Mtunduchile and Other v. Republic Crim. Apps. 257, 258 and 259-D-70; 19/8/70; Biron J.

Mtunduchile and Other v. Republic Crim. Apps. 257, 258 and 259-D-70; 19/8/70; Biron J.

The three appellants were convicted of burglary, stealing and rape and sentenced to a total of three years and twenty four strokes each. According to evidence given by a woman and her daughter, the appellants broke into their house, stole some articles and demanded to have sexual intercourse with the daughter who was in an advanced state of pregnancy. The mother, fearing for the life of her daughter, offered herself instead, whereupon each of the appellants had sexual intercourse with her in turn. All the appellants set up defences of alibi.

            Held: (1) “The appellants were well known to the women who had ample opportunity of recognizing them. There was no reason to doubt the credibility of the women and therefore the learned magistrate was justified in finding that the appellants broke into the house, stole therefrom and had sexual intercourse with the older woman. (2) “On the issue whether in the circumstances consent to sexual intercourse was given, “I know of no specific case to the point. “The judge then set out s. 130 of the Penal Code where under the accused were charged and convicted and hen continued (3) “The two women were alone in the house, which is apparently isolated. They were threatened with death by three men armed with knives if they tried to raise the alarm. Although the mother consented, in fact volunteered herself as a substitute for her daughter, such consent is, to my mind, vitiated by her fears for her daughter’s health, and it is not irrelevant to not that the section above set out expressly states that if the consent is obtained ‘by fea of bodily harm’, the act would still constitute rape. The mother, apart from her maternal affection was under a duty to protect her daughter, therefore I fully agree, with respect, with the learned magistrate that the acts of the three accused constituted rape on the part of each. The conviction for rape is therefore duly upheld.” (4) “The rape in this instant case was, considerably aggravated by the fact that the three accused were prepared to have sexual intercourse with the daughter, which, in her condition, as is commonly believed, would have been extremely dangerous to her health; then, when the mother offered herself in order to save her daughter, they each in turn had inter course with this elderly lady, whose age is given as about fifty. The sentence imposed on the conviction for rape is accordingly set aside, and there is substituted therefore a sentence of imprisonment for two years, to run consecutively with the other sentences, making an aggregate of imprisonment to be served of four years. (5) Appeal dismissed.