Katumba v Uganda [2000] UGSC 5 (9 May 2000)

End any for delivery 19/04/9000

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### **LHE BEBABFIC OF ACTION**

# IN LHE SOBREWE COORT OF OGVADA

### **VL MENCO**

VND WUKYZY-KIKONIOCO JJZC) (CORAM: WAMBUZI, C. J. ODER. TSEKOOKO, KANYEIHAMBA

CKIWIINVT VbbEVT NO 't2\ 1888

#### **BELMEEN**

KATUMBA JAMES ::::::::::::::::::::::::::::::::::::

#### **d** N V

UGANDA::::::::::::::::::::::::::::::::::: $\cdots \cdots \cdots \cdots \cdots$ **EXAMPLE** SEES DONDENL

$(26/21/1$ patpp (Γ 'pzup $ηηη$ ) $\frac{1}{2}$ Courtency of the conviction and sentence of the High Court Engwau and Twinomij J. J. A) in Criminal Appeal No. 58 of 1997 dated (Appeal against the decision of the Court of Appeal (Manyindo D. C. J.,

# **BEVZONZ ŁOK LHE INDCWENT OF THE COURT**

that we would give our reasons later. We now do so. We heard the appeal in this case and dismissed it on $14/3/2000$ and intimated

sections 117 and 118 of the Penal Code Act. convicted and sentenced to ten years imprisonment for rape, contrary to the High Court dated the 1<sup>st</sup> December, 1997 in which the appellant was Jo noisibe the learned justices of that court upheld the decision of This was an appeal from the decision of the Court of Appeal dated the $29^{th}$

alarm raised by the complainant, Tereza $(PVI)$ . Cotts Semakade who did not testify at the trial, heard and answered the rape took about 15 minutes. A witness, John Turyakira (PW2) and one Tereza continuously resisted and raised an alarm. The commission of the metres from the path and raped her. During the rape, the complainant this manner, the appellant dragged her to a spot in the forest of about three she refused he grabbed her and threw her down. After overpowering her in He then ran after her, caught up with her and demanded to have sex. When deliberately following her. He called and asked her to stop but she refused. forest when she noticed that the appellant was also walking behind and complainant Tereza (PW1) was walking a long a village path through a The facts of the case were that on $8^m$ March, 1997, at about 3 p.m., the

evidence at the trial. hospital for medical examination. The examining doctor did not give charged the appellant with rape. The complainant was taken to Entebbe matter was reported to local authorities and to the police who arrested and recognised him. Turyakira escorted the complainant home and later the and $\gamma$ , he ran away from the scene but not before Turyakira saw and and in the open legs of the complainant. When the appellant saw Turyakira the place where the alarm was coming from, they saw the appellant on top of When John Turyakira and according to him, his friend Semakade, reached

and interviewed several witnesses. In his defence, the appellant denied the Police Constable Owony (No. 29474), (PW3), visited the scene of the crime

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advised acquittal. witnesses. One of the two assessors advised conviction while the other offence and pleaded an alibi in his defence. The defence called no other

hence this appeal. appellant appealed to the Court of Appeal which dismissed the appeal – of the Penal Code and sentenced him to 10 years imprisonment. The assessor, convicted the appellant for rape contrary to sections 117 and 118 The judge, agreed with the first assessor, rejected the opinion of the second

There is one ground of appeal framed as follows:-

fact when they failed to re-evaluate the evidence on record and The learned justices of the Court of Appeal erred in law and $-I$

had stated that she had been penetrated by the appellant and none of the complainant $(PVI)$ . It was connected a contention that only the complainant corroboration of the fact that the appellant had succeeded in penetrating the that in this particular case, the prosecution had failed to present evidence of corroporation of the victim's allegations of the offence. Counsel submitted were proved because in sexual offences, it is essential that there must be enough simply to show that the three elements of rape anumerated above fact committed the offence. Counsel contended further that it was not without the consent of the victim and lastly, that it was the accused who in victim's vagina, that the sexual act which resulted in the penetration was prosecution must prove. These are, that there had been penetration of the our opinion, that there are three elements in the offence of rape which the essential ingredient of the offence of rape. He contended, quite rightly in Mr. Kugumikiriza, counsel for the appellant, made submissions on one came to a wrong conclusion

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submitted that the evidence of Turyakira corroborated that of Tereza. State Attorney, supported the decision of the two courts below. She none for this novel proposition. For the Respondent, Ms. Khisa, Principal be corroborated. Counsel cited no authorities and he clearly could find corroborated but strangely contended that in the case of penetration, it must Mr. Kugumikiriza conceded that not every ingredient of rape need be important ingredient of rape, namely, penetration. other prosecution's witnesses had said that they witnessed this very

agreed with and confirmed the findings of the learned trial judge on offence of rape as a whole. The learned justices of the Court of Appeal accused has committed it. Corroboration is therefore in relation to the not only the evidence that the crime has been committed, but also that the connects the accused with the crime, confirming in some material particulars Corroboration is additional independent evidence which the evidence. applied the law on corroboration and correctly evaluated and reevaluated the evidence on rape. In our opinion, both courts properly considered and Appeal and the High Court considered corroboration as an essential part of From the record of proceedings, it is quite clear that both the Court of

corroboration when he said in his judgment that.

(sic.) by the testimony of $P$ W2." $\mathcal{L}$ intercoursed by that shows in the restimuly intercoursed ID75 H. C. B. $\mathbf{B}$ 361. In the present instant case there is sufficient (prosecution) in sexual offences. (see George Bangirana $\sqrt{\text{Gamma}}$ ) $\alpha$ counterion only on the evidence of a complainant complainant's evidence be corroborated. It is generally considered $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ $\mathcal{$ alone if she is believed by the court to be a truthful witness. But the ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $\mathcal{O}$ ) ( $f_0$ has a particular to the polynomial point of the polynomial point of the polynomial point of the polynomial point $f_0$ and $f_1$ and $f_2$ are the polynomial points of the polynomial points of the polynomial points

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evidence of Tereza. when he was discovered in the act of rape, all corroborate the scene of the crime and the flight from the scene by the appellant Tereza. The struggle and the raising of the alarm by PWI at the of Turyakira PW2 who found the appellant in the act of raping corroboration of the offence of rape was underscored by the evidence We are satisfied that these findings were correct and evidence of

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dismissed if on $14^{\mu}$ March, 2000. It is for these reasons that we found no merit in this appeal and

Dem a. st. DOOR "JO AVOID & SHI CONNECTION IN THIS OF THE OPEN IN

**CHIFE INZLICE** iznquie $W. W. N. S$

H. O. Odér

J. W. N. TSEKOOKO $300$ **TOURNER OF THE SOFFEME COURT**

**DOUBLE OF THE SUPREME COURT**

G. W. Kanyeinamba amplitumber

$\Gamma$ :E. M. Mukasa-Kikoty $\&$

**TOTALICE OF THE SUPPLIER COURT**

**10 ALICE OF LHE SOBJECT COOKL**