Uganda v Mugisa (Criminal Session Case 338 of 1991) [1992] UGHC 45 (7 September 1992)

Full Case Text

## THE REfUBLIC OF UGANDA.

IN THE HIGH COURT OF UGANDA HOLDEN AT FORT PORTAL. criminal session case no. 338 of 1991 UGANDAs::::: J J i : :; : PROSECUTOR.

## ==VERSUS==

CHRISTOPHER MUGISA : :ACCUSED.

BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA.

## JUDGMENT.

The accused in this case is known as Christopher Mugisha. He is indicted of Rape Contrary to Sections 117 & Il8 of the Penal Code Act. The allegations being that on the Ilth day of December, I989 at. Karogo village in Kabarole District he had unlawful sexual intercourse with Tereza wife of Amos Kitabara. The accused pleaded -> not guilty to the indictment.

The case for the prosecution was simply as Follows:- The complainant had known the accused before... They were neighbours. Their homes being separated by thirty metres. The accused was a casual labourer staying in the neighbourhood.

On the date of this incident the complainant Tereza Kiiza (PW3) left very early in the morning to go and cut banana commonly known here as Musa with a view to prepare the local brew called tonto. She left while her husb'and had gone to work elsewhere. She cut the bananas while heaping the same within the banana plantation just near the road. She then went home and prepared lunch which she took together with her husband (PW2).

After lunch PW2 left to go and give his condolenses to the bereaved family in the neighbourhood whereas for PW3 she returned to the banana plantation inorder to carry away the bananas she had aready heaped. It threatened to rain. As she was proceeding home

passing through the banana plantation the accused who approached her from behind called for her and urged her to stop because he had something he wanted to tell her (PW3). The unsuspecting (PW3) is kid looked behind and stopped. The time was then coming to 3.00 p.m. Immediately she stopped the accused got hold of her left hand and told PW3 as he (the accused) loved her very much. The accused made some advances by holding the complainant firmly and pulled her to himself. PW3 got hold of a banana stem for assistance while resisting the pulling. The banana stem unfortunately got broken and she started raising an alarm. In turn the accused slapped PW3 strongly on the latters cheeks and blocked her mouth inorder to stop her from making the alarm and at the same time the accused knocked her down. She struggled with the accused trying to resist the forceful sexual intercourse. A brother of the accused known as Kahwa came to the scene. The accused was then on top of her. FW3 appealed to Kahwa for assistance. The latter was rebuked by the accused who told him to mind his own business. Kahwa disappeared. At that juncture it started drizgling. She became very weak and the accused opened her legs and threatened to kill her. She surrendered to the accused who proceeded and sexually intercoursed her. She did not have under pants. The accused had two rounds with her and the act lasted for about thirty minutes.

PW3 was positive that the accused entered his penis into her vagina, She feft some pain at the back but during the struggle the accused tore her spotted blue dress she was putting on. The dress was exhibited in Court. After the act the accused ran to his sisters. PW3 reported the incident to her husband Amos Kitabara (PW2) first and Asaba Stephen (PWI) the Secretary for defence who went and arrested the accused after which PW3 together with the Chairman RCI, PW1, the accused and very many people visited the scene.

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$\mathcal{L}$

According to FW1 the scene was in the banana plantation which had just been cleared. The scene was disturned. It appeared as though people had just fought. The place was muddled up with mud. For PW2 he found his wife (PW3) wet all over and was soiled with mud. On anguiry she reported to him that she had been raped by the accused $x$ person.

FW4 Det. CPL. Ongwen David while at Fort Portal Police Station received the exhibit (EXPI) and the accused from the Local Administration Askari.

The case for the defence was that the accused knew the complainant. They were neighbours. PW3 used to employ him to squeeze bananas juice for her.

$\mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}^{+} = \mathcal{H}_{\mathcal{A}}$

$\mathcal{L}_{\mathcal{L}} = \mathcal{L}_{\mathcal{L}} + \mathcal{L}_{\mathcal{L}}$

On 16th November, 1989 he squeezed her bananas and on 17th November of the same year he contracted to work for her at Shillings 3,500/=. He was to dig for her. After the work he demanded for payment. She did not pay him. Instead the complainant employed him to collect some bananas from certain people. He charged her Shillings 500/=. On completion of the work PW3 paid him Shillings 300/=. He refused to accept the money. He demanded full payment of $\dot{x}$ Shillings $4,000/$ = from her due to him.

When the complainant brewed, he went to her and demanded payment. She could not meet his request. She gave a similar execuse she gave before when he demanded for payment. That money was spent on treatment of her sick children. PW3 assured him that he would pay him before Christmas.

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At the material date he had contracted to build a house for someone at the cost of Shillings *']^,000/=»* After payment he returned home and made some shoping, He then went to the home of Amos at 2.30 p.m. but nobody was there. He heard some noise away ina distance at the home of one Baguma. That was where the complainant was. He went there and had some tonto. He did not .talk to the complainant. As soon as the complainant saw him she went away.

Later he proceeded to Amos Katabaro's home where he knocked at the door of their house. PW3 was not there. She replied some distance away. He went to the banana plantation where she' was. He found her near a heap of bananas which she was tying. She was alone. He talked to her' but she did not reply him. He demanded for his money but the complainant refused to pay him,. She gave rea\$oni. why she1'could not pay him and eventually she chased him away with a panga. It was around 3-00 p.m. and it started raining at 6.^.-p.m. He went back to his sisters and later went home to sleep. While asleep the defence Secretary went and arrested him and took him to the -Trading Centre on the allegation that he had raped the complainant. They, took him to the scene where the complainant had heaped her bananas (Musa) which she had already removed and buried. That the place where Musa had been stacked had been disturbed. He denied raping the complainant and said on the date of the incident the complainant was .not dressed in exhibit PI.

In his submission the learned State (Resident Senior State Attorney) stated that the question of identification was a simple one. The incident took place during day time around. -3-^0 p.m. PWJ told Court that she had known the accused before and uot only that

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the accused did not deny having been known to the complainant. And more so the accused admitted having been to the scene on that day at that time. Though there was no Medical evidence in that PW3 was never medicaly examined • She brought some people to the scene who found the scene having been disturbed. They also produced exhibit a dress which was torn during the struggle. Therefore the case is a question of credibility whom to believe. They relied on the evidence of PW2 and FWjJ to the effect that the accused was seen in the area where they had heaped the bananas. \ A place where matooke had been heaped can not be disturbed. If it is a bush it is flat unless the accused says it was a struggle. He invited this Court to reject the accused's version and convict him.

Mr. Kagaba the learned Counsel appearing for the accused on the other hand submitted that as regards the sexual act they had no evidence of sexual intercourse except the evidence of the woman. That was an act known to the two parties. That was a questio| of credibility and there was no way they could prove it. In this case medical evidence which could have assisted the Court was \*ever sought. Even in an adult woman like where the hymen is ruptured they could h?ve found something like scratches or bruises. Even the (nan could have been examined inorder to find out whether he\*' had some scratches on her penis. He submitted therefore that mere statement of the complainant without corroborative evidence was not enough- Medical evidence could have assisted to ascertain whether sexual intercourse did take place. If the woman had been examined the liquid- could have been found in the woman \*s vagina. That was a lacuna, in the prosecutions case. The woman told lies against the accused person. To show that there was no sex she laid on her

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back and all her clothes were exposed and there was movement. Her buttocks could have been cut by scratches and some bruises as she was rolled on the ground. If there was any sexual intercourse at all there was consent because of the absence of any injury on her body. And even her back was not soiled. What converted a voluntary sex into a rape was the coming on the scene by Kahwa.

The scene whereby bananas were packed had never been disturbed. The accused went to PW3 inorder to demand for payment. It is not surprising that an employer sends away his servant when the money had accumulated. Tereza had created a scene whereby she could get away with the money. There was no sexual intercourse or if it was there at all was obtained by consent. He prayed that the accused be acquitted of the charge.

That briefly was the case for both the prosecution and the defence plus the submissions by the learned Counsels appearing for the state and the accused respectively.

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 consent is obtained by force or by means or intimidation of any kind, or by fear of bodily harm, or by

-f false representations as to the nature of the act, or, in the case of a married woman, by personating her husband. See Section 117 of the Penal Code.

Besides the above statutory provisions as to what amounts to rape at common law the crime rape consists in having carnal knowledge of a woman without her consent and although the offence is usually effected by violence it has been decided that rape can be committed without the use of any violence not been obtained.

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See Kenys outlines of Criminal Laws New Edition by ICC Turner Chapter VIII page 151 paragraph 143. And in Nakholi vs. Republic 1967 EA at F. 338 Dafus J. after quoting with approval Section 139 of Kenyah Penal Code which is similar to Section 117 of the Uganda Penal Code said that the two essentials 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." The prosecution has therefore the burden to prove beyond reasonable doubt that the accused had sexual intercourse with PW3 without her consent. This burden does not shift except in afew instances the instant case not being one of those exceptions. See Woolmington vs. DDP 1935 at P. 462. Joseph Kiiza and another vs. Uganda 1978 HCB P. 269. Sulaimani Katusabe vs. Uganda Cr. App. No. 7 of 1991 SCU unresorted.

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As to whether there was sexual interccurse that is penetration of the male organ into that of the female organ there is the testimony of FW3 which was as already explained above the accused found the former in the banana plantation and through violence and threat sexually intercoursed her. The accused who did not deny being at the scene at the material time informed the Court that he $-15.5$ had gone to demand payment for the services rendered to the complainant. The complainant refused to pay him his money and instead chased him with a panga.

To start with PW3 was the sole eye witness to this incident $1967\ \mathrm{E}\mathrm{A}$ $583$ of sexual intercourse following the guide lines in Robias cuse, I cautioned the gentleman and the lady Assessor as I cautioned myself the danger of acting on the evidence of a sole indentifying witness,

$... / 8$ I directed the assessor that other conditions have to be looked for to justify the reception of the evidence of a sole identifying witness. For instance the firmiliarity of the complainant with the accused person. The two were neighbours and had known eachi other before. Secondly the Court had to consider the condition of the whether' Did the incident take place during day or night time? In the present case the incident took place at around 3.00 p.m. That was during: day time therefore PW3 could not have mistaken the accused for another person as the man who attacked her. The other matter ruling out any mistaken identity on the part of FW3 was the duration of the incident. Was the incident on for a short or long duration? According to FW3 the incident lasted for about thirty minutes. I am of the view that was long enough for PW3 to be in a position to recognise and at the same time identify the accused person. The latter denied having sexually intercoursed PW3. He contended that he was at the scene on a different mission altogether.

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Be that as it may corroboration of the evidence of the complainant although not essential in law, is practice always to be looked for. See Halsbury Laws of England 4th Edition Vol. II Criminal Law evidence and practice P. 652 para 12261. I therefore directed the assessors that it is not safe to convict on the uncorroborated testimony of the complainant but that if they were satisfied of the truth of the complainant's evidence they might after paying attention to the warning neverthless advise me to convict.

The assessors were of the opinion that there was no correboration of PW3's testimony and the same time they thought she was not a truthful witness therefore she was never raped by the accused person.

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I disagreed with the assessors because although there was no corroboration to the sexual intercourse after my direction to them and myself I was satified that PW3 told this Court the truth. $In$ the same vein I did not agree with Mr. Kagaba that because both the complainant and the accused were never medically examined there was therefore no evidence of sexual intercourse. On the other hand I agreed with the submission of Mr. Bireije that the accused was at time the banana plantation at the material where PW3 had heaped her banana for illegal purposes. From what has transpired above I find that the accused person did sexually intercourse PW3 and there was therefore penetration of the male organ of the accused into that of the famale organ (PW3). See Upar vs. Uganda 1971 of EA P. 98.

This now brings to the last ingredient of rape. Whether PWS consented to the act of sexual intercourse. The latter informed the Court that the accused knocked her down in the abanana plantation. They struggled for semetime and had her dress torn which was exhibited in Court. It rained at that time and she made an alarm but the accused strangled her, held her mouth and even threatened to kill her! After the incident she reported the matter to her husband (PW2) and the RCI defence Secretary of the area (PW1) who arrested the accused almost immediately and came with the accused to the accused together with others.

FW1 said the scene was disturbed it appeared as though people had fought. The place was muddled with mud here and there and the area had just been cleared. The accused denied having struggled with FW3 at the scene. He testified while conceding that he went in the banana plantation at the material time to demand payment

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from from PW3 for the services he had rendered to him. As I said earlier on I believed the complainant that she told this Court the truth. I de not think the banana plantation was the ideal place where this old and respectable woman could have consented to the sexual intercourse with the accused. The torn dress and the marks of struggle did clearly show that PW3 did not consent to the act of sexual interccurse. She reported the incident immediately to PW2 & PW1. There was therefore no room for her to fabricate the story. testimony of The accused person: that he went there to demand payment could not therefore possibly be true. The accused appeared a young, and too strong for the complainant. It was because of the his might and the threats to kill the complainant that caused FW3 to yield to give in and thereafter the accused fulfilled his lust for sex. The accused would still have committed the offence if FW3 consented if the consent was obtained by force, threats and intimidation as was the case in the instant case. See S. 117 of the Penal Code Act. I do not agree with the submission of the learned Counsel appearing for 🐩 the accused that because there was movement while the accused laid om top of her (PW3) could have received some injuries say on the back. I am of the opinion that after the struggle PW3 gave in and could not resist the act. But even then the scene was in an area which had just been cleared it was some how smooth so that FW3 could not sustain bruises and scrutches on her back. Similarly I do not agree with the opinion of the assessors that because Kahwa and the doctor were not called as witnesses there was therefore no evidence of sexual intercourse. I believed PW3, PW1 and PW2 as having told this Court the truth. I did not also agree with the first Assessor opinion that because PW3 was an old woman she was after the accused a young man who would satisfy her sexually and that therefore she

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consented to the act. I do not also agree with the same Assessor that the complainant reported the incident to her husband and the authorities because of shame having been met in the act by Kahwa and feared the latter would reveal what he saw. As I said earlier the banana plantation a public place was not the ideal place for having sex. My finding is therefore that the complainant did not 'consent to this act of sexual intercourse.

A regards contradictions and inconsistences in the prosecutions case the rule is that in assessing the evidence of a witness his consistency or unconsistency is a very relevant consideration. Grave inconsistences if not explained satisfictorily will usually result in- the. evidence of witness being rejected. Minor inc-o\*sistences will not usually have that effect unless they point to deliberate untruthfulness. *See* Alfred Tajar vs. Uganda EA CA **Or,** App. No. I67 of I9&9» Magidu Bona vs. Uganda SCU Cr. Appv NQ, 19 '-'of 198^ (unreported) and Isaya Bikumu vs. Uganda Supreme gourt *ej* Uganda~at Mengo Cr, App. No. of I989 (Unreported).

It is my considered opinion that the inconsistences in the prosecutions case wherever they occured were not major ones and as such the prosecutions case could not be rejected but they were minor ones and did not lead to' deliberate untruthfulness\*

In the end and in disagreement with the unanimous **opinion of** the Assessors I find that the prosecution has proved its case beyojd reasonable doubt. I find the accused guilty of the offence **of** >ape Contrary to Sections 117 & 118 of the Penal Code and I coaviti him accordingly. I did not agree with the opinion of the Assessor ..../ 12

because they did not consider at all my summing up notes.

$(I. \frac{1}{\text{MUKANZA}})$ Sgd. JUDGE. $7/9/92.$

$7/9/92$ :- Accused before Court.

Mr. Bireije Resident Senior State Attorney present. Mr. Kagaba for the accused person on state brief present, Ist Assessor Mr. Patrick Agaba present. 2nd Assessor Margret Katutu reported sick.

$Court :=$ Judgment is read and signed in the open Court.

the other and a Mr. Bireije:- This Court in its wisdom has found the accused guilty and has convicted him accordingly. The accused was lucky that this case was committed before the new law. So that maximum sentence for which this could convict the accused is life imprisonment. The accused has got no record. He has been on remand since 28/12/1980. Cases of this nature are becoming common in this area. This Court must therefore do something that contribute something on Law and order to Society. I invite you to consider the victim was an old woman and respectable. This has been eroded in the eyes of the Fublic. Further I invite you to consider the fact that there is $\frac{1}{2} \left( \frac{1}{2} \beta \right)$ an aids scourge in this Country, you never know the accused could $\mathbf{x}$ have infected the complainant with aids so this unlawful fact must be discouraged. It is my prayer that you give the convicted person a heavy punishment so that this could be seen to fight against immorality in this Country.

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Mr. Kagaba The convicted person is about 22 years old. It i period within which a person is capable of being reformed and i a bad period for engaging in sex. The accused has been on remai 2 years and 8 months, and his health is net the best the way yo him. He has committed a crime. I invite you to consider the fa< th-jt no physical harm was caused to the complainant. The-accused a gentle raper as opposed to a violent rapper. The accused is soi Satan is always on our side tempting us to do wrong things. At 22 years the accused has a long span in life. He would be a useful person and a good husband. He is a first offender and his first attempt led him in problem. Please pass a lenient sentence. So I

## REASONS FOR SENTENCE.

The accused is a first offender. He is aged only 22 years stil a young person. He has been on remand for almost 3 years. I do not know his background but the offence committed by the accused is a serious one and carries the maximum sentence of life imprisonment This Court is of the view that the modesty of the fair sexi must be jealously guarded more sc in this epedemic of the aids disease\* ?bis therefore calls for a stiff punishment.

## SENTENCE.

The accused is sentenced to seven (7) years Imprisonment with corporal punishment of 6 strokes.

R/A explained.

( I. ' mukAnz^) J U D G E. 7/9/92-