KABULUNGU JUMA v REPUBLIC 1991 TLR 154 (HC)

 

KABULUNGU JUMA v REPUBLIC 1991 TLR 154 (HC)

Court High Court of Tanzania - Tabora

Judge Korosso J

16 October, 1991

Flynote

H Criminal Law - Rape - Woman consents to sexual intercourse - Whether offence

committed - S.130 of Penal Code, Cap. 16.

-Headnote

The appellant Kabulungu Juma, a medicine-man was convicted of the offence of rape

and sentenced to 5 years imprisonment. However, it was established that the woman

voluntarily consented to the intercourse believing that it I was part of her treatment

by the appellant of her ailment.

1991 TLR p155

KOROSSO J

Held: (i) A woman who is enslaved by strange ideas and beliefs who allows a

medicine-man to have intercourse A with her in the hope that the sexual act was the

medicine-man's way of examining her pregnancy cannot be heard to complain of

rape.

Case Information

Appeal allowed. B

Mtaki, for the respondent.

[zJDz]Judgment

Korosso, J.: This appeal has been lodged by the appellant who was charged with and

convicted by Kigoma District Court of the offence of rape c/s 120 of the Penal Code.

The Appellant was sentenced to 5 years C imprisonment.

In this petition of appeal one of his grounds has been that the trial Magistrate had

erred in holding that there had been no consent on the part of Beatrice Kayemba

(P.W.1). D

Mr. Mtaki, the Principal State Attorney representing the Republic, supports the

conviction.

The evidence as adduced by one Beatrice Kayemba (P.W.1) doesn't prove commission

of rape by the appellant. According to P.W.1 herself, she had agreed being

intercoursed by the appellant whose male organ was smeared E with white powder.

The appellant assured P.W.1 that sexual act with her on her bed in her house would

ascertain whether the child was naturally positioned in her womb. P.W.1's voluntary

consent to sexual intercourse by the appellant vitiates the offence of rape. A woman

who is enslaved by the strange ideas and belief, allows a F medicine-man to

intercourse her in the hope that the sexual act was the medicine-man's way of

examining her pregnancy, cannot be heard to complain of rape. The only remedy

available for P.W.1's husband could possibly be to sue the appellant for adultery. G

On the foregone observations I would quash conviction and set aside the sentence of

imprisonment.

It is hereby ordered that the Appellant be released forthwith unless lawfully held for

other causes. H

Appeal allowed.

1991 TLR p156

A