Madege v. R. Crim. App. 565-D-71; 18/2/72; Onyiuke, J.

 

Madege v. R. Crim. App. 565-D-71; 18/2/72; Onyiuke, J.

The accused in this case was served with notice to show cause why the sentence passed on him should not be enhanced. He in the interval appealed against his conviction and sentence. He was charged with and convicted of rape c/s 130 and 131 of the Penal Code, and was sentenced to 12 months’ imprisonment and 12 strokes of corporal punishment.

            Held: (1) “I have, firstly, to consider the correctness of the conviction. I think the conviction cannot stand. The evidence as to rape was not satisfactory. The complainant (P.W.2) stated under cross-examination that she was ‘raped’ but there was no evidence what she meant by that or of the facts which amounted to the alleged rape. Throughout her examination in chief the complainant did not allege that the accused had any sexual intercourse with her. In a charge of rape there must be evidence of penetration of the penis into the vagina though actual emission of seed is not necessary. The term ‘rape’ as used by the complainant ma amount to penetration or not. In view of this ambiguity I will order a retrial of the case and I will remit it back accordingly. The complainant must state clearly what the appellant did to her and it will be for the Court to decide whether this was rape or not.” (2) Appeal allowed. Conviction and sentence are hereby set aside. Case remitted to the District Court of Iringa District for trial ‘de novo’ before another Magistrate of competent jurisdiction.