Uganda v Hafashimana (Criminal Session Case 138 of 2022) [2023] UGHC 488 (28 August 2023)

# 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KABALE**

## **CRIMINAL SESSION NO. 0138 OF 2022**

## **(ARISING FROM KISORO CRIMINAL CASE NO. 648 OF 2021)**

# **(ARISING FROM KISORO CRB 637 OF 2021)**

10 **UGANDA** =============================== **PROSECUTOR**

## **VERSUS**

## **HAFASHIMANA OBED** ====================== **ACCUSED**

## **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

- 15 The accused Hafashimana Obed is charged with one count of Rape Contrary to **Section 123** and **124** of the **Penal Code Act**. The particulars giving rise to the offence are that Hafashimana Obed on the 20/11/2021 at Bushunga A cell, in Kisoro district had carnal knowledge of Nyirashavu Annociata without her consent. - The Accused on the 2nd 20 count is charged with the offence of Murder contrary to **Section 188** and **189** of the **Penal Code Act**. The particulars giving to the offence are that Hafashimana Obed on the 20/11/2021 at Bushenga A cell, in Kisoro district with malice aforethought unlawfully caused the death of Nyirashavu Annociata. - 25 The accused denied both charges.

# 5 **REPRESENTATION**

Mr. Ainomugisha Christopher (Senior State Attorney) appeared for the prosecution while Mr. Nabaasa Rogers represented the Accused on state brief. The Assessors in this trial were Mr. Rwangeyo Joseph and Ms. Zeridah Sendegeya.

During the preliminary hearing pursuant to section 66 of the Trial on Indictment 10 Act, the following evidence was admitted as unconsented.

- Police form 48A, the request for the post mortem examination of Nyirashavu Annociata dated 21/11/2021 and the same was received as Exhibit P1. - Police form 48C being the post mortem report in respect of the deceased 15 Nyirashavu Annociata dated 21/11/2021 and received as Exhibit P2. - A sketch plan of the scene of Murder drawn by the scene of crime officer dated 21/11/2021 and received as Exhibit P3. - Police form 24 in respect of the Accused's medical examination dated 24/11/2021 received as Exhibit P4.

# 20 **The burden and standard of proof.**

This being a criminal trial, it is one whose proof lies squarely on the prosecution and never shifts to the Accused. It is also proof beyond reasonable doubt. Any doubts unless fully explained must be resolved in favor of the Accused and the Accused must only be convicted on the strength of the prosecution case and not 25 on the weakness of the defense case.

# **(See Ssekitoleko versus Uganda [1961] EA 531)**

- 5 On the first count of rape, the prosecution must prove the following ingredients beyond reasonable doubt. - 1) That there was sexual intercourse with the victim. - 2) That the victim did not consent to the sexual intercourse. - 3) That it was the Accused who had the unlawful sexual intercourse with the 10 victim.

## **Section 123** of the **Penal Code Act** defines rape as;

"*any person who has unlawful carnal knowledge of a woman or girl without her consent or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm or by means of false* 15 *representation as to the act or in the case of a married woman by personating her*

*husband, commits the felony of rape"*

# **a) Sexual Intercourse**

*In regard to proof of sexual intercourse, the Supreme Court in Bassita Hussein versus Uganda SCCA No. 35 of 1995 held that:*

20 *"The act of sexual intercourse or penetration may be provided by direct or circumstantial evidence and corroborated by medical evidence or other evidence.*

*Though desirable it is not a hard and fast rule that the victim's evidence must always be adduced in every case of defilement to prove sexual* 25 *intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt"*

5 The facts of this present case are that the victim in this case Nyirashavu Annociata has not been presented by the prosecution to give her account because she is deceased.

Proof of her death is contained in the post mortem report in Exhibit P2 that details the cause of her death being as a result of closed head injury. The 10 Accused in his defense testifies to viewing her body and as such it is not a contested fact.

In light of the holding of the **Supreme Court in Bassita versus Uganda [Supra]**, the inability of the prosecution to produce the victim in this case is not fatal to its case and the prosecution is at liberty to adduce evidence 15 that can prove its case beyond reasonable doubt.

**Section 129 (7) (a)** and **(b)** of the **Penal Code Act** defines a sexual act to mean penetration of the vagina, mouth or anus however slight of any person by a sexual organ or the unlawful use of any object by a person on another person's sexual organ, where by sexual organ is defined to mean a 20 vagina or a penis.

> It is the evidence of Nzitabakuze Damasen (PW1) and Nyirahabika Sylivia(PW2) that on the 21/11/2021 they viewed the body of Nyirasavu Annociata and that the body was naked, her clothes had been pulled up to the breasts and she had mad all over her with injuries.

25 According to D/AIP Matege Joseph (PW1), the body had a protruding clitoris. A photograph of the body showing the protruding clitoris was tendered to Court as Exhibit P6 (vii). Corroborative medical evidence can be obtained from the post mortem report in Exhibit P2 dated 21/11/2021 in which the findings are that the deceased Nyirashavu Annociata was raped

5 prior to being killed and that the body had protruding internal genitals. The report also reflects that the Police collected cotton swabs for further forensic investigations.

I have viewed the photograph in Exhibit P6 (vii) that shows the protruding clitoris of the victim and I accept the findings in the post mortem report 10 that the body had protruding genitals and that the deceased was raped prior to being killed. The possible weapon used against the deceased is listed as a blunt object. The protrusion of the genitals I am convinced must have been caused by an object.

I will tackle the issue of use of a sexual organ later in my judgment. As it 15 stands it is my finding that the prosecution has proved beyond reasonable doubt that the deceased Nyirashavu Annociata was engaged in sexual intercourse.

## **b) Lack of consent to the sexual intercourse**

The description of the body of the deceased Nyirashavu by Nzitabakuze 20 Damasen (PW1) and Nyirabika Sylvia (PW2) that the deceased had mad all over her body with injuries as corroborated in the post mortem report in Exhibit P2 to include bruises to the scalp, nose and genitals leave no doubt in my mind that there was a struggle.

The photographs in Exhibit P6 (i) – (vii) are indeed a graphic narration of 25 what the deceased's last minutes in this life must have been like.

> It is unthinkable to even imagine that the deceased did consent to her genitals being mutilated to the extent that they were.

The above fact notwithstanding Section 226 of the Penal Code Act provides that consent by a person to the causing of his or her own death or his or

5 her own maim does not affect the criminal responsibility of any person by whom such death or maim is caused.

A maim is described in Section 2 (1) of the Act to mean the destruction or permanent disabling of any external or internal organ, membrane or sense. It therefore follows that the injuries caused by the assailant to the genitals 10 of Nyirashavu causing the same to protrude cannot be said to offer any legal shield to the perpetrator.

> It is my finding that the prosecution has proved beyond reasonable doubt that the victim did not consent to the sexual intercourse.

## **c) Participation of the Accused**

- 15 The Accused in this case in his sworn defence denied the charge of rape and testified that on the 20/11/2021 he was working at Bunagana the boarder point between Uganda and Congo where he was carrying luggage for traders and travelers. - It is the evidence of the Accused that he worked until 6:30 PM when he 20 decided to go back home and arrived home at 7:30 PM, had his supper and slept. It is the defence of the Accused that he did not leave home that night and it was the following morning that he learnt of the death of Annociata Nyirashavu.

According to the Accused Annociata was his neighbor and she lived about 25 300 meters from his home.

> The Accused states that he saw people gathered around the body that was about 100 meters from his home and so he also went to view the body and confirmed that indeed Annociata was dead. The Accused further states that it is the Police officers from Kisoro Police station who came and inquired

- 5 whose house was near the scene and when he replied that it was his house he was arrested and his clothes and shoes were recovered from his home and taken by the Police. The Accused refutes the evidence that any samples were obtained from him for analysis and he denies raping and murdering the deceased Nyirashavu Annociata. - 10 Where an Accused person raises the defence of alibi, the onus is on the prosecution to discredit this defence and to place the Accused at the scene of the crime.

## **See Kyalimpa Edward versus Uganda SCCA No. 10 of 1995**

To discharge this responsibility the prosecution relied on the evidence of 15 Nzitabakuze Damasen (PW1) who testified that he was present with others who were viewing the body of the deceased on the 21/11/2021 and when the police came they followed the trail of blood from the scene and it led towards the home of the Accused that was about 60 meters from the scene and that when they got there they found a lot of mad at the compound of 20 the Accused and it looked like someone had been dancing there. It is also the evidence of PW1 that when they checked the Accused they found him to have mad on his body.

His evidence is corroborated by that of Nyirahabika Sylvia (PW2) who testified to following the blood trail prior to the arrival of the police from 25 the scene of the murder and that it stopped 5 strides from the house of the Accused.

> Further corroborative evidence was given by D/AIP Matege Joseph (PW3) the scene of crime officer who placed everything in perspective describing in detail that the first scene of crime where the body was located was on a

5 village feeder road next to a garden of beans and bananas and that about 100 meters from the body was a pool of blood that had a trail that they followed for about 50 feet and that it was leading to a house and when they inquired as to the ownership of the house, they were told that it belonged to Hafashimana Obed the Accused who was present and that when they 10 were questioning the accused, they realized that he had a patch of clay soil on his thighs just like the scene of crime where the body was yet the type of soil in the compound of the accused was red in color. It is the evidence of PW3 that they searched the house of the Accused and recovered 2 pairs of trousers worn combined together with the inside being white and the 15 outside being black and that they were all wet and soiled with clay like the scene of crime.

It is the evidence of PW3 that they obtained vaginal swabs from the deceased and a sample of the Accused's DNA that they sent for analysis together with the soil samples found on the Accused and that at the scene 20 where the body was found.

The prosecution also presented medical corroborative evidence through SP Awekye Evelyn (PW6) a DNA analyst attached to the Directorate of Forensic Services who testified that on the 22/11/2021 the Directorate received samples for DNA analyst and data interpretation of a vaginal swab obtained 25 from a victim one Nyirashavu Annociata on cotton wool and a blood sample of the suspect one Hafashimana Obed on white cotton wool and her findings were that the DNA profile obtained from the vaginal swab was consistent with the DNA profile of the suspect Hafashimana Obed. This finding she testified led to the conclusion that the suspect Hafashimana 5 Obed is the donor of the DNA component obtained from the vaginal swab of the victim Nyirashavu Annociata. The report was received as Exhibit P6. The evidence laid out by the prosecution in this case is largely circumstantial eveidence since there are no eye witnesses to the rape of the 10 victim in this case Nyirashavu Annociata. That said circumstantial evidence is not to be regarded as weak evidence.

> The Court of Appeal in **Tumuhairwe versus Uganda [1967] EA 328** held that:

"*Circumstantial evidence is very often the best evidence. It is evidence of* 15 *surrounding circumstances which by intensified examination is capable of proving the proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial."* The same East African Court of Appeal in **Simon Musoke versus R [1958]**

**EA 715** regarding circumstantial evidence held that;

- 20 *"… in a case depending exclusively on circumstantial evidence the Judge must find before deciding upon a conviction that the exculpatory facts were incompatible with the innocence of the Accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. As in Tailor on evidence (11th Edition) P74 the circumstances must be such as to produce* 25 *moral certainty to the exclusion of every reasonable doubt"* - The Privy Council further guided in **Teper versus R [1952] AC 480** that: "It is also necessary before drawing the inference of the Accused's guilt from circumstantial evidence to be sure that there are no co-existing circumstances which would weaken or destroy the inferences"

5 The evidence presented by the prosecution has been cogent and consistent. The trail of blood that the investigators followed from the scene led to no other home other than that of the Accused.

The prosecution presented a photograph taken of the accused upon arrest in Exhibit P6 (i) clearly showing the patch of clay soil on his thigh. The DNA 10 analysis in Exhibit P6 has its foundation or history captured in the post mortem report in Exhibit P2 where in the Doctor who made the report indicates that cotton swabs had been collected by the police for further forensic examination. PW3 further adds to the history in testifying that samples had been obtained from the victim and the accused for DNA 15 comparison. The findings in Exhibit P6 is irrefutable scientific evidence that the contents of the vaginal swabs obtained from the victim Annociata belonged to the Accused as the donor.

I do not accept the defense of the accused that he was at his home asleep on the night in issue of the 20/11/2021 when Nyirashavu Annociata was 20 attacked and raped.

The evidence presented by the prosecution has been well corroborated and it has destroyed the defense of alibi put up by the accused. I also reject the assertions of the accused that no samples were ever collected from him. I believe this to be an afterthought on his part since it was never put to any 25 of the prosecution witnesses. It is also possible that the accused did not understand that he was not required to produce a sample of his semen for examination but that the blood sample received by the Directorate from him was sufficient for comparison.

5 I therefore accept the evidence presented by the prosecution that the accused did participate in the rape of the deceased Nyirashavu Annociata. After considering the evidence adduced by the prosecution and defense together and in full agreement with the assessors, it is my finding that the prosecution has proved beyond reasonable doubt the first count of rape 10 against the Accused and I accordingly find him guilty and convict him of the same.

The prosecution on the 2nd count of murder must prove the following ingredients beyond reasonable doubt.

- 1) Death of a human being. - 15 2) The death was caused by unlawful act. - 3) The unlawful act was actuated by malice aforethought. - 4) That it was the Accused who caused the unlawful death.

#### **a) Death of a human being**

20 Death may be proved by production of a post mortem report or evidence of a witness who states that they knew the deceased and attended the burial or saw the deceased's body.

> PW1 and PW2 were all village mates to the deceased Nyirashavu Annociata and testified to viewing her body.

25 The post mortem report in Exhibit P2 details the nature of her death as closed head injury. The Accused in his defense testified to viewing the body. It is therefore not in dispute that Nyirashavu Annociata is dead. I find that 5 the first ingredient had been proved by the prosecution beyond reasonable doubt.

### **b) That the death was caused by some unlawful act.**

The law presumes that any homicide (killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental or it 10 was authorized by law.

## **See R versus Gubambizi s/o Wesonga [1948] EACA 65**

It is the evidence of PW1 and PW2 that the body of the deceased Annociata was full of mud and that she had injuries all over the body. The post mortem report in Exhibit P2 corroborates their evidence and details the injuries that 15 the deceased suffered. It is my finding that the prosecution has successfully proved that the death of Annociata was unlawful.

#### **c) That the unlawful act was actuated by malice a forethought.**

Section 191 of the Penal Code Act provides that malice aforethought maybe proved by direct evidence or maybe inferred from the evidence indicating knowledge that 20 the conduct of an Accused would probably cause death.

Malice aforethought in murder trials can also be ascertained from the weapon used (whether it is a lethal weapon or not) the manner in which it is used (whether it is used repeatedly or the number of injuries inflicted) the part of the body that is targeted or injured (whether or not it is a vulnerable part) and the

25 conduct of the Accused before during and after the incident (whether there was impunity)

# **See R versus Tubere S/o Ochen [1945] EACA 63.**

- 5 It is the evidence of Nzitabakuzi Damasen (PW1) that he viewed the body of the deceased Annociata and it was naked, the clothes were pulled up to the breast, the nose was bleeding and there injuries to the skull, there were bruises on the body as if a person had been dragged on the bare ground and the whole body was full of mud. D/AIP Matege Joseph (PW3) corroborates seeing the injuries and adds 10 that the clitoris of the deceased was protruding. Further corroborative evidence - can be obtained from the post mortem report in Exhibit P2 that details that the body of the deceased Annociata had bruises to the scalp, nasal bleeding, blood stains involving the face and that her internal genitals were protruding.

The cause of death was listed as closed head injury and the object likely to have 15 been used was a blunt object.

The head is a sensitive and vulnerable part of the body and I have no doubt that the intention of the assailant in targeting the head was to take her life which ultimately her assailant was able to achieve by use of a blunt object.

#### **See Okello Okidi versus Uganda SCCA No. 0003 of 1995.**

20 It is my finding that the Prosecution has proved beyond reasonable doubt that the unlawful act leading to the death of Annociate was actuated by malice aforethought.

#### **d) Participation of the Accused.**

It is the evidence of Nyiramahoro Harriet (PW5) that the Accused destroyed her 25 structure on the 31/05/2021 and the Deceased Annociata was one of her witnesses who made a statement over the same at Police. According to PW5 the Accused when she met him told her that her witnesses are "living but they are not living"

5 and that the Accused further added that if the witnesses do not die she would be the one to die.

PW5 states that a week after the Accused made these threats Annociata was killed. The witnesses threatened according to PW5 were Halerimana Benon (PW4) and Annociata.

- 10 Her evidence is corroborated by that of Benon Harerimana (PW4) who testified that he together with the Deceased Annociata Nyiransavu had made statements at Police in favour of Nyiramahoro over the destruction of her house by the Accused and that while he was in a bar with Annociata the Accused who was released on Police Bond threatened to kill the two of them because they had given - 15 statements against him and less than a week after these threats Annociata was killed.

It would appear that the Accused bore a deep hatred for Annociata as evidenced in the testimonies of PW1 the LC1 Chairperson and PW2 as well. The Accused used to steal her domestic animals to a point that she started to live with her pigs in 20 her house in fear of the Accused. The Accused also broke her windows.

The deep hatred that the Accused appeared to harbor for Annociata together with the threats that he made openly to kill her are not sufficient in themselves to sustain a charge of murder against the Accused. However they do establish motive for the murder. This Court is alive to the fact that the Prosecution need not prove 25 motive to achieve a conviction in a murder charge but none the less the ability of the Prosecution to establish motive lends credibility to the Prosecution case. In

5 the present case I am persuaded that the Accused did harbor murderous intentions towards the Deceased Annociata.

The evidence of PW1 that the body of the Deceased appeared to have been dragged on ground and that it was full of mud would appear to support the evidence provided by the Prosecution witnesses PW1, PW2 and PW7 that they were able to

- 10 follow that trail of blood to a few strides from the home of the Accused. The presence of mud on the body of the Accused is also unexplained given that the Accused in his defence states that he woke up to the news of Annociata's death and immediately went to view the body. The Accused could not have gotten the mud on his body while he was sleeping surely. The medical findings of the DNA - 15 report in Exhibit P6 that concludes its finding that the Accused is the donor of the DNA obtained from the vaginal swab taken from the Deceased Annociata is not rebutted by the defence evidence. The defence of alibi that the Accused raised in his defence that he was in his house sleeping at the time of the murder of the Deceased Annociata is obviously false. - 20 I have not found any co-existing circumstances which weaken or destroy the inference of the Accused's guilt. There is no other explanation that this Court can arrive at except that of the Accused being found responsible for the murder of Annociata.

After considering the evidence adduced by the Prosecution and the defence 25 together and in full agreement with the Assessors it is my finding that the Prosecution has successfully proved the offence of murder against the Accused and I accordingly find him guilty as indicted on the 2nd count and convict him of the same.

5 Before me,

……………………………………….

**Samuel Emokor Judge 28/08/2023**