Uganda v Avaga (Criminal Session Case 306 of 2022) [2023] UGHC 311 (24 August 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA CRIMINAL SESSION CASE NO 306 OF 2022 (Arising from Madi-Okollo C. R. B. 158/2022)**

**UGANDA:** PROSECUTOR

#### **VERSUS**

**AVAGA GIDEON ACCUSED**

**BEFORE HON. MR JUSTICE ACELLAM COLLINS**

#### **JUDGMENT**

#### **Introduction**

consent. The Accused in this case is indicted for the offence of Rape contrary to sections 123 and 124 of the Penal Code Act. The particulars of the offence are that the Accused, on the 11th day of August 2022 at Ojiba Cell, Ayavu Ward, Inde Town Council in the Madi Okollo District had unlawful carnal knowledge of Eleku Jita without her

Briefly the case for the prosecution is that during the night of 11<sup>111</sup> August 2022 while the victim Eleku Jita, about 80 years old, was sleeping in her house at Ojiba Cell, Ayaku Ward, Inde Town Council in Madi-Okollo District, a person she later identified as the accused

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person forced his way into her house and had sexual intercourse with her without her consent. That the accused person squeezed the victim's neck, bit her head, and asked her whether she knew him and also asked her when he shoul come back again to have sex with her which made her to identify f by his voice as someone who was known to her. She later crawled and slept in the bush and by daybreak she reported to her neighbours who in turn informed the area leaders who helped to take her to the police and for treatment. The accused was then arrested by villagers and forwarded to the police for further investigations.

In his defence the accused denied committing the offence and stated that on that day he went to his garden and after returning home he proceeded to the Trading Centre. That the alleged offence was committed on Thursday and on that day he went to the Trading Centre with his wife and brother, and he was arrested from there. That the time the victim is talking about he was sick, and he stayed home with his wife Okonia and did not move out. That he had only recently moved to the village a year before the incident and had married the daughter of the victim. He attributed the allegation to the victim's landlord one Tiope, against whom he had a complaint of assault and alleges that he used the victim to implicate him for fear that he would arrest him anytime.

#### **The Burden and Standard of Proof.**


The burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. This burden docs not shift to the accused and he can only be convicted on the strength of the prosecution case and not on the weaknesses in his defence.(Sec *Ssekitoleko Vs. Uganda (1967) EA 531)*

By his plea of Not Guilty, the accused put in issue each and every essential ingredient of the offence with which he is charged and the prosecution has the onus to prove each off the ingredients beyond reasonable doubt.

Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent.( *See:Miller v. Minister ofPensions[1947] 2ALL ER 372)*

## **Ingredients** of **the** Offence.

For the accused to be convicted of the offence of Rape the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

- *1. Carnal knowledge of a woman.* - *2. Lack of consent ofthe victim.* - *3. That it is the accused who had carnal knowledge of the victim.*

## **a) Carnal knowledge of a woman.**

Carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ, where a sexual organ means a penis. This can be proved by the victim's own evidence, medical evidence, or any other cogent evidence.

The victim in this case, Jita Eleku, testified as PW1 on 9/5/23 that on the night of 11/8/22 at about 3:00am while she was sleeping alone in her house she heard someone trying to open her door. She shouted, *"who are you?"* and the person did not respond. She shouted again and demanded to know who it was, and the person responded and said he is *"Jimmy" .* After some exchanges the person kicked her door three times and when it opened and as he entered she got up, but the person threw her down and held her mouth. He later started raising her cloth and said he wanted to have sex with her and when she asked him whether she still looked like someone who wanted to have sex. He then threatened her that he has a gun and that he had killed 88 people and she would be the 89th and forcefully had sexual intercourse with her. He then asked whether it was okay for him to be her husband and he left saying he would come back later to have sex with her. He then had sex with her again and then left. She then left her house and went to the bush and returned in the morning and reported to one Jimmy. PW2 Amaniyo Judie testified that on 11/8/2022 at around 6:00am while they were still in bed the victim came to their home and reported that a man had entered her house and had sex with her,


scratched her and strangled her. Later that day she found her sleeping and sent someone to call one of her sisters to take care of her and also informed her landlord.

Medical Examination of the victim revealed that she had some pain on the head and neck due to squeezing. There was also generalized tenderness around the abdomen and back. She was examined by Mayani Michael, a Senior Clinical Officer of Inde Health Centre III whose report comprised in Police Form 3A was admitted in evidence by agreement of the parties as PEX1.

From the above evidence I find that the prosecution has proved this ingredient beyond reasonable doubt.

## (b) **Lack of consent of the victim.**

The next ingredient to be proved is lack of consent to a sexual act or that the consent was procured by intimidation, force, or trickery. This can be established by the evidence of the victim, medical evidence of other cogent evidence.

she her not The victim in this case is an elderly woman in her 80's and testified that the person who attacked her had sex with forcefully. That at the time of the incident the person was known to her and when he entered her house she raised an alarm. He told her that he wanted to have sex with her, and she asked him if she looked like someone who still wanted to have sex. He later

told her that he had a gun and he had killed 88 people and that she will be the 89th person. When he threatened her she kept quiet and he forcefully had sexual intercourse with her because she was powerless. He later asked her questions about her tribe, and she answered out of fear, and she left her house and went and slept in the bush after he left for fear that he would come back. After the incident she felt pain as a result of the assault as they struggled. She also reported to PW2 that someone had entered her house, had sex with her, scratched her and strangled her. The medical examination report admitted as PEX1 shows that she had pain on **-fo** the head and neck due^squeezing. There was generalized tenderness around the abdomen and back.

Ftfrm the above evidence <sup>I</sup> find that the victim did not offer her consent to the sexual act on her. She is an elderly woman aged about 80 years and from her own testimony she had no interest in sexual intercourse. The sexual act was performed on her by the use of force, and this is confirmed by the fact that after the incident she left her house and slept in the bush until she reported to neighbors in the morning. The medical report confirms her story from the nature of the injuries she sustained. <sup>I</sup> am satisfied that the prosecution has proved that the victim was subjected to sexual intercourse without her consent.

**(c) That it is the accused who performed a sexual act on the victim.**

 The last ingredient the prosecution is required to prove beyond reasonable doubt is that it is the accused who performed a sexual act on the victim. The ingredient can be satisfied by adducing evidence, direct or circumstantial, showing the accused as the perpetrator or participant in the perpetration of the offence.

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The accused denied committing the offence and stated that the day before the offence is alleged to have happened he was not feeling well. The next day on Thursday when the offence is alleged to have been committed he went to the trading center with his wife and brother and did not return home because that is when he was arrested. That the time the victim is talking of is when he was sick, and he was at home with his wife and mother. He also testified that by the time the offence happened he had only been in the village for a year during which time he married his wife by the names of Okonia who is a daughter of the victim.

He believes the allegation was instigated by one Tiope who is a landlord of the victim. That the said Tiope may have used the victim to implicate him because he had a complaint of assault against him, and he thought he would cause his arrest anytime. That the victim does not know his name and it is the said Tiope who gave her his name. DW2 Okunia Eelista, the wife of the accused and granddaughter of the victim testified that the victim does not know who raped her. That on the fateful day she was home, a distance of about 30 meters away from the victim's house, with her husband

and other members of his extended family. She also stated that they had live^in the village for a long time and have interacted with the accused.

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**I**

The prosecution relied on the evidence of the victim who testified that she knew the accused but did not know his names. She only got to know his name when this incident happened. On the night the incident happened, at first she did not know the person who attacked her but later identified him by his voice when he started talking. That she knew it was the voice of the accused person because he used to do work for her a year earlier and she had heard his voice while they conversed with a person with whom he came to dig for her. That at the time of the incident he had told her his name, but she had forgotten it because the name was in English. She also testified that she knew the accused came from Ojiba Village and he had a brother who used to be a leader of their small Christian community and they used to go to his home for prayers.

In this case there is no evidence of visual identification because the incident happened at night and indeed the victim does not say she was able to make a visual identification of the accused. In the circumstances this court has to determine whether the witness made a correct identification of the accused by his voice.


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The legal position on identification of a person by his or her voice is laid out in *SAKAR ON EVIDENCE, FOURTEENTH EDITION, 1993* at page 170 as follows;

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*"If the court is satisfied about the identification of persons by evidence of identification of voice alone, no rule of law prevents its acceptance as the sole basis for conviction. Possibilities of mistakes in identifying persons by voice especially by those who are closely familiar with the voice could arise only when the voices heard are differentfrom the normal voices on account of the situation or when identical voices are possible from other persons also..."*

The Court in Sharma Kooky and another **Vs** Supreme Uganda[2002]2 EA 589 held that:

*"Identification becomes a crucial issue if the identifying witness is unable to physically see the speaker whose voice she claims to identify and therefore it is necessary for the trial court to consider the identification with the greatest care and caution. There is a possibility of mistaken identity by voice where it is claimed that the person identifying has never had face to face discussion with the person being identified."*

The supreme *Court in Sabwe Abdu Vs Uganda, Criminal Appeal No. 19 of2007,* held that;

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## *does not necessarily* "To *identify a person's voice, on need to have talked to that person."*

In that case, the court considered that the identifying witnesses were familiar the appellant because he lived about a quarter mile from their home, they always passed by his home as they went to school, and they used to hear him speak to other people. The appellant also used to come to their home where they would hear him speak to their father. The court therefore agreed with the trial Judge's finding that given those circumstances, the identifying witnesses would be able to identify the appellant by voice even if they had never directly talked to him.

In this case, the victim stated that the accused was known to her. She knew his voice because he used to work for her, and she would hear him converse with a person with whom he would come to dig for her. The evidence also showed that the accused person was a husband to the victim's granddaughter. At the time of the incident, they had a conversation for a long time. I am satisfied that the evidence of identification can be relied on as the victim knew the accused and had ample opportunity to identify his voice when they conversed. <sup>I</sup> find that this evidence places the accused at the scene of crime as the perpetrator of the offence. I hereby reject his defence and the evidence of DW2 and find that he committed the offence.


I accordingly find that the prosecution has proved all the essential ingredients of the offence beyond reasonable doubt. That accused is therefore convicted of the offence of Rape contrary to sections 123 and 124 of the Penal Code Act.

Dated at Arua this 2023

**Acellam Collins Judge**