Uganda v Kyambalango Frascal (Criminal Session no. 261/95) [1996] UGHC 78 (1 April 1996)

Full Case Text

TEDS REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT A SESSION

#### HOIDW, AT MASAKA

#### CRIMINAL. SESSION W&lt; 261/%

UGANDANS:ffiOSECUTTON

## VERSUS

KZAI-IBALANGO FRASEAL: c xxACCUSED

# BEFORE: IHE HONOURABLE MR. JUSTICE I. MUKANZA.

## J UP *G* M E N T x

Tho accused. Kyambalango Frascal was indioted of rape contrary to section 117 of the penal code\* The particulars of tho indictment were that on the 5th day of May 19% at Buzinga village in Masaka District tho accused did have carnal knowledge of Jalia Namirembe without her consent\*

The case for tho prosecution was that on 5th Why 1993 Julia Namirembe PN1 went to collect firewood in the forest of one Kalasiko Kamanyi. It was around 5.00p.m. As she was tying the bundle of firewood with a view to carry it home the accused person ocme from behind and hold her firmly\* He put her down and removed his trousers\* There after the accused inserted his penis into her vagina and started playing sex. The first round lasted for about 30 minutes round after which the accused went on for a sccond^which also took another thirty minutes. PN1 mentioned the style under which the sexual intercourse took place. They were seated and after the first round the accused paused abit and thereafter got her hand and they moved to another place in the forest whero the accused had sex again in a sitting position for the second time\* The second sexual intercourse lasted for about 30 minutes. She had never consented to the act and as such the accused person raped her. She did not raise an alarm because the accused had threatened to kill hor. She reiterated that she had known tho accused person from his childhood and they were neighbours. Their homes wore separated by a banana plantation\* She reported the incident immediately to her sister Bonedian Nanzire W2 who interviewed FW1. The latter revealed to IW2 that she had been raped by tho accused person in tho forost and that tho later had threatened to cut PW1 with a sickle PN2 observed that the complainant W1 was bleeding from her mouth. However —./2. .

according to the RCs of the area and with assistence of the secretary RCs the accused was looked for and arrested. According to FW3 secretary RCs when the accused was interrogated at first he denied the allegation but later on the accused confessed having raped FM1. That was after the RCs FM3 had promised the accused not to take him the police if he admitted the offence. $\quad\textbf{The}\quad$ accused was handed over to Kiwangala police station.

$\overline{2}$

$\mathbf{1} \mathbf{1} \mathbf{1} \mathbf{1} \mathbf{1}$

However besides the evidence as testified to by the prosecution witnesses there was evidence admitted by the prosecution under S64 of the $T_{\bullet}T_{\bullet}D_{\bullet}$

The first admitted evidence was that of PC were which was to the effect that while at the police post on counter he received Kyambalango on the allegation that he had raped one Julia Namirembe. The acused was accompanied by the RCs defence secretary and also in attendance was Namirembe with a letter from the RCs. He detained the acoused.

The second admitted evidence came from Dr. Sekitoleko which was to the effect that he examined Juliet Namirembe and certified her injury as harm. The victim was aged about 68 years. He found no struggle marks on her. The hymen of the victim had been ruptured longtime ago and there were no further injurios.

There then emerged further admitted evidence emanating from Mr. Byaruhanga magistrate grade I call it a confessional or extra judicial statement. In it the accused informed the magistrate that that on a certain Wednesday he went to Julia's home to demand his money. When she went there she could not find her there she had gone to collect firewood. One of the girls at home went to collect her from the forest. Julia was his woman friend and when she came they stayed there conversing. She prepared supper and they had it together. Then they went to bed and they slept together. As his woman friend they had sox and on the following day he went back home. Latter he was arrested on the allegation that he had raped Juliet and was handed to Kiwangala police post.

In his defence the accused person as DW1, testified that he knew Julia Namirembe as her villagemate and used to be his lover. On 5th May 1993 he had worked for PM1. He cultivated for her and she promised to pay him shillings 5000/- for the work. He started the work in February 1993 and finished the $.../3.$

work in March of 'the same year, When she demanded for money he did not moet her there but met a small girl oalled Namugaya, He talked to her and was informed that Namirembo had gone to collect firewood, The girl went and oalled her. When the cojjrplainant came homo ho talked to her and she told him to wait, Ho told her ho was going to buy cigarettes from the shops. He went there and camo back, Namirombo was his lover and invited him to spend a night there. He spent the night there but never had sox with her.

On the following day ho left but on 5th May 1993 whilo in the Trading centre with friends seated conversing when one Mukasa told him that he was under arrest. He was taken to the police straight. It was not true that he admitted before police that he had at one time raped Julia Nagiirerabe.

When cross examined ho replied that he intercoursod her on 4.5.93 and was arrested 5\*5\*93 but that he had had sex with Namirembo for about twenty times.

Having summarised the evidence for both the prosecution and the defence as I warned the gentlemen assessors and of course as I warn myself too the to burden of proof in criminal cases remains with the pi-osecution to prove the guilt of the accused person beyond reasonable doubt. Soe Joseph Eliza and Another, vs, Uganda 1978 HCB page 269 ^oolmington vs. DPP 1935 at P 4^2,

The offence of rape is committed by any person who has unlawful carnal knowledge of a woman or. girl without her consent or with her consent if the 3 consent is obtained by force or by means of intimidation of any kind or by fear of bodily harm or by means of false representations as to the nature of the Act or as in the case of a married woman by personating her husband soe section 117 of th#- poanal code.

Besides the above statutory provision at common law the crime of rape consists in having carnal knowledge & woman without her consent and although the offenoe is usually affected by violence it has been decided that rape can bo coEsnitted without the use of any violence not been obtained Soe Kenya outlines of criminal law Now Edition by IHC Turner Chapter VIII page.151 para 143. And in Nakholi vs, Republic 196? p 367 Dafus J as he then was after quoting with approval section 139 of the Kenyan penal code which is equivalent to section 117 ofthe Uganda penal codo sail that the two essential

\* 3 s

elements of rape are therefore carnal knowledge of a woman or girl and lack of consent and. both these essentials must be established by the prosecution\*

In the li^it of what has transpired above the assessors woref directed that they have got to be satisfied that the prosecution proved tho following ingredients of tho offonce beyond reasonable doubt.

(a) That the complainant was sexually intercoursed.

(b) That sho nover consented to the Act of sexual

intercourse and finally.

(o) That the aocusod was responsible\*

Qn the first ingredient there is the evidence of the complainant herself that she was sexually intorcoursed while in the forest where she had gone to correct firewood and immediately reported tho incident to her sister PW2 which resulted in tho arrest of tho suspect. The evidence of W3 the RC official was consistent to tho said fact. Bit and PW2 reported the incident to him. Besides there was the admitted evidence of the Doctor who carried out the medical examination of W1 \* He did not find any marks of struggle on the said complainant and also found that her hymon had been ruptured longtime ago/and classified her injury as ''Harm".

From the testimonies of those prosecution witnesses I am of\* tho view that it is safe to conclude that PW1 was sexually intercoursed. I see no reason why W1 should have taken all those steps when she reported the incident to various people and authorities. And I also saw no point why she woujd have submitted herself to medical examination when she had not been sexually assaulted I believe her on this point and I also holicve the evidence of the witnesses given in support of her version. I therefore hold that she was sexually intorcoursed.

. Ihose second ingredient is lack of consent. testified that sho never consented to the Act of sexual intercoureed. The accused merely found her in the forest where she had gone to correct firewood and grabbod her and sexually intorcoursod her. She could not raise an alarm for fear of her life and she reported the incident to her sister W2 and to'the authorities in proof to show that she never consented to tho Act.\* "

There was yet another story about the incident whether there was oonsoni. In the admitted evidence under S64 of the TH) Mr. Byaruhanga magistrate I recorded a confession from the accused person if it can properly be so called. The accused stated that Julia was his woman friend, They went to bod and slept together\* And that he had sex with her and on the following day he went back home.

However scotion 64(3) of the Trial on Indictment decree Decree 26 of 1971 provides that —

> nAny fact or document admitted or agreed whether such fadt or document is mentioned in the summary of evidence or not in a memorandum filed under this section shall be deemed to have been proved'\*.

In the instant case the prosecution is relying on two versions. One version showing that the accused raped PW1 tho complainant and the other version is found in the admitted evidence that in fact the complainant C consented to tho Act of sexual intercourse\* Section 64 of the TH) is very slear about this whatever was filed in the memorandum shall be deemed to have been duly proved\* In the circumstances I find that there was consent on the part of when the accused had sex with her at her place. As I stated earlier that tho complainant vias sexaully intercoursed there were - contradictions in her story. According to her she was never assaulted

but her sister testified that W1 was bleeding in her mouth and that the accused had threatened to cut her

with a sickle, PWI did n6t testify so in hor testimony. Also if the evidence of m is further examined as to what took plo.ee in the forest shows somo elements of consent to the Act of sexual intercourse. They playod sex in a a sitting style. The first round lasted for about 30 minutes. The accused rested for sometime. The accused got ^old of her hand and they moved to another place in the forest where the accused again had sexual intercourse with her in the same sitting style. Those sitting positions when the two were having sox indicate somo willingness on tho part of the complainant to the said act of sexual intercourse. Rape could not have been committed in suoh circumstances more so when done in broad day light normally there is a desire

on tho part of the suspect to go away as soon as circumstances could permit in order to avoid detection\* I am of the view that there was consent on the part of the complaint to 'this act of soxual intercourse\*

: 6 x-

A's to whether the accused participated in the commission of the offence\* The accused denied the allegation in his evidence\* The burden is not on him to prove his innocence\* The burden lies on the prosecution to prove his guilt beyond reasonable doubt See Loboll 1\$57 AER p 234 » finding here therefore is that the accused had sex with PW1 but with her consent. Hie offence was not proved\*

In the circumstances I find it unnecessary to probe whether there was corroboration which is a requirement in sexual offences nor doos tho question of identification of tho accused comos into play here\*

therefore in agreement with tho unanimous opinion of the gentlemen assessors I find tho accused not guilty ofttho offence of Rape contrary to section 117 of the penal code Act and I acquit him accordingly and unless he is being held for any other offence I order for his immediate release.

C I t I. MUKAl'IZA. JUDGE 1.4.1996

Courtt File sent to tho District Registrar Masaka with a view to deliver this judgment.

• I. IWCANZA Q /' / JUD GE 1.4.1996