Uganda v Mumbere (Criminal Session Case 24 of 2024) [2024] UGHC 857 (11 September 2024)

**THE REPUBLIC OF UGANDA**

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

**HCT-25-CR-SC-0024-2024**

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

**VERSUS**

**MUMBERE MOSHEN……..….……………………..….................................................. ACCUSED**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

**JUDGMENT**

**THE INDICTMENT**

The indictment in this case is that of Rape contrary to Sections 110 and 111 of the Penal Code Act.

The Prosecution case in this matter is that on 10th March 2021 at about 2PM the Accused person Mumbere Moshen accessed a store where the victim one Biira Movious was running a business selling assorted foodstuffs. The Accused found the victim resting and grabbed her by the neck, tearing off her underwear and forcefully performed a sexual act on her causing painful injuries to her genitals. The victim was later rescued by one Kiiza Loyce who entered the store and found the accused on top of the victim. The Accused ran away upon being discovered.

The Accused was later tracked down and arrested. He was examined and found to be mentally stable. The victim was also examined and found to have signs of forceful sexual intercourse.

For an Accused to be found guilty of rape the following must be proved beyond reasonable doubt.

1. Unlawful carnal knowledge of a woman 2. Lack of consent of the woman 3. Participation of the accused.

**THE BURDEN AND STANDARD OF PROOF**

According to the time-honoured case **of Woolmington v DPP (1935) AC 462**, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

The legal standard in the determination of whether or not the burden and standard of proof has been properly met will be done in accordance with the Supreme Court decision in **Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991** where it was held that,

*“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”*

**ANALYSIS OF EVIDENCE:**

1. ***Unlawful Carnal Knowledge of a Woman:***

The Prosecution placed reliance on the medical report (Prosecution Exhibit 1) as recorded on Police Form 3A. In the said report it is disclosed that the victim Biira Movious was examined on 10th March 2021. Among the more significant observations made was the fact that the victim bore a scratch mark on the neck and in relation to the genitals it was observed that *“hymen has got a bruised tear at anterior aspect of orifice”*.

In addition to the above it was observed that the probable cause of the injuries identified on the victim was frictional force.

The Prosecution also placed reliance upon the testimony of the victim, her mother and the investigating officer.

The victim Biira Movious testified as PW2 and told court that the Accused accosted her at the shop and sent the children who were present away. She further testified that he threatened to kill her having opened his trousers and forced himself on her. She claimed that the Accused had threatened to kill her if she exposed anything about what had transpired. She testified that her mother (maternal aunt) PW3 came to the location having been informed by the children and had tried unsuccessfully to enter the location. PW2 testified that at the time her mother came to the scene the Accused had prevented her from responding to her mother by placing his hand over her mouth. He had then peeped outside the shop and taken the opportunity to open and flee from the shop. PW2 testified that the Accused had come to the shop at around 2PM and spent about an hour with her. She further claimed that she had felt pain during her ordeal and suffered damage to her uterus but no further evidence of this was placed before court.

During cross-examination PW2 testified that the Accused had forced himself on her and had up to three rounds of sex with her. PW2 also initially testified during cross-examination that the Accused had found her seated outside the shop and asked for cassava flour and that when she entered the shop he had then told her that he was not there for flour but he wanted to have sex with her.

Later during the cross-examination, PW2 stated that the Accused had found her resting on the mattress inside the shop. She described the mattress as a small mattress which was used for sleeping to secure the store.

During re-examination PW2 clarified that by rounds she had meant that the Accused would ejaculate, rest a few minutes and put in again.

The primary evidence of the sexual act in this matter therefore is the Medical Report (PE1) and the testimony of the victim. The victim’s mother (maternal aunt) PW3 testified to finding the victim at the scene in pain and crying at the scene. She testified that when she arrived at the scene she had found the Accused locked inside the shop with PW2 and that he had threatened to attack and kill anyone outside the shop. He had then opened the shop and fled. PW3 testified that there were other people outside the shop but none of these people was produced by the prosecution to testify. She went on to testify that she had heard her child shouting and crying inside the shop and had become angry, at which point the Accused opened the door and fled.

PW4 Detective Constable Biira Medres, the arresting officer testified that the accused was arrested at a lodge where PW2 had agreed to meet with him. She further testified that upon arrest the Accused denied the rape and stated that there was consent. She also testified during cross-examination that PW2 had informed her that the Accused had accosted her behind tables in the shop while she was resting. She testified that she had not been to the scene of the rape.

The Accused opted to exercise his right to remain silent in this matter. Having looked at the evidence in its entirety, I am of the view that there is no doubt that a sexual act took place. This is consistent with the medical evidence and the testimony of the victim herself.

In terms of proving a sexual act the Supreme Court held in the case of **Hussein Bassita v Uganda – Criminal Appeal No 35 of 1995** that,

*“The act of sexual intercourse of penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence.”*

PW2 was examined on the same day as when the alleged rape took place and the findings therefrom are consistent with her complaint that some form of sexual act was occasioned upon her.

1. ***Lack of Consent:***

The victim PW2 testified that the encounter was not consensual. She testified that the Accused forced her into a sexual act. Her maternal aunt PW3 also testified to finding her distressed after witnessing the Accused flee from the scene. There was also the evidence of the medical report which showed that the victim had injuries to her genitals caused by forceful friction.

The question of whether there was consent or not in this matter is therefore largely dependent upon the testimony of the victim PW2 and the medical report. Her testimony in this regard may also be weighed alongside that of her mother PW3 to determine whether it is sufficiently corroborated as to prove beyond reasonable doubt that there was lack of consent.

In the determination of whether there was a sexual act or not above, much of the testimony relied upon above, is also relevant in determining whether there was a forceful sexual act performed against the victim in this regard.

PW2 testified that the Accused had forced himself on her. However, her testimony revealed some material inconsistencies as to the sequence of events. As highlighted above, PW2 contradicted herself in cross-examination when she initially stated that the Accused had found her outside the shop and had then forced himself upon her when she entered the shop to attend to him. She had then gone on to state that the Accused had found her resting on a small mattress inside the shop. PW4 the arresting officer also testified that PW2 had informed the police that the Accused had found PW2 inside the shop. PW2 had no explanation for this inconsistency.

A further apparent inconsistency became evident when PW3 testified that before the Accused had fled from the shop she had heard her daughter shouting and crying inside the shop. This was in direct contradiction to the testimony of PW2 who stated that when her mother initially arrived outside the shop, the Accused had physically restrained PW2 from responding to her mother by placing his hand over her mouth. He had then peeped outside the shop and opened up and fled.

Furthermore, by PW2s own account the Accused person had spent up to one hour with her during which time he had had sex with her repeatedly.

The question in my mind is how during the entire one hour, she had failed to raise any alarm or escape from the Accused especially in between the three rounds of sex that she testified to having taken place.

The question of genital injuries as described in the medical report is instructive in determining whether a sexual act took place. However, without testimony from the medical examiner to expound on the nature of the injuries and the inconsistencies in the victim’s testimony, I find myself unable to safely conclude that the nature of injury reported was proof beyond reasonable doubt of forceful intercourse of the sort involving a lack of consent.

In the case of **Hussein Bassita v Uganda – Criminal Appeal No. 35 of 1995,** the Supreme Court did hold that sexual intercourse may be proved by the victim’s testimony and medical evidence but also observed that,

*“Though desirable, it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt.”*

If I borrow from the reasoning of the learned Justices of the Supreme Court above, it is clear that victim evidence and medical evidence are not a hard and fast rule in proving sexual offences but in the event that the Prosecution chooses to rely upon them or any other evidence to prove its case then any such evidence must be sufficient to prove the case beyond reasonable doubt.

In this case the victim PW2 alleged that there was lack of consent in the encounter between her and the Accused but there are material inconsistencies in her testimony that raise reasonable doubt as to the truthfulness of her testimony. The question of where the Accused person found PW2 prior to the sexual encounter is no small matter as it goes to the heart of establishing consistency and truthfulness of PW2’s testimony against the Accused.

In the case of **No. 0875 Pte Wepukhulu Nyuguli v Uganda (2002) UGSC 14** the Supreme Court in reference to the defunct EACA case **Alfred Tajar v Uganda – Criminal Appeal No. 167 of 1969** held that,

*“It is trite law that minor inconsistencies, unless they point to deliberate untruthfulness of the part of the prosecution witness, should be ignored and that major ones which go to the root of the case, should be resolved in favour of the accused.”*

Furthermore, in the case of **Sarapio Tinkamalirwe v Uganda – Criminal Appeal No. 27 of 1989** the Supreme Court held that,

*“It is not every inconsistency that will result in a witness testimony being rejected. It is only a grave inconsistency, unless satisfactorily explained, which will usually, but not necessarily result in the evidence of a witness being rejected. Minor inconsistencies will not usually have the effect unless the Court thinks they point to deliberate untruthfulness.”*

In my view, PW2 had no sufficient explanation as to why she contradicted herself about where the Accused person found her prior to the sexual encounter. Furthermore, there was no sufficient explanation about the inconsistency between her testimony and that of PW3 her mother when it came to whether she had made any form of noise or alarm prior to the Accused fleeing the scene. These contradictions were to me evidence of deliberate untruths about what had transpired on the fateful day. In the face of these untruths I cannot safely conclude beyond reasonable doubt that the encounter in question was non-consensual.

It is also pertinent that while PW2 testified that the nature of the sexual encounter left her at risk of removal of her uterus, the Prosecution never produced any evidence to back up the claim. Such evidence would have gone a long way in demonstrating that the encounter was forced and non-consensual. This leaves only the reference to frictional force as the cause of the injuries observed in the medical report. However, without proper substantiation of the injuries described in the report, it is impossible for me to conclude beyond reasonable doubt that that they characterize non-consensual sex.

At this juncture I must point out that it is not in every case that the Medical Report alone will suffice to determine whether a sexual encounter took place and if so whether it was a non-consensual encounter. Sometimes the results in the medical report need to be properly explained by the author of the report especially in situations where there is cause to doubt the victim’s own evidence as was the case in this matter.

In the case of **Asiimwe Maliboro Moses v Uganda – Criminal Appeal No. 141 of 2010**, the Court of Appeal held at Page 8 as follows concerning genital injuries,

*“Besides, genital injuries due to sexual assault or rape have been found by medical doctors and researchers to be varied. Cheryn M Palmer, Anna M Mcnulty, Catherine D’Este and Basil Donovan in their study ‘Genital injuries in women reporting sexual assault’ observed that the likelihood of genital injury remains unclear. They observed that genital injury related to sexual assault is often an issue in court proceedings with the expectation that injuries will be found in ‘genuine’ cases. However, the examination of 153 women victims of rape resulted in findings of non-genital injuries in 46% of women examined (mostly minor) and genital injury in only 22%. They concluded that the presence of genital injury should not be required to validate an allegation of sexual assault, particularly in the absence of non-genital injuries. Lucy Bowyer and Maureen E. Dalton in their review ‘Female victims of rape and their genital injuries also found that only a minority of women examined by specifically trained police doctors showed evidence of genital injury. And that therefore, the absence of genital injury does not exclude rape.”*

As much as the context of the decision of the learned Justices of Appeal in the Asiimwe case was that absence of genital injury does not exclude rape, it does in my view help to highlight two critical issues that must be considered when taking into account genital injuries in sexual offences. The first critical issue is the reliability of the medical evidence. Is it the sort of evidence that can stand on its own without further corroboration or explanation? The second critical issue is whether in the absence of reliable medical evidence of genital injury, the remaining evidence can suffice to prove that a rape took place. By the holding in the Asiimwe case above, evidence of genital injury can be varied meaning that it is possible for an encounter to be non-consensual and leave no evidence of injury or conversely for a sexual encounter to be consensual but leave some form of minor injury. This to me suggests that the said evidence has to be weighed most carefully especially in matters where the Accused opts to remain silent. The evidence must be of such a nature that it leaves no doubt as to the guilt of the Accused.

In this matter, there is reason to believe that the victim was not truthful about the events of the alleged rape. The medical evidence therefore needed to be conclusive about the fact that it was the result of a non-consensual sexual encounter.

I also take into account the submissions of the Defence as to the ability of the PW2 to have defended herself against a forceful sexual encounter. By her testimony, she was a Special Police Constable at the time the Accused was said to have raped her and is presently a soldier serving in the Uganda People’s Defence Forces. While it is not beyond the realm of possibility that a female police officer or soldier can be raped, I do take note that it would not be as easy for such an individual to be overpowered without some form of a struggle and injuries beyond what was described in the medical report in this matter. By PW2s own testimony in court, the Accused person had up to three rounds of sex with her during which she gave no indication that she had tried to resist him.

It is pertinent that she testified that she was under threat of death but by her testimony the Accused only threatened to use a knife in the shop on her but did not actually use the knife in any way. To me this begged the question that if she was aware that there was a knife in the shop that her attacker had threatened to use on her then why did it not occur to her to use the same knife to defend herself?

The questions above, when considered alongside the obvious inconsistencies in both PW2 and PW3’s testimonies created reasonable doubt as to whether indeed this was a non-consensual sexual encounter as the Prosecution would have Court believe.

It is in this regard that I find that the Prosecution has not proved beyond reasonable doubt that there was a lack of consent in this matter.

1. ***Participation of the Accused:***

The participation of the Accused in the sexual act with PW2 is dependent on the evidence of PW2 and PW3 as well as the testimony of PW4 the investigating officer. PW2 directly testified that the Accused who was previously known to her had engaged in a sexual act with her. While her testimony has been found to be unreliable in light of major inconsistencies as to the sequence of events, I do find that it was corroborated in one major detail and that is the participation of the Accused in the sexual act. This corroboration came in the form of testimony of PW4 the arresting officer who told court that upon arrest the Accused person had denied raping PW2 and had insisted that the encounter was consensual. This evidence was also further consistent with the findings outlined in the medical report which revealed some form of sexual activity had been performed on PW2.

I do find therefore that the Prosecution proved beyond reasonable doubt that the Accused did participate in a sexual act with PW2.

**ACQUITTAL:**

In light of the analysis above, I do hereby agree with the Assessors find that the Prosecution has not proved beyond reasonable doubt that the Accused Mumbere Moshen raped Biira Movious on the 10th of March 2021.

I accordingly acquit the Accused in this matter of the offence of rape and he free to go unless he has other lawful charges pending against him.

Right of Appeal explained.

**David S. L. Makumbi**

**JUDGE**

**11/09/24**