CHEDA J: This is a review matter forwarded to
me as per the usual review procedure for reviews.
Accused
was charged with 6 counts of rape to which charges he pleaded not guilty. A trial was convened he was duly convicted
and was sentenced as follows:-
“Each count 6 years
imprisonment of the total 36 years imprisonment of which 6 years is suspended
on condition accused does not within 5 years commit any offence of a sexual
nature for which upon conviction he is sentenced to imprisonment without the
option of a fine.”
Nothing
turns on the conviction, but, the issue arises with regards to sentence. He was sentenced to a total of 36 years imprisonment. This type of sentence, taken cumulatively
induces a sense of shock to any right thinking human being.
While
rape is a serious offence and the courts are indeed empowered to show their
indignation by passing very stiff sentences, there is however, a need to strike
a balance between the interest of society and that of the accused.
In as much as the accused has indeed offended
both the complainant and society, he should not be punished almost to a
breaking point. Regard should be had to
the fact that he has the right to life after squaring his debt with
society. A sentence which tends to leave
an accused with no life after serving his term in prison should be
discouraged. It is for that reason that
magistrates should avoid a mathematical approach when it comes to sentencing.
In
casu the conviction is confirmed but the sentence is set aside and is
substituted by the following:
All
counts are treated as one for the purposes of sentence;
20 years imprisonment of which
2 years imprisonment is suspended for 5 years on condition accused does not
within that period commit any offence of which sex is an element for which upon
conviction accused is sentenced to imprisonment without the option of a fine.
Effective- 18 years
imprisonment.
Cheda J............................................................................
Kamocha
J agrees.............................................................
