In the notes on the Penal Code Law, made by Richardson, it is explained that in
the definition of rape as above, the first paragraph operates where the woman is
in possession of her senses and therefore capable of consenting; the second,
where she is insensible or so imbecile that she is incapable of consenting; thethird
and fourth where there is consent but it is notsuch consent as to excuse the
offender because in the one case it is extorted and in the other it is obtained by
deception: and the fifth, where the intercourse is with a girl so young that
consent is immaterial.
For the prosecution to sustain aconviction of the appellant under Section 283 as
above, the ingredients of the offence must be established.that is to say
(a)that the accused had sexual intercourse with the woman in question.
(b)that the act was done in circumstances falling under any of the five paragraphs
in Section 282(1) of the Penal Code.
(c) that the woman was not the wife of the accused or if she was, she had not
attained puberty;
(d) that there was penetration.
My Lords, penetration in a case of rape is very important. My Learned brother,
Ogunbiyi, resounded the position of the law that penetration, however slight,
suffises. The medical doctor who testified as PW5 started that there was partial
penetration. The most important ingredient in rape is penetration. It is settled
that sexual interference is deemed complete, upon proof of penetration of the
penis into the vagina.It was held in the English case of R. U. Marsden (1891) 2 QB
149 at 150, per Lord Coleridge, C.J. that emission is not a necessary requirement.
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