R. v. Mgena. Crim. Rev. 80-M-71; 5/11/71; El-Kindy J.

 

 R. v. Mgena. Crim. Rev. 80-M-71; 5/11/71; El-Kindy J.

The accused was charged and convicted by the District Court of attempted rape c/s 132 of the Penal Code, Cap. 16. The complainant was a married woman and in an advanced stage of pregnancy. The accused had chased the complainant and pulled off her kitenge cloth as she ran, leaving her naked. She fell down and the accused began to remove his trousers. There was nor evidence that he had produced his male organ.

            Held: “I agree with the learned magistrate that, by going through this process, the accused exhibited intent to have sexual intercourse against the wish of the victim. But, with more respect, I do not think that the accused had reached the stage of putting into effect his intent. He had just prepared himself, and he was at that stage when his efforts were frustrated although it is not clear, from the evidence, how he was frustrated. With respect, therefore, I am satisfied that the charge was not proved.” (2) “However, the facts left no reasonable doubt that what he did amounted to indecent assault contrary to section 135(1) of the Penal Code, Cap. 16. He may not have made an oral indecent suggestion, but his conduct left nor reasonable doubt that he made an indecent suggestion of sexual intercourse. And the assault consisted in taking away her cloth leaving hr in naked stage.” (3) Conviction for attempted rape contrary to section 132 of the Penal Code, Cap. 16, quashed and the sentence set aside. Conviction for indecent assault c/s 135 (1) of the Penal Code substituted.