provides for a sentence of 7 to 20 years and a fine of eight hundred to a million Congolese
Francs; they additionally invoke article 171 of said law, that provides for aggravating
circumstances, namely: rape of children, whether with resort to violence or grave threats or
through restraint, directly or through a third party, whether by surprise, psychological
pressure, whether in a coercive environment, whether abusing a child that, due to illness,
altered state of mind or by any other reason has accidentally lost her senses or is deprived of
them by any device;
They also maintain the crime of attempted abortion against the accused, in that it was
demonstrated during the investigation that the victim KILOMBO Sarah was four-months
pregnant and that the accused, fearing the girl's reaction, tried by every means to make her
have an abortion by administering her a poisonous product that led to her death; They
conclude that this reality is confirmed by the autopsy report established by the forensic doctor
at the Kintambo Hospital, dated 5th January 2011; Thus, they demand the Court to requalify
the crime of abortion in that of attempted abortion and to sentence the accused to 10 years of
imprisonment, as is provided by the law; Lastly, regarding the damages and interests, they
reproach the 1st Judge for having allocated to the victim a meager amount of 2.300.00
Congolese Francs, or 2.500$ USD for the harm done; In fact, they note that the victim was a
student in the 5th year of Sciences, destined to a great future and groomed by her father to
become a doctor and furthermore, the human body has no price; Thus, they ask
compensation in the order of 1000.000 USD; Following the above, they ask the Court to order
the immediate arrest of the accused.
III. THE COURT'S POSITION
Regarding the Prosecution's and the plaintiff's conclusions as well as the elements on record,
the Court shall declare the appeal admissible and founded; In fact, the Court notes that article
170 of the law of 10th February 2009 regarding the protection of children provides for the
offender the sentence of 7 to 20 years and a fine of 8.000.000 to 1.000.000 Congolese
Francs for the crime of rape;
The Court notes as well that the victim KILOMBO Sarah was a student of the 5 th year in
Sciences and that her rape was surrounded by aggravating circumstances, namely the
violence, the restraint, the psychological pressure and the coercive environment, regarding
her age of 16 years (see article 171 of the said law);
Ruling again and doing what the 1st Judge should have done, the Court sentences the
accused LUKUSA to 10 years of imprisonment and 1.000.000 Congolese Francs in fine;
Regarding the second offense, namely the attempted abortion, the Court declares it
admissible and founded; In fact, article 165 of the CPUI states that; “ he that by feeding,
beverages, medicine, violence or any other mean causes a woman to abort shall be punished
with 5 to 15 years of imprisonment”; In its turn, article 4 of the CPLII states: “there is a
punishable attempt when the resolve to commit the crime has been manifested by exterior
acts that formulate a beginning of execution of this crime and that have not been suspended
or lacked in effect only due to circumstances other than the perpetrator's will”;
Now, in the present case, the analysis of the elements on record prove that the accused, a
doctor, administered abortive circumstances to the victim having aggravated her condition