Republic v Zebadayo (Criminal Revision 2 of 1979) [1981] TZHC 2455 (11 May 1981)

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Republic v Zebadayo (Criminal Revision 2 of 1979) [1981] TZHC 2455 (11 May 1981)

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Citation Republic v Zebadayo (Criminal Revision 2 of 1979) [1981] TZHC 2455 (11 May 1981) Copy Media Neutral Citation [1981] TZHC 2455 Copy Court High Court of Tanzania Court registry High Court Mbeya Registry Case number Criminal Revision 2 of 1979 Judges Samatta J Judgment date 11 May 1981 Language English

Summary

Flynote

• CriminalPractice and Procedure Charge of rape Girl under 14 years-Whether proper under law-Section 131 of the Penal Code. Criminal Law-Defilement-Absolute offence Section 136(1) of Penal Code

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Case summary

Accused was convicted and sentenced to two years' imprisonment on his own plea of guilty to the charge of rape. It was alleged that the accused raped a 4 5 year-old-girl. Later the magistrate referred the case to the High Court for revision minuting that the proper charge was supposed to be defilement and to rape. Held: (i) a person may be charged with the offence of rape irrespective of the. age of the girl because the law does not fix any age below which consent is impossible; (ii) the offence of defilement is an absolute one and consent constitutes defence.

Order

Though not without regret, I think it would make the law appear as an ass to the man on the UDA omnibus, a thing which it is not, to drag the accused back to the prison after more than two years have elapsed since he regained his personal liberty. I think it would not serve the interests of justice to enhance the sentence at this very late hour. I devoutly hope that the prison authorities succeeded in making the accused believe that he is better out of prison than in it

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