Uganda v Maniragaba (HCT-17-CR-SC-0350-2024) [2024] UGHC 1255 (11 July 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT NAKASEKE**

**CRIMINAL SESSION CASE NO. HCT-17-CR-SC- 0350-2024**

**(Arising from SMT-AA-22/2023)**

**SMT/CRB/189/2023**

**UGANDA …................................. PROSECUTOR**

**V**

**MANIRAGABA RICHARD ………………ACCUSED**

**BEFORE LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person Maniragaba Richard is indicted with Rape c/s 123 and 124 of the Penal Code Act and Simple Robbery c/s 258 and 286 of the Penal Code Act. It is alleged in count one that on 6.7.2023, at Kawomya village, Semuto sub county in Nakaseke district, he had unlawful carnal knowledge of Mulungi Scovia without her consent. It is further alleged in count two that on 6.7.2023 at Kawomya village, Semuto sub county in Nakaseke district, he robbed Mulungi Scovia of her cash worth 500,000/= (Five hundred thousand shillings only), itel phone worth 80,000/= (Eighty thousand shillings only) and shoes valued at 15,000/= (Fifteen thousand shillings only) all totaling to 595,000/= (Five hundred ninety-five thousand shillings only) and at or immediately before or immediately after the said robbery used actual violence on the said Mulungi Scovia. 2. On 6.6.2024, the accused appeared before me for plea taking and when the indictment was read to him, he pleaded not guilty. Thereafter, Tumukunde Evas and Serunjogi Mohammed were appointed assessors to whom the accused had no objection to their appointment. Upon taking the assessors taking the assessors’ oath, the trial of the accused person commenced on 13.6.2024. 3. Prosecution was represented by Kirya Gonza Patricia, Resident State Attorney Nakaseke while the accused was represented by Sekayiri Andrew on state brief.

Burden of proof

**Rape**

The state had a duty to prove beyond reasonable doubt the following ingredients of rape:

* 1. Carnal knowledge or sexual intercourse with the complainant 2. Without her consent or consent that was procured by threats, force or intimidation of any kind; or by fear of bodily harm or by false representation. 3. Participation by the accused person.

Proof of carnal knowledge

1. This was proved by mostly oral evidence as the medical evidence was inconclusive. According to the victim, Mulungi Scovia PW2, on 6.7.2023, she was working in the bar where the accused entered at 8pm but bought nothing and left, upon which she locked the bar and set off to her home. 2. As she walked, she sensed someone following her so she torched the person using her phone torch and flashed his face at which point he grabbed her and dragged her off the road a short distance. He then held her neck so she could not make an alarm. He dragged her off the road at a junction where there were coffee trees and banana stems. She then fought him but she was overpowered . According to Mulungi, he held her neck and strangled her. He then tore her pant and raped her. PW1 Najuma Catherine, the LC1 chairperson of Kufu, Semuto, Nakaseke district whom Mulungi narrated to the incident the next day corroborated this testimony. 3. It was the victim’s testimony that she sustained bruises in the knees. This was corroborated by PF3A which shows that the victim was examined at Kapeeka Health Centre III on 8.7.2023, two days following that on which the offence is alleged to have been committed and healing bruises were observed around the left knee joint. The cause of the injuries was a rough surface. Although examination of the genitals of the victim did not yield any signs of sexual assault, this should be considered within the context of the fact that the medical examination occurred two days after the act. 4. The fact that she was referred for emergency pills and PEP (post exposure prophylaxis) which is given to female rape or defilement complainants to prevent getting pregnant and contracting HIV show that the complainant was exposed to sex or carnal knowledge. On the basis of the testimony of the complainant, carnal knowledge was proved.

Whether the carnal knowledge was with consent of the complainant

1. The fact that the victim fought off her attacker as he he held her neck and strangled her so she could not make an alarm, coupled with the bruises sustained by the victim in the knees as shown by PF3A is enough proof that she did not consent to the sexual intercourse. This ingredient was sufficiently proved.

Whether the accused person participated in the rape

1. The legal position on identification was discussed by the Supreme Court in ***Bogere Moses v Uganda [1998] UGSC 22 ( 6 July 1998)*** the Supreme Court noted that:

*“The starting point is that a court ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were or were not difficult, and warn itself of the possibility of mistaken identity.”*

1. In ***Abdalla Nabulere and Another v Uganda [1979] HCB 77***, the Supreme Court held that,

“*where the conditions favouring correct identification were favourable, the court should then examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the familiarity of the witnesses with the accused.”*

1. In the instant case, the complainant claimed she was familiar with the accused person because he had patronized her bar for the previous three days, although in cross-examination, her testimony was that she had known the accused for a few weeks and that he lived in Kazo. 2. According to the victim, Mulungi Scovia PW2, as she walked home from the bar, she sensed someone following her so she torched the person using her phone torch and flashed his face and . During cross examination, she testified that the accused used to drink from her bar, he would buy booze from the bar, paid her for the drinks on the days he was there and had been there for only three days. According to Mulungi, she used the same route to return home daily and the accused knew her routine time of leaving the bar. 3. Mulungi further testified that when she narrated the incident to Najuma Catherine, the LC1 chairperson of Kufu, Semuto, Nakaseke district, the chairperson knew the person after she described him to her and gave her a letter to Kapeka police and the accused was arrested next day, after which she went to the police station and saw the person who raped her. 4. According to Najuma PW1 LC 1 Chairperson of Kufu village testified that Mulungi came to her home early morning on 6.7.2023 and reported a rape and robbery while describing the attacker. It is from this description that Najuma concluded it was the accused person after she made investigations as LC 1 Chairperson. 5. Maniragaba raised an alibi in his defence when he testified that on Saturday at night (the night of the incident), he was at home, showered, ate food and stayed home. He denied knowledge of the charges against him and denied knowing Mulungi and Najuma and only saw Mulungi at the police station when he was arrested. I am cognisant of the legal position with regard to an alibi that there is no onus on Maniragaba to prove it but the prosecution bears the duty of destroying the defence by putting the accused at the scene of the crime at the time it was being committed. Prosecution relied on identification of the accused by Mulungi. 6. The fact that it was Najuma who planted the idea in Mulungi’s mind that the accused attacked her coupled with the fact that the attack took place during the night and Mulungi only briefly flashed a torch in the face of the attacker who then proceeded to rape her, I find the circumstances did not favour correct identification.

**Offence of Simple Robbery**

Regarding simple robbery, the state had a duty to prove beyond reasonable doubt the following ingredients of Simple Robbery:

1. Theft of property belonging to another. 2. Use or use of threat of violence against the victim. 3. The accused participated in commission of the theft.

Theft of property belonging to another.

1. Mulungi alleged that Maniragaba stole her cash worth 500,000/= (Five hundred thousand shillings only), itel phone worth 80,000/= (Eighty thousand shillings only) and shoes valued at 15,000/= (Fifteen thousand shillings only) all totaling to 595,000/= (Five hundred ninety-five thousand shillings only). 2. According to her, the attacker grabbed her hand and demanded her for her phone. He pulled her jacket and removed her money. After he was done raping her, he took her money, phone and keys and left the jacket behind after which she walked to her home. He robbed 500,000/= from me. 3. During cross examination however, she mentioned that the money was from the sales, she later contradicted herself that it was her young sister who had sent her the money in May 2023 when the statement she made at the police station was read to her. She also mentioned that the phone stolen from her was a techno phone worth 40,000/= yet she had told police it was an itel phone. She did not make mention of any shoes as indicated in the statement of particulars. In view of the above inconsistences that go to the root of the offence and point to deliberate untruthfulness, I am not satisfied that the above items were stolen from Mulungi by the attacker.

Use or use of threat of violence against the victim.

1. To the extent that the prosecution did not sufficiently prove theft of property, it is unnecessary to discuss the use of threat in connection with the alleged theft. 2. Having found that it is Najjuma who actually determined that it is the accused who participated in the Rape when the complainant described him to her; and having found that the conditions did not favour correct identification as the offence took place at night at 8 p.m, I agree with the assessors that the state has not proved the offence of Rape beyond reasonable doubt and accused person is acquitted of count one. 3. With respect to Simple robbery, since no theft of property took place and I have found that the accused did not participate in the Rape, the state has failed to prove beyond reasonable doubt the offence of simple robbery and he acquitted of Count two. 4. He is released from custody unless lawfully held in connection with some other offence.

**DATED AT NAKASEKE THIS 11TH DAY OF JULY 2024**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**LADY JUSTICE HENRIETTA WOLAYO**

**Legal representation**

Kirya Gonza Patricia for the prosecution

Sekayiri Andrew for the accused on state brief.