rushed to inform her mother that Kibukile was “beating” the baby she had left sleeping in her bedroom.
The child’s mother found Kibukile holding her baby in his hands while bleeding from her mouth and genitals.
The court heard, the victim soiled herself and had bruises on her face after the ordeal.
Kibukile refused to hand the wailing baby to her mother and only did so after neighbours intervened before unleashing instant mob justice.
It was his defence that he had rescued the baby after falling down from the bed.
He was later arrested and dragged before Mutare magistrates court.
On 22 September 2016 the magistrate sitting at Mutare magistrate court convicted Kibukile before slapping him with a 20-year jail term.
Two years of his sentence were suspended on the customary conditions of good behavior.
Kibukile then filed an appeal against both the conviction and the sentence.
The magistrate who convicted Kibukile relied on the medical report which confirmed bruises on the baby’s face and genitals.
But the judges of appeal said the report had complex technical jargon as such the doctor should have been called to explain what he meant.
The High Court ruled the magistrate erred in convicting Kibukile without hearing the doctor’s testimony.
“It was common cause that the baby was only eight months old and that she was placed on the bed, naked. The appellant did not therefore undress her,” said the judges.
On examining the baby, the doctor noted subconjuctival hemorrhage and facial swelling.
The High Court highlighted that no interpretation was given for the two findings.
“There are two lines on the diagram indicating facial bleeding in particular from the eye and the cheek,” read the report.
“The external examination also shows bruises on the external female genitalia and that the labia majora and labia minora were grossly swollen.
“The doctor’s handwriting is not clear. He writes; “blood onsbin”.
“We do not know what the underlined word means. On whether the hymen was oestrogenised, the doctor ticked “no”.
Similarly, on whether the hymen was attenuated or stretched the doctor again ticked “no”.
“Read as a whole, the medical report tends to support the appellant’s defence that the baby fell from the bed. It seems that the baby fell face down. Hence the observations; “subconjuctival hemorrhage holderolly.”
On the day in question, the baby’s mother was sitting on her verandah bathing her baby when Kibukile then arrived and joined her.
After bathing her, she wrapped the naked baby in a towel and took her to the before proceeding to fetch water at a nearby borehole.
Kibukile also got up and walked away.
About 15 minutes later, the victim’s sister approached her mother at the borehole with a message that she had seen Kibukile in their bedroom beating the baby.
She rushed home only to find Kibukile still in her bedroom.
It was only when the mother roped in Wangi Matiera Amos, who was passing by, that the appellant surrendered the baby.
The baby was bleeding from the private parts and eyes were swollen, the court heard.
Kibukile said he was comforting the baby when the mother appeared.
He further told court that the baby’s mother declined to receive the child asking instead what he had done to her.
It was his defence that the mother dashed out of the house and called for people without listening to him.
Kibukile said available evidence by witnesses was circumstantial and did not justify the conviction
He also said the lower court misunderstood the medical report which, far from proving that the baby was raped, actually confirmed his defence.
In passing the current ruling, the judges of appeal said the lower court fell into error in finding that the victim’s sister and her mother were credible witnesses.
“The duo’s evidence differs from the State outline in a fundamental respect.
“That contradiction, which was never explained, gives a totally different complexion to the matter.
“The version in the State outline speaks to the appellant stealthily accessing the bedroom and committing the offence under the full glare of the sister.
“That would be direct, rather than circumstantial, evidence of the commission of the offence.
“Neither the public prosecutor nor the trial court sought an explanation for the fundamental contradiction between the evidence of the State witnesses and the outline of the State case. In its judgment, the trial court did not comment on the contradiction at all. In the circumstances, our view is that there is reasonable doubt that the appellant committed the offence.
“We say this because there are two different versions setting out the circumstances in which the offence is said to have been committed. Those versions were not reconciled.
“We think the appellant’s defence was reasonably possibly true.
“In the result, it is ordered that the appeal is allowed.
“The conviction is quashed and the sentence set aside. The following is substituted: “the accused is found not guilty and is acquitted”.