[1994] UGHC 103

# THE REPUBLIC OF UGANDA

*r*

if

IN HIGH L'URT OF UGANDA AT KAMPALA

*I*

R

#### HOLDEN AT KABALE

## CRIMINAL SESSION CASE TO. 320/93

UGANDA PROSECUTOR

ACCUSED VER S ^U S' NGABIRAFO FRED

## BEFORE: THE HONOURABLE MR. JUSTICE G. TIFflNOFDI

#### ^R ^U £ J n -^g

The accused 'll 7 and ¹ • •'onal Code the 12th ^yabikoni Village in ti ftge •of Kahuku Erina without her consent ior rape contrary to seetn. A>t. It was alleged that '^< District of Kabale the accused had unlawful carnal'¹ khpwl HSUii •j nd ic ted

The prosecution called five witnesses and closed its accused had been made out to require\*-the accused ere He cited peculiarities that ren^ere^ the complainantr^s evidence that the cpmpjl. .r an spent the of that day she asked the aecused to accompany her home OU1£ house leaving her daughter in pitch darkness. I pm. to go on his d,< case. Thereupon Mr. -Rwaherur learned Counsel for the aceased drinking enguli with his girlfriend. After of the material day spying .on unworthy of belief. These were W'hen she arrived home ?he, this time round offered ij any the accused and even took away the only lantern in ^[fie on state brief, submitted that no prima facie case

Learned Counsel further pointed, out that according; to the complainant's evidence the accused threw away the t lost the chimney. Counsel wondered if it had not been lantern and grabbed her. It remained intact save that

conveniently placed aside and extinguished.

Counsel also pointed out that the complainant alleged she made an alarm. Pw3, the complainant's daughter, testified that the alleged scene of the crime was within calling Aistance but that she Aid not hear any alarm. That she also stated that her mother stayed away for 21/2 hours till she was overcome by sleep.

Counsel referred to the failure by Kaganga or the prosecution to call him to lend credibility to the explainant's allegation about his having been called by her to rescue her and he stalking off upon threats by the accused to kill him.

Mr. Rwaheru wondered why if it was true that the complainant reported the rape to the police, they did not visit the scene and come to court to give evidence. The also querried the credibility of the allegation that the omplainant's clothes were woaked in mud since they were not exhibited and no explanation offered.

Learned Counsel offered two possibilities to the complainant's story. Either it was a concoction. Or if there was any sexual intercourse it was at her own instigation. He submitted that the ingredients of the offence had not been proved and the prosecution evidence was so unreliable that no reasonable tribunal could safely convict on it. He relied on <u>UG. VS. OWYABO & ORS. 1979 (Vol.2) HCB p.39.</u> He prayed for the acquittal of the accused.

Mr. Murumba, the learned Resident State Attorney, submitted that. He reviewed the evidence adduced and maintained that it all pointed to the prosecution having proved

$\ldots \ldots /3$

the two ingredients of the offence namely sexual intercourse by the accused and absence of consent by the complainant.

A prima facie case is said to be one where on a full consideration of the evidence a reasonable tribunal properly directing its mind on the law and evidence could convict if the accused offered no evidence. See BHATT Vs. T (1957) EA 322. A mere scintilla cannot be enough. Mor can any amount of discredited worthless evidence. However it is also true to say that a prima facie case does not mean proof beyond reasonable doubt. The reasons that would lead a judge to a decision on submission of no case to answer would not in law be the same as would activate him as vo whether or not to convict. See WABIRO alias MUSA Vs. R. $(1960)$ EA 184.

When considering the submission two considerations will often arise. They are:

- (a) whether there has been no evidence to prove an essential ingredient of the offence - (b) whether the evidence adduced has been so descredited as a result of cross-examination or is so manifestly unreliable that ro reasonable tribunal coula safely convict on it.

Under Section 117 of the Act (supra) the essential ingredients of the offence are

- (a) unlawful sexual intercourse - (b) lack of consent of the complainant.

PW1, Erina Kahuku testified that she was 49 years old. She served, for sale, local beverage ("obushera") at one of the motor vehicle parks within the municipality of Kabale. On 12/6/93 after 8.00 pm. she wound up the Pay's business and called on the accused to accompany her home. They proceeded together to her home. They found her

daughter Annet eating. She offered them food,but the accused refused to eat. She testified that she also refused to eat because the accused had refused to eat arP remained standing in the house. That she offered to escort the accused. She took the only lantern. That when they arrived at abridge she told him'that he was row safe they could row part. That the accused, immediately grabbed her by hand and dragged her across the bridge. That she asked the accused what he intend\* ed to do. That his reply was ar icator that he wanted to ravish her. That he slapped her in the eyes and on the mouth. That he threw her .down, lai^ her astride and started having sex. That she continued struggling and made an alarm. That' he took a short time and aid not reach orgasm. That she heard people talking and recognised Kagana's voice. That although she called out, Kaganga did not come to her assistance. ' She further testified that when the accused raped, her she felt hurt and angered. She also testified, that when kaganga did not come she ran but the accused ran after her and overpowered, her and started raping her the second time. She said this time it took ten minutes and he reached orgasm. She stated that when he left her that she went home crying and told her daughter that the accused, had raped her.

The witness stated that that night she reported the incident to ^-amutera, her brother, who inturn took her to Mbeta the Resistance Commettee Chairman of the area. The following day she returned to the bridge to collect her Kitenge wrapper and the alntern. She took these to Mbeta as exhibits. That the accused who was already under arrest denied the witnesse's story\* That they then went home and Mbeta and the defence secretary asked them to reconcile.

That she refused, an\* \*eoi\*e\* to report to Police That although the police severely tortured the accused her persists ently defied ^a police ; the alle form for medice.l That she was given

Durin os had left home at 7-00 am and hay- That ad Jacer ^b friend sold waragi That or the material date she saw the her at 8-00 apmthat this was the first time to call him to escort her and that she did it so because stated when he grabbed her he also grabbed the lantern anffifiini threw it awayaccused from 9.00 am. seated in that girlfriend's place drinking waragi. That when she went to call him to escort examination P<i71 stated that she stayed at her place of work the whole ^p ^I', ^I ⁱ - 'll ^j bo her place of work the accused ¹^s girl® still ^drinking waragi. She stated She further^ • i I b. it was late at night

habit not to wear nickers- That on the material night ishej ^H was dressed in a halfslip, the blouse was torn during the scuffle and was deposited at the police station as an exhibit and a sweater.. She stated skirt, blouse, kitenge wrapper tiffed that it was her usual

The witness also stated that the rape took place isolated place, by foot-path stated that the accused unzipped the trousers but ^i\* not remove She also said that when she called Kaganga fc rescue She testalflM that when she went to found the lantern rot fhimney which had got off. in an had been damage^ except for its and no homes nearby. She thru atoned to kill Kaganga. the scene the following morning she f

PW2, Doctor Isaiah Biryabarema testified that he was ^a Medical Doctor in Kabale Hospital. That he examined pwd on

14th June, 1993 and found the following. That there $w_a$ s no hymen on account of PW1 having delivered many times. That there were bruises on the entroitus. That there were bruises on her face and left knee.

That her lip and neck were swollen. And that these injuries on the face were caused by external violence. However the witness was unable to explain the cause of the bruises on the entroitus.

During cross-examination the witness testified that the bruises on the PM's face could have been caused by a fall or any external cause.

Pw3, Annet Musimire testified that she was the daughter of PW1 and the cousin of the accused. That on 12th June, 1993 her mother arrived back home at $9.00 \, \tau_{\text{m}}$ escorted by the accused. The rest of her evidence is similar to that of her mother up to the point when her mother volunteered to escort the accused and took the lantern with her. The witness stated that she waited for her mother for a leng time until she fell asleep leaving the door open. She testified PW1, eventually came crying and when she asked her where she had been all that time PW1 told her that she had been beaten and raped by

the accused. She also testified that she PWT's knee was bleading and the eye was swollen. That that night PW1 went to report the incident to the authorities and returned after $1.30$ am. The witness further testified that she escorted Pw1 to the scene of the rape where they recovered a kitenge wrapper, a dress, a blouse, the chimney of the lantern and sweater that these were soiled with mud and belonged to her mother. She testified that on the material night PW1 was dressed in a dress and a sweater.

$\cdots \cdots \cdots /7$

In cross-examination the witness testified that PW1 does not drink either tonto or waragi. She testified that on the material night she had waited for her mother, to return, for it two and half hours. The witness changed her story to say that her mother takes alcoholic Arinks, types of which she did not know, and that that night she was tipsy.

PW3, testified that although the scene of the rape was about one hundred meters from their house she had not heard her mother's alleged alarm.

PW4. James Kamutera testified that after 10.00 pm. of the 12th June, 1993, he was woken up by PW1 reporting rape of her by the accused. That he escorted her to Mbeta's home because the accused bailed from Mbeta's cell.

PW5, Petero Mbeta, gave testimony similar to that of

Applying the law to the above evidence I am of the considered view that the prosecution has failed to adduce evidence pointing the absence of consent by the complainant. This court does not believe the evidence of the complainant in the following particulars; failure by the complainant herself to testify to the injuries that are alleged to have been inflicted on her; failure to exhibit the garments that were damaged and soiled during the scuffle; absence of any explanation as to how the alleged alarm by the complainant could not be heard by PW3 who was within one hundred meters; failure to explain why the police to whom the complainant reported the rape and who severely tourchered the accused did not testify; failure to explain why Kaganga who was a neighbour and had heard the scemas of the complainant and had been threatened by the accused rot to interfere did not testify; failure to explain how the glass of the lantern was not broken

but instead, only the cilimncy t,*.ar-. '* ⁱXI I '

It is also my considered view that the prosecution evidence is so manifestly unreliable that no reasonable tribunal can safely convict on'it. Whereas the time, as computed by the complainant, taken to acomplished the two irstalements of rape .is about fifteen minutes, puts the period as two and ahalf hours. Whereas PWd claims she was dressed in ^a skirt, blouse, kitenge wrapper PW5 testified she was dressed in ^a dress and a sweater. Whereas PWd claims she made scremas and alarms and •th!at there were no homesteads near the scene of the crime, contradicts all these was has been shown above-

In the result this court concludes that the complainant story is hoax. It was intended to hoodwink the complainant'^s laughter merely because the complainant; w-.s ashamed of her misbehaviour.

The accused stands acquitted and will be released immediately unless otherwise lawfully held.

> G. TIMINOIWI JUDGE 50/6/94