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Judge Frees Man Who Raped Daughter After Magistrate Bungled Trial

Judge Frees Man Who Raped Daughter After Magistrate Bungled Trial

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.

More: H-Metro


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9 Comments

Chen 1 month ago

Iyoo nhau yekuti system is down , not following due procedure , l hope one day you will understand the procedure wabatirwa wako mwana chibharo.


Pres 1 month ago

procedure procedure my foot rape is rape he shld rot in jail nxaaa judiciary service


WILLIAM SONBOY CHINEMBIRI 1 month ago

"THE LAW IS AN ASS". RAPE IS A SERIOUS CRIME FOR WHICH AN ACCUSED IS NOT CONVICTED AND SENTENCED ONLY ON HIS PLEA OF GUILTY BECAUSE IT CARRIES LONG TERMS OF JAIL.

THE TRIAL MAGISTRATE IS REQUIRED TO ASK THE ACCUSED, FOR EXAMPLE, IF HE HAS UNDERSTOOD THE CHARGE. HE SHOULD MAKE SURE THAT THE ACCUSED UNDERSTANDS ALL THE ESSENTIAL ELEMENTS IN THE OFFENCE HE IS BEING CHARGED WITH.

IN THIS CASE RAPE HAS 5 ESSENTIAL ELEMENTS NAMELY "UNLAWFUL, INTENTION, SEXUAL INTERCOURSE, WITH A WOMAN, WITHOUT HER CONSENT". THE TRIAL MAGISTRATE WAS SUPPOSED TO MAKE SURE THAT THE ACCUSED UNDERSTOOD THESE DESPITE THE FACT THAT HE HAD PLEADED GUILTY.

IT IS UNFAIR FOR CITIZENS TO DRAW INFERENCES THAT JUSTICE TAWANDA'S DECISION TO RELEASE THE ACCUSED HINGED ON THE BROWN ENVELOPE OR "MONEY CHANGING". JUSTICE TAWANDA CHITAPI QUOTED SECTIONS OF THE LAW UPON WHICH HE BASED HIS DECISION.

[ TWO DAYS TO GO:: DO NOT VOTE OPPRESSIVE ZANU PF. DO NOT VOTE THE SELLOUT ADVOCATE DOUGLAS TAGARASEYI MWONZORA. VOTE CCC FOR REAL CHANGE ].

YOURS SINCERELY
CDE KUFA KWANGU ZVAROVA
[ THE BUSH LAWYER ]+++


Mark 1 month ago

I'm glad to see you're still active Mr Bush Lawyer

Tanu Mark Finnity 1 month ago

Some money changed hands here and truth is that rapist's must be given long term sentences. As for this man who raped his biological daughter its another story he must be given a life in jail sentence because his not fit to be amongst the community his a dangerous risk too all his really crazy upstairs his cuckoo indeed


mafia 1 month ago

mati akaburitsirwei


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Gaffer 1 month ago

Kana zvirizvelulalula tsvaga Mboko


younger 1 month ago

if u had miney in zim you will ju pump it thru th PP,then they share with magistreet ot judge unobuda clean sheet,judiciary yemuZimbabwe inongoda mari chete ,ukaona zvikanetsa tsvaga Lovemore Madhuku,Beatrice Mtetwa unobuda clean,kana dziri dzrpolitics tsvaga Jeremiah Bhamu,kana dziri dzemari tsvaga Tendai Biti ndiwo magweta anoziva mitemo ava


DaCool 1 month ago

Thabani Mpofu for politics broe


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