Consideration of the Issue
It is obvious that the Appellant’s appeal rests on the contracts of the
Medical Report tendered in evidence. It is the contention of the Appellant that the said Medical Report shows there is doubt about
penetration which happens to be one of the essential elements of the offence of rape. Accordingly, the defendant ought to have been
acquitted of the offence of rape. Further, the Appellant is of the view that there was no corroboration evidence. Thus, the conviction
of the Appellant was unsafe. Moreover, Counsel thinks that was wrong in relying on circumstantial evidence.
I must at the outset say that the Appellant’s contentions are without merit.
Indeed, I disagree with him when he says that he was wrongly convicted.
As a starting point, it must be put here that this case should not have rested on
the Medical Report. I am saying this because it is well to remember that that the examination of the complainant was done three days
after the incident. It therefore follows that one would not have expected the Medical Report to be conclusive about such matters
as penetration or indeed the breakage of the hymen or presence of laceration. It does not come as a surprise that the Medical Report
indicated that on examination of the complainant it was difficult to prove penetration. This notwithstanding it does not follow,
as put in the Medical Report. That the rape was fabricated. At this point it might be useful to quote the following illustrative
dictum of Band, CJ, as he then was in Simplex James Mzungu vs Rep:
“In sexual offences proof of penetration however slight is necessary but the rapture of the hymen need not be proved. Corroboration
of the complainant’s evidence is not required as a matter of law but in practice it is always looked for. It is necessary that
a warning of the danger of convicting on complainant’s uncorroborated evidence is always essential--- circumstantial evidence
can also amount to corroboration of the complainant’s evidence.—Indeed, a Medical Report is not necessary to prove penetration
which can be proved by other evidence---“
I adopt these observations and conclude that the fact that there were no laceration does not mean the complainant’s allegation
that she was raped was a fabrication. Indeed, as earlier on observed the absence of a tear or laceration is not proof that there
was no penetration. I am saying this whilst being alive to the fact that the absence of tear or laceration could have been because
of the length of time it took between the intercourse and the examination. Actually, the examination was done after three days. Accordingly,
one would not expect the tear or lacerations to be observed after a period of three days. Moreover, it is possible to have an intercourse
and not have the tear or laceration because of the smallness of a man’s organ or indeed it might well have been the case due
to the fact that there was no violence used during the act or that the girl’s organ healed after the incident.
Furthermore, it must be repeated here that the Medical Report should not be treated
as contained the whole truth when it indicates that since there was no tear or laceration then therefore there was no penetration
or that it follows then that complainant’s that she was raped was fabricated. It is well to remember that there is uncontroverted
evidence that the complainant and the appellant were alone in an examination room. There was an opportunity for the defendant to
have unconsensual sex with the girl. As a matter of fact there was sworn evidence of the girl that the defendant had full and complete
sexual with the girl. That is enough proof of penetration without relying so much on the Medical Report clearly shows that the examination
of the complainant was not done on the same day but three days after the event.
As regards the issue of corroboration this court finds that the court in quo warned
itself of the danger of convicting the appellant without corroboration. Indeed, at pages 57-58 of the handwritten the Magistrate
“Having examined all the evidence as well as my fact finding I am satisfied that there was no failure of justice. Although that there
is no corroboration and that I am well of the danger of convicting in such circumstances, but despite this defect it is nonetheless
that I am satisfied beyond reasonable that the complainant is telling the truth and I entirely accept her evidence as the truth that
it was the accused (the appellant) who had raped her in the course of going there to know about family planning methods and was undressed
in that for him to examine her thoroughly he had to have sex with her---”
As mentioned earlier on believability of a witness this court is not well suited to find otherwise. Further, there was a warning given.
In any event, there was actually corroboration of the testimony of the complainant. This is from the fact that there was an opportunity
for the Appellant to have sex with the complainant and that the Appellant’s own witness says that he was there at the Health
Centre when the complainant visited the Health Centre and later identified the Appellant as the one who raped her.
There is naturally evidence that there was penetration and that the intercourse that
the Appellant had with the complainant was non-consensual. Furthermore, it is observed that the Appellant fraudulently obtained consent
from the complainant. The Appellant cheated the girl that what they were doing in the examination room was part of family planning,
in sum, the Appeal must fail. It is without merit when the totality of the evidence is considered.
Pronounced in open Court this……. Day of November 2004 at the Principal