[1996] UGHC 76

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MASAKA

CRIMINAL SESSION CASE NO. 36 OF 1995

**UGANDA** .......... PROSECUTOR

$V \triangleq R_S S U_S S$

FRED KAPEEKA $\cdots \cdots \cdots \cdots \cdots \cdots \Lambda \text{CCUSED}$

THE HONOURABLE MR. JUSTICE I. MUKANZA BEFORE: RULING

This ruling arises as a result of a submission of no case to answer. The accused Fred Kapeeka was indicted with the offence of Rape contrary to sections 117 and 118 of the Penal Code Act. The particulars being that on the 2nd day of July, 1993 at Kasanga village in Rolai District the accused did have unlawful carnal knowledge of Proscovia Musimenta without her consent.

The prosecution in support of its case some evidence was admitted under S 64 (3) of the Trial on Indictment Decree. This evidence was generally to the offect that the accused was examined as to his age and mental state. He was found aged 24 and a normal person and there was further evidence as to the arrest of the accused person and his subsquent detention. There was also evidence that PC Kowanguzi of Rahai Police Post received the complainant who was complaining of rape case and a statement was recorded from her and was sent to Hospital for medical examination.

The first prosecution witness $\tau_{\text{C3}}$ Doctor Vetima John PW1 attached to Kalisizo Hos. Ital was see testimony was to the effect that on 10th July, 1993 examined Musquenta the complainant whom he found aged 49 years. She complained of having been raped on 2nd July, 1993. On examining her there

were no bruises anywhere on her body. There wore also no tender marks either on the thighs or vulva but she had. low abdonenal pain. There were no signs of voncrial disease. Ho then made reference to see Medical from ⁵ which gave history of the complainant having been raped on 2nd July, 1993 and examined. And because of the medical fom P5 he did not go ahead with the vaginal examination. His observation and impression was that it was ^a rape case. Shen crossexamined PW1 replied that the complainant told him that she had been raped ⁸ days back because of that there was no purpose" in examining her. Without medical fora ⁵ there was no way ho could-have come to conclusion of rape.

The prosecution in fact failed to summon- the complainant despite the several adjournments granted to it. This being ^a part heard caso which fea.turod in the last criminal session and the learned counsel closed its case as further adjournments were refused.

Tino learned counsel appearing for the accused person submitted **that** the accused had no case to answer on the ground ( that the evidence on record doos not establish a prima facie case. The essential ingredients of the offence had not been proved. The medical.evidence doos not at all amount to evidence of sexual intercourse. Dr. Wetima. did not properly examine the alleged **victim.** but only read the contents of medical fom ⁵ which was **hearsay.** He prayed that his client be acquitted.

IJi **cases** of rape **the** prosecution has the burden to prove \ beyond. reasonable doubt the following ingredients of the offence

**(l) There** must bo penetration of the man's penis into the woman's v.agina. The slightest penetration f.s enough. See 'Hclsbury Laws of Englands. ¹¹ th Edition Vol. II page.65.3 para 1228.

- ² -

- (2) The second incredient is the obsence of consent of the woman. See Upar vs Uganda 1971 EACA p 98, and Nakholi vs Republic 1967 EACA page 337. - (3) And the third ingredient 19 the participation of the accused person.

$-3-i$

And a submission of no case to answer could be upheld on the following grounds:

- (a) where there has been no evidence adduced to prove the essential elements in the alleged offence. - (b) Where the prosecution evidence has been so discredited in cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

For all the referred to ingredients see the case of Uganda vs Alfred Atek 1974 Hatt v R 1957 p 332, Hirimu v Rep. 1967 EA 542 and Odur Vs Republic 1969 EA page 373 a prima facie case must be one in which a reasonable tribunal properly directing its mind on the law and evidence could convict if no explanation is offered by the defence.

In the instant case no evidence has been adduced to prove the essential elements of this offence of rape. The doctor's evidence does not show that there was any penetration of the male organ into that of the complainant. In fact the doctor was basing his findings/ examination on the examination carried out on medical form 5. The author of medical form 5 who in essence carried out the medical examination was not called as a witness and the reference to his/her examination by PW1 the doctor was to say the least hearsay evidence. And to crown it all the victim was not called as a witness. $\mathbf{It}$ cannot therefore be said that she was sexually intercoursed by a man having his penis inserted into her vagina. See Upar vs Uganda, Nikholi vs Ropublig supra. So the questions whether the complainant consented to the act of sexual intercourse and whether it was the accused responsable do not in my humble opinion arise.

As a matter of fact a reasonable tribural propert

As a matter of fact a reasonable tribunal properly directing its mind on the law and evidence adjuced in this case could not convict the accused if he offered no explanation to the alleged charge of rape.

In the premises I associate myself with the submission of the learned counsel appearing for the accused in that the accused person has got no case to answer and as such I uphold his objection. And because of what I have stated above I find the accused not guilty of the offence of Rape contrary to section 117 and 118 of the Penal Code and I acquit him of the charge forthwith and unless he is being held for any other offence I order for his immediate release.

SGD.

13.6.96: Accused before court.

Mr. Ogwal RSA present.

Mr. Segirinya on state brief appearing for the accused.

Assessor: Mr. Kakeeto.

Court Clerk - Mr. Kitaka.

Court: Ruling is read in open court and signed.

$/\mathrm{cn}_{\bullet}$

SGD. I JUDGE. 13.6.96.