Uganda v Mugabirwe (HCT-00-CR-SC-0948-2016) [2018] UGHCCRD 125 (30 May 2018)

## **THE REPUBLIC OF UGANDA**

# IN THE HIGH COURT OF UGANDA AT ENTEBBE

## HCL-00-CK-2C-0948-2016

# **UGANDA :::::::::::::::::::::::::::::::::::**

#### **NEKSUS**

**SECURITIES :::::::::::::::::::::::::::::::::::: MUGABIRWE VICENT**

## BEFORE: HON. MR. JUSTICE J. W. KWESIGA

### **INDOMENT**

Code Act with the felony of rape. The Accused person is indicted under Sections 123 and 124 of the Penal

intercourse with Nasolo Mary without her consent. Kimbejja village, Sentema Parish in Wakiso District had unlawful sexual If is alleged that Mugabirwe Vicent, in the night of 21st May 2015 at

prosecution must prove:whole case against the accused person. To prove the case, the fact that he pleaded not guilty, the prosecution has the duty to prove the victim and denied participation in committing the offence. Following the The Accused pleaded por guilty and in defence he denied knowing the

- by a male sexual organ, however slight it may have been. There was sexual intercourse or penetration of the victim's vagina $(e)$ - That she did not consent to the sexual intercourse. $(q)$ - intercourse. That the accused person is the person who had the sexual $(c)$

asking for raw matooke. seen the Accused on 19th May 2015 when he found her jarden her particle $\mu_{\rm{eff}}$ pMI, Mary Vasolo aged 62 years testified that before the attack, she had

$386$

arrested. reported to LC.1 Chairman, reported to police and accused was traced and eus "'esuon s'nuodhein ent te ses of besu I nem ent se min left. On identification evidence she states:- "I was able to recognize had sexual intercourse. He threw her outside in her compound before he moonlight that lit inside the house. He hit her three times and forcefully house. He found her awake in her morning prayers. There was bright On 21st May 2015 at 3:00 a.m he forced himself in her poorly secured

her. She got injuries in her private parts. The Police Medical Officer examined

"astered his face." I pue Kep aut buinn min naas skewie pen I chinend baddots pue pais job I $'$ pad aut no buile lying minimum fine pais zon I $'$ pad aut Under cross-examination she stated:- "He entered and pulled me from

shirt he had when he raped her. attack and at the identification parade he was still dressed in the very taccused was guarding. She had seen him more than twice before the examination that she used to pass by the neigbour's home where the She was able to identify him on an identification parade. She stated in re-

Mugabirwe Vicent was picked from the parade of (9) nine people by this witness. pMZ, Sakwa Julius (AIP) conducted the identification parade and

.bader bne heallusse need ben ehe that threel en neben ben ben ben ben ben ben ben be pW#, Kabogoza Robert, LC.1 Chairman of Kimbejja, Sentema saw the

Was at Nabweru on the same day. he led the arresting team including PW3 to trace and arrested the accused He arrested Naboth who had aided the culprit to escape from the village,

Kafunda at the school". Nabected to have raped a woman. Naboth took me back to sew I am plot pue epoq e poq e nith a mes todd me I was nəm owi wes I 'səəri əhi oni inaw bne iləl I . Am isərin of on for me and fold me that police was looking for me to puəiri $\sqrt{m}$ , m.s 0E:7 is 2102 $\sqrt{6M}$ <sup>b</sup>ES no misi shi is sew I nənw" In his defence, the accused admitted the role of Naboth. He stated:-

male sexual organ into hers. vas penetration. I am satisfied that her evidence proved penetration of intercourse, she fully knew what she was talking about, that there mother of a number of children. Therefore, when she described sexual believable. She is a woman aged 62 years, she was once married and a despite this omission, I have found the testimony of PW1, the victim considered this omission against the rest of the evidence and in my view, adduce any medical report to prove sexual or bodily assault. **ANDAL** Although the victim was medically examined, the prosecution did not

would have been of corroborative support to her testimony. proof because it is direct evidence of penetration. The medical evidence every penetration leaves behind injuries. The victim's evidence is the best be proved by testimony of the victim, in any case, it is not always that vagina would support evidence of penetration, however, penetration can In my view, where there is medical evidence that establishes in the

the above settled legal position, in the instant case, the victim gave necessary is proof of penetration and lack of consent. Notwithstanding, ingredient of offence. Court can convict in the absence of injuries. What is presence of injuries on the body of a woman alleging rape is not an penetration and lack of consent. The Court of Appeal held that the reveal injuries on the victim, the prosecution had failed to prove Appellant's Advocate contended that because medical evidence did not Charles Versus Uganda – Criminal Appeal No. 126 of 1999. The This situation was considered by Court of Appeal for Uganda in Oyeki

evidence of lack of consent. poimightwise is energy the compound. Therefore, there is overwhelming the Rapist who threw her off the bed and after the rape, threw her and unable to walk due to the injuries. Her account is that she was beated by pm3, the LC.1 Chairman who found her lying on the ground in pains and detailed evidence of her bodily injuries and the same was corroborated by

neighbour's home where he worked or guarded. her in the garden. She said she had, for sometime seen him at the was well known to her. She had seen him two days earlier when he found Rapist, therefore, she observed him closely. Secondly, the accused person offence committed when there is no distance between the victim and the which the victim identified the attacker. First and foremost, rape is an by a single identifying witness. I have examined the circumstances under The commission of this offence was at night and the culprit was identified

that have settled the relevant considerations on the matter. been helped and $\rm I$ have followed several decision of the superior courts the dangers of relying on evidence of a single identifying witness. I have Judge should caution the Assessors and himself, which I have done about a single identifying witness and the settled legal principal is that the trial the house where the Accused attached her from. The victim of this rape is She gave un-challenged evidence that there was bright moonlight that lit

himself and the Assessors of the special need for caution before accnsed which the definition solution solution and a solution parameter with a solution solution and a solution and a solution solution and a solution and a solution and a solution and a solution and a solution and a solut $\mathfrak{g}$ or the evidence of one or more identifications of the "Where the case against an accused depends wholly or -: SpJOM Versus Uganda (1978) HCB 77 where it was settled in the following Criminal Appeal No. 16 of 1997, and Abdalla Nabulere & Another EA 583, then George William Kalyasubule Versus Uganda – of the Court of Appeal for East Africa in Roria Versus Republic (1967) **Uganda** – Criminal Appeal No. 1 of 1997 cited with approval decisions The Supreme Court of Uganda in Bogere Moses & Another Versus

identification or identifications. counicting the accused in reliance on the correctness of the

mistaken identity is reduced ------". the identification evidence. If the quality of good, the danger or a with the Accused. All these factors go to the quality of length of time the distance, the light, the familiarity of the in which the identification came to be made, particularly the ------- της θρης εμοπις εναμίνος είναι είναι της είναι της επιπεία

special need for caution. any other corroboration provided the court adequately warms itself of the conviction can be based on a single witness identification evidence without It was held that where the quality of evidence of identification is good, a

other evidence whether direct or circumstantial. the conditions favouring identification are difficult, there is need to look for In Moses Kasana Versus Uganda (1992-93) HCB 47 held that where

circumstantial evidence from the defence to support the evidence of participation. the fact that the accused was known to the victim, I have found the fact that the $\mathcal{I}$ available, namely, moonlight, long opportunity to observe the culprit and Although, in my view the conditions favouring correct identification are

poda and took me to kafunda". trees. I saw two men approaching and Waboth came with a boda police were looking for me to arrest me. I left and went into the the $\mathcal{L}$ am plot bne am pres diodeN bnaint $\chi$ m, so OE:7 te 2102 $\chi$ eN <sup>b</sup>ES that he was employed to guard. He stated I when I was at the farm on hide and escape from the village. He abandoned his employer's property He learnt that he was being looked for as a rape suspect, he decided to

not consistent with innocence. This is good circumstantial evidence that explained himself to the police. This escape from Kimbejje was a conduct If he baker such bluods and squar begalle and for bed and bed and bed and bed and

$\partial$ B B d | S

This is overwhelming evidence of participation. things he was still dressed in the same t-shirt he had when he raped her. out of the identification parade and she emphasized that among other supports evidence of identification. Secondly, the victim readily picked him

victim knew the accused before. the shops as a new person at the village. This supported the fact that the testimony that he believes the victim had seen him before as he went to I have considered the defence evidence of denial and the Accused person's

the Penal Code Act. accused person guilty and $\rm I$ do convict him under Sections 123 and 124 of of Rape that the Accused person is charged with. Therefore, I find the their findings that the state proved all the essential element of the offence $\rm I$ have considered the opinion of the Assessors and $\rm I$ have agreed with

Dated this 30th day of May 2018.

1. W. Kwesiga

High Court Judge

$30/02/5078$

### In the presence of:-

- State 101 ASS suilut ∋wrishuT ≤ - > Mr. Sekyondwa Ivan for Accused. - Ms. Gorret Boogere Court Clerk

### **SENTENCING:**

for a deterrent sentence of 20 years imprisonment. mother. Throughout the trial, he appeared not remorseful at all. We pray 23 years old and raped a woman aged 62 years, capable of being his committed the offence with brutality. He assaulted his victim. He was just found guilty of an offence where maximum sentence is death. He State submissions by Mr. Tuhairwe Julius. The convict has been

suggest 8 years sentence. living and supporting dependants. We pray for a lenient sentence and we society. He has been on remand for 3 years. He had been working for a offeender. He is a young man capable of reforming and becoming useful to Defence Submission by Mr. Ivan Sekyondwa. The convict is a first

deducted from the sentence. appropriate for this purpose. The 3 years spent on remain be returning to society. I find a sentence of Twelve (12) years imprisonment convict deserves a sentence long enough to have him reformed before raped a woman of advanced aged capable of being his mother. The offence was committed. The convict acted brutally when he assaulted and of both the state and the defence. I have taken into account how the Court sentence and Reasons for it. I have considered the submissions

3. W. Kwesiga

### High Court Judge

$8102/50/08$