Omari v. R. Crim. App. 127-A-71; 9/7/71; Kwikima Ag. J.

 Omari v. R. Crim. App. 127-A-71; 9/7/71; Kwikima Ag. J.

The appellant was convicted of attempted rape c/s 132 of the Penal Code. The evidence was to the effect that he grabbed the complainant, threw her down, tore her under pants and laid on her. The complainant stated however, that he did not unbutton his trousers in preparation of penetrating her private parts. The issue then was whether or not the appellant’s acts amounted to attempted rape.

Held: (1) “[The] Resident Magistrate who tried this case overlooked the only issue, which was whether the appellant’s act amounted to an attempt to rape the complainant. From the proven facts it is quite clear that appellant’s act did not constitute an attempt to rape the complainant. The case of R. v. Haruna Ibrahim 1967 H. C. D. 76 is an authority on this issue. The brief report of that case reads:- “Accused was convicted of attempted rape (c/s 132). The evidence was that he had dragged the complainant to a ditch, placed his hand over the mouth and pulled down her underclothes while lying on her when he was observed by a passerby and fled. There was no evidence that at the time he fled, (he was) undressed. The acts of the accused did not constitute attempted rape, since he had not yet undressed. Rather, the acts constituted mere preparation for that crime

            The acts however did constitute the crime of indecent assault (s. 135 (1) P. C.) A conviction for indecent assault was substituted under section 185 of Criminal Procedure Code).” In the present case the appellant did not undress.” (2) Following the Haruna Ibrahim case (supra) the appellant’s conviction is hereby quashed and in substitution therefore he is convicted of indecently assaulting the complainant.