R. v. Salim s/o Abdallah, Crim. Rev. 1-D-70, 14/1/70, Mustafa J.

R. v. Salim s/o Abdallah, Crim. Rev. 1-D-70, 14/1/70, Mustafa J.

The accused was charged with indecent assault, contrary to section 135(1) of the Penal Code and was instead convicted of rape, contrary to section 131 of the Penal Code. Evidence was adduced by the complainant that while she was asleep one night, she was suddenly awakened by finding someone lying on top of her, and she then believed she had been sexually assaulted as she found seminal fluid on her vagina and her thighs.

            Held: (1) “Rape carried a sentence of life imprisonment, whereas indecent assault carries a maximum of only fourteen years’ imprisonment. Rape is certainly not a minor offence to indecent assault. Section 181 (1) of the Criminal Procedure Code allowed a cognate and minor offence to be substituted in certain cases.

The provisions of section 185(1) of the Criminal Procedure Code allow a person charged with rape to be convicted of indecent assault, but not the reverse.” (2) “Even on the evidence adduced, there does not appear to have been rape. There was no evidence of penetration. In the circumstances, I substitute a conviction for indecent assault against the accused, as originally charged, and set aside the conviction for rape.”