Uganda v Apai (Criminal Session Case 23 of 1994) [1995] UGHC 60 (16 March 1995)

Full Case Text

THE REPUBLIC OF UGINDA

IN T. B. HIGH COURT OF UG. J. D., AT TORORO

CRIMINIL SESSION CLSE NO. 23/94

**WSILE**

$\Delta$ mar2

UGLNDA ..... .... PROSECUTION

versus

APAT STEPHEN . ACCUSED

BEFORE THE HONOURIELE MR. JUSTICE E. S LUGAYIZI

## R U L I N G

The accused herein whose name is APAI STEPHEN was on the 15th day of March, 1995, indicted for the offence of rape contrary to sections 117 and IIE of the Penal Code Act.

The particulars of the said indictment were that on the 22nd day of June. 1993. at Aukot village. Mukuju subcounty, in Torcro district, the accused had unlawful sexual intercourse with REGINA AMOR without her consent.

When the indictment was read to the accused, he denied the above offence, whereupon the prosecution began its task of pulling the said offence against the accused.

The prosecution's first witness was Regina Awor, an elderly looking andy of Magodesi village. Molo sub-county, Tororo district, who said that she was married, but did not know how old she was.

In brief, the rest of her evidence was as follows:

On 22nd June, 1993, after mid-day, as PMI returned home from a visit to her daughter who lived in Totokigwe village, she ws caught up in rain in that village.

As a result of the above therefore, she decided to take shelter on the verandah of a hut which was near the road.

No sooner had she done so, than the accused who -came from inside the hut grabbed her hands and began pulling her. He over-powered her and took her inside the said hut.

According to PWI, the accused then made her his wife. Ho worked on her, The accused know best what he did.

At this poi nt. th o "v/i tv c ss r s. 1 an - I '■ ti. thfortm. \ t since it was raining h- chere was a lot of wind, nobody respond! t., her alarm.

After the above events, the accused opened the door of his house and PWI went away.

However, despite the fact that PWI did not know the accused before, she said that she was able to recognize him during the events in issue; and was sure that the man who was before court at the time she gave her evidence herein, was indeed her assailant on the day in issue.

PWI later reported the above matter to the RO Chairman of the area. Shv also went.. . .-••ital after seven days.

At the end of the above witless' testimony, the prosecution offered no further evidence.

Mr. Okwalanga fox' the accurx also left the matter in coux't's hands to decide.

I believe that what the prosecution did above, in effect amounts to closing its case. It is therefore now the duty of this Honourable court to decide whether on the above evidence, the prosecution has made out a prime facie case against the accused which would require him to come to his defence.

In the famous case of R. T. Bhatt v R (1957) B. A. at II 332, a prima facie case was .1; Aicc as,

''one on which a reasonable tribunal properly directing its mind v, • ri. lew '.nd the evidence could convict ii *xj.uj.* lion is oil cred by the defence."

The above apart, cases such as Wabiro alaias Musa v R (1960) E. A. P. 184; Uganda v Alfred Ateu (1974) HCB P. 179; Kadiri Kyanju and others v Uganda (1974) HCB P. 215; etc, have also suggested, that a court can make a finding of a prima facie case where the evidence adduced before it (at the close of the prosecution case) does not fall short of proving any essential ingredient of $-12 - 11$ the offence in issue.

In this case, apart from the vague and meaningless statements uttered by PWI to the effect that the accused made her his wife at the material time, and that he worked on her, etc, there is nothing on record to throw light on what actually took place inside the accused's hut after he pulled in PWI.

In the circumstances, it is apparent that the heart of the offence in issue (ie the alleged sexual intercourse) between the accused and PWI without the latter's consent) was not proved at the close of the prosecution case.

That being so, I have no choice but to find that no prima facie case has been made out against the accused which would require him to come to his defence.

I would accordingly acquit the accused of the offence of rape contrary to sections II7 and II8 of the Penal Code Act; and also order his immediate release, unless he is being held on some other lawful charges.

Be that as it may, before I take leaving of this matter. may I also point out that the complainant (PWI) has only herself to blame for the fact that this case has collapsed.

Indeed, the learned Resident Senior State Attorney. (Mr Khaukha) endeavoured to guide her in her evidence for more than one and half hours, but she stubbornly refused to say exactly what took place inside the accused's hut on the day in issue. She was very satisfied with leaving court with the useless statements above.

By her looks, probably a grandmother. Children under the age of I# years have on countless number of times beforey given valuable evidence to this Honourable court on matters such as these. Court thereforey expected PWI to perform a lot bettor than she did«

E.5\ LUGAYIZE

JUDGE 16/3/95

Jlead before: At • .• . .r ■\*vr\* '\* • • Mr. Khaukha (RSSA) for the State Mr. Okwalanga for Accused Accused present 2 assessors present Mr, Wandera C/clerk Mr. Oburu / Inturpretor

. JUDGE 16/3/95