Itta s/o Lewangwa and Eliwario s/o Thomas v. R. Crim. App. 189-A-68, 29/8/69, Platt J.

Itta s/o Lewangwa and Eliwario s/o Thomas v. R. Crim. App. 189-A-68, 29/8/69, Platt J.

The appellants Itta Lewanga and Eliwario Thomas were convicted of defilement of a girl under the age of 12 years c/ss 130 and 131, Penal Code, and sentenced to 30 months’ imprisonment in addition to 12 strokes of corporal punishment. On the afternoon of the material day, the complainant, Anna, a girl or about eleven years, was walking home when the appellant Itta met her. After she had passed him, she was attacked by him, threatened with a knife, and gagged. She was taken to a coffee shamba where she was forcibly made to have intercourse once. Then Itta carried her to the nearby pombe club where he announced to the appellant Eliwario’s room and Itta left them there. This incident was observed by the witness Shufaya. Eliwario slept with Anna having intercourse with her. Then in the morning Itta returned and took Anna away discarding her in an exhausted condition of the bank of a river. Fortunately, she was discovered there and taken to hospital. She was discharged after about a fortnight. There was no doubt from the medical evidence that Anna had very recently been deflowered. The appellants both denied the offence. Itta gave an alibi and Eliwario stated that he had simply slept at his room at the club. Both gave unsworn statements. Their defences were rejected by the learned Magistrate.

            Held: (1) “Did the charge of a joint offence hold good? Clearly Eliwario had had nothing to do with Itt’s alleged defilement, before the latter brought Anna to the pombe shop. It is not possible to say that both defilements were committed in the course of the same transaction; it might seem at first sight therefore to have been a bad charge and that one or other of the appellants must be acquitted. The Republic however saw the charge in another light. Excluding the first action of Itta, was it  not clear, it was suggested, that if Itta having sold his “ng’ombe” and seen Anna go with Eliwario to the latter’s house, and then returned the next day and taken her to the river and discarded her there, then he must have been jointly guilty with Eliwario in his offence? On this view, Itta’s frist action was not so much a part of the charge as evidence that he was prepared to see Eliwario commit the same offence. With respect, relation to the charge.” (2) The appellant Eliwario made a cautioned statement to Police Constable Alex in which he admitted having had sexual intercourse with Anna with her consent. As a result, the Constable found in Eliwario’s house a bed sheet and Kanga with what appeared to be blood on them. The question arose whether this statement amounted to a confession so as to render it inadmissible. “The essence of the offence of defilement assuming that intercourse has been proved is that the girl must under 12 years. It is not an offence to admit sexual intercourse with a girl above that age, especially when the admission is made with the allegation of consent. The appellant had denied any sort of assault. That allegation was not pertinent to a charge of defilement. But he never made any statement as to the girl’s age. He was concerned to identify the girl as the complainant and to exonerate himself by alleging consent. As such, he had not admitted in terms the offence or at any rate, substantially all the facts which constituted the offence. It was an admission of a fact which proved to be incriminating, but was not a confession in itself. (See: Gope s/o Gidomabong & Others v. R, (1953) 20 E.A.C.A. 318). I bear in mind that where there is doubt that an ambiguous statement could be a confession. That the accused must be given the benefit of the doubt, and the statement thus ruled inadmissible. But I am satisfied that the appellant never put his mind to the vital ingredient of Anna’s age as he was concentrating on other matters. Therefore it appears to me that the statement was properly admitted.” (3) Appeal dismissed.