Uganda v Mayeku (Criminal Session Case 567 of 2022) [2024] UGHCCRD 62 (31 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL DIVISION CRIMINAL SESSION CASE NO.567 OF 2022

## UGANDA---- --------PROSECUTION

#### VERSUS

## MAYEKU TOM---------- ----------------ACCUSSED BEFORE HON: JUSTICE ISAAC MUWATA JUDGEMENT

The accused person was charged with the offence ofRape contrary to section 123 and 124 ofthe Penal Code and Aggravated robbery contrary to section 285 and 286(1) ofthe Penal Code Act.

### Counl I: Rape

The prosecution alleges that on the 15th day ofJanuary 202l,the accused person while at Mabandan Cell in Wakiso District had unlawful carnal knowledge of Nakato Hajarah without consent.

#### Count 2: Aggravated Robbery

The prosecution alleges on the 15th day of January, 2021, the accused person while at Mabanda Cell in Wakiso District robbed Nakato Hajarah of her Nokia Mobile Phone and at, or immediately before or immediately after the said robbery used actual violence on the said Nakato Hajarah.

#### Representation

SSA Amerit Timothy appeared for the prosecution Counsel Julius Selwambala and Counsle Sselwanga Geofrey appeared for the defence. Written submissions were also filed which I have considered.

Considerution

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The burden of proof is on the prosecution to prove its case beyond reasonable doubt and if there is any doubt, it must be resolved in favour of the accused person.

I will deal with the first count

For the offence of Rape the following ingredients must be proved;

- l, Carnal Knowledge - 2. Lack ofconsenl - 3. Participation ofthe accused.

Regarding the first ingredient, carnal knowledge means penetration ofthe vagina, however slight, of the victim by a sexual organ where sexual organ means <sup>a</sup> penis. Proof of penetration is normally established by the victim's evidence, medical evidence and any other cogent evidence.

In the present case, the prosecution sought to prove the aspect of sexual intercourse with evidence of the victim and that of the medical report tendered in by PW2 the medical officer who also testified in court. According to Police Form 34, marked as PEx 02, it was found that victim's genitals were normal.

In cross examination it was PW2's testimony that he did not find any injuries or bruises on the genitals of the victim, he also stated that the injuries sustained by the victim were not caused by genital penetration. He also told court that there was a long interval between the alleged incident and the time she was examined' The victim however had some healing bruises in the abdomen, upper and lower limbs.

While the victim testified that she had been raped, the testimony of PW2 and the medical examination report does not assist the prosecution much in proving that the act of sexual intercourse took place and without the consent of the victim since it contradicts the testimony of the victim.

What remains is the victim's evidence that she was raped by the accused person. This would be believable if it was consistent with the testimony of PW2 the medical officer. I am alive to the law that corroboration in sexual offenses is not mandatory and the court can still go ahead and rely upon uncorroborated evidence if it's satisfied that it's truthful

In the present case, besides the victim stating that she had been raped, the medical report and the evidence of the medical report did not conclusively support her claim. In the circumstances if find that the victims evidence is not compelling enough to stand on its own and where there is any doubt, it must be resolved in favor of the accused.

#### Lack ofconsent

Consent is an essential ingredient in the offence of rape, the prosecution must adduce evidence that the victim did not consent to the sexual intercourse. Often the only means of determining the presence or absence of consent is circumstantial evidence such as evidence of resistance or struggle on the part of the victim.

PWI told Court that she had been raped by the accused meaning that they had sexual intercourse with her without her consent. However, the prosecution failed to prove that fact the victim was involved in a sexual act ifany. I therefore, find that the prosecution also failed to prove this ingredient beyond reasonable doubt.

I will deal with the question of participation later

#### Count 2

The following elements of the offence of aggravated robbery have to be proved by the prosecution:

(1) There was theft of property.

(2) Use ofaclual violence at, before or after the theft or that the accused persons caused grievous harm lo lhe (inanl.

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## (3) The assoilants were armed wilh a deodly weapon before, during or after the theft.

(4) The accused participated in the robbery.

#### Thefl occurred

Theft occurs when a person fraudulently and with intent to deprive the owner of <sup>a</sup>thing capable of being stolen takes that thing from the owner without a claim of right. See: Section 254 (l) ofthe Penal Code Act.

The prosecution relied on the evidence of PW2 the victim who stated in court that her phone and money were taken. Other than this evidence, there were no specifics as to the type of phone or amount of money that was actually taken. Nevertheless, am inclined to believe that theft occurred since the witness gave direct evidence and was the only witness to the theft. There is no suggestion to believe otherwise.

There is no legal requirement to prove ownership when it comes to theft what is important is that the asportation of the property without the consent of the one in possession. See: Sula Kasiira v Uganda Criminal Appeal No.20 Of 1993 (SC)

### Use of actuol violence at, before or after the theft or thal the accused caused grievous harm to the complainont.

The prosecution relied on the evidence of the victim who testified that she was attacked from behind and pushed into a trench. She also stated that she was hit with a stick. However, the medical doctor who examined the victim stated that she did not have any grave injuries at the time and even those she had were already healing, he was unable to classifr any of the injuries sustained by the victim as grievous harm.

Given that the victim stated that she was hit with a stick but the medical evidence states that she only sustained bruises and the same were not classified as grievous harm by PW2 and the incon therein, I find that the prosecution has failed

to prove beyond reasonable doubt that grievous harm had been caused to the victim.

#### Participation of the accused,

In determining the issue of participation in the two counts, the court must examine the evidence closely b earing in my established principle that an accused person does not have to prove his innocence. That by putting forward the defense ofalibi as it is in this case, an accused does not assume the burden ofproving his defense. The prosecution must therefore adduce evidence placing the accused person at the crime scene as an active participant.

It was the evidence of PWl, that the incident took place around llpm' The question now to be determined is whether as a single identiffing witness she was able to correctly identiff the accused person. It has been consistently held by the courts that in order to rely on evidence of a single identifying witness, the court must first warn itself of the danger ofacting on such evidence and only do so after being satisfied that there was correct identification. See: Abdallah Nobulere and 2 others V Uganda [19751 HCB <sup>77</sup>

In the above cited case, the court stated what must be considered before evidence of a single identifuing witness can be relied upon. First, whether the witness was familiar with the accused, whether there was light to aid the visual identification, the length of time taken by the witness to observe, the proximity of the witness to the accused at the time of observing the accused.

ln Moses Kasano vs Ugando Cr. App. No. 12 of l98l (1992-93) HCB 47 the court emphasized the need for supportive evidence where the condition favoring correct identification are diffi cult,

"Where lhe condilions fivoring correcl identification ore dfficult there is need to look for olher evidence, whelher direct or circumslanlial, which goes lo

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## support lhe correctness of identifictrtion tnd to make lhe trial court sure thal there is no mistoken identification..."

In this case, the victim PWl testified that after the accused had raped her, he was able to identily him by flashing lights ofa boda boda. She stated that"after raping raping me,he wos coming out and stw Jlash lights of a bocla and he took off. Thtrt when the boda bodoJlashed the lights I saw hisface before he took off.

Furthermore, in cross examination, PW1 testified that the accused person took her off the marram road far away to a distance of about 200 meters. This evidence must be considered with the victim's testimony that a flashing light from <sup>a</sup> motorcycle to a distance that was 200 meters away from the crime scene enabled her to properly identifu the accused.

It is my considered view that such moving flashing light from such a distance could not have provided sufficient light to enable PWI identifu the accused person. In fact the victim only recognized her assailant when he was taking off which in my view was not sufficient time for observation for the court to be satisfied that the accused had been positively identified.

The consideration is familiarity, PWI testified that she had seen the accused before. During cross examination, she stated that she had never talked to the accused but only so him a few times. In his defense, the accused denied knowing PWl. It is my considered few that the few times the victim had seen the accused were not enough to conclude that she was familiar with the accused given the fact that the accused also denied know her.

It was the evidence of PW1 that the incident took about one hour, but given the fact that the victim only identified her assailant when he was taking off implies that there was no ample time to correctly observe and identify him. The short period while the assailant was taking off could not have enabled her to positively and correctly identif! the accused n.

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In his defense, the accused raised the defense of alibi and adduced evidence DW2 Masambu Patrick. The defense of alibi suggests that the accused was somewhere other than the crime scene at the time the offence was committed. It means he was not at the scene at the time of the commission of the crime and could therefore not have committed it or participated in its commission

By setting up the defense of alibi, the accused person does not assume the burden of proving the alibi. The duty lies with the prosecution to disprove the defense of alibi by placing the accused person at the crime scene as the perpetrator of the offense. See: Festo Androa Asenua and anor V Uganda S. C Criminal Appeal No.l of 1998.

The standard of proof required to establish an alibi is much, much lower than proofbeyond reasonable doubt expected ofthe prosecution

DWI in his testimony stated that on the l5'h of January 2021,it was curfew time and that he was sick and was home. To corroborate his testimony that he was home, he relied on the evidence of DW2 who stated he was with the accused at home on that day and that he was sick. This evidence was not challenged by the prosecution.

In the case of R Vs Chemulon lltero Olango(l937) 4 EACA 46itwas held that the burden on the person setting up the defense of alibi is for the accused to account for so much time in question as to render it impossible as to have committed the crime. It has also been held that the defense of alibi ought to be brought forward at the earliest opportunity to give the prosecution an opportunity to inquire into the alibi. See.' R vs Sukha Singh S/o llaziri Singh & other [1939J 6 EACA 145,

Am also of the view that where the accused person raises the defense of alibi in court, there is an evidential burden of proof placed on him that will not be discharged until he calls ns he was with at the place other than the scene

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of the crime and these witnesses maybe be cross-examined by the prosecution. Secondly, am also ofthe view that the defense of alibi must also be unequivocal as to the time, the place and possibly those people the accused claimed that he was with for the court to consider this defense.

In the instant case, DW2 told court that he lives with the accused person and on the 151112021, he was present with him at all material times. That the accused was sick of malaria and stayed home that day. DW2 also told court that he informed the DPP of the arrest of the accused and the circumstances thereof but the he was informed to go to Kibuli CID. I have had the benefit of looking at complaint marked as DEX I and DEX2 that DW2 wrote to the prosecution and am of the considered view that they ought to have been considered since it raised concerns with regard to how the matter had been investigated. Nevenheless I shall consider them in light ofthe accused defense ofalibi.

The defense also relied on the evidence of DW3 Ddamulira Kaketo a GISO (Gombolola Internal Security Officer) of the area where the crime is alleged to have been committed. He testified that he knew the accused and that on the said night they patrolled and stayed near the alleged crime scene that night. It was his evidence that at the exact spot where the victim alleged to have been raped from ,there was a roadblock and it is not possible for the offence to have been committed in that area. This evidence was not contested by the prosecution. The prosecution did not present any sketch map of the crime scene to contradict this evidence.

Infact, it was the evidence of DW3 that he recommended to the police the need for further investigations to rule out any possibility of mistaken identity given his reservations but the same was ignored.

The evidence presented by the defense in my view confirms the credibility of the accused defense ofalibi. The itnesses were unequivocal and appeared truthful

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before this honorable court. There was a failure by the prosecution to properly interrogate this alibi given the fact they were dealing with very difficult conditions for identification. It was also during Covid times and past curfew which meant that there was restriction of movement making the possibility of mistaken identity high.

Normally the evidence of proper/correct identification naturally extinguishes the defense of alibi, but in this case, the conditions were extremely difficult making it unsafe to rely on that kind of evidence in the absence of any corroboration. Circumstantial evidence of this nature requires corroboration to rule out any possibilities of convicting the wrong person.

Accordingly, I find that the prosecution did not adduce cogent evidence placing the accused person at the crime scene, the conditions present at the time could not have enabled the victim to properly identify the accused person. Secondly, I found credibility in the evidence presented by the accused with regard to the defense of alibi.

The question of participation with respect to the two offences has not been proved. The accused person is hereby acquitted on each of the offences as charged and should be set free unless being held on other lawful charges.

rr-Jud 31. .2024