Modestus Kibasa vs Republic (High Court Criminal Appeal No. 219 OF 1976) [1978] TZHC 38 (1 April 1978)

IN THE HI(zH C( UhT OI FANZANIA -., AT TABORA APA'ELLATE JURISDICTICN (Tabora 1'egistry) • CRDiINAL APPEAL NO. 219 OF 1976 OFIGINJtL CRflINAL CASE NC. 128 OF 197 6 OF TEE DISTRICT COURT OF URAI BC DISTRICT •0 0 AT UR?J BO • Bfore: F. N. Buberwa, Senior I'iagistrate MCDESTUS IZIBiSA ......... . . • oo .. 000 000 !PPELLMNT versus TF RESPONDENT CHfGE Abduction of girl under sitteen (16) years c/s • 134 Cap. 16 of the Penal Code. - S . JUDGILNT MAP IGANC, J: . • S - Appellant.No. 5697.P.0. MODSTUS was convicted of Abduction contrary to SectiOn 134 of the eenal Code and in consequence sentenced to a term of nine months jail. This is an appeal from the convictionand the sentence. Th particulars of the offence alleged that 'on the 11th day of Jun, l976ataboit 20 hours atUrarbo', the appellant Unlawfully tookone Devota d/o John, an unmarried girl under the age of sjxtee:n, out of the custody or protection of her Parents and against their will.; The prosecution case vevealed that the girl in question was then eged between fourteen and fifteen and that she was a primry school pupil.. It also revealed that John, tht father of the ir1, and theappellant were fellow prisons officers stationed at tTrar.ho and that they were neihbours. These facts were not in dispute. Likewise the 'fact that at the material time the girl: was under. the custody of her parents. 0 The prosecution evidence further shows. that inthe evening of the day mentioned in the charge -. at about 8 P.M. the girl was.no where to be seen. It was said that 'it was not her. wont to stay out so late and that her parents became restive and kept watch outside their house. It was allege that at about 9p.m. she was seen emerging from the house of ....

2 the apDollcnt. As soon as she arrived at her home John, her father, questioned her a s to what she had been doing at the appellant's. 'She repliedtd' say that 'shéhad gone there to see another girl. John was not satisfied by her explanation and su3pecting that she had gone there for an evil purpose 'he administered a beating on her and then went to complain to his ten 'cell leader and thin to the Police. The Police had her examined hiedically and the examination confirmed John's suspicion. The 'niedical''dfficer crtifie'd that she had been deflowered '-!not' over-a4a'-" Hence this case. In Court, the girl (P.3) av.e, two conf1ip'ting stories4 At firt she denied tht she had been: at thehous'e- of the 'appellant at all. She lieged that she had been at another house to see some neighbours.:, She also denied that she had Sexual intercourse with any man, not tomention the appellant. But in the course of her evidence in chief and undicross, exahination she testified that, and I udte: "I wont to äccusédshouse beüs'é 1 he had" been askir me forsexualj'nteroin- s'é' and whenT'went there he took me into his bedroom and he had sexual connection with Then so 'ent on to maintain that inspie of that intercourse she was still. a, virgin. The appellnt denied each an 'd every material allegation advanced by the prosecution. ne denied that he was in the.. 'company of the girl during that evening. £e denied that he had propositioned tho in ani that there has Ite vor been a sexual -ffair between then • 'e dlaimed that he was merely being recklessly made a scapegoat. The;learnd Magistrate reviewed 'ane, assdsed the 'evidence at great length, tie was satisfied and found th:t the girl had been at the -house of the ape'Ilant andthat the two had sex,al i nterc,ourse 'in th'eap'p011-anit!s bed rdoth.. In my Olfl1O31 the evidence on record sufficiently supported that finding and I ,s,ee, no good reaSon to differ,,.'', The 'crucial question in this case is'whe'ther the conduct of' the aaellant •àrounted'to ibduction in law. For as I understand it, the section did not forbid the appellant to merely nvite the girl and have sexual intercourse with her. The section provides ti-at it is 'a misdemeanour to unlaful1y take out of the possession and against the will of any person having the lawful care of her, any unmarried girl being under 'the age 'of sixteen (irrespective of whether the accused believes her to be, or she appear:s to be, over th.t age). S • • •...'. . 13

-3- 01 The finding of the trial court was that there was abduction in this case. Because, the learned magistrate directed himself-, considering the girl's age and the appellant's status, the appellant's seduction which was followed by his carnal knowledge of the girl amounted to that. I respectfully have to differ. It seems to r;e that the learned 1 -agistrate did not sufficiently pause to consider, whether there was a taking of the girl out of the custody of her which, needless o point out, is an essential ingredient of the offence. As rchb.ld says, abduction involves a taking though such taking need not be by force-, either actual or.constructive, and it is immaterial that the girl consents or not. But if a girl leaves her father's (or guar(fian's) house for a mere temporary purpose (however reprehensible), intending to return to it within a reasonable time, she is still under her father's charge andprotection and it is no abduction. Abduction, as Cross and Jones' Introduction to Criminal Law, 8th edition, puts it at. para 9.7-, "moans some conduct by the accused amounting to a substantial interference with the possessory relationship of parent and child. Thus while permanent deprivation is not reauired, merely taking a girl for a short walk without her parent's perriission, oven though sexual misconduct occurs during the walk, does not constitute a taking out of parental possession for the purpose of the offence"-. I agree and I think that this is a sound proposition of law and that this is also the position in this country. Indeed, it would be absurd if it were otherwise. With that in mind, I do not at all think that the appellant had taken the girl out of the possession of her parents. For she was there, in all likelihood, only for an hourso and she returned to her parent's house. No doubt she had been there for a mere temporary purpose, morally loathsome as it was. For the reasons I have given, I cannot allow the convi- ction to stand. This appeal succeeds and the conviction and sentence are set aside and the appellant is to be set free unless he is otherwise lawfully held. Delivered in Court. Appellant absent. Mr. Sengwaji for the Republic. Tabora, D. P. IiPIGANO, 1st April, 1978 JUDGE.