ALLY ATHUMANI v REPUBLIC 1991 TLR 59 (HC)

ALLY ATHUMANI v REPUBLIC 1991 TLR 59 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Masanche J

12 April, 1991 E

Flynote

Criminal Law - Defilement - Girl under fourteen - Proceedings and conviction

assumed the offence of rape - Whether conviction can stand - Rape - Ingredients

constituting rape -Defilement - Ingredients constituting defilement. F

-Headnote

This is an appeal originating from a conviction of defilement of a girl under the age of

14 years contrary to section 136(1) of the Penal Code. The entire proceedings give

the impression that the Magistrate proceeded on the G assumption that the charge

was one of rape contrary to sections 130 and 131 of the Penal Code.

Held: (i) The trial was a confused exercise, and cannot sustain the conviction entered;

(ii) rape and defilement are two entirely different offences, each one having its

own ingredients requiring H proof;

(iii)while in rape consent, or lack of it must be proved, to make it rape or not,

in defilement it is immaterial whether the girl consented or not. In defilement there

must be proof of age.

Case Information

Conviction quashed. I

1991 TLR p60

A Mujuliki, for respondent.

[zJDz]Judgment

Masanche, J.: This is an appeal originating from a conviction on a charge of

defilement of a girl under the age of B 14 years contrary to section 136(l) of the

Penal Code. Surprisingly, however, of one reads the entire proceedings, one gets the

impression that the magistrate preceded on assumption that the charge was one of

rape contrary to sections 130 and 131 of the Penal Code, or in the alternative, the

learned resident magistrate does not know that the offence of defilement is different

from the offence of rape.

C So, that trial was a confused exercise, and certainly is the upshot I cannot support

the conviction. What was the case?

The appellant Ally Athumani, on 17/7/89, at 7.00 p.m. approached the complainant, a

young girl of apparent age D of 14 years (actually age was not ascertained) and

requested her to accompany him to a secluded place for sexual intercourse. They

walked to a lodging called Ngambo Lodge, but there they could not get a room for the

exercise. They then moved to the house of the appellant. There, in the house of the

appellant, they had sexual E intercourse. The appellant said they had sexual

intercourse for half an hour while the girl said it took one hour. After the sexual

intercourse, the appellant escorted her home. It was after she had arrived home that

some elders noticed that the complainant had had sexual intercourse with a man.

F Appellant, in his testimony, did not deny having sexual intercourse with the

complaint. His defence, according to him, is that that was his girl friend for a long

time, and that was not the first time that they had gone out for sexual intercourse.

As I pointed out earlier on, the trial actually proceeded as if the charge laid at the

door of the appellant was one of G rape. I say so because all the way the learned

magistrate talked of consent, penetration, etc. And, indeed at times he even used the

word rape.

Rape is defined in section 130 of the penal code. The section roads:

H 130 Any person who has unlawful carnal knowledge of a woman or girl,

without her consent, or with her consent, if the consent is obtained by force or by

means of threats or intimidation of any kind, or by fear of bodily harm, or by means

of I false, representations as to the nature of the act, or in the case of a married

woman, by personating her husband, is guilty of the felony termed "rape".

1991 TLR p61

MASANCHE J

Defilement is defined in section 136(1) of the Penal Code. It reads: A

36,(l) Any person who carnally knows any girl under the age of fourteen years

is guilty of a felony, and is viable imprisonment for life, with or without corporal

punishment.

The above are definitions of rape and defilement - the two being entirely two

different offence; and indeed each B one of them has its own ingredients. For

example for the offence of rape, there must be proved the following:

1. That there be carnal knowledge of a woman or girl (no age given); C

2. That the man forced such a woman to have the sexual intercourse. In

other words, that there was no consent at all;

3. Or if there was consent at all, then the consent must have been

obtained by tricky means or by threats or D intimidation or fear of bodily harm; or a

misrepresentation of the actual act, or by posing as her husband.

Defilement, on the other hand has the following ingredients: E

1. There must be carnal knowledge.

2. The girl should be under the age of 14 years.

It will therefore be noted that while in rape, consent or lack of it must be proved to

make it rape or not in F defilement it is immaterial whether the girl consented or

not. And secondly, in defilement there must be proof of age.

In the case before us here, there was no proof of age at all. And it appears that this

anomaly was seen by my brother Kyando, J. when he was perusing the file for

admission, for he minuted: G

SDR(HC)

Admit to consider.

1. Whether the complainant was of 14 years of age or below; H

2. The legality of the sentence imposed, i.e. whether the trial magistrate

had powers to impose a sentence of 10 years imprisonment.

The learned state attorney who appeared for the Republic in this appeal also seemed

to have fallen into the same I pit as that of the

1991 TLR p62

A learned resident magistrate. He also argued as if the offence was that of rape and

went all out to consider whether there was consent or not whether there was

corroboration of the complainant's testimony or not. In the end he settled down to

arguing that the offence of defilement was proved.

B As I said, the offence of defilement had not been proved.

I allow the appeal in its totality. The conviction is quashed and the sentence is set

aside. The appellant should be set free unless he is there again for some other matter.

C Appeal allowed.

1991 TLR p62

D