The Court, he concludes, should find that the written word is the only accepted evidence for
transactions of important amounts of money, thus creating doubt regarding the offense of
fradu held against him and that consequently, the 1 st Judge has misinterpreted the law;
Examining this offense, it follows from the statements made by the accused during the
investigation before the OPJ that he met Fifi (NKUSU), the wife of MBALUKU at the time
when he traveled to China, when she would sometimes give him money to buy her
merchandise , other times to buy her construction materials. To another question posed to
him by the Prosecution, the accused declared that he met her at a time when he traveled to
China. The Court is convinced from these statements that the accused took from the plaintiff
NKUSU the amount of 1.500$ USD, after making her believe that he worked with the Chinese
Embassy and consequently, it also declares this offense established both in fact and in law;
In fact, it has been ruled that for the establishment of a crime of fraud, the misleading
statement must have been made orally and not in written form (Kin, 14 January
1972, RiZ; 1973 n•l, P.171 in KATUALA, Annotated Congolese Penal Code, éd. Batena Kin,
2004,
P.62) ; regarding the offense of fraud amounting to 500$ USD such as held by the
Prosecution according to article 98 of the CP LII; in the present case, the accused admits for
the first time that this amount was supposed to pay for a debt instrument that he held against
the plaintiff, but that this deception originated in the plaintiff's fertile imagination, with the goal
of hiding from her husband the extramarital relationship that she had with him and by way of
proof, she came to demand her share of 250 USD. He asks the Court, as a result, to declare
established both in fact and in law in both of their cases; the Court finds that the accused has
decided to fully confess and declares this offense established both in fact and in law, the first
Judge having, as well, correctly interpreted the law in this regard;
Regarding the offense of extortion being held against the accused, article 84 of the Penal
Code LII defines extortion as “ the fact of receiving or obtaining by force, meaning with resort
to violence or threats something that entails an obligation or debt”; In the present case, the
matter being the extortion of the golden chain and a ring, the Prosecution claims that the
accused resorted to threats to obtain the chain and the ring for the first time, and to physical
violence when he led her to the commercial place and obtained another chain, therefore
realizing the material and moral element of the crime; In his defense, the accused simply
denied the facts; the Court, as said by the 1st Judge, also finds that this information is not
established for lack of evidence;
Regarding the offense of extortion of the chain as it has been described, the accused also
denies the facts arguing that neither the Prosecution nor the plaintiff NKUSU were able to
prove that he took the chain following any kind of violence or threats made by him; However,
the case file and the investigation reveal that the letter therein, addressed to the plaintiff
NKUSU by the accused, shows that he admits holding the chain and the manner in which
they had sexual intercourse, while asking for it and apologizing for all he had done to her.
Thus, the Court shall also declare established both in fact and in law this offense, contrary to
the 1st Judge;
Regarding the length of the sentencing to be administered to the accused, the Prosecution
asked for a conviction of 10 years of imprisonment, for the crimes of rape, 3 years for fraud
and 10 years for extortion, and in material conjunction, meaning 20 years of cumulative
imprisonment.