Kabulungu Juma vs Republic [1991] TZHC 23 (16 October 1991)


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.


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