formality, the objection is submitted by an interested party and falls within the time limits, hence its
acceptable as a matter of form.
As a matter of subject, upon examining all the papers and record it appears that the court of first
instance convicted the accused under section 45 – B of the Juvenile Act 2010 , relying on the victim
statement corroborated by the testimony of the two prosecution witnesses, (Jareer and Alfarzdag) as
well as the medical report that express that, the virginity veil of the victim has been removed since a
long time .
The court of appeal has excluded the statement of the two witnesses on the ground that the statement
is tainted with contradiction in addition to the existence of bias and enmity. I did not agree with the
court of appeal in such decision on the mere fact that the two-witness statement is clear and plain in
confirming the accused act of raping his sister, the victim. I did not notice any contradiction in the
witness's statement, beside the fact that the court of appeal itself did not explain this alleged
contradiction. Likewise, I did not agree with the conclusion that the witness’s statement is tainted
with enmity and bias since both the victim and the accused are the brother and sister while the second
accused is their mother. The witnesses are on equal standing in relation with both the accused and the
victim and no proof of conflict between the witnesses and their brother, the first accused or their
mother the second accused was submitted. Any how my contention, is that the witnesses told the truth
in this case.
It’s a well-established judicial rule that, the victim statement is admissible in sexual crimes, I further
think that the testimony of the two prosecution witnesses and the medical report corroborated the
victim’s statement. The medical report could not be challenged by the fact that the virgin veil removal
had happened since a long time, since the victim as a matter of fact told her mother of the incident in
time and her mother attempted to hide the accusation, delayed the earlier medical examination on the
victim.
The end of this issue is that I rule the correctness of the first accused conviction under Article 45 – B
of the Juvenile Act 2010, uphold the imprisonment inflected upon him and consequently quash the
court of appeal decision.
As to the second accused conviction under section 76 of the criminal Law Act 1991, I would say it’s a
condition precedent under this section that the accused should abstain intentionally from carrying out
his legal obligation. In this case I did not find enough evidence that support the existence of such
intension.
Therefore, I uphold the court of appeal decision of acquitting the second accused. I also did not find
that the element of the crime of terrorism is established as the accused act is a mere attempt to avoid
defamation, hence I conclude to uphold the court of appeal decision of quashing the conviction of the
second accused under article 144 of the criminal law Act.
Abeer Almahy Abdelrahman
Supreme Court Judge
16/4/2017
Abdallah Abdulrahman Mohammed
Supreme Court Judge
2/5/2017
Ambeely Babikir Ahmed
Supreme Court Judge
20/4/2017