Uganda v Boona Peter (Criminal Session Case No. 324/94) [1995] UGHC 78 (7 July 1995)

Full Case Text

HOW MR. JUSTICE EGONSA-NTENDE

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SESSION

HOLDEN AT MBARARA

CRIMINAL SESSION CASE NO. 324/94

UG/NDA:::;;::::::::::::::::::::::::::::::::

## = V E R S U S =

BOONA PETER::::::::::::::::::::::::::::::::::: **BEFORE:** THE HONOURABLE MR. JUSTICE I. MUKANZA.

## $J U D G M E N T :=$

The accused person is known as Peter Boona. He is indicted of Rape contrary to sections 117 and 118 of the Penal Code Act and pleaded not guilty. The particulars of the offence were that that on or about the 12th day of November 1993 at Kyarwehunda village in Ntungamo District the accused had unlawful carnal knowledge of one Margaret Kyomukama without her consent.

The prosecutions case was that in the night of 12th November, 1993 while FW1 Margaret Kyomukama was in her house asleep the accused person first knocked on the window and eventually banged on the door and it fell inside. She was a married woman and her husband was away. She woke up and raised an alarm. There after the accused held her by the neck and mouth and knocked her down and she fell down and thereby the accused sexually intercoursed her. The prosecutions case further showed that the complainant was putting on a half petty and knicker which the accused removed where is the accused was putting on a pant. She tried to resist but the accused over powered her. He was too strong for her. The sexual intercourse lasted for about three hours from midnight to 3.00 a.m. She felt pain in her vagina after raping her the accused took her out of the house and they ended up in the banana plantation. While there the accused ./ knicking her and she fell down and he pressed her neck and the back. While still in the banana plantation she saw flashes of torches which were flashed by people who were

coining from drinking. The accused left her and ran away. W1 did not go back to her house she reported the incident immediately to the RC1 Chairman Fulugensiyo Barusya FW4 and also informed the Chairman that she had left her children in the house alone. The Chairman RC1 PW4 accompained her to her house. She collected the children and spent the night in F/J4's house. PW4 on visiting, the scene he saw the broken door. According to PV/4 the complainant's cheeks were swollen. She had been beaten and she had also scratches on the neck.

For PW2 Rworausana Francis a medical assistant of Kitwe Health Centre, he saw PW1 who was the complainant in a rape case. He q examined her apart from her private parts. She had cuts on the upper lip, several bruises on the chest wall. There were a braision on the neck and bruises. The injuries were to the healing■•stage.

The accused denied the charge. He testified that in the night in question he was in Ntungamo Nyakyanga village Kahungwa Parish. He had gone there on 10.10.1993 and spent three days there return!?,;; on 14.10.93. He was looking for a place where he could carry on his trade. He explained that there was a grudge between Ptfl and the accused. One of her relatives was killed and I was among the suspects who had caused his death. The deceased was beaten to decO. because of stealing property. He was arrested taken to court and later discharged. On one occassion he was arrested because he did not have graduated tax tickets and was taken to his home village. The chiefs of the area told his captors that the accused had been in prison and vias exonerated. It was at that point the chairman identified the accused to the complainant as the man who had raped H

This offence of rape is committed by a person who has unlawful carnal knowledge of a woman without her consent or with her consent if obtained by force or by means of threat or intimidation of any kind, or by fear of bodily harm or by means of false representation? as to the nature of the act or in the case of a married woman by .

personating her husband See section 117 of the Penal Code Act.

As I warned the gentleman assessor as I warn myself now the burdan to prosecution has got to/adduce evidence to prove the following ingredients of the offence beyond reasonable doubt.

- (i) whether there was penetration of the male organ into that of female organ. - (ii) whether that was done without the consent. - of the complainant.

(iii) whether it was the accused person responsible.

On the first issue we do have the evidence of the complainant PW1 who testified that while asleep the accused person forced himself into the house and sexually intercoursed her. The accused denied the allegation and said was somewhere else on that date. He raised alibi. However immediately after the incident FW1 reported to the RC1 Chairman of the area who observed that the complainant went complaining to her while crying. Her cheeks were swollen, she had been beaten she had scratches on the neck. In Abasi Kibazo vs. Uganda 1965 EA p 507 at page 510, quoting with approval the decisions in R vs. Zelinski 1950 14 Cr. Appl. R 193 and R v Alan Ridpath 1962 46 Cr. Appl. R 319 Sir Sammuel Qushie Dun Pashethn as he then was hel. that in sexual offences the distress condition of the complainant is capable of amounting to corroboration of the complainant evidence depending upon the evidence and circumstances, I am of the view that PW2 testimony corroborated the complainant's evidence that she was raped.

However if the testimony of PW2 does not amount to corroboration of the evidence FW1 that she was raped I directed the assessors that : is not safe to convict on uncorroborated testimony of the complainant but if they are satisfied of the truth of the complainant's evidence they may after paying attention to the warning nevertheless convict of course in the absence of such direction a conviction cannot stand See R vs. Cherop Arap Kineir and Anor 1963 EACA See also Chilla

And Another vs. R 1967 EA P 722 page 124. As I stated earlier the accused denied the allegation by putting up an alibi. I will deal with that when considering the last ingredient of the offence.

4 : f **4.**

The second ingredient was whether the sejoial intercourse was done without her consent. PW1 herself testified that the door was banged open the intruder broke in the house got hold of her mouth and neck kicked her and boxed her and then forcibly sexual intercoursed her. She testified that the intruder was too strong for her and she could not resist. PW4 to whom PW1 reported immediately after the incident observed that Ptfl came while crying that is a sign of disapproval of what had happened to her. In addition FWl's cheeks were swollen she had been beaten. She had^ scratches on the neck and when PW4 visited her house she found the door to her house broken confirming the fact who ever entered the house and had sexual intercourse with PW1 used force. To crown it all the medical assistant PV73 who examined PW1 except her private parts found that she had cuts on the upper lip several bruises on the chest, abraison on the neck and bruises on the cheeks, PW2 classfied the injury as harm. The evidence of Fw'4 and PW2 corraborate PWl's testimony that force was used when she was sexually intercourse^ From that evidence above in has been q established that PW1 did not consent to the act of sexual intercourse.

As regards the participation of the accused person. The accused explained that on that day he was elsewhere looking for a place where he could carry on his trade and that he returned home three days after the incident. The accused put up an alibi as defence to criminal charge. The law is that if an accused person puts forward an alibi as an answer to criminal charge he does not thereby assume the burden of proving the defence but the burden of proving his guilt remains throughout on the prosecution See Sekitoleko vs. Uganda 1967 EAPjjJl.

In the instant case FWl was the sole identifying witness to the act of sexual intercourse. I have already found that she was sexually intercoursed and that she did not consent to the act. z. The crucial issue here is whether she identified the accused person as the man who forcefully sexua.lly intercoursed her. I read the guideline in the case of Rovia v Republic 1967 EA 583 as regar... identification by a single witness difficult conditions. Although this incident took place at night Ptfl testified that she had light in the house. She had known the accused before she s"aid the sexual intercourse lasted for about 3 hours. They were playing sex of course facing each other and after playing sex in the house the accused draged her outside in the banana plantation where the accused assaulted her once more. I am of the view that the complainant had ample time to identify the accused as the man who sexually intercourse her. This identification with the fact that she reported the incident to PW4 almost immediately this shows and. consistency in her testimony^/that there was no time to manufacture or farbricate her story. There is indeed cogent evidence to destroy and or disprove the alibi by placing the accused person right at the scene inside FWl's house on the date in question . The accused told lies to this court and he did this 'with a view to exonerate himself from the mess in which he now found himself. I am of the view that the accused almost went naked when he invaded PW'l. That was done so that he could not be recognised but his mission misfired he was recognised.

There were indeed some contradiction and inconsistences in the prosecutions case wheref»r instance FW1 testified that when she went to report the incident to the Chairman PW4 the time was 3.00 a.m. but PW4 said he had a watch and the time was 1.00 a.m. It was submitted by fe, Nguruye that if PW1 said that she raised an alarm for 3 hours and nobody ever answered the leain&d counsel 'wondered why PWl's neighbour called Margaret failed to hear the

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He further submitted it was not known whether the man alarm. Fulugansie Barisha PW4 was the same man as Bitumire who according EW1 was Chairman RC1 since 1986. The law on inconsistences and discrepancies and or contradictions in the evidence is that only grave inconsistences if not explained satisfactorily will usually result in the evidence of the witness being rejected minor inconsistences will not usually have that effect unless they point to deliberate untruthfulness See Tajir EACA Cr. Appl. No. 167/1969 Uganda vs. Abdalla Nasur 1982 HCB page 1. I am of the view that the inconsistences in the evidence as adduced by the prosecution witnesses are not grave ones but minor ones and as such the prosecutions case should not be rejected since the inconsistences do not point to deliberate untruthfulness. The evidence should therefore be accepted. I believe the prosecution witnessed in that they told this court the truth.

In the end the sum total of all this is that the prosecution has proved its case against the accused beyond reasonable doubt and in complete agreement with the unanimous opinion of the gentlemen assessors I find the accused guilty of the offence of rape contrary to section 117 and 118 of the penal code and I $\frac{1}{2}$ convict him accordingly. T. MUKANZA (

> JUDGE 7.7.1995.

7.7.1995: Accused before court.

Mr. Wagona RSSA present Mr. Ngurunye on state brief for the accused person. Court Clerk Mr. Kolunde present Assessors absent.

Court: Judgment is read in the open court and signed. Sentence: The accused is sentenced to 11 years imprisonment.

> I. MUKANZA JUDGE 7.7.1995.

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