Dodo v Directorate of Public Prosecution (CLHFT-000062-12)  BWHC 9 (4 March 2013)
THE HIGH COURT OF BOTSWANA
HELD AT FRANCISTOWN
THE MATTER BETWEEN:
Mr. Diundu for the Respondent
U D G M E N T
The Appellant appeared before a learned Principal Magistrate sitting
at Francistown on a charge of rape Contrary to Section 141
with Section 142 of the Penal Code. He pleaded not guilty to
He was tried, convicted and sentenced to the mandatory minimum period
of ten years of imprisonment.
He has now appealed against his conviction and sentence.
Appellant’s grounds are:-
– That the learned magistrate erred by convicting him on
the basis of unsatisfactory prosecution’s evidence.
– That the learned Magistrate fell into error by
dismissing his defence.
– That the minimum sentence induced a sense of shock on
the magistrate failed to back date his sentence to the time when he
was first incarcerated.
5. This is a matter in
which the Appellant was caught in flagrant delicto. The
Magistrate meticulously summed up and analysed
the evidence in this
The long and short of the prosecution’s case is that when the
complainant was asleep, she had a rude awakening only to
Appellant having sexual intercourse with her. She objected to
his sexual gesticulations to no avail. She then
pushed him off
her body, pinned him down and shouted for help.
7. PW2 amply corroborated
the complainant’s evidence that she was also asleep when she
faintly heard someone calling her and
saying that the Appellant was
When PW2 went to the scene she found the Appellant’s pants
below his knees and he asked for forgiveness.
PW3 also said as much as PW2 said. The medical Doctor’s
evidence was that penetration took place. This was
the results of the forensic analyst’s evidence that spermatozoa
was found in the complainant’s vagina.
It was against this backdrop that Appellant was put to his defence
but opted to remain silent.
The evidence was overwhelming against the Appellant. Worse
still he was caught with his pants below his knees. The
Magistrate found the complainant credible and not shaken on cross
examination. PW2 and PW3 the Doctor and forensic analyst’s
evidence corroborated the complainant’s evidence.
The net effect of all this is that the prosecution’s account
was satisfactory. That the learned Magistrate did not
any error and in consequence I dismiss Appellant’s grounds of
appeal against conviction as baseless.
13. The sentence meted out
by the Magistrate was the minimum mandatory sentence for this
offence. He has pleaded that his
sentence should be backdated
to the time when he was first incarcerated. For the most part
Appellant was out
on bail despite his numerous
transgressions of not honouring Court appointments. I find no
basis for backdating his sentence
to the time of his first
14. Accordingly, this
ground also fails. The appeal is therefore dismissed.
IN OPEN COURT AT FRANCISTOWN ON THIS 4TH DAY
OF MARCH 2013