CHEDA J: This
is a review judgment forwarded to me as per the usual procedure.
The facts of this
case are that the accused an 18 year old youngman was charged with 2 counts of
rape and was sentenced to 10 years imprisonment with 3 years imprisonment
suspended for 5 tears on the appropriate conditions.
The complainant is
a mentally challenged woman of 29 years and was 18 weeks pregnant at the time
of execution by the Doctor, on the 5th day of October 2007. The offence occurred in July 2007.
This sentence
struck me as unduly lenient and I then asked for the trial magistrate's
explanation. Her explanation is
basically that accused was 16 years at the time and the complainant was
mentally challenged.
The fact that the
accused was 16 years of age and raped a woman who is 13 years her senior and
mentally retarded is from any angle is aggravating. It can not by any stretch of imagination be
viewed as a mitigating feature.
The court should
have objectively looked at the matter from both a social and criminal justice
point of view. The complainant who is a
mentally challenged woman, also was taken advantage of, by a youngman who is
himself bestowed with full mental faculties.
Judicial officers
are advised to avoid the danger of looking leniently at the accused at the
expense of a victim whose plight is clearly clamouring for justice.
In light of the
above, the sentence in my view is shockingly lenient in the circumstances. This type of crime should attract no less
than 15 years imprisonment effective irrespective of the accused's age as there
are more aggravating features than mitigating ones. For the above reason the above proceedings
are not in accordance with real and substantial justice, I accordingly withhold
my certificate.
Cheda
J…………………………………………..
Ndou J………………………………………I agree
