Uganda v Othieno (Criminal Session 339 of 2019) [2024] UGHC 545 (25 June 2024)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO CRIMINAL SESSION CASE No. 339 OF 2019 **UGANDA :::::::::::::::: PROSECUTOR VERSUS** <table> OTHIENO JOHN ALIAS HAJI ....................................

# BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

# **RULING**

- 1. The accused person was indicted with two counts of rape and aggravated robbery. In count 1, he is indicted for rape c/s 123 and 124 of the Penal Code Act, Cap. 120. It is alleged that the accused and others still at large on the night of 21<sup>st</sup> February, 2019 at Nenyonde Village, Nabbale Sub-County in Mukono District had carnal knowledge with a woman Namaganda Resty without her consent. - 2. In Count 2, the accused is indicted for aggravated robbery c/s 285 and 286 of the Penal Code Act, Cap 120. It is alleged that the accused and others still at large on 21<sup>st</sup> February, 2019 at Nenyonde Village, Nabbale Sub-County, Mukono robbed one Namaganda Resty of her house hold property to wit one television set 21-inch J-Soni by make, DVD LD by make black in colour, loud speaker Johnson by make, clothes, sauce pans and other things valued at approximately UGX. 1,300,000/ $=$ and immediately before or immediately after the said robbery threatened to use a deadly weapon to wit a knife.

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3. Under section 73 of the Trial on Indictments Act, Cap. 23, the moment prosecution closes its case, the court has to determine whether or not the evidence adduced by the prosecution has established a *prima facie* case against the accused person. In the case of R. T. Bhatt v. R [1957] E. A. at page 332, a prima facie case is defined as:

> "one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence."

- 4. Once the court is satisfied that a *prima facie* case has been established against the accused, he should then be put to his defence. On the contrary, when a *prima facie* case has not been made out by the prosecution, the accused would be entitled to an acquittal (See Wabiro alias Musa v. R [1960] E. A. 184). - 5. The evidence adduced by the prosecution at this stage, should be sufficient to require the accused to offer an explanation why he should not be convicted and sentenced accordingly. There are mainly two considerations justifying a finding that there is no *prima facie* case made out as stated in the Practice Note of Lord Parker which was published and reported in [1962] ALL E. R 448 and also applied in **Uganda v. Alfred Ateu [1974] HCB 179**, as follows: - $(a)$ when there has been no evidence to prove an essential ingredient in the alleged offence, or

- when the evidence adduced by prosecution has been so $(b)$ discredited as a result of cross examination, or is manifestly unreliable that no reasonable court could safely convict on it. - 6. When this case came up for hearing of the prosecution case, the State was represented by Counsel Kubokwe Kennedy, a State Attorney from the Office of the Director of Public Prosecutions. Counsel Halid Salim appeared for the accused person on state brief. The court directed that both parties should file submissions. However, only the prosecution counsel filed written submissions on a case to answer.

### **Issue:**

Whether the prosecution has led sufficient evidence capable of proving each of the ingredients of the offences of rape $c/s$ 123 and 124 and aggravated robbery c/s 285 and 286 of the Penal Code Act, Cap. 120.

- 7. At this stage, I am obliged to determine whether the prosecution has led sufficient evidence capable of proving each of the ingredients of the offences of rape and aggravated robbery. For the accused to be required to defend himself, the prosecution must have led evidence of such a quality or standard on each of the following essential ingredients of each count. For the 1<sup>st</sup> count of rape, the prosecution must led evidence on: - (a) carnal knowledge of a woman; - (b) the act was performed without the consent of the victim; and

- (c) that it is the accused who performed the unlawful sexual act on the victim - 8. Secondly, for the accused to be required to defend himself in the 2<sup>nd</sup> count, the prosecution must have led evidence of such a quality or standard on each of the following essential ingredients of aggravated robbery: - (a) theft of property belonging to another: - (b) use of threat or use of violence against the victim: - (c) possession of a deadly weapon during the commission of the robbery; - (d) the accused participated in commission of the robbery.

# **Prosecution's submissions on count 1 on rape**

- 9. The prosecution counsel submitted that the victim P. W.1 Namaganda Resty informed court that on 21<sup>st</sup> February, 2019 in the night towards the morning of 22<sup>nd</sup> February, 2019, the accused Othieno John while holding her by her neck and with a knife, cautioned her not to make an alarm. That he thereafter asked her to give him her knicker and then pushed her to the bed. That at that time the accused was naked, he then pushed his private part (penis) into her private part (vagina) and had sexual intercourse with her on her bed. - $10.$ Furthermore, counsel submitted that proof of unlawful sexual intercourse was corroborated by prosecution Exhibit 1 dated 22<sup>nd</sup> February, 2019, which confirms that there was penetration of the

victim's vagina by the accused person. That based on the above analysis, the 1<sup>st</sup> ingredient of unlawful sexual intercourse by the accused with the complainant has been proved considering the testimony of the victim, PW1.

- As to the $2<sup>nd</sup>$ ingredient, it was argued for the prosecution that $11.$ the victim in this case P. W.1 Namaganda Resty testified before court that the accused was holding a knife and also held her by the neck. That she also informed court that the accused first cautioned her not to make an alarm then she will survive being raped but still he went ahead pushed her to the bed and raped her. That thereafter the accused warned her not to do anything or else she will be dead and he informed her that her other family members were dead and if she made an alarm, she will also die. - $12.$ That the victim P. W.1 further testified that as the accused was leaving after doing everything, he further threatened her that if she disclosed what had happened to any one, he would kill her even after 10 years. Counsel averred that all these narration from the witness are clear proof that she never consented to the sexual intercourse with the accused. - $13.$ The prosecution counsel contended that in relation to the 3<sup>rd</sup> ingredient of rape, the victim P. W.1 testified that after the accused had finished raping her and stealing some items in the house, he moved around the house and went to her bedroom window and that that's when she was able to recognize him with the help of the light

from the neighbor which was lighting towards her bedroom window. That the accused also returned back to her room asking her for a jacket and got it himself since he was naked and he needed something to cover himself and thereafter wrote a telephone number on the wall of her bedroom using the victim's eye pencil and asked the victim to inform her sister called Nakato Margret to send One Hundred and Fifty Thousand Shillings (UGX. 150, 000/=) on that number and that the accused informed her that the number he had written on the wall was his.

- $14.$ Counsel averred that this clearly shows that the witness P. W.1 had ample time to clearly recognize the accused person. That the victim also confirmed that she knew the accused and further went ahead to inform court that the accused was their neighbor in Jumba Genda Village before the victim's family shifted to Nakifuma. - 15. The prosecution counsel submitted that this was also corroborated by the testimony of P. W.2 Mangeni Peter a brother to the victim who informed court that he knows the accused person since they grew up together in Jumba Village. That P. W.3 Byakika Charles also informed court that he knew the accused person since he was born in Genda Village and that he also knew his grandparents. - 16. Counsel contended for the prosecution that given the length of time the victim spent with the accused person in the night of 21<sup>st</sup> February, 2019 and given the availability of the light from the neighbor that was lighting in the direction of her bedroom and also

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considering the fact that she had grown with the accused person in Jumba Genda Village, this ingredient of participation of the accused person has also been proved.

# **Court's analysis of count 1.**

#### i. . Carnal knowledge of a woman

17. In the Kenyan case of Nakholi v Republic [1967] E. A. 337 it was stated on page 338 that

> "the lack of consent is an essential ingredient in a charge of rape and this is so whether the complainant is a woman or a girl." The court then cited the definition of rape similar to that of Uganda's section 123 of the Penal Code Act, Cap 120 stated in paragraph 1 of this judgment. The court further stated thus: "the two essentials are therefore carnal knowledge of a woman" or girl and lack of consent and both these essentials must be established by the prosecution and accepted by the court before a conviction for rape can be arrived at. It is a fact that age of the girl is material and that in some cases the girl may be of such tender years that mere proof of her age may be sufficient to establish the lack of consent on her part, as the girl would on account of her age be unable to understand what was happening and would not be able to consent as she would not know what she was consenting to. In such a case then, the age of the child would be evidence from which the court could arrive at the conclusion that the act was done without her consent. but the court would still have to find this as a fact before convicting of rape."

- 18. In Bassita Hussein v. Uganda, Criminal Appeal No. 35 of **1995**, the Supreme Court of Uganda held that "the act of sexual" intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. - 19. Carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ of an assailant. Sexual organ means a penis. Proof of penetration is normally established by the victim's evidence, medical evidence and any other cogent evidence. In the instant case, there is direct evidence of the victim P. W.1 Namaganda Resty who testified that the accused asked for her knicker, pushed her on the bed, removed his private part and raped her. The medical report admitted as PEx 1 also corroborated PW1's evidence wherein it was indicated by medical officer in-charge Nakifuma Health Centre III a one Nabawule Jane Francis, that the victim's genitals had the hymen raptured with painful vulva and that the probable cause of the injury is use of an object. - $20.$ I find that the prosecution has adduced sufficient evidence capable of supporting a finding that, the victim Namaganda Resty was subjected to an act of sexual intercourse, if the accused chose not to say anything in his defence. - $21.$ ii. The act was performed without the consent of the victim. In the English case of R v. Ronald Harling (1937) 26 Cr. App. R. **127** at page 128 it was stated that

"In every case of rape, it is necessary that the prosecution should prove that the girl or woman did not consent and that the crime was committed against her will."

This case was followed in Nakholi v. Republic cited above.

- 22. Proof of lack of consent is normally established by the victim's evidence, medical evidence and any other cogent evidence. There is the direct evidence of the victim P. W.1. Namaganda Resty who testified that as she was sleeping, she was woken up by someone who held her neck while holding a knife, told her not to make an alarm to save her children and herself and raped her. That after, the rapist left her on the bed and warned her not to make an alarm. That as the rapist was leaving the house, he further warned her not to tell anyone of what had happened and that if she discloses the incident to anyone, he will kill her even after 10 years. - $23.$ This testimony clearly involves use of force and the same was not discredited during cross examination by defence counsel. I find that the prosecution has led sufficient evidence capable of supporting a finding that Namaganda Resty, the victim was subjected to an act of sexual intercourse without her consent, if the accused person chose not to say anything in his defence. - iii. That it is the accused who performed the unlawful sexual act on the victim. - $24.$ Here, the prosecution had to prove that it is the accused who committed the unlawful act. This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused at the scene of crime not as a mere spectator but as the perpetrator of the offence. In this case, P. W.1 Namaganda Resty, the victim, explained the circumstances in which she was able to identify the accused as the perpetrator of the act. She testified that when the accused moved out and stood at her window, she was able to recognize him from the neighbor's light. That the accused came back to her bedroom and asked for a jacket to put on, then he removed it himself as she was on the bed shaking.

- $25.$ During examination-in-chief, P. W.1. added that as the accused was still in her bedroom, he got an eye pencil and wrote his number on the wall, then said the victim should tell her sister to send mobile money of UGX. 150,000/ $=$ to that number. When court asked P. W.1 whose number was written on the wall, she replied that the rapist told her that it was his number and that they should send money to it. - 26. Furthermore, when asked during cross examination whether she had seen the accused before the incident. P. W.1 answered in the affirmative and when asked by court to explain how she knew the accused, the victim stated that before they shifted to Nakifuma, they were residents of Jumba Jenda where the accused was also a resident PW3 also stated that the accused is a born of Genda Village and that he knew the accused's grandparents with whom he was staying.

$27.$ Consequently, it is uncontroverted evidence that if the accused chose to remain silent, this court would have evidence sufficient to hold him responsible for the unlawful act of sexual intercourse with the victim without her consent. Accordingly, I hold that a *prima facie* case has been made out against the accused that requires him to be put on his defence on count 1.

# **Prosecution's submissions on count 2**

- The prosecution counsel stated on the 1<sup>st</sup> ingredient of the 2<sup>nd</sup> 28. count on aggravated robbery that to prove theft, P. W.1 Namaganda Resty informed court that after the accused person raping her, he went and broke into her brother's room which is in the same house and that he removed a Television set, woofer, a DVD and also her brother's clothes. That thereafter the accused went to the sitting room and took saucepans and other items like plates from the side board. - 29 P. W.2 Mangeni Peter testified that on the night of 21<sup>st</sup> February. 2019, he was at Buvuma Island in a town called Mojo after he had left his sister at home. That the following morning at around 6:00 a.m., he was informed of the stolen items from his room. Counsel stated that this ingredient of theft has been proved. - It was contended for the prosecution on the $2<sup>nd</sup>$ ingredient of $30.$ aggravated robbery that P. W.1 Namaganda Resty informed court that on $21^{st}$ February, 2019, in the night towards the morning of $22^{nd}$ February, 2019, the accused Othieno John while holding her by the neck and with a knife cautioned her not to make an alarm then she

will survive being raped. That she further went on to state that the accused pushed her to the bed and raped her and thereafter left her on the bed as he warned her that if she does anything she will be dead and that her other family members were dead and if she made an alarm she will also die. That thereafter, the accused broke into her brother's room and stole the said items mentioned above in the 1<sup>st</sup> ingredient.

- $31$ P. W.1 further testified that after the incident as the accused was leaving, he threatened her that if she disclosed what had happened to any one, he would kill her even after 10 years. Counsel averred that all these narration from the witness is clear proof that there was use of actual violence at, before and after the theft and that the ingredient of use of actual violence at, before or after the theft by the accused has been proved. - It was argued for the prosecution on the $3<sup>rd</sup>$ ingredient of the $2<sup>nd</sup>$ 32. count that P. W. I Namaganda Resty informed court that the accused while still holding her by the neck and with a knife cautioned her that not making an alarm will make her survive being raped. Counsel argued that a knife is an example of a deadly weapon and that this is evident by the fact that the victim was also afraid of her life and after being threatened by the accused, she neither moved from her bed nor made an alarm in fear of being killed by the accused since he was holding a knife. Counsel asserted that this 3<sup>rd</sup> ingredient has also been proved.

- As to the 4<sup>th</sup> ingredient of the count of aggravated robbery, the 33. prosecution counsel stated that P. W.1 Namaganda Resty testified that after the accused had finished stealing the said items, he moved around the house to her bedroom window and that's when she was able to recognize him with the help of the light from her neighbor which was lighting towards her bedroom window. - $34$ The prosecution counsel submitted that the accused also returned back to her room asking her for a jacket to cover himself with since he was naked, and that he got it himself and thereafter wrote a telephone number on the wall of her bedroom using the victim's eve pencil and asked the victim to inform her sister called Nakato Margret to send One Hundred and Fifty Thousand Shillings (UGX. 150, 000/=) on that number. That the accused informed the victim that the number he had written on the wall was his. That P. W.1 confirmed knowing the accused from Jumba Genda Village before her family shifted to Nakifuma. - 35. P. W.2 Mangeni Peter also informed court that he knows the accused person since they grew up together in Jumba Village. And that P. W.3 Byakika Charles further informed court that he knew the accused person since he was born in Genda Village. That this ingredient of participation of the accused person has also been proved by the availed evidence. - 36. The prosecution counsel concluded that with all the direct and circumstantial evidence highlighted above and availed before this honourable court through the three witnesses as presented by

prosecution before this honourable court, a case to answer has been established against the accused person. Counsel invited this court to find so.

# **Court's analysis of count 2.**

#### **Theft of property belonging to another** i.,

- 37. Under this ingredient, there must be proof of what amounts in law to carrying away of the property of another without his or her consent. Theft occurs when a person fraudulently and with intent to deprive the owner of a thing capable of being stolen takes that thing from the owner without a claim of right. - In the instant case, P. W.1 testified that after raping her, the 38. accused broke into the next room belonging to her brother and removed a woofer, TV, DVD and her brother's clothes. That the accused then moved to the sitting room, broke into the side board and took sauce pans and plates leaving other items in the side board. - 39. P. W.2 whose room was broken into testified that when he came back from Buvuma Island, he found his T. V, woofer, mattress, DVD and clothes were stolen and that the properties have never been recovered. I find that the prosecution has led sufficient evidence capable of supporting a finding that properties belonging to another person were stolen.

### ii. Use or threat of use of violence against the victim.

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The prosecution is also required to adduce evidence to show that there was use or threat of use of some force to overcome the actual or perceived resistance of the victim. In the case before court, P. W.1 testified that after raping her, the accused warned her not to make an alarm, saying that he had already killed other people whose bodies are in the sitting room. That she then heard the accused breaking into her brother's room which was next to her bedroom within the same house. I find that the prosecution has led sufficient evidence capable of supporting a finding that the theft of the properties belonging to the victim and her brother, involved the threat of use of force to overcome the actual or perceived resistance of the victim.

### Possession of a deadly weapon during the commission of iii. the robbery.

- $41.$ According to section 286 (3) of the Penal Code Act, Cap. 120 a deadly weapon is defined to include - (a) (i) any instrument made or adapted for shooting, stabbing or cutting, any imitation of such an instrument;

(ii) any substance.

which, when used for offensive purposes, is capable of causing death or grievous harm or is capable of inducing fear in a person that it is likely to cause death or grievous harm; and

(b) any substance intended to render the victim of the offence unconscious.

42. Although none of the weapons was recovered or has been exhibited in court, the direct evidence of P. W.1 that the accused was in possession of a knife which he used to threaten her not to make an alarm, fits within the meaning of a deadly weapon. This particular evidence of the accused being in possession of a knife which is a deadly weapon was not discredited during cross examination by defence counsel. I find that the prosecution has led sufficient evidence capable of supporting a finding that whoever committed theft of the properties belonging to the victim and her brother, had in his possession a deadly weapon.

#### iv. The accused participated in commission of the robbery.

$43.$ Proof of this ingredient requires sufficient evidence to implicate the accused as having participated in committing the offence of aggravated robbery. This ingredient is satisfied by adducing evidence whether direct or circumstantial, placing the accused at the scene of crime as the perpetrator of the offence. In the instant case, P. W.1 testified that when the accused moved out and stood at her window. she was able to recognize him from the neighbor's light. That before the incident, she also knew the accused as a resident of Jumba Genda, their former village of residence before they shifted to Nakifuma where she was robbed from. It is my finding that the prosecution has lead credible evidence capable of supporting a finding that the accused participated in the commission of the offence of aggravated robbery, if the accused chose not to say anything in his defence.

44. Having carefully evaluated the prosecution evidence, I have formed the opinion that a *prima facie* case has been made out against the accused person requiring him to be put to his defence for the offence of rape contrary to section 123 and 124 of the Penal Code Act. Cap. 120 and aggravated robbery contrary to section 285 and 286 of the Penal Code Act, Cap. 120.

I so rule.

This ruling is delivered this ....................................


**FLORENCE NAKACHWA JUDGE.**

In the presence of:

- (1) Counsel Uwizeye Fionah holding brief for Counsel Kubokwe Kennedy, a State Attorney from the Office of Director of Public *Prosecutions, for the prosecution;* - (2) Counsel Ayub Musubo holding brief for Counsel Halid Salim on state brief, for the accused person; - (3) Mr. Othieno John Alias Haji, the Accused person; - (4) Ms. Pauline Nakavuma, the Court Clerk.