Moses Kabareebe v Uganda (Criminal Appeal No. 57 of 2023) [2025] UGSC 24 (8 July 2025)


#### THE REPUBLIC OF UGANDA

# THE SUPREME COURT OF UGANDA AT KAIITPALA

(Coram: Tuhaise, Musota, Madrama, Bamugenereire & Mugenyi, JJSC)

# CRIMINAL APPEAL NO. 57 OF 2023

MOSES KABAREEBE APPELLANT

#### VERSUS

UGANDA RESPONDENT

(Appeal from the Court of Appeal (Buteera, DCJ; Musoke & Cheborion, JJA) in Criminal Appeal No. 150 of 2021)

Criminal Appeal No. 57 of 2023

I

# JUDGMENT OF THE COU RT

# A. lntroduction

- [,{r. lvloses Kabareebe ('the appellant') was convicted of rape contrary to sections 123 and 124 of the Penal Code Act, Cap. 128, and sentenced '10 years' imprisonment, The prosecution case as accepted by the kial court was that on 25t, october 2019 at about 3.00pm in Kyebando - Kampala District, the appellant had unlawful sexual intercourse with Ms. Juliet Akello, a house maid to his tenant, without her consent. - 2, The appellant unsuccessfully challenged his conviction and sentence in the Court of Appeal. He thereupon lodged this Appeal in this Court on the following premise: - THAT the Leamed Justices of Appeal ened in law when thoy failed to address their ninds to the procedural inegularitres in the investigation offhe case up lo lls conclusion at tnal. - ll. THAT the Leamed Justicas of Appeal erred in law when they ignored the major contradiclions and lnconslslencies in the testimonies of prosecution evidence hence the caso was not proved beyond reasonable doubt - lll. THAT the Leamed Justices of Appeal effed in law when they held thatthe evidence ofthe phone pint out was not relevant and hence wrongly anived at an enoneous decision. - 3. At the hearing of the appeal, the appellant was represented by Mr. Elly Kubabulungi holding brief for Mr. David Mushabe, while the respondent was represented by l\tls. Fatuma Nakafeero, a Chief State Attomey, holding brief for Ms. Samali Wakholi, an Assistant Director of Public Prosecutions.

### B. Parties' leqal arquments

- 4, Under Ground 1of the Appeal, reference is made to the decision in Boqere Moses vs Uqanda (1998) UGSC 22 to support the contention that the Court of Appeal abdicated its duty to subject the material that was before it to fresh scrutiny as is required of a first appellate court. This omission on the part of the lower court allegedly compromised the appellant's right to a fair hearing and resulted in an unfair conviction. The following procedural inegularities are cited to urge this Court to quash the appellant's conviction. - 5. lt is the appellant's contention that the medical report in Police Form PF 24A was improperly admitted as an agreed document under seclion 66(2) and (3) of the Trial on lndictment Act (TlA), Cap. 23, and therefore wrongly relied upon by the trial court for his conviction. Learned counsel for the appellant

argues that the objective of section 66 of the TIA is to promote the non-derogable right to a fair hearing under articles 28(1)and 44(c) ofthe Constitution. In this case, the contents of PF 24A could not have been declared agreed facts without their having been read back and explained to the appellant in a language he understood, as well as signed by him, as dictated by subsection (2) of that statutory provision. ltis argued thatthis procedural requiremenl was not fulfllled bythe trial court so as to admit the impugned document as agreed and proved within the confines of section 66(3) of the TlA. This omission, in learned Counsel's view, amounts to a fatal procedural irregularity.

- 6. Both lower courts are additionally faulted for relying on a joint assessors' opinion contrary to the provisions of section 82(1 ) of the TlA. lt is further argued that the failure by the police investigators to reconstruct the scene of crime lefl the case poorly investigated and was prejudicial to the appellant. - 7. l\,1eanwhile, under Ground 2 of the Appeal the first appellate court is faulted for ignoring major contradictions and inconsistencies in the prosecution evidence in arriving al its decision. This Cou('s decision in Hudson Jackson Andrua & Another vs Uqanda. Criminal Appeal No. 17 of 2016 is cited for the proposition that whereas minor inconsistencies that do not go to the root of the case may be ignored, 'when the inconsistencies and contradictions are grave, unless resolved, the evidence must be rejected.' - 8. lt is argued that there were contradictions in the evidence of PW1 and PW4 as to whether in fact the victim engaged in sexual inlercourse with the appellant or with another man. ln learned counsel's view, the fact that the victim claimed to have never had sex with any other man save for the appellant and yet a DNA test revealed that he was not the father of her child, reveals the unreliability of her evidence and should not have been dismissed as a minor discrepancy. lt is opined that the contradictions in both witnesses' evidence are deliberate falsehoods that go to the root of the case and ought to have been rejected. Reference in that regard is made to this court's decision in Henrv Kazanrva vs Uoanda. Criminal Apoeal No. 17 of 2025 where it was held that evidence by itself or with others that is grossly tainted with grave contradictions or inconsistencies may, unless satisfactonly explained, be rejected; and evidence that is tainted by minor contradictions or inconsistencies which nonetheless point to deliberate falsehoods may similarly be rejected. - 9. In addition, the witnesses' testimony that the appellant threatened the victim with a gun at the material time he commitled the offence is contested for having fallen short of proof to the required standard. It is the appellant's contention that no gun was recovered from his home following a police search, but rather it was confirmed that the gun that had been in his possession had long been deposited

with the CMI Drrectorate of Counter lntelligence at the matedal time. lt is thus argued that this conlradiction should have been resolved in the appellant's favour.

- 10. Ground 3, on the other hand, specifically questions the first appellate court's finding that the print outs of phone calls made to the victim's employer by the appellant's wife and father were irrelevant to lhe case. ln the absence of print outs of the alleged phone conversations, leamed counsel considers lhat evidence to have been hearsay that was untenable. He cites the definition of hearsay in Fred Sekaiia vs Uqanda, Criminal Appeal No. 78 of 2020 in support of this contention. - <sup>1</sup>1. Conversely, learned State Counsel objects to Grounds 1 and 3 of the Appeal on the premise that no new matters can be raised on second appeal that were never raised before the first appellate court and, in any case, a semnd appeal is restricted to points of law. lt is argued that although Judicaturc (Supreme Cout Rules) Directions, S.l 13-11 ('the Supreme Court Rules') do make provision for the invocation of the Court's inherent powers to achieve the ends of justice and prevenl the abuse of court process, there is no abuse of court process that would necessitate this Courl's intervention. ln any event, the record of appeal would suggest that the ingredient of sexual intercourse having occurred was never in contention in the trialcourt, having been conceded by the appellant's advocate at the time. With regard lo Ground 2, learned State Counsel contends that this ground of appeal raises questions of fact and not law, falling short on the specific enor of law that was committed by the first appellate courl. ln her view, this ground of appeal should similarly be struck out and the entire appeal be dismissed. - 12. Alternatively, in response lo Ground 1 of the Appeal it is argued that the appellant's advocate did at page 158 of the record of appeal confirm that Police Form 24A (which was wrongly recorded by the trialjudge as PF 4A) was a document that had been agreed upon by the parties, hence its admission in evidence as Exhibit P1. lt is argued that there was no procedural inegularity or miscamage of justice occasioned on that account. - 13. With regard to the joint report of the assessors, it is argued that as a rule of practise when not giving contrary opinions, the assessors can give one opinion. ln any case, the assessors' opinion is not binding on courts and therefore the acceptance of a joint opinion would not occasion a miscarriage of justice. Reference is made to the decisions in Uoanda vs Guster Nsubuqa & Another SCCA No. 92 of 2018, Sitenda Sebalu v Sam K. Niuba & Another Election Apoeal No.26 of 2007 and Kamoala Caoital Citv Authoritv v Kabandize & Others SCCA No. 13 of 2014 for the proposition that the use of the word 'shall' in statutes does not always mean mandatory but can be directory, and

is the correct position on the question of assessors' opinions. The respondent additionally invokes the provisions of article 126(2)(e) of the Constitution, urging this Court to administer justice without undue regard to technicalities given that the appellant does not contesl the prosecution evidence that led to his conviction and sentence.

- 14. ln relation to the omission by the police to reconstruct the scene of cnme, learned State Counsel asserts that the scene of crime was properly described by the victim during the trial, and the circumstances under which the offence ensued were favourable for correct identification of her accoster since he was well known to her as her landlord and attacked her at her residence during broad day light at around 3pm. lt is thus argued that there was no need to reconstruct a scene of crime that was articulately described by the victim, her aunt and the investigating officer. The absence of a scene of crime report was thus opined to be neither an irregularity nor tantamount to a miscarriage of lustice. At any rate, reference is made to the decision in Uoanda vs Guster Nsubuoa & Another (supra) where it was observed that'it would be expecting too much to demand that all trials must run like clockwork, short of which they would result in nullification of the entire trial. We do not live in a perfect world so we have to evaluate the impact of any particular imperfection on the entire trial.' - 15. ln response to the alleged contradictions and inconsistencies set out in Ground 2 of the Appeal, the respondent contends lhat no inconsistencies were pointed out to the Court of Appeal in respect of the evidence of PW1 and PW4, and any contradictions in the prosecution evidence would have been minor therefore the court correctly ignored them. lt is argued thal both lower courts correctly found that the incidence of sexual intercourse had been salisfactorily proved given that it was never conlested before them. ln leamed State Counsel's view the issue as to whether or not the victim had a boyfriend would not negate the fact that the appellant had non-consensual sexual intercourse with her. ln the same vein, the fact of the victim having borne a child with another man is opined to neither create a discrepancy in the evidence nor exonerate the appellant of wrongdoing given the victim's credible identilicatron evidence. - 16. As to whether or not the appellant threatened the victim with a gun, it is argued that the possession of a weapon during the commission of the offence is not an ingredient of the offence of rape under section 123 and 124 of the Penal Code Act. ln counsel's view, the fact that the appellant had told the victim that he was a soldier and threatened to shoot her if she made an alarm was sufficient proof that they had engaged in non-consensual sex. State Counsel supports the view by the Court of

Appeal that the prosecution case did not raise any issue as to the parentage of the victim's child, and therefore the DNA flnding that established a different father for her child was not conclusive on the offence of rape, given the independent conoborative evidence that linked the appellant to the offence.

- 17. Finally, in response to Ground 3 of the Appeal, the respondent contends that PW1's testimony on phone conversations between herself and the appellant's wife and father cannot be hearsay since she was personally party to the phone calls. - 18. By way of rejoinder, the appellant decries the respondent's reliance on Henrv Kifamunte vs Uoanda t19981 UGSC 20 and section 139(1) of the TlA, arguing that the procedural inegularities that underpinned the present case did in fact occasion a failure of .juslice. Learned counsel for the appellant urges this Court to reject the idea that the fact that the appellant was legally represented at the trial means he should have raised the inegularities in issue presently before the trial court. Reference in that regard is made to the decision in Tropical Africa Bank Ltd v Grace Were Muhwana Civil Aoplication No. 3 of 2012 that the mistake or inadvertence of legal counsel should not be visited on a clienl - 19. With regard to PF 24A, learned Counsel for the appellant maintains that the record of the kial court proceedings neither establishes any consent to the admission of the impugned police report nor any endorsement of the memorandum of agreed facts. He further reiterates that the failure by the trial judge to read and explain PF 24A to the appellant is an inegularity that contravened the nonderogable right to a fair hearing and occasioned a grave injustice to the appellant as he was not aware that he could no longer challenge the admitted evidence in cross examination. - 20. With regard to the alleged proof of the offence, il is argued that the victim admitted that she had a boyfriend after lying on oath that she had had no previous sexual relations before the alleged rape; no witness placed the appellant at the scene of crime, the other witnesses simply expressing what they had been told, which is hearsay, and the medical report only indicated that the victim had had sex 12 - 48 hours prior to the examination but does not establish with whom she had the sexual encounter, - 21. Learned counsel contests the proposition that the use of 'sha//'in section 82('l) of the TIA was directory rather than mandatory, arguing that such an interpretation would exonerate the trialjudge's failure to duly guide the assesso[s on separate opinions, an inegularity that was endorsed by the Court of Appeal in violation of the appellant's right to a fair hearing against an unjust conviction.

Counsel relects the proposition that the imperfect world that we live in should be reason to negate the standard of proof in criminal trials. In this case, it is his contention that the prosecution fell short of that standard of proof, arguing that in the absence of a judge visiting the crime scene, a sketch and report would help a kial court to visualise the layout of the scene.

- 22. In rejoinder to the respondent's contestations under Ground 2 of the Appeal, it is argued that the quality of the prosecution evidence did nol prove the case against the appellant beyond reasonable doubt, given the grave contradictions, deliberate untruthfulness and hearsay that tainted that evidence. Rather than abide the standard of re-hearing established in Akbar Hussein Godi v Uqanda [20151 UGSC 17, the Court of Appeal is faulted for ignoring the following contradictions that it had indeed acknowledged - (a) Although PW3 testifled that the rape took place on 25th October 2019, PW4 (the victim) testified that she was raped on 26r,October 2019, - (b) PW1 claimed to have been the one who reported to police but later stated that her husband reported the offence; - (c) The evidence of PW1, PW2 and PW3 was based on what the victim had told them after the alleged rape but they never witnessed the incident themselves, and - (d) The victim was inconsistent in her evidence when she first testified to not having had a child but later confirmed it. - 23. The first appellate court is fuffier criticised for its supposed failure to scrutinise PW4's evidence that she had never been involved in any sexual relationship prior to the rape and had only discovered that she was pregnant after the rape, thus deliberately albeit falsely inferring that the pregnancy was a result of the rape. By considering the patemity of the victim's child to have been an irrelevant fact, the Courl of Appeal is opined to have ignored the victim's insinuation that the rape had resulted in pregnancy. The incidence of the rape is further contested on account of the absence of any witnesses from the appellant's other rental units to support the victim's allegation, despite their there being in the same compound as the alleged scene of crime. The only witnesses that supported her case were her aunt, a police officer and medical evidence, all of whom did not witness the alleged rape. ln any event, the medical evidence adduced by the prosecution is opined to have neither established forced entry or traces of the appellant's sperm. lt is thus argued that the contradictions

and inconsistencies in the prosecution evidence should not have been dismissed as minor as they inferred that the appellant was unjustly framed by an alleged victim who was proven to have been deliberately untruthful.

- 24.|n the same vein, the alleged gun threat is argued to have been the victim's sole teslimony, its supposed corroboration by PW1 having been hearsay as she was not a witness to the offence. ln any case, the material on record vide a letter dated 6r' February 2019 was that the appellant had deposited the gun with the CMI hence a thorough check of his home after the alleged offence had yielded no such gun. ln leamed counsel's view, considering the untruthfulness of the victim onother matters before the trial court, her evidence on the gun threat should have been treated as intentional lies that bolster the appellant's innocence while discrediting the prosecution evidence. - 25. With regard lo Ground 3, learned counsel reiterates the view that the Court of Appeal should have been consistent in requinng corroboration of the alleged phone calls by call print outs. He thus contesls the trial court's acceptance ol PW1's evidence in relation to the respective phone calls by the appellant's father and wife seeking an out-of-court settlement and registering a complaint about the appellant's relationship with the victim.

#### C. Determination

- 26. lt is apparent that whereas leamed State Counsel mntesls the competence of Grounds 7 and 3 of the Appeal for not having been canvassed before the lower courls, learned counsel for the appellant only concedes having raised matters under Ground 1 that were neither raised nor in contention before either the tnal court or the lirst appellate court. He nonetheless argues that rule 2(2) of the Supreme Court Rules permits the admission of new matters under exceptional circumstances, but does not clarify what is exceptional about the circumstances of the present Appeal. - 27. Meanwhile, section 138 of the TIA stipulates as follows on the reversal by an appellate murt of a finding, sentence or order passed by the High Court: - (l) Sublect to the provisions of any w nen law, no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account ol any error, omission, irregularity or misdirection in the summons, warrant, indictment, order, judgment or othel proceedings before or during the trial unless the error, omis3ion, irregularity or misdirection has, in fact, occasioned a failure of iustice. - (2) ln detemining whether any error, omission, irregularity or misdirectaon has occasioned <sup>a</sup> failure of iustice, the court shall have regard to the question whether the obiection could and should have been raised al an earlier stage in the proceedings. - 28. Section 138(1)of that Act thus prohibits the reversal on appeal of any finding or order on account of an error, omission, irregularity or misdirection in the judgment, trial proceedings or pre-trial processes that has not occasioned a failure of lustice. Under subsectron (2) ofthe same statutory provision, such a failure ofjustice is to be ascertained on the question as to'whetherthe objection could and should have been raised at an earlier slage in the proceedings.' So that, if an objection to the identilied irregulanty could have been raised earlier in the trial courl's proceedings, there would have been no failure ofjustice if it was not duly raised. Quite clearly, inthe instant case there was nothing to stop the appellant raising his misgivings with the admission of PF 24A, the joint opinion of the assessors or the absence of a report from the scene of crime officer in the course of the trial proceedings. - 29. Furthermore, there would be no failure of justice in a kial where an accused person was neither misled nor lefl in doubt as to the nature of offences with which s/he has been charged or indicted. See Ayume, Francis J, Criminal Procedure and Law in Usanda. Law Africa Publishing (U) Limited,2010 Reprint, p.78. We find nothing on record in this case to suggest that the appellant, who was represented by legal counsel, was either misled or lefl in doubt as to the nature of the indictment against him, so as to have sufiered a failure of justice. - 30. On the contrary, it is clear from the trial proceedings that PF 24A was admitted in evidence as an admitted document without any challenge whatsoever from the appellant's advocate. Whereas we do agree that the appellant should not fall victim to the shortcomings of his advocate, the kial court's judgment reveals that the court re ed on other evidence (and not necessanly the impugned police form) in aniving at the appellant's conviction. lndeed, PF 24A simply established the appellant's age, HIV negative sero-status and sound mental health. These are not factors that would have a direct bearing on the ingredients of the offence of rape. - 31. In addition, although (as quite correctly argued by leamed Counsel for the appellant) section 82 of the TIA does indeed require a trial judge to sum up the case to lhe assessors and secure their separate opinions on it, the decision in Francis Juma s/o Musunqu vs R [19581 1 EA 192 most

persuasively observes that failure to obtain separate opinions from the assessors is not fatal to a criminal trial.

- 32. We therefore find no failure of justice in this case and it thus follows that recourse cannot be made to rule 2(2) of the Supreme Court Rules, That rule essentially mandates the Supreme Courl to exercise its inherent power'to make such orders as may be necessary for achieving the ends of justice.' Having found no failure of justice, there is no reason to so exercise the Court's inherent powers in this Appeal. - 33. Finally, we are alive to the procedural impropnety of an appellant raising matters on appeal that do not flow from a tnal court's decision and proceedings. Thus, in Nalonoo Joseohine Nazziwa vs Uqanda t2018l UGSC 27 this Court held:

We note that the issues raised in the grounds of appeal belore this Court do not emanate from any of the proceedings an the lower Courts. They raise entirely new and fresh grounds. The law is that the grounds being framed on a memorandum of appeal should emanate from the decision and proceedings of the lower Court. This point was underscored in <sup>s</sup>Fang ilin v Belex Tours and Travel Limited SCCA No. 05 of 2073 where the Supreme Cou( held thus:

'...0n appeal, matters that were not raised and decided on in the trial Court cannot be brought up as fresh matters. The Court would be wrong to base its decision on such matlers that were nol raised as issues not determined by the trial Court.'

More particularly so, in a second appeal such as the instanl one, an Appellant is not at liberty to raise matters that were not raised and considered by the trial Court and the first appellate Court. Accordingly, this appeal is incompetent and should be dismissed.

- 34. In the matter before us, Ground 1 of the Appeal, the impropriety of which has been conceded by leamed Counsel for the appellant, clearly runs afoul of the principle espoused in Nalonoo Josephine Nazziwa vs Uqanda (supra) above. Ground 3, on the other hand, critrcised the absence of phone printouts as proof of the veracity of the phone calls. This ground of appeal was not in issue before the Court ofAppeal and therefore that courtdid not have the opportunity to address the merits thereof, On the authority of Nalonqo Josephine Nazziwa vs Uqanda (supra), it follows that Grounds I and 3 of the Appeal are impropedy before this Court and are hereby struck down, - 35. Turning lo Ground 2ollhe Appeal, we are alive to the duty upon this Court to determine whether the first appellate court duly discharged its duty to subject the evidence that was before the trial court to

fresh scrutiny and reach its own conclusion thereon. See Henrv Kilamunte vs Uqanda 11998l. UGSC 20 and /t4oses vs U nda 998 UGSC Thus, the Court can only interfere with the conclusions of the Court of Appeal if it appears that in its consideration of the first appeal it failed in its duty to re-evaluate the evidence. See Moses Rwabugande vs Usanda t20171 UGSC I

36. On the question of inconsistencies in the prosecution evidence, the Court of Appeal discharged itself as follows:

> We also find that the viclin was inconsistent in her evidence when she tirst told Coutt that she did not have a child but later contirned that she had a child. As found by the trial 1udge, the victim satisfactorily explained that t was the Appellant who told her aot to dlsc/ose to Coutt that she had <sup>a</sup> child. We, lrus. a/so ignore this lrconslslence in the prcseulion evidence. We have also taken consideration that the DNA results detemined that the Appellant was not the biological father of the victin's child. However, fiom the staft of the tial, it was never the prosecutton case that the Appellant had fathered a child with the victin. This aspect was latet introduced in the tial during the victim's cross examination . lt was never the gist of the prosecution case. lf it had been found that the Appellant was the biological father of the child, this would have been fufther suppofting evidence to prove pafticipation of the Appellant in the rape. However. the linding that the Appellant was not the biological fathet ol the child did not by itself raise a conclusion that the Appellant did not sexually assau/l tlro viclim. There was indepondent conoborative evldence besdes the victim's testimony conneding the Appellant to the commission of the cime.

37. We would respectfully disagree with the conclusion anived at by the Court of Appeal. ln Abdu Nqobi vs Uqanda t19921 UGSC 15, this Court advanced the following approach for the evaluation of evidence in criminal trials

> (The) evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply lhe burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. lf the defence has successfully done so, the accused must be acquinedi but if the delence has not raised a doubt that the prosecution case is true and accurate, then the witnesses can be found to have conectly identified the appellant as the person who was at the scene of the rncidents as charged.

38. The burden of proof in criminal trials rests with the prosecution, which must prove its case beyond reasonable doubt. See lljlJarv lljnister of Pensions (1947) 2 ALL E. R 372. lt is trite law that in the event of reasonable doubt, such doubt shall be decided in favour of the accused and a verdict of

acquittal returned. Further, inconsistencies or contradictions in the prosecution evidence which are major and go to the root of the case must be resolved in favour of the accused. See @gl!@ Usanda EACA Criminal Appeal No. 167 of 1969 and Sarapio Tinkamalirue vs. Uganda Supr. Couft Criminal Appeal No. 27 ol 1989. So that, major conkadictions and inconsistencies that are not satisfactorily explained would resull in the evidence of the witnesses being rejected, but minor inconsistencies or mnlradictions should be ignored if they do not affect the main substance of the prosecution's case; save where there is a perception that they were deliberate untruths, in which case they too may lead to the rejection of the offending evidence. See Allred Taiar vs Uoanda (supra)

- 39. The Appeal before us presents inconsistencies and contradictions the implications of which ought to have been weighed against the ingredients of the offence of rape and the burden of proof upon the prosecution. To begin with, the victim attested to having had no prior sexual encounters before her purported rape by the appellanl and had no other boylriend other than the appellant, whom she testified was the only person she ever had sexual relationship with. Under cross examination she initially denied having a child, before subsequently conceding to having a s-month child as at December 2020. This would mean that the child was bom in July 2020 and probably conceived about August 2019 - two months before the alleged rape. Even if itwere pre-supposed that the child had been born prematurely but was a result of the rape incident (which was not established by the prosecution), a DNA report on record concluded that the appellant was not the biological father of the victim's child, These are grave contradictions that raise questions as to the credibility of the victim's evidence, and ought to have been resolved in the appellant's favour. - 40 To compound matters, the victim's explanation that she was told by the appellant not to disclose that she had a child would suggest that she was comfortable enough with her supposed rapist to have maintained contact with him after the alleged rape incidents and dutifully complied with his instructions to her. In an indictment of rape that primarily hinges on a non-consensual sexual encounter, this raises questions as to whether in fact there was absence of consent in the victim's sexual relationship with the appellant. This doubt is fortified by the testimony of PW'1 (the victim's aunty) that the appellant's wife informed her that her niece was embroiled in a sexual relationship with her husband When confronted by her aunty, the victim initially denied any sexual relationship with the appellant before subsequently indicating that she was raped by him. Curiously, the victim further attested to having maintained contact with the appellant even after he was anested and he had asked her not to abort the child if she turned out to be pregnant. The foregoing evidence raises

significant doubts as to whether the conduct of the appellant and his supposed victim is consistent with non-consensual sex, a critical ingredient of the offence of rape; as opposed to a consensual sexual relationship.

- 41, We are alive to the fact that the appellant gave unswom evidence before the trial court, in which he simply denied any knowledge of the prosecution case. Nonetheless, it is trite law that in assessing evidence in order to arrive at a verdict, a court may take into account the fact that an accused percon did not give evidence on oath, but this must be exercised with caution and must not be used to bolsler up a weak prosecution case or be taken as an admission of guilt on the part of the accused, See Luboqo vs Uqanda (19671 EA 440. - 42. We find most persuasive authority in the approach adopted rn Abasi Kibazo vs Uqanda t19651 <sup>1</sup> EA 507, where faced with related falsehoods and contradictions given by an alleged victim of rape, lhe court concluded that it was unsafe to allow the conviction for rape to stand. lt was observed:

With the greatest respect to the learned Chief Justrce, we think he placed a far greater reliance on the evidence of the complainant than was desirable in view of the contradictjons, and in some respects, some false evidence she gave before the Court. There was her evidence thal before the alleged assault she was a virgin, that she bled from her vagina as a result o, the rape upon her thereby implying that her hymen had been ruptured and thal her dress was stained with blood. All this was proved to be false and u,e would hesitate to d\$cribs anv pe6on who oives such evidence as boino honest and impre3sive. We would al3o hositate to dercribe the admissions extracled from her under cross-examination as mistakes (my emphasis)

- 43. In the Appeal before us, the totality of the evidence on record raises serious doubts as to the cogency of the prosecution evidence for proof of the offence of rape. lt would have been sufficient for proof of the offence of defilement, where the consent of a victim is immaterial, but not for the offence of rape that hinges on non-consensual sex. In any case, defilement is not a minor and cognate offence to rape. - 44. Consequently, we would abide the settled position in Alfred Taiar vs Uqanda (supra), Sarapio Tinkamalinrve vs Uqanda (supra) and Abdu Nqobi vs Uqanda (supra) that in the event of reasonable doubt, such doubt shall be decided in favour of the accused and a verdict of acquittal returned. We do therefore find merit in Ground 2 of this Appeal and accordingly resolve that ground of appeal in the affirmative.

## D. Disposition

- 45. ln the result, this Appeal substantially succeeds with the following orders: - l. The appellant's conviction and sentence are hereby quashed. - ll. Unless held on other lawful charges, the appellant should be discharged from incarceration with immediate etfect.

It is so ordered.

Dated and delivered at Kampala this ....................................

Paradutory

**Percy Night Tuhaise Justice of the Supreme Court**

Monutur.

**Stephen Musota Justice of the Supreme Court**

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**Christopher Izama Madrama Justice of the Supreme Court**

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**Catherine Bamugemereire Justice of the Supreme Court**

miam enyi

Monica K. Mugenyi **Justice of the Supreme Court**

Criminal Appeal No. 57 of 2023