[2024] UGHC 726

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MUKONO

# CRIMINAL SESSION CASE NO. 0437 OF 2019

UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

# NTULUME MUHAMMED:::::::::::::::::::::::::::::::::::

## BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA

#### JUDGMENT

The Accused, Ntulume Muhammed faces two counts. The first count is in relation to Rape contrary to Section 123 and 124 of the Penal Code Act CAP 120 as amended while the second count is Murder contrary to Section 188 and 189 of the Penal Code Act, cap 120 as amended.

It is alleged that on the 11^th day of November 2018 at Busimbe Village Seeta Nazigo in Mukono District the Accused Ntulume Muhammed alia Red Cue and others still at large, unlawfully had carnal knowledge and Nabuduwa Scovia and murdered her.

The Accused pleaded not guilty to the indictment on both counts.

## **Representation:**

Prosecution was represented by Mr. George Bigira, Senior State Attorney who appeared with Ms. Siratwa Bassajabalaba, State Attorney. The defence was represented by Mr. Mustapha Songoni, Counsel on State brief.

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## **The Evidence:**

The following documents were admitted under Section 66 of the TIA Post Mortem Report PF 48 and the Medical form for the Accused PF 24 and were marked as PEX1 and PEX2 respectively.

The Prosecution called 5 witnesses and the Accused was put to his defence and had one witness who took unsworn evidence.

The Court found that the Prosecution had established a prima facie case and the Accused person was put on his defence.

The Accused person gave unsworn evidence and testified that he knew the victim and that they had a sexual relationship and that night the victim was at his home at 9.30p.m. where they had sex and separated at about 10.00p.m. He stated that he did not know that her body had been found the next day.

### **Burden and standard of proof:**

The burden of proof is always on the shoulders of the Prosecution requiring them to prove all the ingredients beyond reasonable doubt. (See: Woolmington Versus DPP (1935) Ac 463, Andreya Obonyo & Others versus R (1962) EA, 550.)

The standard of proof is beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the Accused, at its best creates a mere fanciful possibility but not any probability that the Accused is innocent. As in the case of Miller Vs Minister of Pensions [1947]2ALLER 372 The Prosecution's case against the Accused person should be so strong as to leave only a remote possibility in his favor.

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# (See: Section 101 of the evidence Act, Woolmington Versus DPP (1935) Ac 462; Miller versus Minister of Pensions)

Section 123 of the Penal Code Act defines Rape as; "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."

For the Accused to be convicted of Rape, the Prosecution must prove each of the following essential ingredients beyond reasonable doubt;

- 1. Carnal knowledge of a woman. - Absence of consent of the victim. - 3. That it is the Accused who had carnal knowledge of the victim.

Regarding the first ingredient, carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ where sexual organ means a penis. Proof of penetration is normally established by the victim's evidence, Medical evidence and any other cogent evidence.

The law with regard to proof of Sexual Intercourse has long been settled. In the case of Bassita Hussein versus Uganda, Criminal Appeal No. 35 Of 1995, the Supreme Court of

Uganda held as follows: "The act of Sexual Intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim's evidence must always be adduced in every case of Rape to prove Sexual Intercourse or Penetration. Whatever evidence the Prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt."

In proof to the indictment of Rape, the Prosecution led evidence of PW2 Natukwase Immaculate a Government analyst who informed the Court that the tests done on 6 other persons who were suspected to have had sexual intercourse with the victim. The report concluded that there is extremely strong genetic evidence for the proposition that Ntulume Muhammed is a donor contributor to the mixed DNA profile recovered from the vaginal swabs K1 and K2.

The evidence led by the Prosecution established that the Accused person had sexual intercourse with the victim. Therefore, element of carnal knowledge was proved to the required standard.

# Absence of consent from the victim:

The law on Rape was well stated by the Court of Appeal for East Africa in the case of Kibazo versus Uganda (1965), E. A 507 that in a charge of Rape the onus is on the Prosecution to prove

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that sexual intercourse took place without the consent of the complainant. The Court should address its mind to the question of reasonable doubt on the issue of consent. The fact that non consent must be proved to the satisfaction of the Court and where the Court is not satisfied beyond reasonable doubt in the issue of non-consent there cannot be a conviction.

Proof of lack of consent is normally established by the victim's evidence, medical evidence and any other cogent evidence. The victim in this case did not testify because she was dead.

In order to establish that the sexual intercourse was unlawful the prosecution relied mainly on circumstantial evidence. PW4 Detective Constable Katenego testified that the body of deceased was lying with the face down, her legs were spread apart with no nicker. Her clothes were pushed up to the thigh level.

It is the conclusion of this Court that the manner in which the victim lay was with her panties off and the skirt being above her knees pointed to a strong possibility that the victim had been raped.

The second element of is therefore proved beyond reasonable doubt.

That the Accused participated in the commission of the offence.

There is still no direct evidence or eye witness that stated that the Accused had been seen raping the deceased. The Prosecution led evidence of PW4 and PW5 the Investigating Officer had

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athered information that the deceased had been seen with six other men at Seeta Nazigo drinking.

The six men included the owner of the bar were arrested and taken to Police for investigations.

PW5 in her testimony stated that the victim and Accused were seen outside Makanga Ben's bar at about 10.00 p.m. In his defence the Accused person, Ntulume Mohammed alias Red Cue states that he was with deceased at his home at about 9.30 p.m. when they had sex and the deceased left his home at about 10.00 p.m. The Accused does not state what he did later that night and therefore does not create a defence of an alibi.

PW3 Savda Ruth testified that her mother left home that night at about 1.00 a.m. and then that morning Mukasa Mohammed informed them that their mother had been found dead along path or road. She testified that that evening she had been together with her mother from about 7.00 p.m. in the evening and the mum left home at about 1.00 a.m. This was after the alleged sexual encounter with the Accused person.

The evidence adduced is not strong enough to implicate the accused person; I am therefore in disagreement with the opinion of the Assessors that the Accused be convicted as indicted.

It is my finding that the Prosecution has not discharged the standard of proof that is required to convict the Accused person.

This Court therefore finds that the Accused is not guilty of rape as indicted in count 1.

In cases of Murder the following elements have to be proved; - 1. That there was death of a human being. - 2. That the death was unlawful. - 3. That the death was a result of malice aforethought. - 4. That the Accused is the person who caused the death of the deceased.

### **Evidence adduced:**

The postmortem report PF 48B marked as P Exh 1 - shows that the death occurred as a result of Asphyxia following aspiration. The Prosecution relied on the evidence of five witnesses. The Accused gave unsworn evidence.

#### That there was death of a human being:

The Post Mortem Report PF 48B shows that death occurred as a result of Asphyxia following aspiration.

All the prosecution witnesses testified that the victim died. This element has been proved beyond reasonable doubt.

## That the death was unlawful:

In regard to the ingredient that the death of Nabuduwa Scovia was unlawful, the law is that any incident of homicide, unless excused by law, is presumed unlawful. It is however excusable when it is shown either to have been accidental, or was done in defence of person or property; see the cases of R. vs. Gusambizi s/o Wesonga (1948) 15 E. A. C. A. 65; Uganda vs. Bosco Okello alias Anyanya, H. C. Crim. Sess. Case No. 143 of 1991 - [1992 - 1993]; Uganda vs. Francis Gayira & Anor. H. C. Crim. Sess. Case No. 470 of 1995 - [1994 -1995] H. C. B.

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16. An Accused may rebut the presumption of unlawful homicide by showing that the killing falls under any of the excusable circumstances. The standard of proof for such rebuttal is on the balance of probabilities; see the case of **Festo Shirabu** s/o Musungu vs. R (22) E. A. C. A. 454.

The postmortem report points to the fact that the victim died of asphyxia by aspiration.

According to the National Library of Medicine Anny Sauvageau et al the four main categories of asphyxia are suffocation, strangulation, mechanical asphyxia and drowning. Aspiration in the medical encyclopedia means breathing in a foreign object for example sucking food or liquid into the airway see **MedlinePlus** medical Encyclopedia.

These categories of asphyxia do not point to a death that is lawful. This element of an unlawful death is therefore proved beyond reasonable doubt.

# That the death was a result of malice aforethought

Regarding the ingredient of malice aforethought, this is a mental element. Section 191 of the Penal Code Act defines malice aforethought as follows;

"Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances-

(a) an intention to cause the death of any person, whether that person is the person killed or not, or

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(b)knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused."

The circumstances surrounding the death and as earlier the victim was raped before she met her death coupled with causes of asphyxia being strangulation, drowning and suffocation point to the fact that there was an intention to cause the death of the deceased.

# That the Accused is the person who caused the death of the deceased:

There was no direct evidence placing the Accused at the scene of crime. From the evidence on record, there is no eye witness to the incident that led to this fatal consequence. The evidence adduced by the prosecution witnesses in this regard was all circumstantial. Where, as is the case here, the Accused denies having killed the deceased, it is not incumbent on him to explain how the deceased died; the onus remains on the Prosecution to prove its case against the Accused; see Kazibwe Kassim vs. Uganda, S. C. Crim. Appeal No. 1 of 2003 - [2005] 1 ULSR 1.

Therefore, the Court must establish that the inculpatory facts are incompatible with the innocence of the Accused, and incapable of explanation upon any other hypothesis than that of

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quilt; and further, that there are no co-existing circumstances that would negative the inference of guilt. **Simon Musoke vs.** R. [1975] E. A. 715; and Sharma & Kumar vs. Uganda; S. C. Crim. Appeal No. 44 of 2000.

In Byaruhanga Fodori vs. Uganda, S. C. Crim. Appeal No. 18 of 2002; [2005] 1 U. L. S. R. 12 at p. 14, the Supreme Court of Uganda spelt out that:-

"It is trite law that where the Prosecution case depends solely on circumstantial evidence, the Court must, before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the Accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

The Court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of auilt. (See S. Musoke vs. R. [1958] E. A. 715; Teper vs. R. $[1952]$ A. C. 480)."

Therefore, before drawing an inference of the Accused's guilt from circumstantial evidence, there is compelling need to ensure that there are no other co-existing circumstances which would weaken or altogether destroy that inference.

The evidence of the Investigating Officer, PW5 is that the Accused and the victim had been seen together at 10.00 p.m. outside Makanga's Bar. This was reechoed by PW2 D/C Katenego.

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The Accused in his defence stated that he was with the deceased from 9:00 p.m. to 10:00 p.m. He did not mention what he did thereafter.

PW3 testified that the deceased left her home at about 1.00 a.m. and the next she heard in the morning was that her mother was lying dead by the roadside. PW1 testified that he saw the body of the deceased at about 7.00 am as he was going to the garden he was with a friend called Nicholas Ntendo. He stated that, between the garden and his neighbours boundary there was a bar. He said "I saw Nabuduwa (deceased) lying down. The bar was owned by Makanga Ben." He said when he realized that he deceased was dead he informed the neighbours. The Accused was his neighbour but he did not respond. He said he did not know where he was and he never saw him that day.

The Post Mortem Report did not state the time when the deceased person died. There is a contradiction between the testimony of PW3 and the Accused evidence in regard to the time when the deceased was with them. PW3 states that the deceased was home from 7:00 p.m. to 1.00 a.m. on the fateful day, when she left to go out. The Accused states that the he was with deceased between 9:00 p.m. and 10:00 p.m. of that night at his home. The investigations from PW5 revealed that the Accused person and the deceased were sighted behind Makangas bar at about 10.00 p.m. I take note of the fact that the witnesses that saw the Accused and the deceased together were not called as prosecution witnesses. This has in essence left a lot of shadows in the mind of the Court as to what transpired on that day.

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The definition of aspiration which means breathing in a foreign object for example sucking food or liquid into the airway also casts the doubt in the favour of the Accused person. Is it possible that the deceased ingested the water in the pothole before her death that PW1 testified about? Is it possible with the testimony of PW5 that the deceased chocked on her own fluids or saliva taking into consideration that she was a known drunkard in this village?

There was no Prosecution evidence to negative this hypothesis to enable Court reject the defence case. In the premise, I am left with no other alternative, but to resolve the doubts manifest in this case in favour of the Accused. And for the reasons given herein above; I do not agree with the joint opinion of the Assessors to find that this element has been proved beyond reasonable doubt.

I find that the Prosecution has failed to establish, beyond reasonable doubt, that the Accused is guilty of the death of Nabuduwa Scovia, as alleged in the indictment.

This Accused is set free forthwith unless he is being held on other lawful charges.

Delivered at Mukono this 28^th day of March 2024.

**Christine Kaahwa** JUDGE