[1938] EACA 110
The Court found that, based on the evidence, the appellant's conduct amounted to defilement rather than rape. The girl's testimony regarding being promised money and the circumstances in which they were found supported this conclusion. The fact that the girl cried out during the act did not necessarily negate...
Source-derived case information.
- Citation
- [1938] EACA 110
- Parties
- Appellant: Farasisiko Sheshaho; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Ct. App. No. 105 of 1938.
- Procedural Posture
- Criminal Appeal / Appeal From Conviction
- Outcome
- appeal_dismissed_with_variation
- Judges
- Hayden J, Lane, Ag. J, Sheridan CJ
- Legal Topics
- Rape, Defilement, Consent in Sexual Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Farasisiko Sheshaho
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction
Legal Issues
- 1 Whether the conviction for rape was proper given the evidence and charges.
- 2 Whether the conviction should be substituted for defilement based on the facts and charges.
Ratio Decidendi
The Court found that, based on the evidence, the appellant's conduct amounted to defilement rather than rape. The girl's testimony regarding being promised money and the circumstances in which they were found supported this conclusion. The fact that the girl cried out during the act did not necessarily negate consent, as it may have been due to pain. Given the doubt regarding consent, the proper conviction was for defilement. Since the appellant was charged with both rape and defilement, the Court was competent to substitute the conviction for defilement and set aside the conviction for rape. The sentence imposed was deemed not excessive and was upheld. The appeal was dismissed with the...
Court Disposition
appeal_dismissed_with_variation
Orders
- Conviction for rape set aside and substituted with conviction for defilement.
- Sentence to stand as imposed.
Full Case Text
Judgment text and source record
11 paragraphs
## COURT OF APPEAL FOR EASTERN AFRICA
### Before Sir Joseph Sheridan, C. J.; HAYDEN, J.; and LANE, Ag. J. (all of Kenya).
#### REX. Respondent (Original Prosecutor)
# FARASISIKO SHESHAHO, Appellant (Original Accused) Cr. App. No. 105 of 1938.
### Appeal from conviction by H. M. High Court of Uganda
### Criminal law—Rape—Defilement—Conviction of rape altered to one of defilement.
The accused appealed from a conviction of rape. He had been tried on two charges $(a)$ with rape, and $(b)$ with defilement. The Court of Appeal was of opinion that on the facts the question of consent must be in doubt.
Held (18-7-38).—That as the trial was on two counts one of defilement and the other of rape, it was competent for this Court to substantiate a conviction of defilement for the conviction of rape. (R. v Yonasani (4 E. A. C. A. 29) distinguished.)
Appellant, absent, unrepresented.
Dennison, Crown Counsel (Kenya), for the Crown.
JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—From the facts of this case, we are of the opinion that the offence committed by the appellant was defilement and not rape. The girl's evidence that she was promised cents by the appellant and the position in which they were found more than strongly point to such conclusion. The fact that the girl cried out in the course of the act does not necessarily negative consent on her part. She probably cried out owing to the pain she was suffering at the moment. Putting it at the lowest the question of consent on the facts must be in doubt. Consequently the proper finding, we consider is defilement. Reading the case of Rex v. Yonasani (4 E. A. C. A. 29), it seems clear that this Court found itself unable to substitute a finding of defilement for rape for the reason that the accused had not been charged with defilement and that it was not competent to find defilement on a charge of rape. Here the appellant was charged on two counts $(a)$ with rape, and $(b)$ with defilement and we substitute a conviction for that offence and set aside the conviction for rape. The sentence, we consider is not excessive and will stand. With this variation in the conviction the appeal will stand dismissed.