[1994] UGHC 76

# THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## CRIMINAL SESSION NO, 226/1992

AT TEE SESSION HOLDEN AT MBARARA

. PROSECUTOR.

ACCUSED ¹ I • ¹ ¹ ^I GEOFREY WILSON KARAMBUZI:

The Honourable Mr. Justice E. S. Lugayizi JUDGMENT

40 waa indicted for the offence of defilement contrary to section follows The accused herein i-e. GEOFREY WILSON KARAMBUZI a year old male of Katesi village, Kyehare in Bushenyi district) 123(1)of the Penal Code Act. The particulars of the indictment

# PARTICULARS of offence

t st n re., *a girl* under ember, 1990, at Kateizi village, GEOFREY WILSON KARAMBUZI, on or about tha 23rd'day of in Mutura sub-county, it^hji ; Bushenyi District, unlawfully had sexual intercourse with Jover age of 18 y

he denied having committed the offence in issue. accused, Hi ilii When the said Indictment was read and explained tc thej-A.

The in a hid prosecution in turn^v led evidence from four witnesses to prove that the accused committed the said offence.

The district in December, 1990\* j\*¹ 'ⁱ first witness for the prosecution was No! 248 Sergeant county administration police, Ruhinda county in Bushenyi Wilson Muhanga, a Protestant who was attached to Mutura sub-

Thio nzitnes 1990, at around 5.00p»m related tn court that on the 23rd of he received the accused from itjie sutjceunty chief of Kyebase who was called Kabatcrane.

Ab the same time, there were three girls who came with the said group. One of them was Tusasirwe (P32) whom the witness gave a Police Form 3, to take to a doctor for examination.

PW2 took the form (which this 'witness identified at the hearing) and returned it the following day. This witness then forwarded the accused and all the relevant documents of this case I' ^I to Bushenyi Police Station, " •

Finally, this witness also revealed, thcvt at the time of the above events, PV72 had bruises on the neck. Further, the other V two girls revealed to this witness that they were defiled by some other persons and not the accused.

The second prosecution witness was a young girl aged 17 year\*-, whose name was Jcvet Tusasirwe. In her sworn testimony before court, she revealed that she was born on the 4th of June, 1977, ^j ^| ^j . |; |-k . land did not know the Accused until the 23rd of December, 1990•

While she lived in ITye.kateve village, she eventually came (.t(o know that the accused was from Kyebare village which was about I. three miles away from her village.

On 2i;?d 19>"1. at around 7.5Ca.m., this witness went tc Kitezi village to collect some grass to use for Christmas decoration. She was accompanied by two other girls namely, Mazir ^a and Musimenta. Both of the said girls were younger than she was.

The witness and the said two gdrls found the grass they wanted just by the road side near the enclosure which marked off III fidj ' -I''.- - Sempa's farm. They did not enter the said enclosure, but remained outside of it and collected the said grass.

As they were doing so, the a.ecused who came with two boys ^I ⁱ '; arrived. He was holding a panga, and axe and a saw. He threatened the said girls, saying that th?y had encroached upon his land. The girls denied it.

**2**

The accused then ordered them all to lie down with their faces facing the ground. The girls complied.

Eventually, the accused put his panga, axe and saw, down, near the enclosure of the form and came and took PW2 by the hand He also instructed his boys to pick a girl each.

The accused took PJ2 across the road in a bush near Sempa dip tank, tore off her under clothes, knocked her down and forcibly had sexual intercourse with her. She made an alarm, but no one answered it. There were no people nearby.

After the above, the accused then went for FW3 whom she grabbed by the neck, whereupon, PW3 rebuked the accused in apparent anger.

At this point. PW2 ran to the road and went to call for! help. On the way, she found Tumanyirwe, and three others. On of these others was called Major, while the other two were both called Charles. She related to them what had befallen them.

The above group rashed to the scene of crime and found the accused cutting timber. On seeing the group, the accused ran away.

The said group gave chase up to Sempa's house where the accused ran through the kitchen and finally took refuge in the house.

Mrs. Sempa advised them to go and report the matter to the authorities. The above group then went off and looked for the sub-county chief called Mr. Kabatereine.

After some effort, they found the said chief on his way returning home. They briefed him about what had happened.

Soon after the above, and arising out of an earlier alart which the witness had heard, the accused was brought before the said chief. The chief advised that the accused should be taken to Sempa who was his master.

The group complied, but was again told by Mrs. Sempa to take him to the authorities.

The said group now took the accused to the Gombolola chief who heard the matter and eventually gave FM2 a letter to enable her to go to hospital for treatment.

FW2 went for treatment at Mutema. Health Centre three days after the incident in issue, and later on to Nyachibale hospital. She finally revealed that as a result of being defiled by the accused, she felt a lot of pain all over the body. She bled through her private parts, but sustained no physical injuries such as scratches etc. She denied having been given Police Form 3 by any police officer.

The third witness for the prosecution was Mezirwe Kolly, a young girl aged 16 years who comes from Nyakatete village in Bushenyi district.

She told court that her father was Byabagambi and FW2 and Musimenta were her sisters. She did not know the accused before the incident in issue.

This witness generally confirmed FW2's evidence relating to the first part of the events which took place on the 23rd of December, 1990 at the scope of crime. She however added, that while PW2 was led away by the accused from the place where the three girls were collecting grass, on her part, she was grabbed by one of the accused's boys who took her a gerden which was behind a bush and had sexual intercourse with her there.

This witness continued that at that time, she did not see what happened to TW2, nor heard anything from the direction where the accused had taken PW2. She also revealed that PW2 did not return to them after she was taken away by the accused. However, the accused came back later and found P#3 and Musimenta. He then forcefully had sexual intercourse with FM3. After that, PW3 and Musimonta, who were now crying went home where they found PW2, their brothers, namely Charles Muzinya, Captain, Tumwine, and some other people whose names she did not know.

$E_F$

The said group ;-.\?nt ■:?; uhe scene of crime and found . Accused cutting a tree, They chased him and the accused Sempa's house where Krs. Sanrpa denied having him around. II ^I n¹ 'in

Eventually, P?/3 witnessed the arrest of the accused by the chief who sent them all to the Gombolola Headquarters where the accused was detained.

Later, this witness went for medical treatment.

In cross-examiiKition, this witness could not estimate distances well, Sho also said Kaiiana who was sick on the clay that her father was Emmanuel

Fin illy j, si; ; rovealcd to court that she hoard Ptf2 making an alarm after the accused had taken her scene of crime; and that later, PW2 came before she finally left them st the said away from, them at back to where IplB;' scene.

The fourth prosecution witness was Muzinya Charles, aged 26 years; and comes from Nyakatete village in Bushonyi district\*

The said witness related to court that on the 23rd day of crying one of crime. She was bleeding. Pv/2 then told this witness J.efLied. However December, home

go ue x¥2fs friends the shelved this witness the &.ccus and the two boys who had were gathering firewood defiled- them. The accu^edand his The witness decided to :?d way. They were also crying two girls (PWJ and Musimenta) orb| The three now proceeded to the ; ^>

At this point, •i- and the said two girls were joined by Runana and Tumwinc\* tried to arrest the accused and hi group, vid hide in . Mrs. Sempa's house

and instead wanted? id his group to then,

PW4 and his group then reported the matter to the RCI chairman and the Muluka chief. Subsequently, accused was arrested by the sub-county chief and detained at the sub-county headquarters.

During cross-examination, PWL revealed that when he and his group went to the scene of crime, they failed to arrest the accused and the two boys. This was because they $\cdot$ threatened to cut them with a panga and did not ran away until more people had gathered. He also disclosed that PW2 did not arrive at the scene of crime, until after the accused and the two boys had threatened to cut this witness and his group.

At the end of the above evidence, the prosecution closed its case. In turn Mr. Zehurikise (pounsel for the accused) submitted that there was no case to answer and that his client should be acquitted.

He was of the view that the contradictions in the prosecution evidence and absence of medical evidence rendered it difficult to believe that PW2 was defiled on the day in issue; and that it was the accused who did it.

Mr. Wagona (counsel for the state) differed and was of the view that the prosecution had made out a prima facie case requiring the accused to come to his defence. He argued that evidence even in the absence of medical evidence and corroboration, PW2's / was strong enough.

After considering the above arguments, I ruled that there was a prima facie case which would require the accused to cometo his defence; and promised to give my reasons later on.

My only reason for ruling as I did, was simply that going by the authorities such as Bhatt v. R [1957]E. A. 332 and Wibiro alias Musa vs. R [1960]E. A. 184. I felt that PW2's story in itsel: (which was to the effect that the accused defiled her) provided strong evidence at the particular point of the case.

$\frac{1}{7}$

### $\epsilon$ Knowing that "a prime facie case" was not the same as "a case proved beyond reasonable doubt". in the face of PW2's evidence, I thought that it was necessary that the accused should come to his defence. After explaining to him his rights under S\*71(2) of the T.l. D, the accused opted to make an unsworn statement in which he ■■'..■..1:1 the offence.

The State ^v e-. ^c.lGijcc then made final submissions which were not *very* different from there earlier that here, the accused's advocate conceded that the complainant was below 18 years of offence in issue was committed. submissions, excepti • that it was olpyipus.i ji age at the time the'.

I then summed up to the assessors and told them that this was a case which depended solely on the complainant's evidence• I warned them of the danger of acting on uncorrobora.ted evidence of the complainant and advised them, that it xvas desirable for them to look for sc-im; <ir.de>. :>e ndent evidence which supported the- . complainant's story ooforc advising court to convict.

I'M : ⁱ • Hi ^l also advised thum that in case they failed to find such1' corroborative evidence, that they could still convict if they wore wholly satified that the evidence\* was truthful.

I then directed them on the burden of proof <that.it> rested upon the prosecution and never shifted to the accused throughout the case, and that the quantum was proof beyond reasonable doubto

At the end of my summing up to thorn? one of the assessors advised me to convict and the other co acquit the Accused-

According to Halsbury's Laws of England (3rd Id.) Vol. ! 10 pgo 112/|. paragraph 143 8, and Archbold, Criminal Pleading^ ! ' ij.ji; Evidence cad ¹'r. , (38th at pg. 1121 pa-' xgvaph carnal knowledge of a woman or a girl or sexaa' interc with a woman or a girl (which is the heart of the effe /- had ."3sue) iszonce there is penetration, however slight, of the

From the above therefore and S. 123(1) of the Penal Code Act, it would appear that in order to obtain a conviction in this case, the prosecution is supposed to prove the following ingredients beyond reasonable doubt,

- (i) that there was unlawful sexual intercourse experienced by the completimant (PW2) on the day in issue; - (ii) that the complainant was a girl under the age od 18 years at the time of the offence; and - $(iii)$ that it was the accused who was responsible for the unlawful sexual intercourse experienced by the complainment.

As regards the first ingredient above, the prosecution case basically rested on PM2's evidence which was to the effect that on the day in issue, she was defiled in a bush at Katizo village ne r Sempa's dip tank. (No one else claims to have seen that , where $\mathbb{I}$ is the mass of the mass of end of the $\mathbb{I}_0$ make matters term, there is also no medical evidence to support $272$ 's Classical

The quastion therefore, is whether the proceed then can bely on FW2's evidence alone to prove the above ingradient?

According to the case of Chila v R [1967] N. W. 727. it would be dangerous to act upon PW2's story above, in a public of this nature (i.e. a sexual offence case) unless such story was corroborated by some other independent evidence, or, in the alternative, it was fully confirmed that in every was such a story was timic.

Having understood the proroguisites to acting upon FW2's ptory, the next question is whether it is possible to say in this case that one of those (pre-requisites) was met in PW5's oridence to the effort that she noticed 202 walking in a stronge number soon after the alleged incident:

$...10$

- And in PW4'^s ffect that he saw PW2 bleeding soon after the alleged event?

My answer to the oing question is it is in ray ihis can be relied upon was defiled on the entertain doubts as to whether PW3\*s view not possible /O PW4's evidence above,:¹ ^I ^I ' ⁱ li ^I ltd corroborative of PW2:s testimony that she,H

found the said two witnesses quite unreliable in their testimony. say, I

I led ² and that their father was Bv-; nn.i i3otr from PW2's and that her father called Runan ged and said th point this witness told court that PW2 and another girl will examine PW3's evidence in the above respect first At one

that she did not see PW2 again nor did she PW3 changed her story re and said that she heard PW2 making an alarm after she was to the spot where PW3 nd Musimenta were before she finally went home. PW3 told court that she did not hear anything from ene where the girls had been collecting grass, PW3 continued the direction where PW2 was taken. Later, aken away; amd that later on PW2 returned know • ||| what happened to PW2 when PW2 was forcefully taken away |f■rpm tli|k(

of people beginnin Later name that was being suggested to him by the defence counsel PW4 number as 3 (apart from the girls). from his village who went to the scone of crime. ^jSoguantiy was admitting evcry also contradicted himself a lot concerning the number ^&lt; M ^I

Tha above apart^f both and FW4 contradicted themselves in respect of a number of things in their evidence ywexample, while PW3 told court that after the Musimenta by saying that he found the said girls near the scene of crime found PW4 and others at home. PW4 contradicted this alleged crime, she and when he went to rescue them

runcher, rwy toka pourt that on redunning of the besite of crime they found the accused alone cutting a tree. PW4 contradicted this by saying that the accused was with two boys and were collecting firewood.

Again these two witness differed on what took place at the scene of crime and at Sempa's home. While PW3 did not talk of any confrontation between their groups and the accused's group at the scene of crime. PW4, painted the picture of a battle in which the accused and his group resisted arrest and wanted to cut those in the other group with a panga.

Finally, at Sempa's home, while PW3 told court that the accused went through Mrs. Sempa's house. TWA revealed that the recused ran into the kitchen and remained there and Ars. Sempa who wanted to beat the group refused to release him to them.

With the above increasivencies and contradictions in their avidence, I find it difficult to say that PW3 and PW4 were reliable witnesses whose evidence (as pointed out earlier) could corroborate W2's lone story.

As pointed out above, in the case of Chila v R (supra), the fact that FW2's story is still uncorroborated at this point, does not shut out the other alternative of acting upon it (after warning myself of the danger of so doing) if I am satisfied that ein every may, in miss be the bruth?

The question to be next now, is whether I am so satisfied; and my short enswer is that I am not.

I am compelled to answer in the negative because of three reasons. First of all, there is an unexplained contradiction between IWN's and FW2's evidence. PWN told court that on the day in issue to gave PW2 a Police Form 3 to take to a doctor. PW2 took the said form and returned it filled up by the doctor the next day. Hewever, PW2 contradicted this and said she has never been given a NM3 by any police officer.

To me this was an important area of the presecution case, at we have left in total confusion as to which of the said two

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witnesses was telling the truth here!

Secondly, according to FW2, she was hurting all over the alleged crime, yet this witness was able to walk more than five miles up and down after the event, as they chased around the accused and finally ended up at the Gomboloka Headquarters. And sick as sho was, she did not go to hospital until 3 days after the alleged event? Was such conduct typical of a small ri girl who was in pain all over the body after being sexually | assaulted? I really doubt.

With all the above in mind, I cannot say that I am fully satisfied that the complainant's story that she was sexually assaulted on the day in issue, is true in every sense.

I therefore cannot act upon it without corroboration.

In the circumstances, the first element of the offence identified above, has not been proved by the prosecution.

If that is the case, then the whole of the prosecution case collapses at this juncture. It would not be useful for me to go on to discuss the rest of the elements pointed out above.

I accordingly agree with Mr. Rwabambari (the first Assessor) that the prosecution has failed to prove its case against the Scoused be ond reasonable doubt.

As a result, I have no choice but acquit the accused of the offence of defilement and order his immediate release unless h is being held on some other lawful charges.

$c$ $a$ , $2$ E. S. Lugayizi $()$

$Ag.$ J U D G E $20/7/1994$

## Read before:

i cused present. . Zehukirize for the accused Wagons for the State Mr. Katunda Court/Clerk.