R. v. Hiiti Crim. Rev. 14-A-71; 28/4/71; Kwikima Ag. J.

R. v. Hiiti Crim. Rev. 14-A-71; 28/4/71; Kwikima Ag. J.

The accused was seen by non-less than two persons having unlawful sexual intercourse with the complainant who had not consented to it. There was no doubt as to his guilt.

            Held: (1) “The trial magistrate took a very serious view of the offence and sentenced the accused to 12 months imprisonment and 12 strokes corporal punishment under Cap. 17. The complainant was a married woman to whom sexual intercourse was a frequent if not a weekly indulgence. The act itself took place in the presence of many other people who were sleeping at the time. No violence was inflicted on the complainant. As such the learned District Magistrate could not have justifiably chosen to treat the accused so harshly. In my opinion the 12 stroke would have adequately met the circumstances of this case. I am minded, however, to let the accused remain in jail a little longer in order to discourage potential rapists. Accordingly I reduce the jail term to six months. The order for corporal punishment shall stand.”(2) The compensation must have been awarded on account of the venereal disease infected on the complainant by the accused. Indeed the learned District Magistrate remarked; “In this  case there exists some thoroughly foul breach of any elementary decency as committed by the accused, and some mean injustice against PW 1 who came to contract gonorrhoea as a result of the unlawful sexual intercourse committed…….. One never knows of other more serious consequences might not be fall the poor lady e.g. sterility.” Taken in the light of these words, the order appears to have been made not in order to redress the damage to the complainant’s health; but rather to make the accused suffer for his act of gross immorality. This is surely a moral rather that legal consideration, and it explains why the obviously disproportionate figure of Shs. 300/- was fixed. Had the learned magistrate confined himself to the law and not to emotionalism and moral indignation, he could not have arrived at such a high quantum of compensation especially after inflicting what was to all intent and purposes a very stiff punishment. Accordingly the amount of compensation is hereby reduced by Shs. 250/-. The accused shall pay Shs. 50/- compensation or distress.