Uganda v Mwesigire (Criminal Session Case 137 of 2021) [2023] UGHC 483 (11 August 2023)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KISORO CRIMINAL SESSION NO. 137 OF 2021 (Arising from Kisoro Criminal Case No. 215 of 2021) (Arising from Kisoro CRB 192 of 2021)** 10 **UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION VERSUS**

## **MWESIGIRWE BENVENTURE ::::::::::::::::::::::::: ACCUSED BEFORE HON. JUSTICE SAMUEL EMOKOR JUDGEMENT**

- 15 The accused Mwesigirwe Beneventure stands indicted for the offence of Rape Contrary to **Section 123** and **124** of the **Penal Code Act**. The particulars giving rise to the offence are that Mwesigirwe Beneventure alias Ben on the 9th April, 2021 at Burungu Village Rwingwe Parish Nyakabande Sub County in Kisoro District had unlawful Carnal Knowledge of Nyirambumba Florence without her - 20 consent.

The accused on the 2nd count is charged with Aggravated Robbery Contrary to **Section 285** and **286 (2)** of the **Penal Code Act**. The particulars of the offence allege that Mwesigiwre Beneventure on the night of the 9th April, 2021 at Burungu village in Kisoro District Robbed one Nyirambumba Florence of her half sack of 25 beans valued at Ug Shs 150,000/= and at or immediately before or immediately after the time of the said robbery threatened to use a deadly weapon to wit a

Panga on the said Nyirambumba Florence.

5 The accused pleaded not guilty to both Counts.

#### **REPRESENTATION**

Ms. Grace Nabagala Ntege (Chief State Attorney) appeared for the prosecution while Mr. Nabasa Rogers represented the accused on state brief. The assessors for this trial were Ms. Zeridah Sendegeya and Mr. Tumushime Emmanuel.

#### 10 **The burden and standard of proof.**

This being a criminal case it is one whose proof lies squarely on the prosecution and never shifts to the accused. The accused has got no duty to prove his innocence. It is also proof beyond reasonable doubt. Any doubt must be resolved in favour of the accused and the accused must only be convicted on the strength

15 of the prosecution case and not on the weakness of the defence case.

#### **(See Ssekitoleko Versus Uganda (1961) EA 531)**

#### **INGREDIENTS OF THE OFFENCE**

- 20 On the first count of Rape, the prosecution must prove each of the following essential ingredients beyond reasonable doubt. - a) That there was sexual intercourse with the victim. - b) That the victim did not consent to the sexual intercourse. - c) That it was the Accused who had the unlawful sexual intercourse with the 25 victim.

- On the 2nd 5 count of Aggravated Robbery, the prosecution must prove the following ingredients beyond reasonable doubt. - a) That there was theft of property - b) That there was use of actual violence at, before or after the theft - c) That the assailant was armed with a deadly weapon before, during, after 10 the theft - d) That the accused participated in the robbery

The offence of Rape and Aggravated Robbery were committed during the course of the same transaction. I will however deal first with the offence of Rape and then turn my attention to that of Aggravated Robbery after.

15 **Section 123** of the **Penal Code Act** provides that 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 of threats or intimidation of any kind or by fear of bodily harm, or by means of false representation as to the nature of the act, or in the case of a married woman by personating her husband commits 20 the felony termed Rape.

The Court in **DPP versus Morgan & 3 others (1976) AC 182** held that:

*"Rape consists in having unlawful sexual intercourse with a woman without her consent and by force… it does not mean there has to be a fight or blows have to be inflicted. It means there has to be some violence used against the women to* 25 *overbear her will or that there has to be a threat of violence as a result of which*

*her will is over borne."*

5 **Section 129 (7)** of the **Penal Code Act** defines a sexual act to mean penetration of the vagina, mouth or anus, however slight of any person by a sexual organ.

#### **a). Sexual intercourse with the victim.**

It is the evidence of Nyirambumba Florence (PW1) that on the 9th April, 2021, she was at her home at around 9:00 pm when the accused entered her house and 10 proceeded to have sexual intercourse with her and that it was forceful because she could not allow to have sex with a child.

Her evidence is corroborated by the medical examination in PF3A that was tendered in by consent of both the defence and prosecution during trial and was received as Exhibit P1. The report reveals that the witness (PW1) had lacerations

15 on the anterior and posterior of her vagina with the possible cause being forceful penetration. I am sufficiently satisfied that the prosecution has proved beyond reasonable doubt that a sexual act was performed on the victim Nyirambumba Florence

#### **b). That the victim did not consent to the sexual intercourse.**

20 It is the evidence of Nyirambumba (PW1) that the accused demanded for money when he entered her house and that when she told him that she had no money, the accused began to assault her with a panga and that he used the blunt part of the panga to slap heron the back and that he was saying that since she had failed to get the money he was going to have sex with her until morning and that the 25 accused then held her mouth and began to strangle her as she tried to make an alarm and that he wrestled her to the ground and demanded for sex but that she could not consent to having sexual intercourse with a child and that the accused

5 proceeded to have forceful sexual intercourse with her and he kept strangling her as he had sexual intercourse with her as she prayed to her God to rescue her from her heart and that after the accused then got off. It is her evidence that the accused injured her in her private parts as he was trying to have sexual intercourse with her. Her evidence is corroborated by that of Kangabe Tereza (PW2) who testified that on the 9th 10 April, 2021 in the morning, she went to the home of PW1 and that she found her on her bed with her legs spread out and that she had injuries in her private parts, her dress was pulled up and that she assisted in clearing her up before she was taken to hospital.

Nyirambumba (PW1) is an 80-year-old woman and I am inclined to believe her 15 when she testifies that she could not consent to having sex with a child. PW2 testified that she had injuries to her private parts and this is corroborated by the medical examination report in Exhibit P1 that details that she suffered lacerations to her vagina and that the possible cause was probably forceful penetration. PW1 also testifies that as the accused was raping her, she tried to raise an alarm but 20 that the accused kept strangling her. The Medical report in Exhibit P1 is to the

- effect that PW1 had bruises on her neck probably caused by strangling. This further corroborates the evidence of the victim in PW1. The injuries to PW1's private parts and her neck coupled with her protestations to engaging in sexual intercourse is proof that the victim in this case Nyirambumba did not consent to - sexual intercourse. I find that the prosecution has proved the 2nd 25 ingredient beyond reasonable doubt.

#### 5 **c) Participation of the accused**

The accused in his unsworn defence denied the charge of Rape stating that on the 9 th April, 2021, he was at Nyakabande trading centre where he works from at around 5:00pm when two men in civilian clothes came to his salon and introduced themselves as Police Officers and arrested him. That he was taken to 10 Mutolere Police Post where he was detained for 3 nights and transferred after to Kisoro Police station where he spent two weeks and then one morning, a Police Officer a one Mugenyi Robert (PW4) called him from the cells and told him that there was something they were going to do and that he should not be scared and he was taken out and placed amongst other inmates not from his village and he 15 was told that they were going to bring the one against whom he committed an offence and that she would select him. According to the accused, he then saw them bring an old woman and they told the old woman to select who she knows and because they were from the same village and she knew him since she used to see him from the trading centre, she selected him. That they told her she might be 20 wrong and they paraded them again and she again touched him. That the same old woman came to Court and said that she knows him and he is called "Kaboy" but that he has never been called "Kaboy". The accused therefore denies sexually assaulting Nyirambumba Florence. Where an accused person raises the defence of alibi as in the present case, the accused has got no duty to prove his defence 25 and the onus is on the prosecution to discredit his defence and to place him at the scene of crime.

**See Kyalimpa Edward versus Uganda SCCA No. 1011995.**

- 5 It is the evidence of the victim in this case Nyirambumba Florence that she knows the accused and that they call him "Kaboy" in the village and she does not know his full names, but that she knows him well. That his father is Nyatanyi George and his mother is called Constance. That she used to see the accused and he used to work in a salon and that she has known him for a very long time and that she 10 has met him often because his parents neighbour her where she digs from. It is the evidence of PW1 that on the 9th April, 2021 at 09:00 pm the accused attacked her inside her house while she was having supper and that she was using a torch to eat and recognized him because she knew him and that she demanded to know why the accused was entering her house as if it was his and that the accused 15 demanded for money from her, assaulted her and threatened to have sexual intercourse with her for the whole night before he went ahead to forcefully have sexual intercourse with her. There is ample evidence on the Court record that the victim in this case PW1 knew the Accused's before the incident of the 9th April, 2021. PW1 provides the names of the accused parents that is corroborated by PW2 20 and the accused's father is on record introducing himself as George William Nyatani although he refused to testify on behalf of the accused who had wanted to call him to the stand as his witness. The accused also in his defence corroborates the evidence of D/AIP Mugenyi Robert and D/ASP Natulinda Claphers (PW5) who testified that the victim PW1 selected the accused as her 25 attacker during an identification parade. The accused does admit that twice he was selected from the identification parade by PW1 and that this was because she knew him because they were from the same village and used to see him from the trading centre. The familiarity between the victim and the accused, the light given off by the torch that the victim was using for lighting, the conversation between - 7

5 the accused and the victim and the act of sexual intercourse that is literally zero distance are all factors that favoured proper identification of the accused on the night in issue.

#### **(See Nabulere & Another versus Uganda. SCCA (1997) HEB 77)**

The issue of whether the accused is "Kaboy" or not at this stage is of little 10 consequence because PW1 has identified him under very favourable conditions as her attacker.

The victim in this case was very composed during her testimony, she answered questions put to her naturally and easily, her body language was very calm and she withstood rigorous cross examination of the defence. I accept her evidence to

15 be true.

According to D/AIP Mugenyi (PW4) the accused gained entry into the house of PW1 by removing the bricks under her door to create a hole through which he crawled and photos of the same were tendered to Court as Exhibit P3. I accept this evidence to be true. There appears to be no other way that the accused would

20 have gained entry into house of his victim in this case.

It is my finding that the prosecution has proved beyond reasonable doubt that it was the accused who raped Nyirambumba Florence. Accordingly, I find that the prosecution has proved all the essential ingredients of Cout 1. Of the indictment beyond reasonable doubt.

25 I therefore in agreement with the assessors find the accused guilty and convict him of the offence of Rape contrary to **Section 123** and **124** of the **Penal Code Act.**

I will now turn to the 2nd 5 Count of Aggravated Robbery.

#### **(a). That there was theft of property.**

Theft occurs when a person fraudulently and with intent to deprive the owner of a thing capable of being stolen takes that thing without a claim of right.

#### **See Section 254 (1)** of the **Penal Code Act**.

10 It is the evidence of the victim in this case Nyirambumba Florence that after the accused had finished raping her, he took her sack of beans with him.

This evidence was not challenged by the defence and I accept the same to be true.

I therefore find that theft has been proved beyond reasonable doubt by the prosecution.

### 15 **(b). Use of actual violence and the assailant being armed with a deadly weapon**.

It is the evidence of Nyirambumba that the accused demanded for money and when she said that she did not have any, the accused using the blunt part of the Panga slapped her on the back and said that if she did not have money he was 20 going to have sexual intercourse with her. I accept the evidence of the complainant (PW1) that the accused was armed with a Panga that he used to slap her with on the back before proceeding to steal her property

It is my finding that the prosecution has proved beyond reasonable doubt that actual violence was used in the course of the robbery and that a deadly weapon 25 to wit a panga was used.

#### 5 **(c). Participation of the accused.**

The complainant Nyirambumba testified that she knows the accused and he is a village mate. The accused himself admits that the complainant knows him. There was a torch that the complainant was using in her house and I accept that this aided in the identification of the accused. The familiarity torch light, conversation

- 10 and the proximity of the accused with the complainant as he raped her in my view were factors that all favoured proper identification. I entirely reject the defence of alibi put by the accused and find that the same has been sufficiently discredited and he has been placed at the scene participating in the commission of the crime. I therefore find that the 4th ingredient has been proved beyond reasonable doubt. - 15 In full agreement with the assessors, it is my finding that the prosecution has successfully proved the 2nd count against the accused and I find him guilty of the offence of aggravated robbery Contrary to **Section 285** and **286 (2) Penal Code Act** ad convict him of the offence.

Before me

20 …………………………… **Samuel Emokor Judge 11th August, 2023.**