Uganda v Akuku (Criminal Session Case 263 of 1993) [1994] UGHC 55 (2 May 1994)

Full Case Text

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## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

CRIMINAL SESSION CASE NO. 26?/9?

UGANDA PROSECUTOR

VERSUS

ALFRED AKUKU :::::::::::::::::: ACCUSED

## ■BEFORE: THE HON. MR, JUSTICE G. M. OKELLO

JUDGMENT:

The accused, Alfred Akuku was indicted for the rape of his sister in law Terezina Batiyo contrary to sections 11? and 118 of the Penal Code Act. The particulars of the offence allege that the offence was committed at Moipi village in Moyo District on 11.1.9? when the accused had unlawful carnal knowledge of Terezina Batiyo without her consent.

When the charge was read to him, the accused denied the offence. The evidence of a total of five prosecution witnesses were called. According to the prosecutrix Terezina Batiyo^(PW?) she is a widow with two children. The accused is her brother in lav/ having married her younger s-ister. On 11/1/93 the accused and two others visited her at her home at Moipi village where she lives in the homestead of her father.in law. She entertained her visitors to two bottles of enguli. Later the visitors left. After 9»00 p.m. of the same day when she had already retired to bed with her two young were children who/ared between 2 and ? years, the accused returned and knocked at her doorf After he introduced himselft -^he opened the door for him and let him in. He entered the house but looking drunk and was staggering as he walked. He told her that he was tired and wanted to sleep. As there was no alternative accommodation, she opened the papyrus mat on which she and her children were sleeping and offered the^pther edge to the accused to sleep in. They were separated by her two children who slept in between them.

At nitrht, she was awoken by.a sharp pain in her vagina\* Then she realised that someone was on top of her ano had pushed his penis into her vagina. The pain became much when the person used more force. She used force and pushed him off her. As there was li^ht from the cooking place, she recognised the person as the accused. She struggled and removed his pushed shorts which had £ down to his knees. Then she made alarms When it was not responded to quickly, she srot out and ran to her father in law Leone Onzi (PW3) and reported to him what had happened to her. She came with the shorts which she had removed from the accused. From her fatherin - law she proceeded to Swaibu Drale (PV/4). He is the brother of her father in-law and an . RC1 executive. While she was with Swaibu, the accused followed her and pleaded with her to excuse him claiming that he was drunk and thought that he was at his home. Swaibu Drale PW4 kept both of them at his house and summoned the local RC executives. They came to his home where both of them were that nijzht-. The following morning they were both taken to Moyo Hospital from where they were both medically, examined.

The evidence of Santino Olok (PW2) shows that he is a medical Assistant of 30 years experience. He is stationed at Moyo Hospital. On 12/1/93 he was on duty at the Hospital when a police officer brought to him a man and a woman whom the officer introduced as suspect and victim of rape respectively and requested him to examine them. After interviewing each of them for their respective history, he carried out physical examinations and laboratory tests on both of them. He later wrote reports of his findings. Copies of the reports were submitted to the police. The reports in respect of the victim and the accused were later recieved in evidence and, marked as follows.-

(1) On the victim Terezina Batiyo:- Police Form 3------\*"• as

- Laboratory Test-- ------ as Exh. P3 (a)

• 3.

Medical Form 5--- Exh. P3 (b)

The police form 5 (Exh. PJ) shows that there was a human bi'te on her wright wrist. There was white dried substance found on her upper thighs, on the

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pubic kair and around the mouth of her vagina.

Laboratory test (Exh.. P3 (a)) revealed the presence of sperms in her urine. This suggests that she had sexual intercourse with a man as recent as the previous night.

**3**

(2) The report on the suspect - Aifred Akuku.

- (1) Police Form 3 -------- as Exh P2. - (2) Laboratory Test---- Exh. P2 (a) - (3) Medical Form 5------- Exh. P2 (b)

The Police form 3 (Exh. P2) on the man shows that there\*was a bruise on the right side of his chest.

- Laboratory test (Exhii 2 (a) showed nothing abnormal on him.

No. 26275 A. D. C. I. D. Julious Bwanyo (PW1-'s) evidence shows that on instruction he visited the scene of crime and drew a sketch plan showing the numbers of houses in the homestead and the very house in which the Rape was alleged 1 • \* to have been committed. The Q-ketch plan «was later received in o^idence and ' marked Exh. P1.

The accused gave a sworn statement in his defence. In the statement he admitted that he truly had unlawful sexual intercourse with the complainant Terezina Batiyo who is his sister - in - law at Moipi village in the night of 11/1/93 without her consent. He explained that he did that because he was so intoxicated that he thought he was in his house and probably was with his wife. He told court that when he visited the complainant, she entertained him and his two other friends with whom he went to a- total of five bottles of enguli which made him so drunk that he could not go back to his home at Loropiy His other two friends left him behind.

As it was stated in Leonard Asineth vs. Republic (19,63) EA 206 at 2O8t the burden to prove the offence against an accused beyond reasonable doubt lies squarely on the prosecution. This is a burden which does not shift

to the accused. The followings are the essential elements of the offence of rape requiring proof beyond reasonable doubt to secure a conviction:-

- (1) that there was sexual intercourse (evidenced by penetration however slight) with the complainant. - (2) that the sexual intercourse was unlawful. - (3) that the sexual intercourse, was without the consent of the prosecutrix and - (4) that it was the Accused who had the sexual intercourse with the prosecutrix.

As we have seen above, the accused in the instant case admitted in his defence that he had unlawful sexual intercourse with the complainant at a place and time alleged by the prosecution. His explanation is that he did so becaase he was sc intoxicated that he thought he was at his home and probably with his wife. Clearly the accused.-is thereby raising two possible defences:- Intaxication and mistake of fact.

But it was contended and are-ued on his behalf that the complainant by her .. . the conduct had ffiven a tacit consent tcZact of sexual intercourse with the accused. Mr. Okwmvali arirued that in Madi custom, it is not acceptable for a matured woman to share one room let alone a bed with a matured man who is not her husband. He pointed out that in the instant case, the complainant did net only offer accommodation to the' accused with her in the same room but also in the same papyrus mat. Counsel this seductive conduct of the complainant amounted fe tacit consent to the act of sexual intercourse with the accused\*

For the prosecution it was contended that there was no such causent at.!, all The prosecution relied on the evidence of the complainant (PW5) who stated that she did not consent to the sexual, intercourse with the accused.

She emphasised that she would not have consented oven if the accused had requested because he is married to her younger sister. She explained that she offered the accused that accommodation because she had no other alternative accommodation for him. Then presecution also relied on the medical Report ( $Exh. F3$ ) which shows that the complainant sustained a human bite on her right wrist which suggested a struggle. They also relied on the evidence of Swaibu Drale (PW4) which shows that the complainant went to him crying and complainined that the accused had raped her. The accused himself admitted in his sworn statement that the complainant offered him that accommodation because she had no other alternative accommodation. She did not consent to the sexual intercourse with him. He had not even requested her for it. In those circumstances it can not be said that by offering to the Accused the accommodation/she did, the complainant had tacitly consented to having sexual intercourse with the accused. She did that as a social obligation to her brother in-law. There was therefore no consent to the complainant to the sexual intercourse.

It was further contended for the accused that because of intaxication the accused did not have the intention to have sexual intercourse with the complainant. In support of this contention, counsel relied on the evidence of the complainant (PW5). She testified to the effect that when he returned to her home after 9.00 p.m. that night, the accused was drunk and asked for where to sleep. He was staggering when walking. Swaibu Drale (PW4) also testified to the effect that when the complainant went to him holding a pair of shorts, the accused followed her and pleaded with her to excuse him. He was drunk.

From the above evidence Mr. Okwangali submitted that in view of the interication the accused had no intention to rape the complainant. He cited section 13 (4) of the Penal code Act as his authority for that proposition.

$\overline{5}$

For the prosecution it was contended that the accused had the intention to rape his sister-in-law that night. In support of this view the prosecution relied on the evidence of the complainant (PW5) who testified to the . effect that when the accused returned to her home after 9.00 p.m. that night he was able to find his way and addressed her by her right names, secondly that the accused followed her to the home of Swaibu (PW4) after the incident and pleaded with her to excuse him.

**4**

It was submitted for the prosecution that all the above show that the accused was able to know that he was doing. . He must have known that he had done wrong to apologise.

it is in my view pertinent to reproduce the section of the' penal code Act on which cunsel for the accused relied for.the defence of intoxication.

It reads:- ''Section 13 (M - Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intent specific or otherwise in the absence of which he would not be guilty of the offence".

The intention required here is to have sexual intercourse. In determining whether the accused formed that intention, all the circumstances of the case including the fact of intoxication must be taken in to account. In thi case the accused had taken alcohol and 'TTas drunk. But he was able to find his way to the house of his sister-in-law. He also addressed her by her uroper names. He gained an erection, lumped over the two children who lay between them to get to the victim. Without the necessary intention, he would not have gained an erection. After the incident he got out and followed the complainant and apologised, and pleaded with her to excuse him. Taking all these into consideration I am of the view that the accused had formed the necessary intention to have sexual intercourse with his sisterin-law. It was that intention that must have prompted him to return\*to her house. The alcohol only wve him the coyrage. to act. The defence of intoxication is therefore not available to him.

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It was further contended for the Accused that because of intoxication, the accused thought that he was at his home and that what he did to his sister in-law, he was doing to his wife. In support of that contention counsel relied on the evidence of the accused. When he followed the complainant to her the home of Swaibu Drale PW4, he pleaded with Z to excuse him because he was ''drunk and thought that he was at his home".

Mr. Okwangali submitted that in view of the above evidence, the accused acted in a mistake of fact when he had sexual intercourse with his sis ter-in«rlaw0 He thought that he was at his home and doing that to his wife. That this brings the case within section 10('1) of the Penal Code Act.

For the prosecution it was contended that there wqs no question of mistake of fact. That the accused knew what he was doing and acted deliberately and **intendHiG^all^** to have sexual-intercourse with his sister in law. He knew fully well who she was. In this contention the prosecution relied on the evidence of the complainant PW^ and on that of Swaibu PW^. The complainant PW5) testified to the effect that when he returned to her house, after 9«00 a though drunk and was staggering, the accused was able to find his way to her house and'addressed her by her name. When she opened for him the door, he entered and asked for accommodation saying he was tired and needed a rest. ^Secondly that after the incident the accused followed her to the home of Swaibu (PW2\*) and apologised to her and sought an excuse.

It was submitted for the prosecution that all the above show that the-^ocused was conscious of what he was doing.

The gist of section 10 (1) of the Penal code Act on which counsel for the accused placed much reliance is that when a person does an act or omits to do a thing in an honest and reasonable but mistaken belief as to the state of thingj he is. not criminally responsible for the act or omission mord than he would be if the state of thing were as he believed. In other words

if the accused in having sexual intercourse with his sister-in-law honestly and reasonably but mistakenly believed her to be his wife, he would\*-\*hbt be criminally responsible for that act because if his sister in-law were 'his wife that act would not have been criminal\*

In deciding whether the accused acted in an honest, reasonable but a mistaken belief, all the circumstances of the case- 'including the fact of drinking must be taken into consideration. In this case, there is no dispute that the accused had taken alcohol and that he was drunk. Ho was staggering, when walking\* But despite that drunkardness, he was able to find his way to the house of his sister in law. He knocked at the door of the night house despite the many similar huts in the homestead. He even addressed his sister in law by her proper names and requested for accommoodation. At least up to this point he had shown that he was conscious of what he was doing. This was before the incident. He knew he was at the home of his sister in law. Even after the incident, his conduct showed that he was conscious of what he was doing. He followed his sister-in-law to the home of Swaibu (PW4) apologised to her and pleaded with her to excuse him. This conduct after the incident still shows that the accused knew what had happened. That it was wrong and was conscious of the consequences. Hence ... the apology and the plea for excuse. Under those circumstances I do not find that there was any honest, reasonable but mistaken belief.. The accused was conscious of all that .had happened. He had just taken a deliberate, calculated shrewd move to have sexual intercourse with his sisterin-law arid in her own house. He probably had all along been admiring her. There was no question of mistake. The defence is not available to the accusec In the whole, I am conscious of the danger of convicting in sexual offences on an uncorroborated testimony of the prosecutrix. But in the instant case I am satisfied that there is ample evidence to corroborate the evidence of the prosecutrix. In agreement with the assessors, I convict the accused of rape as charged.

G. M. ^KELLO

JUD^E.

## Sentence;-

The Principle of sentence is that it must be commensurate with the offence. In this case the accused was convicted of rape, The maximum sentence for rape is death. Court however, has discretion to impose a lesser sentence. The actual amount of sentence awardable is determined by the circumstances of each case. This includes the seriousness of the offence, the manner in which the offence was committed.

Ir the instant case, the accused was offered accommodation in the same papyrus victim after he was eriven alcohol to drink. **reftwith** the £ This was very seductive. He had been in custody on rQRfc&nd for 1 year and 4 months. Taking all the above into consideration, I consider that a sentence of 2 years imprisonment is commensurate with this offence. So I order.

/'i *'• I-*G. M. CKELLO

JUDGE.

2/5/94