A man who raped his daughter seven years ago when she was only 13 and sentenced to nineteen (19) years in prison has been freed by a judge on the grounds that the magistrate did not handle the case properly.
During the trial, the State had alleged that the accused, Tirivashoma Chigwaja (54) of Nyamugomba Farm, Chinhoyi, sometime in 2015, forcibly entered into his 13-year-old daughter’s room and raped her once.
It was further alleged that Chigwaja told her daughter not to disclose the abuse and threatened to drink poison to kill himself if she disclosed the matter.
The minor, however, disclosed the rape to her brother and Chigwaja took poison but survived.
Chigwaja appealed the sentence at the High Court and Justice Tawanda Chitapi has set aside the conviction and sentence because of a procedural flaw in the way his trial was handled.
Justice Chitapi ordered Chigwaja’s immediate release from prison and a fresh trial.
The judge said despite Chigwaja pleading guilty, there were procedural irregularities in the way his trial was handled.
Chitapi asserted that the magistrate failed to follow the procedure for trial entered by a guilty plea. He ruled:
The trial of the accused was disposed of by way of a guilty plea.
The regional magistrate then asked the accused whether the accused had understood the facts, and other questions, in the nature of extrapolating the essential element of rape.
The proceedings did not comply with the provisions of s217 (2) as read with s 271(3) of the Criminal Procedure and Evidence Act chapter 9:07.
The proceedings, in case number CRB CHNR 112/14, be and are hereby set aside for gross procedural irregularity which cannot be condoned.
The conviction and sentence imposed are set aside and the accused is entitled to his immediate release.
The Prosecutor General’s prerogative to prosecute the accused and, therefore, to institute fresh charges, remains open to him to exercise.
In the event that a fresh prosecution is instituted, and the accused is convicted, the trial magistrate, in assessing an appropriate sentence, shall take into account the sentence already served by the accused up to the date of his release, as part of an already served portion of the new sentence which the magistrate may impose.