[2025] UGHC 498

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE CRIMINAL SESSION NO. 0135 OF 2024**

### **CRB NO. 212 OF 2023**

**UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTION**

#### **VERSUS**

**HIGENYI MUHAMMAD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::ACCUSED**

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

#### **JUDGMENT**

#### **1. Introduction**

2. This is the judgment in a criminal trial where the accused, Higenyi Muhammad, was indicted with the offence of rape contrary to sections 110 and 111 of the Penal Code Act, Cap.128.

#### 3. **Background**

- 4. The prosecution case was that on the 24th day of August, 2023 while at Doko cell, Namatala Industrial Division in Mbale City, the accused person, Higenyi Mohammad unlawfully had carnal Knowledge of Mutebi Zainabu, a woman aged 27 years old without her consent. - 5. The accused 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**.

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 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. Ms. Asiimwe Racheal, State Attorney represented the Prosecution while the accused was represented by Ms. Nancy Cheptiek and Mr. Ntuyo Shafik on State brief. - 12. To prove its case, prosecution called three witness, to wit; Mutebi Zainah (PW1), No. 56287 D/C Ahabwe Stidiya (PW2), and AIP Afuyo David Patience (PW3). It also tendered in court the sketch plan of the scene of crime (PEX1) and the medical examination report of the victim PF3 (PEX2). With the catalogue of that evidence, prosecution closed its case. On the other hand, the defence called two witnesses, that is; Higenyi Muhammad (PW1) & Kanyere Rajab (PW2).

## **13. Analysis of court.**

14. 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.*

- 15. 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.* - 16. 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; - 17. *That there was sexual intercourse with the complainant.* - 18. According to Section 116 (7) (b) of the Penal Code Act, Cap. 128, a sexual act is defined to mean-

*"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."*

- 19. 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 victim, PW1-Mutebi Zainah testified that on the 24/8/2023, at about 2am, the accused broke into her house, and forcefully had sexual intercourse with her. That after the encounter of forcefully sex, she started bleeding profusely from her vagina. She telephoned her sister in law called Sandra who came, and took her to the hospital, where she was

put on PEP, and also given contraceptive pills to prevent her from becoming pregnant.

- 22. PW3 AIP Afoyo David Patience testified that sometime in 2023, as he was working as a medical clinical officer at Mbale Police Health Centre III, he received the victim of rape called Zainah Mutebi. He examined the victim, and found out that the victim had an old raptured hymen with fresh tender injuries. He told court that the cause of fresh tender injuries found on the victim was due to recent sexual intercourse. - 23. A medical examination report of the victim dated 24th August, 2023 (PF3A) prepared by Afoyo David Patience, a medical clinical officer, attached to Mbale Police Health Centre III shows that the victim's genitals had old raptured hymen with fresh tender bruises probably caused by recent forceful sexual intercourse. - 24. All the above evidence point to the fact that an act of sexual intercourse was performed on the victim. I have no doubt that the prosecution was able to prove this ingredient beyond reasonable doubt. - 25. *That there was no consent of the complainant to the sexual intercourse* - 26. 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. - 27. In this context, **'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.

28. In the 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."*

- 29. PW1-Mutebi Zainah testified that on the 24/8/2023, at about 2am, while she was in her house sleeping, one of her twin children started crying. She woke up to find out why the baby was crying. She switched on the light of her itel phone, only to see a shadow of a person seated on the bed. - 30. She was shocked, and asked herself how that person could have entered the house. She flashed the light of her Itel phone to that person, and observed that it was the accused. She tried to make an alarm, but the accused had a knife, he warned her not to continue making alarm, otherwise he would cause harm to her. - 31. PW1 further testified that she fought with the accused, and in the process, the accused held her mouth. The knife which the accused was holding cut her on the hand. The accused then removed his trousers, got out his penis and inserted it into her vagina. - 32. Immediately after the accused person having sexual intercourse with the victim, he left. The victim was left in pain. She was profusely bleeding from her vagina. That the victim was left in shock because she never expected the accused to do what he did to her. - 33. The medical examination report of the victim dated 24th August, 2023 prepared by Afoyo David Patience, a medical clinical officer, attached to

Mbale Police Health Centre III shows that the victim was in a fair general condition, but she looked repressed and traumatized. Further, that the victim's genitals had old raptured hymen with fresh tender bruises probably caused by recent forceful sexual intercourse.

- 34. PW2-No. 56287 D/C Ahabwe Stidiya testified that on 23/8/2023 when she was working at Namtala Police Station as the CID standby, the victim, Mutebi Zainah reported a case of rape against her by Higenyi Muhammad. She interviewed the victim, who told her that the accused broke into her house in the night of 23/8/2023 at around 2am, and forcefully had sexual intercourse with her. - 35. Based on the medical report, and the testimonies of PW1 and PW3. It is evident that sexual intercourse was performed on the victim without her consent. It is therefore, my finding that prosecution ably proved this ingredient beyond reasonable doubt. - 36. *That it was the accused who committed the offence.* - 37. 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. - 38. The victim (PW1) testified that on the 24/8/2023, at around 2am, while she was sleeping, one of her twin children started crying. She woke up to find out what had happened to the baby. She switched on the light of her Itel phone, only to see a shadow of a person seated on her bed. - 39. She then flashed the light of phone towards that person, and observed that it was the accused. She tried to make an alarm, but the accused had a knife, and he threatened her to stop making the alarm, or else, he would injure her. - 40. It is evident from the testimony of PW1 that she was the only witness who saw and identified the accused during and or after the commission of the regrettable offence. The other undisputed fact is that the offence against the accused herein was allegedly committed at night. - 41. The circumstances of this case therefore call for consideration of the legally laid criteria for proper identification. 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 necessitating caution is that there is a possibility that the witness might be mistaken in identifying the accused. - 42. 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."*

43. The test of correct identification was explicitly outlined in **Abdala Nabulere & another versus 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."*

- 44. In the present case, the victim told court that she identified the accused when she flashed the light of her itel phone on the accused's face. In cross examination, the accused told court that when she flashed the light on the accused, he slapped the phone and it fell down. This would mean to me that the flashing of the light did not take along, if at all it happened, because the length for which the activity took place was not explained in the prosecution evidence. - 45. It is of concern that the phone which the victim used to flash the light on the accused's face was not exhibited in court. This phone remained with the victim after the incident, I have not found anywhere in the prosecution evidence where it is mentioned that the accused ran away with it after the incident. - 46. Therefore, for avoidance of doubt in the mind of court which is expected to administer justice based on the law and facts presented before it, it would have been evidentially desirable that the phone used by the victim to flash and identify the accused is exhibited in court to buttress the victim's assertion that she actually identified the accused. - 47. In the worst circumstances, prosecution would have tendered in court the photo of the phone which was allegedly used by the victim. Otherwise, PW1's evidence remains unsubstantiated, and this court will treat it as a conjecture. - 48. PW1 also testified that when the accused left after raping her, she called her sister in-law called Sandra, who came and she narrated to her what had happened. Sandra comforted her, and told her to be strong. That PW1 was traumatized, she became unconscious, and was taken to the hospital. She was feeling headache and pain all over her body. PWI further testified that she felt like committing suicide because she felt like her dignity as a woman had been destroyed. - 49. In the case of Mayombwe **Patrick V. Uganda, Court of Appeal, Criminal Appeal No. 17 of 2002**, 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."*

- 50. Prosecution did not call Sandra to corroborate PW1's evidence that she properly identified the accused person as her assailant. Since Sandra was the first person to receive a report from the victim about her predicament, her evidence would have been vital to buttress the evidence of PW1, if at all she revealed her assailant to her. - 51. The law requires that the evidence of a victim in a sexual offence is carefully evaluated if court is to solely rely on it without any other material corroborative evidence. In the case of **Okello Geoffrey Vs. Uganda, [2014] UGCA**, the Court of Appeal held that-

*"Evidence of a victim in a sexual offence is evaluated like any other evidence in a trial and for Court to base a conviction on un corroborated evidence of a victim of a sexual offence, the test to be applied to such evidence is that it must be cogent. The cogency itself is determined after a full evaluation of the evidence including whether or not the victim is a truthful and reliable witness. It goes without saying that if the evidence adduced of the victim is worthless, no conviction can be based on it but that if it is credible, a conviction can be based on it even if there is no corroboration."*

52. In the present case, I note that apart from the victim's evidence, there were no extra steps taken by the investigating officer to investigate the veracity of the victim's allegations. PW2-No. 56287 D/C Ahabwe Stidiya just visited the scene and had a conversation with victim, and nothing more. In modern criminal justice system, the police are expected to take extra steps when investigating sexual offences. There is a need to carry out forensic analysis on the DNA, fingerprints, swap etc. to ensure that the accused is scientifically placed at scene of crime. This has a clear role to play in the successful prosecution of sexual offence cases, otherwise many perpetrators of sexual crimes will continue to a walk away freely.

- 53. Again, PW1 and PW2 testified that when the accused learnt that the victim had reported the matter to police. He disappeared from the community, and returned after one month. Two days later, the police arrested him. - 54. The Supreme Court held in the case of **Uganda V. Ahaisibwe Derrick & another SCCA No. 0325 of 2022** that-

*"Disappearance of an accused person from the area of a crime soon after the incident may provide corroboration to other evidence that he has committed the offence. This is because such sudden disappearance from the area is incompatible with innocent conduct of such a person."*

- 55. In his defence, accused (DW1) testified that he was arrested from his home, and that he has never disappeared from his village. Kanyere Rajab (DW2) testified that both the victim and the accused were his neighbors at the time of the occurrence of the alleged offence. That he is aware that the accused has never disappeared from the village as was alleged by PW1 and PW2. - 56. The accused testified that he is related to the Victim's husband called Mutebi Mutwalib, and that both used to stay in the same village at Doku Cell, Namatala ward, Industrial Division, Mbale City. He further testified that he is being charged with the offence of rape of the victim because of the business misunderstandings he had with the victim's husband. He also attributed his predicament on the incident where he went and picked a television set from the victim's house to compensate for the money he owed to him by the victim's husband. This position was accentuated by DW1 who told court that he was aware of the animosity between the accused and the victim's husband. - 57. The revelations from the evidence of DW1 and DW2's testimonies point at existing animosity/grudge between the accused and victim's husband which was confirmed by the victim. - 58. In the case of **Ramesh Chand Singh & Ors V. The State of West Bengal & Anr on 23 September, 2021,** it was held that-

*"In case, where solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold."*

59. Also, in the case of **State of Haryana V. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426],** the Supreme Court of India held that-

> *"Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the court is enjoined to exercise its inherent jurisdiction to quash the proceedings."*

- 60. In the view of the above, this court cannot rule out the possibility that these criminal proceedings against the accused person for the offence of rape could have been actuated to wreck vengeance on the accused. This court cannot be used as a tool for settling personal grudges. Therefore, upon thorough examination of all the evidence on record, I find that the prosecution has failed to prove to the satisfaction of court the element of the accused's participation in the commission of the offence of rape as charged. - 61. In the result, I concur with the joint opinion of the assessors, who advised me to acquit the accused. Therefore, 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 FAROUQ Ag. JUDGE**

*Judgment delivered in open court in the presence of the accused person and advocates for both sides on the 10th day of July, 2025.*