Tirwakunda v Rex (Criminal Appeal No. 102 of 1951) [1951] EACA 205 (1 January 1951)

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and AINLEY, J. (Uganda)

## ISIDORO TIRWAKUNDA, Appellant (Original Accused)

#### $\mathbf{v}$

# REX, Respondent

## Criminal Appeal No. 102 of 1951

(Appeal from the decision of H. M. High Court of Uganda—Pearson, J.) Sentence—Corporal punishment accompanying long sentence of imprisonment.

The appellant was convicted by the High Court of Uganda of rape and sentenced to seven years' imprisonment with hard labour and to a whipping of 20 strokes.

Held (9-7-51).—A sentence of a long term of imprisonment ought only to be combined with a severe sentence of corporal punishment in the worst cases of this type of offence.

Sentence as regards whipping quashed.

Appellant absent, unrepresented.

## Walthers, Crown Counsel, Uganda, for the Crown.

JUDGMENT.—The appellant was convicted by the High Court of Uganda of rape and was sentenced to undergo seven years' imprisonment with hard labour and to a whipping of 20 strokes. He appeals against both conviction and sentence.

In his Memorandum of Appeal he alleges that the girl in question was his old lover and that on the day of the alleged offence, she and her brother visited his house where he entertained them with other guests, and that the brother then asked the girl to remain and spend the night with him (the appellant). He does not expressly admit having had intercourse with the girl that night but leaves it to be inferred that intercourse took place and, presumably, with her consent. Unfortunately for the appellant this was not the case which he put forward either at his trial or in the voluntary, exculpatory statement made to the Police at the time of his arrest. His defence then was that the brother and sister came to his house as strangers, with a complete denial of any sexual intercourse with the girl. There was evidence for the Crown which, if believed, corroborated the girl's complaint of rape; the medical evidence showed that she had recent abrasions and bruises within the vulva consistent with violent penetration, and the local Chief testified that, when he was called to the appellant's house, the complainant was locked inside crying and that when released she complained that the appellant had had intercourse with her and had torn her clothes. Both assessors and the learned trial Judge accepted this evidence and no grounds have been shown for disturbing their findings of fact. The appeal against conviction is dismissed.

We have given anxious consideration to the appeal against the sentence imposed by the trial Judge which, it cannot be gainsaid, is a severe one. We think that in general a sentence of a long term of imprisonment ought only to be combined with a severe sentence of corporal punishment in the worst cases of this type of offence. The questions are whether this is such a case and whether the learned Judge fully addressed his mind to all aspects of this matter before determining the proper sentence.

The appellant is a young man of 25 and an Agricultural Inspector in the Government service; the trial Judge has noted in his judgment that he exercised some authority in his village and took advantage of this. Physically also he is older and stronger than the complainant and her brother. The former is aged 16 but according to the medical evidence she was not *virgo intacta* before this incident occurred. This fact is of importance when considered in relation to some of her statements in her deposition before the committing Magistrate. It is perhaps unfortunate for the appellant that he was not legally represented at the trial for defending counsel would probably have brought these more prominently to the notice of the Court. In the lower Court the complainant denied that she had ever had connexion with a man before and she also said that while she was sitting next to the appellant at table, in the presence of her brother and two clerks, the appellant "held her with his leg" twisting his leg round hers. Although she disliked this and tried unsuccessfully to disentangle her leg she made no complaint about it to those present "because the appellant scratched my back". If this part of her evidence is true and if it was the fact that she was not then a virgin, this evidence does suggest, we think, that she was well aware of the appellant's feelings and intentions towards her and, by her tacit acquiescence in his philandering, may have led him to think that she was willing. If there is any doubt on this point raised by the evidence, the appellant should have the benefit of it. Whilst this would not excuse him for taking her by force, after he had got rid of her brother and his other guests, it can fairly be considered as a mitigating factor.

When to this we add the hitherto good character of the appellant and the admitted fact that he had taken a good deal of drink, the majority of the Court think that this is not a case of such brutality as to warrant the infliction of corporal punishment. We therefore confirm the sentence of seven years' imprisonment with hard labour but quash the sentence of whipping.