Godfrey Malango vs Republic (Criminal Appeal No. 31 of 1999) [1999] TZHC 283 (1 November 1999)

.;;,.. .... , '3 • ·-· •• ·' ,- •. .. ·.: IN: THE· HIGH 'COURT. OF T1NZ!\NIA· .. ' !.! .·, ·' :· · : :• '·· AT MB]!JYA. . . . • . :onIGIN!\L: JW.ISDIGTION (Mbeya Registry) ctnM!N.:"1L" ;PPE,\L·No··31·6F 1999· (Ori-ial; c";imial C'.?.se \J,.-, 0 414 of 1999' ·;r the . .-·': "n1.·trit ·curt·. of Mbey;/ at f'ibya.bistiic't} . , .. JIDDFRSY MALfil'GO • ' ,, - C, ..... ' ·:• • .r VERSUS ·,TfIE · REPUBLIC .. ·o• •. , •••••• - ••••••• '• RE.SPONDENT · .J U ·D G M E N T · . :fh:i,s i 2 ;".Jl_ .-e.ppaal. o.gainst the decision of the Heya Distric~:,.Coo/.t ,tn Cr •. Case: No~ 414-/99 wh.ereby th,c -appellant is allcgeito, .have_ plep-:1ed. guj.lty to the offence and chr3.!'g~,rl w:(.th being ·.dofi:lement, to .-_.-'i_rl,iot c/s .. - 1_3? of _ ., ; .the feI1;-al Cod0,. The . main issue is whether . or. not the appellant had carnal kno·le,dge with. ne J\tupokile d/o Mwakyusa vbile he knew that sh _.wn.s an idiot. Mr. Mwangole Advocate who argued the appe:11 for the appellant contende,l that the facts a,1::J.uced were not clear as the appellant agreed to have h£'..d carnal knowledge. -ith t\tupokile but hG '4.idn not know th,1.t sho was an iiioto He continuej t9 argue __ thnt they were at the church \·ihere he appro-,_checl the said wn;i :,_;md .:he. a.greedo They left together and went to the appellant I s house where(--?~~; cooked the evening meal, they ate and wcm t to bed till the follo,ving day when sh,.) lefta Under the circumstances the appelL--i.nt could not know if s'he was mentally disturbed as she showrcl no si~ns of it and was very co&l, and she was not rapei. Mr. Mwrtr1gole ,thus prayed that th0 cpnviction ant'.. sentenced be quashed as it was an equivocal plea, be pleadeJ.' with the couTt to reduce the sentence if it finds that the plea was not equivocal. On the other hand Mr. Mulokozi for thG Republic bitterly objected to that allegation, stating that going through the court records its obvious that the appellant knew that the said w-Jman was mentally disturbed, because it is specified in the cherge sheet and his plea he clearly states that t!;ae woman was an idiot. Even the facts of the offence clearly stated that the women was an idiot and the cppellant admitted the said facts to be tru.eo The appellant r.id not s2,.y that the women was an idiot even in his mitigation. It was his contention that h legally admitted the offence L'll'i.d was legally convicted of the &-:une.

-2 .As for the sentence Hr. Mulokozi argued that the nppellant was supposed to be sentenced to sevon years imprisonment, but .he was only sentenced to fi 1 /e ye2.rs imprisonmept so there is no reasono of reducing the sentence. Now having gone throuh the procee_cl~~g .. and nrguments for and against the appeal, as aforerhentione: the main issue is whether or not tho appellant know that the said woman was an idiot. From the proceedings its obvious that he knew so elsewise· the appellant I s immediate reaction or defence would be ·•I did not know that she was an icliot ••••••••• o 1 or like worclso But he says he did have ca.renal VJ1owlcdgc with the idiot as she agreed:o. Its true he did not rape hero But under 'B13? of the Penal Code he does not haye 't9, ,rr:;.pe the idiot but have 'knov11ec1ge "that the person he is having carnal knowledge with is an idiot. He coD.ld'.ha.ve even said-this after he3I'ing the facts, a thing which he did not do nor during mitigntion but again he waB silent. ·I belfove that this was merely an aftertbnught for no where did he {mplica.te· that he did not know that the said woman was an idiot despite of having the word idiot mcmtiond in the charge she0t; its particulars ancl i-n the fncts adduce do In view of the above I accorclingly dismiss th,/'appeal for -v-nnt of merito Since the sentence had been confirm0l then I have n,Jt'·1ing more to say , as for as tho sentenc-9 is concerneclo . lt is so. orderedo ,. ; . .. ' i' ' ./).. \ ;,.(' S.A.N., Wamburct PRM (ExoJ.) 1/11/99 ,•,