Mchelengwajingi s/o Masala v. R., Crim. App. 279-M-68, 19/6/68, Seaton J.

Mchelengwajingi s/o Masala v. R., Crim. App. 279-M-68, 19/6/68, Seaton J.

The four accused were convicted of rape. [P.C. s. 130]. There was evidence that the accused and the complainant had been drinking together and that all of them were drunk. At about midnight, one of the accused carried complainant away. Complainant testified that the first and second

Accused then had intercourse with her by force. She stated that the third and fourth accused later had intercourse with her but that she was too tired and drunk by that time to resist. Another prosecution witness saw the third accused having intercourse with complainant, and a torn piece of her clothing was later found near the scene. The first and third accused admitted having had intercourse with complainant but stated that she had consented. The second and fourth accused denied having  had intercourse with her.

            Held: (1) There was no corroboration for complainant’s testimony that the second and fourth accused had had intercourse with her. (2) There may be authority supporting  a conviction for rape when the complainant is too drunk to resist. [Citing R. v. Complain (1845) 1 Cox C.C. 220]. However, in the present case, there is no corroboration of complainant’s testimony that the intercourse with the first and third accused was without her consent. Neither the torn clothing nor the fact that she was drunk would necessarily negative the fact of her consent. (3) The trial magistrate also failed to consider the possibility that because of their drunkenness the accused had no intention to commit rape and mistakenly believed that complainant had consented. Convictions quashed.