[1993] UGHCCRD 32

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA.

HOLDEN AT MBALE.

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and the set is a

CRIMINAL SESSION CASE NO. 13 OF 1993.

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..... PROSECUTOR $UGANDA$ $\cdots$ $\cdots$ **VERSUS:**

A1: ISAYA GUDOI .................................... A2: JOHN MAFABI ....................................

BEFORE: THE HON. MR. JUSTICE S. G. ENGWAU.

... UDGMENT and (SI) of the

$\mathcal{L}(\mathcal{L}) = \mathcal{L}(\mathcal{L})$

The 2 accused persons, Isaya Gudoi (A1) and John Mafabi (A2) are charged in separate counts with rape contrary to sections 117 and 118 of the Penal Code Act. It is alleged that both Isaya Gudoi -A1 and John Mafabi, A2 on 20.11.88 at Bumboi village in the Mbale District, each had unlawful carnal knowledge of Sauya Kasede without her consent.

The victim of the alleged rape, Sauya Kasede (PW2) testified that on 20.11.88 at around 10 a.m., she was on her way to Bumboi village to get some native drugs from PW3, her native doctor when she met 2 strangers now the 2 accused persons in this case. This 10 was at a distance of about 300 metres away from the main Mbale-Tororo Road. She did not see any homes in the vicinity except $\cdots \cdots \cdots$ banana plantation.

As she approached the 2 accused persons, immediately #1 held her by the neck while A2 grabbed her hands. Both accused led her 15 into the said banana plantation where they removed all her clothes and she remained naked. The 2 accused persons threatened to strangle her to death in case she attempted to raise an alarm. The banana plantation was about 100 metres away from the path she was following at the material time. Frightened as she was, they put her down. 20 Then she heard A2 say, "Gudoi you have sexual intercourse with her first". She identified the said "Gudoi" in court as A1.

While A1 was having sexual intercourse with her, A2 was. holding her down to the ground. She alleges that it took A1 some time before completing the act. Thereafter, A2 in turn started 25 having sexual intercourse with her while A1 was also holding her down on the ground. After A2 had also finished, she was given her half petty only to put on. Both accused then took her by force into a house just after the banana plantation.

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She was pushed into a small room therein where her hands were tied with a white piece of cloth and some cloth also put into her mouth. A1 then got a panga with which he threatened to cut her in case she made an alarm. Both accused then retired into a sitting-room where they started arinking some alcohol. ..... FOTT. AYIVE

$\cdots \mathcal{Q} \cdots$ $\begin{array}{ccccccccccccccccccccccccccccccccccc} \hline & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &$

When it was getting dark, the 2 accused persons untied her hands and the cloth in the mouth was removed. Still A1 threatened to cut her with the said panga if she made an alarm. A2 in that small room again had sexual intercourse with her for a second time. As soon/he had finished, she heard him tell A1 that he (A2) was going away. She saw A2 take away her pair of slippers and cash of Shs $150/-$ and went away.

A1 who remained with her in the house had sexual intercourse with her transnight. In the morning, A1 got hold of her clothes, namely a skirt and one long sleeved blouse and went away, leaving 15 the door open. She grabbed that chance, managed to get out and started running towards the home of her native doctor, PW3. She was dressed in the half petty only. She found PW3 at home and narrated the whole story to him. PW3 offered her a gomas of his wife to wear and took her to the R. C. of the area. The R. C. gave her a letter and $\overline{20}$ both PW3 and her reported the matter to Mbale Police Station on 21.11.88.

When the made the report to the Police, she was given an escort of 3 Policemen to go back to the house where she was forcibly made to spend the night. A1 was found at that home and he 25 was immediately arrested. The house was searched and the said blouse and skirt were found therein. She identified the blouse and skirt in court which were tendered in as exhibit Pl.

When A1 was arrested and the said clothes recovered, the party went back to Mbale Police Station. She was then given a letter for medical examination and treatment at Mbale Hospital. The doctor, PW5, examined and treated her. Before the incident, she alleges that she had not yet had sexual intercourse with any man. She claimed to be a virgin by then and that she felt so much pain in the vigina and the body when both accused persons had sexual 35 intercourse with her in turns while holding her tight on the ground.

$... / 3$

$\cdots \cdots$

$10$

$5$

However, she denied having consented to the alleged sexual intercourse and also denied that the 2 accused persons were her boyfriends before the incident. and the part of a Stand

j.

In the testimony of PW3, he admitted that he is a native doctor in his area and that $PW2$ , now the victim of this rape case was his patient. On 21.11.88 at around 9 a.m., he was amazed to see PW2 come to his home while crying and very dirty. She was dressed in half-petty only and he immediately inquired what had happened to her. After cooling her down, she narrated the whole story as stated by PW2 above. After receiving her complaint, PW3 took her to Mr. Moses Guloba, the R. C. of the area who gave them a letter with which they reported the matter to the Police at Mbale Police Station.

In his evidence, PW1, the R. C. Secretary for defence, confirmed that in November, 1988 on a date he could not remember, a team of Policemen in the company of the complainant - $PW2$ and her father found him selling some banana in a place along Mbale -Tororo railway line for the purpose of arresting the 2 accused persons. One Policeman introduced himself and his team and he saw one Policeman armed with a gun. He was informed of the allegation of rape by the 2 accused persons. He was with one Moses Guloba another R. C. at the material time. The witness and the said Moses Guloba knew the 2 accused persons very well before the alleged incident. He admitted that A1 hails from another village but A2 comes from his village.

The witness and the said Moses Guloba led the Police team to the home of Al. When approaching the home the victim - $PW2$ and one armed Policeman remained behind. He led the rest to the home at about 10.00 a.m. and they found Al and his brother one John present. One Policeman introduced himself, informed A1 of the allegation of rape and the team forcibly arrested him as he tried to resist the arrest. The witness then went back leaving Al being taken to Mbale Police Station.

The Police investigating officer, $\frac{PW4}{}$ , testified that on 21.11.88 at around 2 p.m., he was working at the counter at Mbale 35 Police Station when the victim, $\overline{PW2}$ reported that she was raped. After satisfactory interrogation, he reported the matter to his boos, the Officer-in-charge Criminal Investigation Department.

$... / 4$

He was directed by the said boss to lead a team of Policemen and the victim to go and agrest the suspects. At Bumboi village where the alleged incident happened, they reported to the R. Cs of the area who led them to the home of Al. They found Al at home, informed him of the purpose of their visit but resited the arrest. However, being re-enforced by the R. Cs A1 was arrested after all. A search into his house was jointly mounted with the R. Cs. Al was looking on while standing at the door but hand cuffed after the search. One blouse and a skirt were found underneath a mat on Al's bed. The witness identified the blouse and skirt already tendered as exhibit Pl. $10 \cdot 10^{-1}$

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$\sim$

$\cdot$ 35

On the material day, A2 was not arrested because he took off when he learnt of the Police presence. Al was then taken to Mbale Police Station with the items tendered as exhibit Pl. However, the R. Cs of the area were left with Police message that A2 also be arrested and be take. to the Police at Mbale Police Station. 15 How A2 was subsequently arrested, the witness did not know.

The doctor, PW5, who examined and treated the victim stated that on 21.11.88 he received a Police Form 3 in respect of a rape case on PW2. He examined her and found her of the apparent age of 20 years old. She was strong and capable of putting up some form of resistance. She had a freshly raptured hymen of less than one week prior to the examination. She had also injuries and inflamation around her vagina. She had a tear on the left labium majus and this was consistent with having been sexually used. All the injuries mentioned were of less than one week old. She was on her period at the time of examination. In his opinion, the rapture of the hymen must have been caused by use of a penis. Medical examination report was tendered in court as exhibit P.2.

Briefly, that was the case for the prosecution. The defence case for Al is that on 21.11.88 at around 11 a.m., one Policeman in the company of R. C. officials from a neighbouring village of Bumboi found him at home. The Policeman informed him that they had come to arrest him on the allegation that he had raped a girl. He resisted the arrest on the ground that R. C.s of his area were not present. He was overpowered and tied "kandoya" style with a rope on the verandah of his kitchen.

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The Policeman, R. Cs and the victim went inside his main house but was surprised to see them come out with some clothes allegedly found under his bed. He denied having any knowledge of such clothes being in his house. He also denied knowing A2 or the victim. However, he suspected the team which went to arrest him to have been 5 hired by $PW3$ , When $PW3$ was treating his (Al's) wife, it turned out that PW3 started making love affairs with her which act he said he strongly disapproved but never reported the same to any R. C official of the area or at all.

On the other hand, A2 in his defence testified that in the $10$ night of December, 1988 he was a party to the patrol of their village. He does not recall the exact date, but at around 3 a.m. his village patrol-mates turned against and arrested him on the ground that young men in the village of his like bring Policemen in the village. He was taken and detained in their Sub-County Headquarters for 3 days 15 before appearing in court. He too denies knowing Al. Both Al and A2 did not call any witness.

The learned defence counsel for Al rightly pointed out the elements of rape as laid in John Kayibanda Vs. Uganda (1976) HCB 253 to include:- carnal knowledge of a woman or girl and lack of 20 consent. It is the duty of the prosecution to prove these two elements beyond reasonable doubt.

It is the submission of the defence Counsel that according to the evidence on record, the prosecution has failed to prove beyond reasonable doubt that Al had committed rape. Evidence of 25 PW2 that she was led to a nearby banana plantation is unbelievable on the ground that it was not corroborated. The prosecution failed to give evidence of the scene of crime whereas the Police arrested Al just next to the alleged place of crime.

The learned Counsel submitted that there are major $\frac{30}{2}$ inconsistencies and contradictions which destroy the basis of this case. <u>PW4</u> exhaustively informed court of what <u>PW2</u> told him but did not say that the victim also told him that Al raped her the whole night. $\frac{PW4}{H}$ said that $\frac{PW2}{H}$ reported to the Police dressed in a $-35$ "lesso" but/said she was dressed in a "gomas." $\mathcal{L} = \mathcal{L}$

$\cdots \cdot /6$

It is further submitted that the blouse and skirt allegedly found in the house of Al cannot be true because the way in which they are said to have been found is unbelievable. The victim had the opportunity to raise alarm during the transaction but did not do so. Medical evidence has no probative value as it does not pin point Al with the offence. The fact that hymen of the victim was found raptured in itself does not connect Al with the offence.

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In his submission, the learned Counsel for A2 stated that on the allegation of rape, corroboration is required: Lawi Ongweya Vs. R (1964) E. A. 129. It is his contention that in the instant case, there is no corroborative evidence on the allegations made by PW2 independent of her accusation.

The learned Counsel then featured on the contradictions which in his opinion destroy the case. He pointed out that whereas 15 PW2 said that she went in the company of 3 Policemen to arrest the 2 accused persons, PW4 said there was only one Policeman. Again PW2 said that both accused were arrested at the home of Al but PW1 and PW4 said only Al was found and arrested. PW2 said she reported the matter to the Police while meaning a "gomas" given 20 to her by PW3 but PW4 said she reported on a "lesso." As A2-: was arrested by village-mates, evidence of arrest is contradictory and incosistent. Also evidence of $PW3$ is that $PW2$ and her father and himself reported the matter to the Police but PW4 says that 25 PW2 and her father only reported the matter.

In conclusion, the learned Counsel argued that evidence of PW2 in regard to identification of A2 is not corroborated and as such she did not identify A.2.

It is the contention of the State prosecutor that a case of rape against Al and A2 is proved beyond reasonable doubt. Evidence 30 of the victim PW2, asserts that on the material day, Al and A2 raped her in the banana plantation and also inside Al's house. It is submitted that element of penetration of vagina without consent is proved by the evidence of the victim herself, PW2 and the doctor who examined her, PW5 and the medical report to that effect, exhibit P2. 35

$\cdots$ ./7 It is also the submission of the State Counsel that Al and A2 had carnal knowledge of PW2 without her consent. Evidence of the victim PW2, the doctor who examined her, PW5, her native doctor to whom she made the first report, $PW3$ and the medical report, exhibit $P2$ all proves the element of having carnal knowledge without consent. In fact evidence of PW3 is that PW2 went to his home half naked, crying and dirty which negatives an assertion of consent: Uganda Vs. Opio Richard (1986) HCB 19.

$\overline{7}$

As regards corroboration, the learned State Counsel relied on the principle laid in Njunguna s/o Wangurimu Vs. R. Vol. XX 1953 at page 196. It is her submission that corroboration is a rule of practice rather than rule of law. However, in the instant case, evidence of $PW3$ that $PW2$ went to his home half naked, crying and dirty corroborates $PW2$ . Evidence of $PW4$ who recovered the blause and skirt of PW2 in the bed of Al, exhibit Pl is yet another corroborative evidence which is not effectively challenged by the defence.

On the issue of any contradictions, it is submitted that these could arise out of lapse of time and weakness of memory. However, the contradictions complained of by the defence are minor and should be disregarded. The defence is a total denial. Al said that he never knew PW2 before the incident and yet he says PW2 had a grudge again: t him. The so-called grudge between Al and PW3 should also be disregarded because it is not only untrue but because also he did not report the alleged love affairs between PW3 and his wife to any authority. In any case Al has no wife as per evidence of $\overline{PW4}$ . Worse still Al says he does not know A2 yet A2 used to drink at his home quite often. It is on the basis of all that the defence total denial of the offence charged does not hold water.

Having heard both sides, it is to be noted at the outset that the essentials of the offence of rape are carnal knowledge of a woman or girl and lack of consent and both these ingredients must be proved beyond reasonable doubt by the prosecution in order to be accepted by the court before a conviction for rape can be arrived John Kayibanda Vs. Uganda (1976) HCB 253. at:

In the instant case, the testimony given by the victim - $\frac{PW2}{BW2}$ is that Al and A2 on 20.11.88 had marnal knowledge of her in turn both in the banana plantation and in the house of Al. Evidence of the doctor who examinaed $PW2$ on 21.11.88 is that she had a freshly raptured hymen. She also had injuries and inflamation around her vagina. In addition, she had a tear on the left labium majus which was consistent with having been sexually used. All these injuries at the time of examination were less than a week old. In the doctor's opinion, the rapture of the hymen must have been caused by use of a penis. Medical report to that effect was tendered as exhibit P2. In the light of all that this court is satisfied that somebody had had carnal knwcledge of PW2. She was a virgin according to the evidence on record before the incident happened. Evidence of PW2, PW5 and exhibit $P2$ reflects that assertion.

$10⁴$

At this stage, evidence on record must esstablish the person(s) who had unlawful carnal knowldge of PW2. Her evidence is that on 20.11.88 at around 10 a.m. she met A1 and A2 in Bumboi village on her way to the home of $\overline{PW3}$ who was her native doctor since 1987. Al held her by the neck and A2 held her hands. The 2 accused dragged her by force into a nearby banana plantation where 20 they stripped her naked and started having sexual intercourse with her in turn. After that both accused by force took her to a house in the vicinity which house she later learnt to be that of Al. Again in that house Al and A2 had sexual intercourse with her.

$\mathbb{V} \subseteq \mathbb{R}^n, \quad \mathbb{V}^n \subseteq \mathbb{R} \subseteq \mathbb{R}^n.$

In the morning of 21.11.88 when she was availed the 25 opportunity to escape, she started running towards the home of PW3 dressed in a half petty only. Evidence of PW3 is that on 21.11.88 at about 9 a.m. PW2 went to his home half naked, crying and dirty and immediately informed him that she was raped. $PW3$ who comes from the same village with Al, knew him for a period of over 10 years. 30 He was therefore able to identify the house in which $PW2$ was raped. According to PW2, when Al and A2 first took her into the banana plantation, she heard A2 say, "Gudoi you have sexual intercourse with her first." In court, she identified the said Gudoi as Al. When Gudoi had finished to have sexual intercourse with her, she heard him say, "Mafabi I have finished with her you also do your part." $35.$ Again she identified the said Mafabi in court as A2. When she ran to the home of $\overline{PW3}$ , she mentioned those names to him as the people who raped her ard as PW3 knows both accused persons, he was able to identify them not only in court but also assisted the Police in that regard in their investigations leading to the arrest of Al and A2.

$... / 9$

In fact evidence of $\underline{\rm PW1}$ also goes to prove the identities of both Al and A2 taking into account that he was R. C. Secretary for defence. w wings and

As this offence was committed on 21.11.88 at around 10 a.m., in broadday light and the victim faced the ordeal until it became $1\leq i$ dark, this court is convinced that she had more than ample time $5$ for the identification of Al and A2. Moreover Al spent the whole night with her until the following morning of 21.11.88 at 9 a.m. when she escaped and reported the matter to PW3. Evidence of PW1 and PW3 supports the evidence of PW2 in the identification of both accused persons. Evidence on record points a finger on Al and A2 as 10 **Station** the people who raped the victim, $\overline{PW2}$ .

Having said all that, the next ingredient is that the prosecution must prove beyond reasonable doubt that Al and A2 had carnal knowledge of PW2 without her consent. Evidence of PW2, PW3, <u>PW5</u> and the medical report exhibit $P2$ as outlined above proves that the 2 accused persons had carnal knowledge of PW2 without her knowledge.

On the issue of corroboration, the principle isthat testimony given by the victim of a sexual offence requires corroboration or else the court should warn itself of the danger of convicting 20 without such corroboration. Having so warned itself, the court may convict in the absence of corroboration if satisfied that her. evidence is truthful. In the instant cast, this court has taken this precaution in mind. According to evidence of $PW2$ , this court would convict Al and A2 of the offence charged even when there was 25 no corroboration because her evidence is trutnful. However, there is corroboration of her evidence in the testimony of <u>PW3</u> and <u>PW4</u> and exhibit Pl, which puts this court to a safe corner for conviction. The defence submissions that there is no corroboration in the present case do not 30 hold water.

Regarding contradictions and any inconsistencies as submitted by both defence Counsel, in a nutshell this court agrees with the State Counsel that they are minor and ought to be disregarded and they are hereby disregarded. The gentlemen assessors also share the same view.

In conclusion, this court finds that the prosecution has proved beyond reasonable doubt that Al and A2 have committed the offence of rape contrary to sections 117 and 118 of the Penal Code Act and convict them of the same accordingly.

$\cdots \cdots / \mathbb{10}$

The gentlemen assessors also in their opinions share the same view and advised court accordingly which opinions the court readily accepted in the circumstance of the case. Both accused are guilty of rape as charged and convicted accordingly.

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10.8.93: Both accused present in court. Mr. Ochwo for Al is dead. Mr. Owori for A2 present. Khiisa for the State present. . Judgment delivered in open court.

> S. G. ENGWAU **JUDGE**

## $10.8.93.$

Khiisa: Both accused persons have no known records. They are to be treated as first offenders. However, this is a very serious offence which at the time of its commission carried a maximum sentence of life imprisonment. The circumstances in which the offence was committed were most brutal to the victim and most demeaning her person as $26$ she was a young girl and virgin. She was lucky to actually get married.

> Female community must be protected from the likes of the accused persons. Pray for the maximum sentence be imposed on both accused persons. In case that does not 25 succeed, in R. Vs Lachman Sigh (1947) E. A. C. A. XIV 56 where 2 rapists who before raping the girl, gugged her mouth to stiff off her cries for assistance, were sentenced to 9 years 7 months' imprisonment with hard Appeal against sentence was dismissed. 30 labour.

> > S. G. ENGWAU JUDGE

• $...$ . . . . . /11

I am a sick person who now under goes treatment. A1: I move by use of boda-boda people. I leave the $\;$ whole matter to court.

## S. G. ENGWAU JUDGE

## Mr. Owori for A2:

A2 is 32 years old now. Has been on remand custody for 5 years. Married with 3 children. He is repentant for what happened. Custodial sentence which should not keep him too long be imposed.

S. G. ENGWAU

**JUDGE**

Court: Each accused is sentenced to 7 years' imprisonment with 4 strokes of the came. Female society must be protected and with Aids now at its peak, deterrent sentence would keep rapists out of the society for the better.

$20$

Ifrin S. G. ENGWAU **JUDGE** 8.8.93.

$SGE/eg$

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$19.$