Godfrey Malango vs Republic (Criminal Appeal No 31 of 1999) [1999] TZHC 245 (1 November 1999)

IN THE IGi COURT OF TRN NIA T IBZU ODIGIN\L JUISDICTON (Mbeya Begistry) CIM.14APPL NO. 31 OF 1999 (Originl Crminil Case N' e 41 of 1999 f the District Court of -Mbeya at 4beja District) DFRE M \TJNO 'PPELL T JER S US THE REPUBLIC .,. RPONT)T .J_UDGMENT WAMB UR A This is an ppeal against the decibion of the Mbeya District Court in Cr. Case No, klI#/99 whereby the appellant is allogto have pleaded gult to the offence ani charged with being aefilement to ati i'hot c/s. 137 of the Penal Code. The thàin issue is whether ornot theappellant had carnal knoledgo withone , Piti.pokile d/o Mwekyusa. while hE.. knew that she was an Mr.Mangole ..dvocate who argued the appeal for the appellant contended that the facts adduced were not clear as the appellant agreed to have had carnal knowledge with Atupokile but he riidn not know that she was an idiot. He cQtctinued to argue that they were at the church where he approached the said woman and he agreed. They left together and went to the appellants ,house where she cooked the evening meal, they ate and went to bed till the f].1qwing day when she left. Under the circumstances the appellant could not know if she was mentally disturbed as she showed no signs of it and was very cothl, and she was not raped. Mr. Mwangole thus prayed that the conviction and sentenced be quashed as it was an equivocal plea, be pleaded with the court to reduce the sentence if it finds that the plea was not equivocal. On the other hand Mr. Mulokozi for the Republic bitterly objected to that allegation, stating that going through the court records its obvious that the appellant knew that the said woman was mentally disturbed 1 because it is specified in the charge sheet and his plea he clearly states that te woman was an idiot. Even the facts of the offence clearly stated that the women was an idiot and the qDpellant admitted the said facts to be true. The appellant did not say that the women was an idiot even in his mitigation. It was his contention that he legally admitted the offence sd was legally convicted of the same. t'!°

4 a S As for the sentence "Mu1o7_i. .argued that the appellant was supposed to be sentenced - Co seven years imprisonment, but ,he was • only sentenced to give years imprisonmert so there is no reasono of reducing the sntence0 having gone thropgh ' the proceeding and argumenth for and against the appeal, as aforementioned the main issue is whether or not the appellant know - that wthe. said woman was an i di 9 t From the prdceedins its obvious that he knew so e1ewise the appellants immediate reaction ox"defence ..,:..',,; woij]d be..'I did not know that she was an idiot ot like words 0 But he s - iys he dad have carcnal Vnowlcc 1 ge with the idiot as she aroo . Its true 'he,1id not rape her0 But under S.137 of the Penal Code' he ',.does:not.'have to,rape th idiot but have knowledge that the pdrson he is having cnal know.edge with is an,idiot. He could have evn sai3 this after hearing th facts, a thing uhich he din not 13 nor during mitigtiDn :butagainhe was silent.. I believe that this was merely á afterthought for no where did he implicate that he did not know that the'sa±d woman was an ic&i3t doc'ote of hiving the word idiot mention in the charge sheet, its particulars and in the facts adduced. In view of the above I accordingly dismiss the appeal for want of merit0 Since the sentence had been confirmed then I have nothing mote to saj as for as the sentence 'is concerned It is so ordered.'