[2025] UGHC 451

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KAPCHORWA CRIMINAL SESSION NO. 0307 OF 2021

# CRB NO. 384 OF 2020

**UGANDA ::::::::::::::::::::::::::::::::::: VERSUS**

CHEPTOEK KEVIN ::::::::::::::::::::::::::::::::::::

# **BEFORE: HON. JUSTICE LUBEGA FAROUQ** JUDGMENT

#### 1. Introduction:

- 2. This is the judgment in a criminal trial where the accused, Cheptoek Kevin, was indicted with rape contrary to sections 110 and 111 of the Penal Code Act, Cap.128. - 3. Background: - 4. The prosecution case was that on $21/11/2020$ while at Tapchor village in Kapchorwa district, the accused unlawfully had carnal knowledge of Kokop Kissa alias Anna Maria, a woman aged 80 years without her consent. - 5. When the accused was arraigned before court for plea taking, he pleaded not guilty, and the matter proceeded to full trial. - 6. Burden and standard of proof: - 7. According to the locus classicus case of Woolmington v DPP (1935) AC 462, the burden of Proof in all criminal trials lies on the Prosecution all through the trial. This burden does not shift onto the accused except where there is a statutory provision to the contrary. See also: Article $28(3)$ of the Constitution of Uganda, Basita Hussein V. Uganda SCCA No. 35 of 1995, - 8. The standard or threshold required to prove a criminal case against the accused is beyond reasonable doubt as per the decision in the case of Miller V Minister of Pensions [1947] 2 All ER 372.

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9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book **Wharton's Criminal** Evidence (at p. 31, Vol. 1 of the 12th Ed.) as follows:

> "It is difficult to define the phrase "reasonable doubt". However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all $\overline{\phantom{a}}$ the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of *the truth of the charge."*

#### 10. Representation:

- 11. At the hearing of this case, Mr. Wepondi Paul and Ssengendo Sadat appeared for the Prosecution while Ms. Nancy Cheptoek, Cherotwo Laila and Mr. Sam Chepkube appeared for the accused on State brief. - 12. To prove the above ingredients, the prosecution led evidence of three $(3)$ witness, to wit; PW1-Chemtai Betty, PW2-Cherotik Hazard & PW3-Dt/Sgt Chepsiro Kiprono. In addition, prosecution tendered in court PF24 which was admitted as PEX1, PF17A which was admitted as PEX2, PF3A which was admitted as PEX3 and sketch plan of the scene of crime-PEX4. With the catalogue of that evidence, the prosecution closed its case. - 13. On the other hand, the defence called two witnesses that is; DW1-Cheptoek Kevin & her mother called Kipkwamboyi Evelyn-DW2.

### 14. Analysis of court.

15. Section 110 of the Penal Code Act, Cap. 128 provides that-

"Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of *bodily harm, or by means of false representations as to the nature of*


the act, or in the case of a married woman, by personating her *husband, commits the felony termed rape.*

- 16. In the precinct of the above provision, the ingredients for the offence of rape are as follows - a) That there was sexual intercourse with the complainant; - b) That there was no consent of the complainant to the sexual intercourse - c) That the accused is the person who committed the offence in question. - 17. The duty of this court is to establish from the evidence on record whether prosecution has beyond reasonable doubt ably proved all the three (3) ingredients highlighted above. Accordingly, this court will proceed to handle that duty as hereunder;

## 18. That there was sexual intercourse with the complainant.

- 19. Sexual act means (a) penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ; or (b) the unlawful use of any object or organ by a person on another person's sexual organ. Sexual organ means a vagina or a penis. To constitute a sexual act, it is not necessary to prove that there was deep penetration. The slightest penetration is sufficient. Proof of penetration is normally established by the victim's evidence, medical evidence and any other cogent evidence. - 20. The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence, and corroborated by medical evidence or other evidence. (See: Bassita Hussein V. Uganda, Supreme Court Criminal Appeal No. 35 of 1995). - 21. The position of the law is that in sexual offences, the evidence of the victim is always the best evidence. However, where it is not available, other cogent evidence can suffice to prove the act. (See: Badru Mwidu V. Uganda Criminal Appeal No. 1 of 1997). - 22. PW1- Chemtai Betty testified that on the $21/11/2020$ at around 11pm, Kokop Kissa went to her home, woke her up with her husband Siiwa

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Martin and told them that the accused had raped her. That the late Kokop Kissa had blood on her clothes.

- 23. PW2-Cherotik Hazard testified that on 22/11/2022 at around 3am, his neighbor called Siiwa Martin, an immediate neighbor of Kokop Kissa went to his home and reported to him that Kokop Kissa had been raped by Kevin. That Kokop Kissa was in a very bad condition, as blood was oozing from her private parts. - 24. A medical examination report dated 22^nd November, 2020 (PF3A) prepared by Dr. Cherista Isaac, a medical officer, attached to Kapchorwa Hospital shows that the victim's genitals were found soiled with blood, and that the victim had multiple bruises around the vulva and her vagina had blood clots probably caused by sexual assault or blunt objects. - 25. All the above evidence points to the fact that an act of sexual intercourse was performed on the victim. I find that the prosecution was able prove beyond reasonable doubt that an act of sexual intercourse was performed on the victim. - 26. That there was no consent of the complainant to the sexual intercourse - 27. The law provides that rape consists of having unlawful sexual intercourse with a 'Woman without her consent'. In this context, sex without consent is rape. There is no requirement for evidence that the perpetrator used coercion or that the victim failed to fight back. - 28. There is also no need, for insistence that the victim proves that she resisted physically; otherwise, where she cannot or does not want to fight back the perpetrator may walk free. Consent cannot be voluntary, genuine, or willing, and participation in a sexual act is not of an individual's free will or agency, in contexts where positions of trust, dependence, vulnerability and others are exploited. - 29. In the context of this case, 'consent' would mean an individual's voluntary, genuine, and willing permission or agreement to participate in the sexual act and the consent must be assessed in the context of the



surrounding circumstances. To that end, exploitation of positions of vulnerability, trust, dependence and others would be relevant factors. Consent cannot be voluntary, genuine, or willing, and participation in a sexual act is not of an individual's free will or agency, in contexts where positions of trust, dependence, vulnerability and others are exploited.

30. In Words and Phrases Permanent Edition Volume 8A at page 205 some of the decisions referred to therein have held that-

> "Adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute 'consent'. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its immoral character, and the probable or *natural consequences which may attend it.*"

- 31. PW1- Chemtai Betty testified that on 21/11/2020 at around 11pm, Kokop Kissa went to her home. She woke her up together with her husband called Siiwa Martin. She then told them that a one Kevin had forcefully performed a sexual act on her. That Kokop Kissa's clothes had blood on them. PW1 further testified that the victim told her that when the accused broke into her house, he held her neck to stop her from making alarm, and then proceeded to rape her. - 32. PW2 testified that he is the chairperson of Tapchor village. That on 22/11/2020 at around 3am, Kokop Kissa's neighbor called Siiwa Martin went to his home, woke him up and reported to him that Kokop Kissa had been raped, and that she was in a very bad condition. It was further PW2's evidence that during that very night, they went to the accused's home and arrested him. On the following day Kokop Kissa was taken to the hospital for medical examination.

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- 33. The medical examination report dated $22^{nd}$ November, 2020 (PF3A) prepared by Dr. Cherista Isaac, a medical officer, attached to Kapchorwa Hospital shows that the victim's genitals were found soiled with blood, and that the victim had multiple bruises around the vulva, and her vagina had blood clots probably caused by sexual assault or blunt objects. PEX3 also indicates that the victim had a soft tissue injury on the anterior neck. - 34. Based on the medical report, and the testimonies of PW1 and PW2. It is evident that sexual intercourse was performed on Kokop Kissa without her consent. It is therefore, my finding that prosecution ably proved this ingredient beyond reasonable doubt. - 35. That it was the accused who committed the offence. - 36. This ingredient is satisfied by adducing evidence, direct or circumstantial placing the accused at the scene of the crime as the perpetrator of the offence. - 37. The position of the law is that in sexual offences, the evidence of the victim is always the best evidence. However, where it is not available, other cogent evidence can suffice to prove existence of a material fact relating to the offence. (See: Badru Mwidu V. Uganda Criminal Appeal No. 1 of 1997). - 38. PW1 testified that the late Kokop Kissa told her that she was raped by Kevin son of Chelangat. That she was able to identify and recognize Kevin because she was familiar with his voice. That when the accused broke into her house, he held her by the neck, and instructed her to remain silent, or else he would cause harm to her. That the accused also promised to buy for her local brew, and in the process, he forcefully performed a sexual act on her. - 39. PW2 testified that he is the chairperson of Tapchor village. That on 22/11/2020 at around 3am, Kokop Kissa's neighbor called Siiwa Martin went to his home, woke him up and told him that Kokop Kissa had been raped by the accused, and that she was in a very bad condition.

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**CS** CamScanner - 40. It was further PW2's evidence that during the fateful night he went with other residents to the accused's home and they arrested him. Before they took him to police, he was passed via Kokop Kissa's home. That when Kokop Kissa saw him, "she picked a stick and tried to assault him" but they prevented her from hitting him. - 41. Court learnt from the prosecution during the hearing of this case that the victim later died in 2023 after the offence of rape was occasioned on her. This explains why she was not produced in court to testify. PW3- Dt/Sgt Chepsiro Kiprono testified that he recorded a witness statement of the victim. However, prosecution did not tender in court the said witness statement of the deceased. - 42. Normally, a witness statement is inadmissible if the witness does not appear to testify in court, it is regarded as hearsay. However, where the deceased witness made a statement before any person authorized by law to record it, in my view, such a statement becomes relevant and admissible not only as secondary, but primary evidence. - 43. Section 30 of the Evidence Act, Cap. 8 gives a latitude for admission of statements made by person who is either dead or cannot be found as long as his or her evidence is pertinent in proving facts of the case before court. It thus provides that-

"*Evidence given by a witness in a judicial proceeding, or before any*" person authorised by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the *same judicial proceeding the truth of the facts which it states, when* the witness is dead or cannot be found, or is incapable of giving *evidence, or is kept out of the way by the adverse party, or if his or* her presence cannot be obtained without an amount of delay or expense......."

44. In the instant case, all the prosecution witnesses that testified before this court, dispatched to court information which they obtained from the victim, who is now deceased. I have had the opportunity of reading the

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decision of the Court of Appeal in the case of Mayombwe Patrick V. Uganda, Court of Appeal, Criminal Appeal No. 17 of 2002, where it was held that-

> "A report made by the victim to the third parties in a sexual offence where she identifies her assailant is admissible."

- 45. Bearing in mind the above decision, my view is that in the circumstances where the deceased made a prior witness statement relating to the proceedings before court and before her death, such a statement is vital evidence in corroborating the available secondary evidence, be it circumstantial or hearsay as the situation is in the present case. - 46. Further, the prosecution evidence reveals that Kokop Kissa used to stay alone in the house, and that on the fateful incident of her raping happened at night when she was alone at home. In that view, this forms to a fact that Kokop Kissa was supposed to be the single identifying witness for the prosecution. - 47. The law relating to a single identifying witness is well settled. Court can convict on such evidence after warning itself and the assessors of the special need for caution before convicting on reliance of the correctness of the identification. The reason for special need for caution is that there is a possibility that the witness might be mistaken. - 48. In the case of John Katuramu V. Uganda Criminal Appeal No. 2 of 1998 it was held that:

"The legal position is that the court can convict on the basis of *evidence of a single identifying witness alone. However, the court* should warn itself of the danger of possibility of mistaken identity in such case. This is particularly important where there are factors which present difficulties for identification at the material time. The court must in every such case examine the testimony of the single witness with greatest care and where possible look for corroborating or other supportive evidence. If after warning itself and scrutinizing the evidence the court finds no corroboration for the identification


evidence, it can still convict if it is sure that there is no mistaken identity."

49. The test of correct identification was explicitly outlined in Abdala Nabulere & another V. Uganda, 1979 HCB 77, as follows;

"The court must closely examine the circumstances in which the *identification was made. These include the length of time the accused* was under observation, the distance between the witness and the accused, the lighting and the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good then the danger of mistaken identity is reduced, the poorer the quality the greater the danger."

- 50. When PW1 was tasked to clarify what the victim told her which enabled her to identify the accused, she testified that the victim told her that she recognized the accused by his voice. - 51. Both PW1 and PW2 testified that the victim and the accused were neighbors staying in the same village called Tapchor. Their evidence was supported by DW2 who confirmed that both the accused and the victim were staying in the same village. Based on the above testimonies of PW1, PW2 and DW2, it reveals that the victim was familiar with voice of the accused. The unchallenged prosecution evidence is that when the accused broke into the victim's house, he talked to the victim by instructing her not make an alarm, and by promising to buy for her local brew. - 52. It was also the prosecution evidence that the incident of raping the victim started at around 11pm to 3am when the victim went to PW1's house seeking for help. By this evidence, it shows that the interaction between the accused and the victim lasted for a lengthy time. - 53. It is worth noting that no evidence was led by the prosecution to explain whether there was any light available that enabled the victim to clearly identify the accused. I have also observed that no identification parade was conducted by police for the victim to be able to identify her assailant.

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In my opinion, this is a clear case where the identification of the accused was required.

- 54. The accused testified that he was not taken to Kokop Kissa's home for identification; instead, he was taken directly to the police. In situations where the identity of the accused is in question, it is prudent to conduct an identification parade to ensure that the witness correctly identifies the suspect. Therefore, the failure to conduct such a parade, particularly in a case like this where it was necessary, significantly weakens the prosecution's case and disrupts the chain of corroboration. - 55. As stated earlier, the entire testimony of the prosecution witnesses in this case amounts to hearsay. It is a well-established principle of law that hear'say evidence holds minimal probative value. However, it may occasionally be relied upon if the totality of the prosecution's evidence clearly points to the guilt of the accused. In the case of Lugemwa V. Uganda, Court of Appeal, Criminal Appeal No. 216 of 2017, while citing the case of **Badru Mwindu V. Uganda SCCA No. 15 of 1997**, it was held inter alia that-

"Hearsay evidence is only admissible and can only be relied upon if the totality of the prosecution evidence points to the guilty of the accused person"

- 56. Therefore, for court to rely on hearsay evidence of the prosecution witnesses, it is necessary that cogent corroborative evidence is adduced placing the accused at the scene of crime as the perpetrator of the offence. - 57. PW2 testified that upon arresting the accused, he examined him and observed blood around his private parts. The medical examination report (PEX3) indicates that blood clots were found in the victim's vagina. However, it is noteworthy that no forensic DNA profiling was conducted to determine whether the blood allegedly found on the accused matched the blood clots found in the victim. Such scientific analysis would have provided crucial corroboration to the otherwise hearsay testimonies of the prosecution witnesses.

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- 58. Furthermore, PW2 testified that a gumboot allegedly belonging to the accused was recovered from the scene of the crime. Although PW2 is not a police officer, he carried the gumboot to the police and handed it over to them. In addition to the accused denying ownership of the gumboot, it was never presented in court as an exhibit to form part of the evidence. This omission further weakened the prosecution's efforts to corroborate its case - 59. I have cautioned myself on the possibility of convicting the accused on mistaken identity. In my evaluation of the evidence as a whole, and considering the guidance in the Adbdllah Nabulere case (supra), my mind is occupied with skepticism to believe whether the victim was able to identify the accused person as her assailant. More so, in the absence of cogent corroborating evidence pointing to the accused's guilt. - 60. The well-settled position of the law in criminal offences is that doubt arising from the failure of the prosecution to prove a charge against an accused person must as a matter of necessity be resolved in favour of the accused person. (See: FRN v IWEKA (2011) 11-12SC (Pt. I) p. 109, $(2011)$ LPELR-9350(SC) - 61. I am also mindful of the defence put forward by the accused person (DW1) where he testified that on the fateful day while he was sleeping, then he heard the chairperson (PW2) knocking on his door asking him to open. That when he opened the door, he was arrested by the chairperson on the allegations that he had rapped a one Kokop Kissa. He further testified that he was not taken to Kokop Kissa's home for identification, instead they took him direct to the police, from where he was charged with the offence of rape against Kokop Kissa. - 62. DW1 also testified that Kokop Kissa was not a resident of Tapchor village, but his evidence contradicted that of his mother DW2 Kipkwamboyi Evelyn who testified that Kokop Kissa was a resident of Tapchor village, and that upon the arrest of the accused, he was taken to the home of Kokop Kissa for identification.

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- 63. DW2 further testified that on the fateful day, the accused was with them at home. They had supper together, where-after, he washed his legs and retired to his house to sleep. During cross examination, DW2 clarified that she slept at around 10pm, and cannot account for the actions and whereabouts of the accused beyond the time the accused left her home to go and sleep. - 64. It is' settled law that an accused person cannot be convicted merely because his defense is weak. A conviction has to be based on the strength of the prosecution evidence. The Supreme court in the case of Twongo V. Uganda (Criminal Appeal No. 34 of 2028) [2024] UGSC 48 held that-

"The conviction of the accused person should be based on the strength of the prosecution's case, not the weakness of the defence. The court relied on the case of Inerail Epuku S/o Achietu V R (1934) for the proposition that the accused person should not be convicted merely because their defense is weak or incoherent. The prosecution must establish guilt of the accused beyond reasonable doubt, irrespective of the defense's strength."

- 65. I have thoroughly examined all the evidence on record and find that the prosecution has failed to prove the element of the accused's participation in the commission of the offence of rape as charged. I therefore concur with the joint opinion of the assessors, who advised me to acquit the accused. - 66. In the result, I hereby acquit the accused of the offence of rape. He is accordingly set free, unless if he is held on other lawful charges. I so order.

**LUBEGA AROUO** Ag. JUDGE

Judgment delivered in open court in the presence of the accused person and advocates for both sides on the 24^th day of June, 2025.