[1995] UGHC 64

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THE REPUBLIC 0? UGANDA

IN THE HIGH COURT OF UGANDA'HOLDEN AT'TORORO

## CRIMINAL SESSION CASE NO. 27 OF 199;<-

UGANDA :::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

## VERSUS

VICENT ODOI J:::::::::::::::::::::::::::::::::::::; ACCUSED

BEFORE: THE HONOURABLE MR. JUSTICE E. S. LUGAYISI

## f ^U ^D ^G ^M ^E ^N ^T

VICENT ODOI hereinafter referred to as the accused was indicted for the offence of rape; and the particulars of the offence were that on the 27th day of February, 1993? at Aburi :,A" Zone, Kayoro sub-parish, Mukuju county, in the Tororo District, the accused had unlawful sexual intercourse with Sofia IW.eng without her consent.

The accused denied the offence in issue, whereupon the prosecution called four witnesses in ^a bid to prove its case against him who were as follow's: Sofia Ikileng (PW1); Dr. Abner Vesuvius Tagoola (PW2); John Buteyo (PWJ); and Michael Monday (PW4)«

In his defence the accused made an unsworn statement and also called one witness-

<span id="page-0-0"></span>• The prosecution case as it unfolded from the ovidence of its witnesses was briefly as follows:

On 27th February, 1993j at around 8.00 p-nu, PV/1 who had been drinking a local gin popularly known as ''enguli" at her neighbour's home called Margaret Awori, decided to return home-

She did so, but found her door locked and could not enter the. house because she did not know where her key was. She then returned to Margaret Awori'*s* home in the hope that she would recover her lost

key.

After checking at Margaret Awori's home, she walked back home a second time. Mid-way between her home and Margaret Awori's home, the accused who came from behind grabbed her, wrestled her down, and forcefully had sexual intercourse with her.

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The above act took place in a millet garden which was near the road .

From the very beginning of that incident, PV/1 tried to raise an alarm, but the accused muffled her by taking hold of her throat.

The accused had several rounds of sexual intercourse with PW1 which took him more than an hour as he tightly held her down.

However, while the above was still going on, PW4 (who was PWl'^s step son) came along. He was looking for his step-mother whom he had not found at home after fetching water that evening. PV/4 reached the scene of crime and was about 6-10 metres away from the said people when the accused whom he saw lying on top of PW1 ran away and disappeared into the night.

All the same, both PW1 and PW4 had already recognised the accused. First of all, the night was bright because there was moon-light and so the two were able to see the accused properly. Secondly, the two knew the accused before the events in issue. In fact, PI71 had just been drinking alcohol with him at Margaret Awori's place that very evening.

Anyway, PW1 and PW4 left the scene of crime and returned home. Later on, PW1 armed herself with a panga from her house and left home with a view to reporting the said crime to the authorities. PW4 remained home cooking.

Unfortunately, PW1 was not able to see the authorities she wanted to report the above matter to that evening. She therefore returned home and waited until the following morning when she went and reported the said matter to PWJ (the PC. I Chairman of the area). PWJ, PV/1 and some other people then went and visited the scene of crime and saw foot marks, and some other marks which suggested that someone had knelt or sat at the scene of crime \*

After the above, PW3 convened an PC meeting and invited both the accused and PW1 to it\* They then asked the accused about the crime in issue \* The accused.denied it, whereupon they reported the matter•to the police and the accused was later arrested. .

The above apart, the police sent PW1 to Tororo Government Hospital where she -was examined by PW2 (a Government Doctor) on ^th March, 1993\*

According to PV/2, he found that P»V1 had red lower parts of the eyes which suggested that the oapallapies of those eyes had broken \* The Doctor ruled out the fact 'that such injury on PV/1 was caused by alcohol or ^a fall.

PW2 also found that PV/1 had soft tissue healing injuries around the neck which were consistent with a history of attempted strangulation \* •

The said Doctor did not examine PW1 • s private parts \* The examination would have been in vain because .some considerable time had passed since the offence in issue was committed.

At the end of the prosecution case, I ruled that a prima facie case had been made out by the prosecution which required the accused to come to. his defence \* However, at that time, I did not give any reasons for deciding so, but promised to do so now. Below are my reasons.

I was satisfied that the evidence of the complainant herself (PW1) coupled with PW2's, PWJ's and PV/A-'s evidence had implicated the accused and passed the test of what a prima facie case is supposed to be under R. T. Bhatt.v ^R /~^957 7 at P\*332 ^&gt;

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After explaining to the accused the options ho had under section 71(2) of the T. I. D., he decided to make an unsworn' statement. He also called one witness,

. In brief, the accused's defence was an alibi. Ho denied the offence in issue and said that on the day in issue, he went to Margaret Awori's home at about 8.00 a.m, and together with others drank enguli until he himself retired at ^.00 p.m. However, the complainant had joined them at 1,00 p.m., but the accused left his drinking-mates behind at ^.00 p.m. This was because he was carrying ^a large sum of money that day i.e. Ug. Shs. 501000/= and was not comfortable to have it with him any more.

As a result therefore, he decided to go home and keep his money safely. While returning home, he met DW2 (his house-mate) on the way, and the two men returned home together. The accused emphasized that he did not leave home that evening and did not commit the offence in issue.

To a large measure, DW2 supported the accused's alibi, but differed from him in two ways.

First of all, he told court that the accused found him at home digging. Secondly, he also told Court that the accused had told him that he began drinking enguli on the day in issue, at 2.00 p.m\* and not earlier^

In his final submissions Mr, Khaukha relying on the evidence of •PW1, PW2, PW5 and PW4 argued that he had proved his case against the accused beyond reasonable doubt and invited Court to convict him accordingly.

Mr. Majanga (counsel for the accused) did not agree. He contended that the prosecution had failed to prove its case against the accused beyond • reasona1)1<3 doubt.

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Mr. Majanga relying on PW1's police statement Exh. "D1" argued that PW1's evidence was unreliable and therefore no amount of corroboration could corroborate it.

Mr. Majanga also attacked PW4's evidence as an afterthought, since PW1 did/mention PW4's angle of evidence at the time she made her police statement.

Lastly, Mr. Majanga also contended that the accused's alibi was not disproved or destroyed by the prosecution.

So, as a result of all the above short-comings in the prosecution case, counsel for the accused prayed that his client should be acquitted.

In summing up to the agsessors, I drew to their attention that in criminal cases the burden of proving a case against an accused person lay squarely upon the prosecution, and that burden never shifted to the defence even in a case like this one where the accused put up a defence of alibi. (see Woolmington v DPP (1935) A. C. P.462; Uganda v Ssetimba Richard Cr. Session Case No. 152/91; PTE Bigirwa Edward v Uganda Cr. App. No. 27 of 1992; Okello v Republic 1965 7 E. A. 555; Ndyayakwa and 2 Ors v Uganda C/S Cr. Appeal No. 2/77 reported in the $\sqrt{1978}$ 7 HCB P.131; Anisoth v R $\sqrt{1963}$ 7 E. A. 206; and Sekitoleko v Uganda $/$ 1967 7 E. A. 531).

I also advised them, that the quantum or standard of proof in criminal cases, is proof beyond reasonable doubt, and nothing less, (see Woolmington v DPP (supra).)

In order for the prosecution to succeed in this case, it has to prove the following ingredients of the offence in issue beyond reasonable doubt,

that a male assailant had sexual intercourse with the $(a)$ complainant on the night in issue;

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(b) that the above was done without the consent of the <pre>.. complainant;</pre>

- (c) that such act was unlawful; and - (d) that the accused was that male assailant who committed the offence in issue against the complainant.

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As far as the first ingredient above is concerned, it is important first of all to know what amounts to sexual intercourse in law.

According to Halsbury \*s Laws of England (prd Sd«) Vol \* 10 P.7^-6 paragraph 14?8, and Archbold^Criminal Pleading Evidence and Practice (?8th Ed.) at P.1124 paragraph 2878, sexual intercourse with a woman is complete once there is penetration'(however slight) of the female sexual organ by the male sexual organ.

In this case, PW1 told Court that on the night in issuej a male assailant had sexual intercourse with her.

The above being the evidence of the complainant, I warned the assessors and ^I do hereby warn myself now that it is dangerous to act upon it without corroboration. This is mainly because complainants in sexual offences have been known to feign such attacks.

However, having sounded the above warning, I also advised them, and I do advise myself, that the said evidence can be acted upon without corroboration if Court is satisfied that it is the truth. (see Chila v Republic /~^967 7 B. A. 722) •

I looked for corroboration for PW1 \*^s evidence aboVtO and found it in the evidence of PW4 who testified that on the night in issue, as he was looking for PW1, he found her lying down in a millet garden which was near the road leading to their home. At that time, there was a male attacker lying on top of her. However, as soon as that male attacker saw PW4, he fled and disappeared.

Much as Mr. Majanga asked Court to ignore PV/Ms evidence as an afterthought on the part of the prosecution since PV/1 never mentioned that aspect of the evidence in her police statement soon after the

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crime, I am of the view, that there is no real justification for that position.

From her police statement Exh. "D.1ⁿ it is very clear that PW1 indicated from the very beginning that PV/A would be her witness in this case. In my view that was, enough.

Further, when PWA testified in Court concerning what he saw on ,the night in issue, he appeared firm and definite about what he was saying and was not at all shaken in his evidence during crossexamination. ; •

I am therefore of the view that PW4's evidence which was good evidence is capable of corroborating PW1fs evidence above. '

^M As a result of the above therefore, I am willing to find that the prosecution succeeded in proving beyond reasonable doubt that a male assailant had sexual intercourse with the complainant on the night in issue.

As far as the second ingredient is concerned, PW1 related to Court that as she walked home on the night in issue, an attacker canje from behind and grabbed her. He wrestled her down and forcefully had sexual intercourse with her. He held her throat and prevented her from making an alarm.

Again, I warned the assessors and I hereby warn myself that the above being the evidence.of the complainant, it was dangerous to act upon it without corroboration. Like I said earlier, such evidence could be feigned.

However, having sounded the above warning, 1 should also point out that the said evidence can be acted upon without corroboration if. Court is satisfied that it is the truth (see Chilo, ^y Republic (supra)

,When I looked for corroboration for the above piece of evidence, I found it in PW2f^s evidence. PW2 is the Doctor who examined PW1 a few days after the attack in issue-.

The said Doctor found healing soft tissue injuries around PW1's neck and .was of the view that such were consistent with a history of strangulation,. He also noticed that PW1 had red lower-parts of the eyes which were caused by broken capallaries \* In his view, the eye injuries were hot consistent with a fall and had not been caused by alcohol \*

The above apart, there was also the evidence of P17J (the RC.1 Chairman of the area in issue) who testified that when ^P'.71 went to report to him the offence in issue the following day, she had swollen eyes and marks on her neck \*

In my view, all the above evidence of injury was simply confirming what PW1 related to Court, that is to say, that the person who had sexual intercourse with her on the night in issue, did so forcefully and without her consent \*

As a result^ I am willing to' find that the prosecution proved the second ingredient of the offence in issue beyond reasonable doubt.

As far as the third ingredient is concerned, once it has been established that the act in issue was done without PV;1Ts consent \* it would follow that the same'was unlawful; and I so find \*

As regard the fourth ingredient, PW1 and PW4 testified that they saw the accused at the material time. Both witnesses knew the accused before, since he used to cut fire wood in their village \*

•In addition^ PW1 had just been drinking alcohol with the accused at Margaret Awori's that evening \* There was bright moonlight that night, and the accused stayed with PIV1 for a long time during the offence in issue, and she had ample opportunity of recognising him\*

The above apart, irrespective of the fact that the accused ran away in the opposite direction soon afterwards, I also believe that was near enough to recognise him when he found him lying on top

of PW1. (According to PW^I-, the accused bolted away when PV/4 *vias* only 6-1 • metres away from the scene of crime).

In view of all the above therefore, I am satisfied that the two witnesses (PW1 and PW4) properly identified the accused as PW1Ts attacker on the night in issue.

The accused's defence which is an alibi is just a pack of lies which were, manufactured simply to save his skin. I accordingly reject it.

Inconsistencies here and there in the prosecution case, were in my view minor, and did not go to the root of the case• (See P. C. Ben Mulwani Francis Wakida v Uganda Cr. App. No.j of 1992; ^nd Tindiuhura Mbaha v Uganda Cr. App. No.9/87)•

All in all, I am of the view that the prosecution proved its case against the accused beyond reasonable doubt; and, in disagreement with the assessors, (for the reasons given above) I would accordingly convict him as charged.

19A/1995

Read before : At; \* 59 'a . ^m. Mr. Khaukha for the State. Mr. Xajang^ for accused. Accused prepent \* The 2 assessors present. Mr. Wandera - court clerk. Mr. Oburu - interpreter.

*,/y (■' J'* .z>' ( •/" 'p E. S. LUGAYIZI

>/ JUDGE 19/Zj./1995