[1996] UGHC 24

#### THE REPUBLIC OF UGANDA

HON JUSTICE MANDH LINUE

### IN THE HIGH COURT OF UGANDA AT SESSION HOLDEN

# AT LIRA

## CRIMINAL SESSION CASE NO. 21/96

$UGANDA$ ....................................

#### -versus-

BENSON MOLO...................................

BEFORE: -TUE HONGURABLE MR. JUSTICE G. M. OKELLO.

### JUDGMENT

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The accused in this case was called Molo Benson. He was indicted on a charge of Rape contrary to sections 117 and 118 of the Penal Code Act. The particulars of the offence alleged that Molo Benson on the 20th. day of June 1995 at Owac village in Lira District had unlawful sexual intercourse with Madorin Adero Alwang without her consent. When the charge was read and explained to him, the accused pleaded not guilty thus setting in issue all the essential elements in the offence charged. That meant that all the essential elementsin the offence of Rape had to be proved beyond reasonable doubt if a conviction were to be achieved against the accused.

The essential elements requiring proof beyond reascnable doubt in the offence of Rape are:-

- (a) that there was sexual intercourse with the complainant. In this regard, there is need to prove penetration of the man's penis into the complainant vagina. - (b) that the complainant did not consent to that sexual intercourse. - (c) that it was the accused who had the sexual intercourse with the complimant without her consent.

The law places the burden of proving the above ingredients to the required standard on the prosecution. In the instant

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case, the prosecution called the evidence of five witnesses to discharge the burden of proof placed on it by Law. The evidence of Dr. David Okello (PW1) and that of Dr. Obua(PW2) both of Lira Mospital were additted at a Preliminary hearing under section 64 of the TID. The Report made by each of the two Doctors was received in evidence under that section 64 of the TID and were marked respectively as Exp P1 and Exp. P2, The complainant Maderine Adero testified as (FW3). Her son in law to whom she made the first complaint also testified as PW4. The local Vice Chairman of R. C I to whom PW4 led the complainant gave evidence as PW5.

The accused gave evidence in his defence. In that evidence he raised the defence of alibi. That he was not at the scene of crime and therefore did not conwit the offence.

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On whether there was unlawful carnal knowledge of the complainant, there are the evidence of the complainant herself PW3 and the evidence of Dr. Obua PW2 who medically examined the complainant two days after the alleged The complainant Moderine Adero PW3 testified that rape. on 20/6/95 at about 8.00 p.m. she was returning from a visit to her son in law when on the way somebody caught her and forcibly had sexual intercourse with her. According to her, her assailant caught her and held her by the throat. That despite her struggle, he overpowered her and had sexual intercourse with her. It was her testimony that the assailant ejaculated into her vagina twice. Then That after she regained her she later became unconscious. consciousness, she returned to her son-in-law's home one Tom Omara and reported to him.

Omara Tom (PW4) confirmed that her mother in law the complainant who had visited them during the day, had left for her home at 8.00 p.m. but returned at 1.00 a.m. to complain that she was raped. On checking, he observed that she had a swelling of the neck and that her voice was corse. He further added that she was muddy with her clothes torm. Tom Omara (FN4) further testified that on seeing the complainant's condition, he took her to the Local R. C Charles Ali (PW5). The said Local council, Charles Ali PW 5, confirmed that Omara Ton brought the complainant to his home where she complained to have

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been raped. According to FW5. he examined her and observed bruises on her neck, chest and groin.

The above evidence of PW4 and PW5 as to the complaint made to them by the complainant are merely evidence of the complainant's consitency in her complaint. But their evidence as to the distressed disposition of the complainant may offer corroboration of her story. But this is not a very good corroboration as it could not implicate the accused with the commission of the offence.

Then there was the evidence of Dr. Obua PW2. The evidence was admitted at a Preliminary hearing. According to the Report Exh P2 made by the Doctor after examining the complainant two days after the alleged rape, there were scratch marks on her right side of the neck. The report added that there was no seminal fluid in the complainant's vagina.

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The above evidence of Dr. Obua tended to contradict the evidence of the comelainant who testified that her assailant had forcible sexual intercourse with her for two consecutive rounds at each of which he ejaculated into her vagina. The evidence of Dr. Obua that he examined the complainant two days after the alleged rape and found no seminal fluid in her vagina clearly condicted the evidence of the complainant. This throws doubt as to with there was really sexual intercourse with the victim. Indeed, I am aware that in law sexual intercourse is proved once there is evidence of penetration of the man's penis into the complainant's vagina however slight. The medical evidence in the instant case did not state whether there was penetration despite the absence of the seminal fluid in the complainant's vagina. The two evidence created doubt on this issue.

The law regarding corrboration in sexual offences is that once the trial judge warms the Assessors and himself of the danger of acting on the un corroborated evidence of the complainant, he may proceed to convict on the uncorroborated evidence of the complainant if he is satisfied that her evidence is truthful. In the instant case; there is no corroborative evidence to the complainant's evidence $\omega_{22} = C^{\infty}$ that there was sexual intercourse with her. It is un safe to act on un corroborated $\vec{r}$ $4 \times \cdot \cdot \cdot / 4$ .

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On whether there was lack of consent on the part of the complainant to the sexual intercourse, I agree with counsel for the prosecution that there is ample evidence pointing to that direction. The evidence of the complainant (PW3) indicated that she did not consent to the sexual intercourse. The evidence of FW4 and FW5 who examined her soon after she reported to them indicated that they observed signs of violence on her. They testified that they observed her muddy, with bruises on the neck, chest and groin. The medical report made by Dr. Obta FW2, who explined her two days after the alleged Rape on her, confirmed that there were scratch marks, on the right side of her neck. All the above indicated violence which may be explained on resistence or struggle by the complainant. This is evidence of lack of consent.

As regard to whether the necused was the person who committed the offence, there is only the evidence of a single identifying witness. And that is of the complainant (PW3). The prosecution is therefore relying on the evidence of identification by a single witness. The law governing evidence of identification by a single witness is fairly setted. It is that where the prosecution rolies on the evidence of a single identification witness, the court must treat that evidence of identification with much $\frac{equation}{\text{Deberg}}$ before basing a conviction on it and where circumstanees favouing borrect identification are lacking, corroboration should be sought. See Abdalla Bin Wendo and Anor. Vs. R $(1953)$ 20 ACA 166.

In the instant case, the complainant testified that the incident happened at night at about 8.30 p.m. The evidence regarding the lighting position had not been quite clear. PW3 first testified that there was bringt moon light. But later told court that when she walked slowly to the home of her son-in-law - Tom Omera, after the attack on her, her son in law got out and lit a grass torch to see the injuries on her. This evidence suggested that if there was moon light it was not at all bright. This evidence was confirmed by PW4 who enswered in QANGS examination that he used a grass torch to observe the conditions of her mother inlaw. Again PW5 also stated that when the conclaimant was brought to his

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home he hed to light a tadoba to observe the bruises on her.

The above evidence indicated that the lighting condition was not quite good. The moon light was therefore either not bright as PW3 claimed or not there at all. It was conceeded that the complaimant had known the accused before. But in the poor lighting condition without evidence that the accused had talked to give the complainant the chance to recognise her voice, I on unable to say that the conditions favouring correct identification were present. In my view the conditions and difficult:- there was poor lighting condition and there was struggle. In thoseconditions, it would be unsafe to rely on the evidence of the single identifying witness as the possibility of a nistaken identity could not have been ruled out. There was therefore need for corroboration which is not available.

I did observe the compleimant as she testified before me and I must confess that she did not impress me as a witness of truth. Mirst of all, on the lighting condition of the night, she said that there was a bright moon light. But she later told court that when she walked to the home of PW4 after she had been raped, PM4 lit a grass terch to observe her condition when she was lying outside his door. This latter statement indicated that the night was dark.

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Secondly, when she talked about the severity of the attack on her, the compleinant told court that she became unconscious in the second bout the rape but that she still saw the accused when he got out of her though her eyes were not fully open. These are incredible statements. If she was unconscious she could not have seen her assailant. But if she had regained her consciousness at 1.00 a.m, she could have seen her attacker leaving her only when her eyes were fully open not otherwise.

In the whole, I found this witness un reliable and I do not believe hor. In the end I agree with the second Assessor George Ario who advised that the prosecution had not proved their case against the accused beyond reasonable doubt. The accused is therefore found not guilty and acquitted of the offence of rape.

He will not be found guilty on even or assault as was advised by Assessor Ario because there was no

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sufficient evidence which linked him with the causation of the injuries found on the compleinerst. The evidence of identification was not adequate. The accused is therefore ordered to be set free unless being held on some other lawful ground.

Gui OKELIO, JUDŒ. $22/2/95$

Judgment delivered in open court in the presence of:-Ir. Olaa for the accused on state brief.

Ir. Gyabi Resident State Attorney for the state.

Mr. Opic Edward -- Court Clerk.

Gulhan<br>G. H. OKELLO, JUDGE.

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$22/2/96$