Ally Athumani vs Republic [1991] TZHC 6 (12 April 1991)


Masanche, J.: This is an appeal originating from a conviction on a charge of defilement of a girl under the age of B 14 years contrary to section 136(l) of the Penal Code. Surprisingly, however, of one reads the entire proceedings, one gets the impression that the magistrate preceded on assumption that the charge was one of rape contrary to sections 130 and 131 of the Penal Code, or in the alternative, the learned resident magistrate does not know that the offence of defilement is different from the offence of rape.
C So, that trial was a confused exercise, and certainly is the upshot I cannot support the conviction. What was the case?
The appellant Ally Athumani, on 17/7/89, at 7.00 p.m. approached the complainant, a young girl of apparent age D of 14 years (actually age was not ascertained) and requested her to accompany him to a secluded place for sexual intercourse. They walked to a lodging called Ngambo Lodge, but there they could not get a room for the exercise. They then moved to the house of the appellant. There, in the house of the appellant, they had sexual E intercourse. The appellant said they had sexual intercourse for half an hour while the girl said it took one hour. After the sexual intercourse, the appellant escorted her home. It was after she had arrived home that some elders noticed that the complainant had had sexual intercourse with a man.
F Appellant, in his testimony, did not deny having sexual intercourse with the complaint. His defence, according to him, is that that was his girl friend for a long time, and that was not the first time that they had gone out for sexual intercourse.
As I pointed out earlier on, the trial actually proceeded as if the charge laid at the door of the appellant was one of G rape. I say so because all the way the learned magistrate talked of consent, penetration, etc. And, indeed at times he even used the word rape.
Rape is defined in section 130 of the penal code. The section roads:
H 130 Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of I false, representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed "rape".

Defilement is defined in section 136(1) of the Penal Code. It reads: A
36,(l) Any person who carnally knows any girl under the age of fourteen years is guilty of a felony, and is viable imprisonment for life, with or without corporal punishment.
The above are definitions of rape and defilement - the two being entirely two different offence; and indeed each B one of them has its own ingredients. For example for the offence of rape, there must be proved the following:
1. That there be carnal knowledge of a woman or girl (no age given); C
2. That the man forced such a woman to have the sexual intercourse. In other words, that there was no consent at all;
3. Or if there was consent at all, then the consent must have been obtained by tricky means or by threats or D intimidation or fear of bodily harm; or a misrepresentation of the actual act, or by posing as her husband.
Defilement, on the other hand has the following ingredients: E
1. There must be carnal knowledge.
2. The girl should be under the age of 14 years.
It will therefore be noted that while in rape, consent or lack of it must be proved to make it rape or not in F defilement it is immaterial whether the girl consented or not. And secondly, in defilement there must be proof of age.
In the case before us here, there was no proof of age at all. And it appears that this anomaly was seen by my brother Kyando, J. when he was perusing the file for admission, for he minuted: G
Admit to consider.
1. Whether the complainant was of 14 years of age or below; H
2. The legality of the sentence imposed, i.e. whether the trial magistrate had powers to impose a sentence of 10 years imprisonment.
The learned state attorney who appeared for the Republic in this appeal also seemed to have fallen into the same I pit as that of the

A learned resident magistrate. He also argued as if the offence was that of rape and went all out to consider whether there was consent or not whether there was corroboration of the complainant's testimony or not. In the end he settled down to arguing that the offence of defilement was proved.
B As I said, the offence of defilement had not been proved.
I allow the appeal in its totality. The conviction is quashed and the sentence is set aside. The appellant should be set free unless he is there again for some other matter.
C Appeal allowed.


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