CASE RPA 0125/11 / HC / MUS Page |2 above 18 years of age, and the second question was whether the commitment to take care of the child born out of rape is a mitigating circumstance that would allow the appellate court to reduce the sentence taken by the first instance court. III. SUBMISSIONS OF PARTIES ON THESE ISSUES AND THE COURT’S ANALYSIS [3] In his appeal, Turikumwe Fabien submits that at the time of his sexual intercourse with Mutimukeye Asia nicknamed Nzere, the girl was 19 years old, based on her physical appearance and her own statement as his girlfriend, that if the court is skeptical of his saying it should investigate it. Turikumwe Fabien further submits that the child born out of his sexual intercourse with Mutimukeye Asia nicknamed Nzere is in poor health because her mother has no ability to raise her alone, and demands the court to take into account this circumstance to reduce the long sentence passed by the court of first instance and enable him to go help Mutimukeye in the upbringing of the child they gave birth to. [4] The prosecution alleges that Turikumwe Fabien fails to show evidence that Mutimukeye was 19-years-old at the time of sexual intercourse, in order to contradict the girl's statements in the case, her birth certificate establishing that she was a child, and the statement of Turikumwe Fabien himself who said in annexes 6, 19 and 20, that he had sex with Mutimukeye four times when she was still very young. The prosecution also alleges that Turikumwe Fabien’s statement that he was sentenced to a heavy imprisonment is incorrect because he was only sentenced to five years in prison while the offense he is prosecuted for is punishable by an imprisonment of twenty to twenty-five years and a fine of 100,000 Frw to 500,000 Frw, the prosecution therefore requests the court to uphold the judgment under appeal, and order Turikumwe Fabien to pay legal costs. [5] The Court finds that Turikumwe Fabien does not adduce any evidence contradicting the prosecution's evidence regarding the age of Mutimukeye at the time of rape, which includes the girl's statement appearing in annexes 12-14, the birth certificate of Mutimukeye issued by the Executive Secretary of Gisenyi Sector confirming that the girl was born on 03/09/1996, as well as the statements made by Turikumwe Fabien before the judicial police and the prosecution in which he said he considered the girl to be very young but did not know that she was only 14 years old (Annexes 6, 19-20), and the court finds no reason to investigate her age while the appellant does not show any contradictory evidence on the girl's age, so in this case Turikumwe Fabien’s fails to provide evidence in support of his contention that Mutimukeye Asia, nicknamed Nzere, was 19 years old, based on the provisions of the third paragraph of Article 46 of Law n ° 13/2004 of 17/05/2004 on criminal procedure code as amended and supplemented by