Uganda v Ochieng (Criminal Session Case 74 of 1990) [1990] UGHC 30 (21 December 1990)

Full Case Text

IN THE HIGH COURT OF UGANDA AT KAMPALA

## HOLDEN AT GULU.

The How. Mr. Justica

CRIMINAL SESSION CASE NO. 74 OF 1990.

UGANDA . .... PROSECUTOR. - V E R S U S -

SIMCN CONTENG .. ACCUSED.

BEFORE: THE HONOURABLE MR. JUSTICE G. M. OKELLO

## JUDGMENT:

The accused Simon Ochieng has been indicted for Rape contrary to sections 117 and 118 of the Penal Code Act. The particulars of the offence allege that Simon Ochieng on the 12th day of September, 1989 at Kanyagoga Village in Gulu Municipality in Gulu District unlawfully had oarnal knowledge of Joyce Adong without her consent.

To constitute the offence of Rape the following ingredients must exist:-

$(1)$ That there was an unlawful carnal knowledge of a girl or woman in which there was penetration of the male reproductive organ (Penis) into the female reproductive organ (Vagina).

That the carnal knowledge was had without the con- $(2)$ sent of the girl or woman.

$(3)$ That it was the accused who unlawfully had carnal $\psi_{\alpha} \in \mathfrak{B}_{\infty} \cap \mathbb{R}$ knowledge of the girl or woman without her consent. In order to secure a proper conviction for the offence of Rape, the above ingredients must all be proved. The burden to prove those ingredients lies on the prosecution and the standard of proof required is beyond reasonable doubt. (See Woolmington v. DPF (1935): AC 462. Oketh-Okale v. Republic $(1965)$ EA 555.

♦In" an attempt t*a.*'discharge 'the burden to \*pr\>v© all the ingredients of.this•offence beyond reasonable doubt, the prosecution produced' the evidence of a total of six witneaee^ who wore:- Margaret Ayat (PV/g) t the complainant JQjfoe Adong (P *-3).9* Josephine . Odong . X®t4'^r^rV^nek Awil' (PW5) and N>t PC Robbert Opira (Ph'6), The evidence of D/AIP Omona on the Summary of Evidence' was admitted.under section 64 *q£* the'Trial on Indictment Decree at a. Preliminary Hearing\*

\*-iiS to whether or not there was ..unlawful carnal knowledge of a girl or woman without her consent., the prosecution con-i tends that there was an unlawful carnal "knowledge of a girl called Joyce Adong without her consent. The unsworn evidence of the complainant Joyce Adong (PWjj) and the unsworn statement of the accused in court and his charge and caution statement to Police ExhwPel are relevant on these points#

Joyce. Adong gave unsworn-evidence because she did not .understand the naturd of an oath. She. however was possessed of sufficient intelligence to know the duty to tell theftruth. So she'gave unsworn evidence. In that evidence she described how she went to the home .of the accused on that material ev^nii on the instruetion-O'll.'her mothet..to collect a debt.of twenty shillings from a wo^an with whom the-accused was: cohabiting, . I shall hence forth for clarity, and'brevity refer to thatwoman as his (Accused's) wifev That on^arrival the accused-. tricked her into entering his house believing that hi.s wife was in the..house. But..that-&Mrer entering;th«-:'house and pn realising that the accused's wife was not in the house, she (complainant) started to walk towards the door to come out of the house when

• • .'V " .. '•

the accused caught her by the arm and pulled her into his bed^ room while holding her throat with his one hand and threatening her with assault if she made any alarm. That while in the bedroom, the accused threw her onto a papyrus mat, forcefully knickers" ; removed her':1 i and pulled out hi-s penis and inserted it into her vagina. That .he had sexual'"intercourse with her three times when each time he ejaculated. That in the process, she felt much pain. That when the accused finally got out of \ her, she (complainant) noticed that .she was bleeding from her private part. . That she got up and ran to ller ^ome crying and\* . khickefs ' . .. . .. she left her u.. in the accused's house fdhhing that'-she might be raped again.

The accused denied the above version. In hisUnsworn statement in court, the accused stated that earlier he had me:t the complainant and ^ade a date with her to come \*and meet; him at his home on the material datc^and tifte. That-the com- plainant complied with the date *£>f*, AgreeVdfjW®^ That she came to his home on the date and at the precise time agreed5. That . on her arrival at his home, he welcomed her into the house and that after chatting with her for some few. minutes, they both w. moved into his bedroom. That while in the bedroom, the complaim.nt voluntarily removed her^^^erJ in rediness for-the sexual intercourse which they later had with the complainant's full consent. ' '

It-i.s a matter of credibility whether tb'believe the unsworn evidence of the complainant Joyce A dong (PW3) that the accused-had sexual intercourse with her without her consent or to believe the unsworn statement of the accused-that he hac sexaal intercourse with the complainant with'her corischt. : •

- 3 -

Mr.. Oyarmoi'/submitted'for "the dof'enp:§ ri^at of the two the .accused should be • believed' because he had consistently maintained that''he had'sexual■'intetedur^o with the complainant with her full consent. ^Th'at sbon after the incident when the I?0.1 Committee".'Meeting 'asked him, the "accused replied that he had sexual intercourse with the"rcbinplaina»t'with hxa? That he maintained this stance in his charg# .and caution \* ■\* -\*-»■> statement to Police-ExhV and in his unsworn »tatemant tp court..

It is quite true-'that the accused "had been consistent on the question whether or not; he had sexual intercourse with the complainant on 12^9•■1989 without her'consent. He maintained consistently that.he- had sexual intercourse with the com plainant Joyce Mong oil '^,9.1989 in his'own hut at Kanyagoga in Gulu Municipality/■'but that he did so with the complainant'sconsent. Between the accused' and'the complainant, I am in full agreement with the gentlemen'Assessors that the complai- - • • , ■/ ' 'J nant- is the truthful-witness'-because she gave her evidence in **. <451^ 1** a straight forward manner. She also' withstood, the crossexamination. •

The accused on the other hand in his charge and caution statement to' Police' (EXH. V) :tdld\*'the court that the complainant had been his girl-friendThat he had on several occasions before had sexual intercourse with her. ' But the accused did not even try to-explain- when the'complainant became his girl friend. He <jlid not'alsb attempt to spell out where and when |n •. the earlier occasion he had sexual intercourse with the

complainant. Even in his unsworn statement in court th© accused did not attempt to explain on those issues\*

1 ; '' 4~

I am fully aw? re that the accused has no duty to protfe his innocence nor that he should be convicted on the weakne-s< of his defence but rather on the strength of the case. Yet I think that if an accused chooses to make a statement it is important that he should make it pleasible to create some doubt in the prosecution

In the instant case, it is not clear when the complainant became the girl friend of the accused\* It is also not cleaa when and where he had on previous-occasions had sexual inter— . cqurse- with her. All these claims by the ' ' j .accused that the complainant was his girl friend and that he had on earlier occasions had sexual intercourse with her have ba-.'n dispelled by the complainant in her unsworn eviden^es •I am .conscious of the fact that it is dangerous to convict in sexual oases on the uncorroborated testimony of the complainant', I' am also aware- that it is trite law that where the complainant is a child who gave evidence not on oath, corroboration of such evidence is necessary as a matter of law;- ' ■' . ' ■.

In the instant case, the complainant Joyce Adong (PW3) is a child of tender age who .did not understand the nature of oath and therefore did not give evidence on oath, But \* as she.was possessed of sufficient intelligence to tell the truth, she gave evidence nbt on qat,^. Corroboration of her evidence is therefore necessary as a matter of law. -Such corroborations are provided first by the evidence .of P'72 Margaret Ayat who is the '--'other of the complainant. She testified on the distressed conditions of the complainant soon after the incident.

It is the law that' the distressed 'Condition of the con^ plainant in a sexual offence may in certain circumstances bf used ab corroboration of'her statement but little weight can be att ,ched' to this type of evidence where it is all part and p\_r^-el'\*®f\* th^' complainant, See Kabozo vs, U^anda^ (1965) EA 507\*

*In* the case before me, there is no suggestion that digr tr"'sc:d condition is part and parcel of the complainant® Appropriate weight can therefore be attached to the evidence "of her distressed condition after the incident,

Margaret Ayat (P'?2) testified hnw on the material dat^ at about the material time she had sent her daughter th^ plainent to the home bf the' accused to collect from tjie ^aecuses's wife-a d£bt of shillings twenty. That the complainant delayed longer 'than she/ (Margaret)' expected and she returned crying® That when she (witness) looked at her closely, she noticed that the complainant''s' 'frock (3x. P.2) was stained with blood. And on asking' the complainant -as to what happened to her, she (the complainant) Replied that the accused had sexual intercourse with her against her will.

Margaret Ayat is a simple minded' peasant, but she gave her cvidiaoe in a simple and straight formrd manner. I thus fin?. !.pr J. truthful witness s-nd I "believe her,

She told court thut when her daughter complained to her that she 'vus raped by--tHe'"accused, she examined her closely ' and saw. th-;t blood v?as flowing from between her (the cemplainant's.) thighs. ' She identif\*iect-^the- complainant \*sr blood st'bined frock with a remarkable ease. She further' testified that she at-once. toovk the"-e.dni.plainant tb^'the Vice Chairman" "

- 6 - RC.l of Kanyagpga Ward Mrs. Josephine Odong (PW4)» Mrs\*. Josephine Odong confirmed in her evidence the distressed conditions of the complainant. She confirmed that she saw blood stains on the complainant's frock# The above evidence provide corroboration to the complainant's statement that she ('■complainant) had been raped. &gt;

S,,"i'Tpe Ogwal-Olwa submitted that the Medical Report ExhtPt3 shows' that the complainant was medically examined by a Doctor ■in Oulu Hospital soon after her complaint of rape. That the examination revealed that she- had scratches on her vulva ; and thighs. That these scratches are highly suggestive that .• • • • "the complainant was raped. Counsel submitted that this Medical Report supports the evidence of the complainant that she was ■' raped, ' . . •

Mr. Oyarmqi argued that this . Medical Report Exh. P,3 does I not show that the complainant was raped.

With all due respect to the. learned counsel I think that the scratches found on the complainant's vulva and on her thighs are inconsistent with a consontual cr mutually agreed sexual intercourse. They show.signs of resistance and violence thus confirming the complainant'5 unsworn evidence that the accused -forcefully had sexual^intercourse • ith her against her consent.

Another corroborative evidence is the conduct 'of the accused after the incident.. The evidence of P\$2, PV/3 and PW4 all show that when he was questioned at; a meeting before the Vib'^-Chairmaff ' of RC<1 Kanyagoga '.as to.whether he had sexual intercourse with the complainant without her consent, the accused'-admitted that he had sexual intercourse with the' ' • • - •' f ' / Z • ' ' •' • ..\*••• : / r ' • • •

complainant on the 12.9.1989 in his own hut at Kanyagoga village but he denied that he did so without the complainant's consent. But that when the Vice Ch irman of the RC.1 suggested in the presence of the Accused that his case would be referred to the Police, the accused went behind the house under the pretaxt that he was going for a urinary call and disappeared into the nearby bush leaving the RC.1 meeting on. That from that time the accused went into hiding. After four or five days later. the accused was found at a Bus stage at Custom Corner trying to pick transport to Moyo to the home of his maternal uncle. That when he saw a uniformed Policeman in company of Okello-Nokrach whom he knows quite well approaching him, the accused took off and started to run away. He was chased and with the assistance of some members of the public he was arrested. Mar. Ogwal-Olwa submitted that the above conduct of the accused shows that he fully knew that he had had sexual intercourse with the complainant without her consent and was thus trying to avoid the law. That this confirms the complainant's statement that the accused had sexual intercourse へいた with her with/her consent; The learned state: counsel relied on the case of KALADIO TEREKABI -vs- UGAND. (1975) HCB $.63.$

$\ldots \Gamma_{\mathbb{C}} \cup \ldots$

In Terekabi's, case the deceased was seen running with a cut wound on his head and was covered in blood. He complained to two separate people that he was cut by Terekabi. The deceased died $\partial_{\mathbf{r}}$ few hours later. The accused who heard of the deceased's death disappeared from the village for three days and did not attend the inquiry. It was held inter alia that the conduct of the accused in disappearing from his village for three days soon after the incident corroborated the dring declaration.

For the defence Mr. Oyarmoi submitted that the conduct of the accused in running aw y from the RC.1 meeting after a suggestion was made in his presence that his case would be referred to the Police, and his going into hiding for four to five days and thereafter his running away at the approach Fof a uniformed Policeman do not show that the accused had sexual intercourse with the complainant without her consent. The learned counsel referred to the case of Kayibanda vs. He tried to distinguish that case Uganda (1976) HCB 253. from the instant case on their facts.

In Kayibanda's case, the Appellant who was charged with rape, ran away when the girl repuated the allegation against him in the presence of her god-mother. There was also evidence that after running away, the appellant was found hiding in the kitchen and would not come out voluntarily on being called out. He was physically pulled out of the kitchen. It was held that the above conduct of the appellant provided corroboration of the complainant's statement.

I find the principle in Kayibanda's case the same with the principle in Torekabies case. In both cases the strange conduct of the secused after the incident was held to provide corroboration of the victim's statement.

In the instant case, I find that the conduct of the accused in running away when it was suggested to him that his case would be referred to the Police, his going into hiding therefrom for four to five days and subsequently his running away at a mere approach of a uniformed Policeman were strange conducts. In my view those conducts are indicative of guilty conscience. They therefore corroborate the

$\overline{q}$

complainant's unsworn evidence that the acqueed had gazual intercourse with her without her consent. I do not believe the accused's version. $\mathcal{A} = \mathcal{A} = \mathcal{A}$

For the reasons given above, I find myself in agreement with the gentlemen Assessors that the proceeding has proved beyond reasonable doubt:-

- (1) That there was unlawful carnal knowledge of a girl called Joyce Adong; - (2) That the carnal knowledge was had without the consent . of the said Joyce Adong.

The Accused himself admitted that he had sexual intercourse with the complainant on 12.9.4989 at Kanyagoga Village in Gulu Municipality with her consent. The swidence of PW2. PW3 and P.4 conform the mocused's admission but go further to

show that the intercourse was unlawful and without the consent of the said Joyce Adong. I believe the evidence of these witnesses. In consequence I agree with the gentlemen Assessors that the prosecution has proved beyond reasonable

doubt that it was the accused who unlawfully had earnal knowledge of the said Joyce Adong on 12.9.1989 without her her consent. Hence I find in agreement with the gentlemen iccasors that the accused is guilty as charged. So he is convicted of Rape contrary to sections 117 and 118 of the Penal Code Act. ..... ing a station

G. M. Okello. R. S. A. M. Harrison and R. T. M. S. S.

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· 经营业分子

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Judge.

20.12.1990.

2012年第14年的东西计分离分析

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## Ogwal-Olwas

There is no record of any previous conviction of the accused. lie is a first offender. The offence carries a maximum sentence of death. But the accused being under 18 years can not be sentenced to death. I can not therefore pray for a death sentence. Accused being under 18 years can not also be sentenced to a'term of imprisonment. I pray -that the court makes appropriate order in this regard. Oyarmois

€ I leave the question of punislimehf'tb the court.

## Court^£

'Case is adjourned to 21\*12\*1990 Tlt3O for sentence# A. F. R-. luntil then.

Okello \* ' •

20,12,1990.,

21\*12'; 1\*990 Accused before me,

•»< 9,30 a,.m, Representations remain the same.,

, Both Assessors present..

Sentence; \*

Simon Ochieng, the Accused in this case was ^indicted for Rape contrary-to sections 117 and 118 of the Penal Code Act. He was tried and convicted as charged.

By the recent Penal Code Amendment . Statute 5 of 1990 Supplement which cam.c intp'- force on .28\*9\* 1990, Rape is now an offence wliidh 'ca5fr?i'es-a maximum, sentence of death. But under section 104 (l) of the Trial on J.ndiotment IJacree no

death sentence can be pronounced or recorded against any

$12$

person who appears to the court that at the time when the offence was committed he was under the age of 18 years.

This is the position in this case. It transpired $\mathcal{P}^{\ast}$ at the hearing that at the time of the commission of this offence the accused was aged 16 years having been born in 1973. I therefore can not pronounce or record death $\mathcal{L}^{\infty}(\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2},\frac{1}{2$ sentence against him.

Apart from that the circumstances in which the offence was committed do not in my; view called for imposition of the maximum sentence prescribed by law. The Accused is a first offender and it is the practice of this court not to impose a maximum sentence on a first offender.

It is also an established principle that a person. under the age of .) iv years should not be sentenced to a term of imprisonment.

In the circumstances the accused is ordered to be detained in Government Prison Gulu for safe custody pending the Minister of Justice/Attorney General's Order, regarding his detention under section $104(2)$ of the Trial on Indictment Decree. I make this order under section 104(1) of the Trial on Indictment Decree. · 网络白油计数据函数编辑 (1994年1998年1998年1998年1998年1998年1998年1998年 G. M. Okello $\sim$ $\sim$ the art of the settled by the settled 10種類化が、サライト環境、TPSMに、とした $J_{\bullet}$ $21.12, 1990.$ 机碱化二甲基甲酰胺化二甲酰胺 (1) Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria Maria

and the particular test of the con-