THE Court of Appeal has confirmed the 30 year jail term imposed on a cook of Usita Primary School, Alex Ndendya, for raping a standard five pupil in the school’s food store.
This followed the decision given by Justices Richard Mziray, Jacobs Mwambege and Lugano Mwandambo to dismiss the appeal which Ndendya, the appellant, had lodged to challenge findings of both trial court and the High Court.
They were satisfied that the seven witnesses who testified in the trial court with two documentary exhibits tendered had sufficiently proved the case for the prosecution against the appellant to the standard required.
“In the event, like the two courts below, we are satisfied that the case against the appellant was proved beyond reasonable doubt. Eventually, we find the appeal by the appellant lacking merit and dismiss it in its entirety,” they declared.
When delivering the judgment, the justices noted, among other factors, that in a situation where the appellant was charged with statutory rape, then the age of the victim must specifically be proved before convicting him.
In the case at hand, they said, the particulars of the offence allege that the victim was a girl aged ten, a fact which was proved by the father of the victim during his testimony.
“There is no flicker of doubt that the evidence (of the victim’s father) supports the averments in the particulars of the offence in the charge; consequently there was no doubt on the age of the victim,” the justices said.
Another important element to be proved in a charge of rape is penetration.
According to them, it is a settled principal derived from case law that the best evidence in rape cases is that of the victim. They said that the evidence adduced by victim suffices to prove that there was penetration.
The justices noted further that the appellant had highly disputed such evidence and he contended that the victim of rape was not a credible witness and that she was couched by her aunt to tell lies just to put him in trouble.
“With respect, we don’t agree with the appellant in his argument because the trial court carefully analyzed the evidence of (the victim) and after assessing her demeanour came to the conclusion that she was a credible witness,” they said.
Another complaint which is reflected in the grounds of appeal, is that the appellant has emphatically denied to have made an oral confession before the village chairman in the presence of other prosecution witnesses.
“We think that this complaint should not detain us. The evidence of (witnesses) is very clear that after the arrest of the appellant, a meeting was convened and the appellant confessed before these witnesses that he raped (the victim) in the school store,” they said.
At the material time, the victim was a standard five pupil at Usita Primary School aged 10 years old.
She alleged in her testimony that on March 24, 2015 while cleaning dishes at the school, the appellant who was employed as the school cook lured her to go in the store and put some maize in a cooking pot.
The appellant’s real intention was not known to the poor girl. While in the store, the appellant entered, holding a knife and threatened her.
The appellant then dragged her down, undressed her and raped her on the pile of sacks at the store. He subsequently released her with a strong warning that she should not reveal the incident to anyone.
When she returned home her aunt discovered the victim was walking with some difficulties. When asked what happened, recalling the threats of the appellant, the victim answered that nothing unusual happened.
However, the secret was later revealed by the son of the victim’s aunt, also a pupil at Usita Primary School, who informed her mother that the victim had a fiancé at school.
Using the tip, the aunt grilled the victim until she finally revealed the truth that she was raped by the appellant. The matter was reported to the school authority and the appellant was arrested.
Upon interrogation, he made an oral confession before several prosecution witnesses, including the village chairman. The appellant was interrogated by the police and gave a cautioned statement admitting the allegation.
In his defence before the trial court, the appellant evasively denied to have committed the offence. He denied also to have made the oral confession and the cautioned statement.
He strongly alleged that the cautioned statement was extracted involuntarily after he had been arm twisted.