A 62-year-old Mutorashanga man, Knowledge Machazi who was jailed six years last year for raping a 72-year-old granny had his sentence and conviction set aside by the High Court after the upper court concluded that this was not correctly arrived at.
This follows Machazi's appeal against both conviction and sentencing by a Chinhoyi magistrate who ruled he had committed the offence.
The background was that on the 12th of February 2023, the complainant was asleep in her bedroom at Mushamukuru Village, Mutorashanga.
Around 0200 hours an intruder stealthy pushed her door and the wench fell, making a squeaky noise waking the complainant from sleep.
The complainant quickly reacted, lit her torch to identify the intruder and she saw a stack naked man who she identified as Machazi.
The complainant asked what the intruder wanted and also inquired whether he was not married.
"The two wrestled, the intruder tried to run out of the room and the complainant followed outside," the court heard.
Outside, the intruder tripped her and she fell.
It was alleged that all the time she cried for help but no one came to her rescue.
Prosecutors alleged that Machazi then raped her twice and immediately thereafter she proceeded to her sister's place where she reported her ordeal.
She identified the intruder as Machazi before he was arrested the following morning.
Machazi was tried and jailed for six years after the lower court ruled that his age alone was mitigatory.
Aggrieved Machazi mounted an appeal at the High Court arguing that the State did not conduct an identification parade to prove that there could have been another suspect.
He also said the complainant's evidence was contradicting because the outline stated that he was naked yet during cross-examination she mentioned that he was wearing the clothes he was wearing the following morning when he was arrested.
The court heard it was raining and muddy to an extent that his clothes were expected to be dirty and wet but this was not the situation.
Given this, High Court judges of appeal, Justices Philda Muzofa and Catherine Bhachi Muzawazi sitting at the Chinhoyi High Court acquitted Machazi ruling that the state did not prove its case.
"The complainant failed to face head on the issue of appellant's clothes.
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"In between the lines, it appears the complainant must have seen the appellant in clothes.
"She did not insist that the appellant was naked.
"On the other hand, she did not dispute what she had told the police about the appellant's clothes.
"In our view, as long as the complainant knew that the appellant changed his clothes, her truthfulness on the issue becomes questionable.
"The complainant failed to describe to the court how she recognized the appellant.
"That taken together with the issue of clothes where she dithered, it means the identification is not conclusive. There must be evidence to corroborate it," said the judges.
The judges said in this case there was no conclusive evidence that Machazi was the intruder in the complainant's bedroom.
"Accordingly, the appeal is allowed in its entirety.
"The conviction and sentence by the court aquo are set aside and substituted by the following.
"The accused is found not guilty and acquitted."
