KUALA LUMPUR: The Alor Setar High Court in Kedah recently upheld a 76-year-old man's sentence of 10 years' jail and 10 strokes of the rotan for raping his friend's daughter in 2015.
The victim was a slow learner with speech impairment, and she became pregnant from his crime.
The court dismissed the appeal of the father of 10 and affirmed the verdict of the Sessions Court that convicted and sentenced him.
The appellant was a farmer aged 67 when he raped the victim, who was then 32. She had severe intellectual disability with a mental capacity of a 6-year-old child.
He and the victim's father had known each for 40 years, and the latter had frequented his family home.
Judge Datuk Mohamad Abazafree Mohd Abbas said the Sessions Court judge did not err in his decision and nothing warranted any intervention on the conviction and sentence meted out on the appellant.
He said he was satisfied that the prosecution had proven beyond doubt that the sexual acts committed against the victim was not consensual as she was unable to understand its nature and consequences.
He said this was based on the victim's family's testimony that she could only perform minimal functions on her own, like eating and bathing. He added that she was unable to make her own decisions, differentiate between good and bad, was easily manipulated, and incapable of logical thinking and defending herself.
"The court is not convinced by the submissions of the appellant's lawyer that the Sessions Court judge had erred in his finding in this matter," he said in his judgement dated Aug 14 uploaded on the judiciary's website.
The appellant was convicted of raping the victim between 11am and 12pm at a house in Pendang, Kedah, in September 2015.
The victim's pregnancy was discovered by her sister, who accidentally touched her belly and felt something weird.
The sister informed another sibling, a medical centre ward assistant, who brought home a pregnancy test kit and confirmed the victim was pregnant. A check-up at a private clinic revealed that she was in her 26th week.
A police report was lodged and the appellant was arrested in March the next year. The victim gave birth later in June and a DNA test on the baby confirmed that the appellant and the victim were its biological parents.
A clinical and counselling psychology consultant confirmed that the victim could not understand the implications of a sexual relationship.
In the judgment, the defence had disputed the police report as the victim's sister had helped translate her words to be easily understood by the investigating officer, and it was not stated that she was raped as investigations showed there was only a sexual relationship.
However, Abazafree said a police report was only a step to initiate investigations.
"A police report does not need to relate the entire evidence, but it must contain the element of the charge for the offence said to have happened.
"A police report is not substantive evidence. Instead, further investigations must be conducted and the evidence is then represented in court to determine whether it is material," he said.