Uganda v Oyoo (Criminal Session Case 284 of 2019) [2024] UGHC 495 (18 June 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

## CRIMINAL SESSION CASE NO. HCT-02-CR-SC- 0284 OF 2019

$\textbf{UGANDA}.\textbf{MONDA}.\textbf{PROSECUTOR}$

#### **VERSUS**

A2: OYOO STEPHEN...................................

## BEFORE: HON. MR. JUSTICE GEORGE OKELLO

$5$

$10$

her consent.

#### **JUDGMENT**

The accused person is indicted of rape, contrary to section 123 and 124 of the Penal Code Act Cap. 120. It is alleged that, on 26th December, 2018, at Tegwana Cell, Tegwana Parish, Pece Division, in Gulu District, the accused person, and a one Oketta Julius (since convicted on own plea and served his sentence), had unlawful carnal knowledge of Atim Fiona without 30

At the hearing, the accused was represented by Ms. Beatrice Barbra Angufiru and Mr. Openy Samuel on State Brief. He was initially represented by Mr. Layoo Paul Julius but it transpired that Mr. Layoo 35 became engaged outside the country during the continuation of the

Hhadw.

criminal session. For the Prosecution, Ms. Sarah Amony, Chief State $5$ Attorney appeared and prosecuted the matter to its logical conclusion.

At plea taking, the accused pleaded not guilty and during the preliminary hearing conducted pursuant to section 66 of the Trial on Indictments Act,

- several facts were agreed on. Of relevance to the indictment, it was agreed 10 that Atim Fiona aged 22, was examined by a Clinical Officer on 4th January, 2019 on Police Form 3A (PF3A). It was found that her genital had an old hymen rapture, with wounds on the left and right labia, and vulva. The probable cause of the injuries was stated to be blunt object. The victim - also had injuries on other parts of the body. The PF3A was admitted in 15 evidence and marked PEX 1. Other exhibits were also agreed on.

Two assessors were appointed by court, namely, Ongom Alfred, a retired Police Officer aged 59, and Ocen Daniel, a Mason, aged 30. Both the Defence and the State counsel and the Accused person had no objection to their appointment. The assessors took their oath and attended the trial throughout.

### The Prosecution case

The Prosecution called five witnesses. Atim Fiona testified as PW1. She 25 said she was the victim of rape. She stated that on 25th December, 2018 (Christmas day) she and four lady friends were passing time along Ring

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$\mathsf{S}$ road within Pece, Laroo Division, Gulu District at the time. She was drinking soda while Scovia and Shakira drank alcohol. At 11:30pm, PW1 felt hungry so she requested Scovia to accompany her to buy something to eat. They took a motorcycle (Boda-Boda) to a place opposite Buganda Pub. After buying roasted chicken, and on their way back, PW1 realized her 10 roasted chicken had fallen off. She decided to go back alone on the very Boda-Boda to buy another piece of chicken. She indeed purchased and sat on the motorcycle heading back to the Bar where they had been passing time. As the rider approached the place, he did not stop but sped off with PW1 riding past, only to stop abruptly at some point ahead, claiming the motorcycle had run out of fuel. He lowered the bike on its side and 15 pretended as if trying to ensure any little fuel enters the system, for the bike restart. The rider suddenly ignited the bike and sped off, leaving PW1 at that point. It was midnight. Immediately four men emerged going towards PW1. She started walking away. She had never seen the men 20 before. As she was testifying, PW1 could recall she had seen the accused person among the four men. The four men caught PW1 and she started crying. They pulled and took her to a dark location and one of them not being the accused person, undressed PW1, removed his penis and inserted into her vagina. PW1 squeezed his penis and he got off. The man boxed 25 PW1 on the head and she lost consciousness. She only regained consciousness while in a Hospital in January, 2019.

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PW2 Nalule Mastura Sharon, a friend of PW1, stated she and the $\mathsf{S}$ girlfriends including PW1 went to hang out on Christmas day of 2018 at a place along Ring road close to their place of residence. They went out at 10:00pm. After about 30 minutes, PW1 (the victim) and a one Mama Sheila went out to buy chips and chicken. After 15 minutes, only Mama Sheila returned. Mama Sheila told PW2 that the victim had gone back to buy 10 another chicken as the one she had, had fallen off. PW2 and the ladies waited for PW1 till midnight. She then saw a cyclist carrying PW1 rode past, so fast. They waited till 3:00am for PW1 to return but in vain. The following day (26th December, 2018), PW2 moved along the streets with the photograph of PW1 tracing for her. PW2 met a man who told her that two 15 boys had taken PW1 to the Hospital, and they are Oketayot and Stephen. She then went and found the victim at Gulu Referral Hospital in the Emergency Ward. PW1 was unconscious with wounds all over the body. The nurses told PW2 that PW1 had been gang-raped.

PW3 Det. Sgt. Arop Michael Collins investigated the matter. He recorded statements from witnesses. He also went with PF 3A to Lacor Hospital where the victim was examined by a clinical officer. PW3 arrested the key suspect Oketta Julius (PW4). Oketta confessed to raping the victim. Oketta also stated that his co-accused (Oyoo Stephen) also raped the victim and that the two were house-mates but also workmates. PW3 arrested the accused following Oketta's statement. On interrogation, the accused

HLADDem.

$\mathsf{S}$ denied the allegation saying he had reported Oketta to their boss so Oketta decided to frame him. PW3 was led to the crime scene along Ring road where he found that the victim had been intercepted from the point where there was street light. She was dragged through a corridor up to a certain grass-thatched house, from where she was raped. She remained in that house for about two days in a state of unconsciousness. Because of 10 pressure from neighbours who feared the victim might die in the hut, Oketta Julius (PW4) took her to Gulu Regional Referral Hospital on a motorcycle where he abandoned her. At the grass-thatched house, PW3 found used and unused condoms, vomit of the victim on the floor and mattress, and marijuana wrapped in papers. PW3 drew sketch plan (PEX4) 15 and the scene of crime officer who was with PW3, photographed the scene.

PW4 Oketta Julius stated that the accused used to be a work-mate at Patogo Enterprises within Gulu as a Disc Jockey (DJ). The accused was also a neighbor at Labour Line. The accused and PW4 used to be house-20 mates at a rented hut, but it was PW4 who mostly paid rent. PW4 got to know the victim for the first time opposite Paragon Hotel along Ring road. She lay on the road side, behind a street light pole. She was unconscious but drunk. She reeked of alcohol. It was on 25th December, 2018. PW4 and the accused had taken music system to Aywee within Pece- Laroo Division 25 on hire. They set a disco there. The two operated the system as DJs. At about 10-11pm, PW4 left the disco place on a boda- boda (commercial

Hadodus.

motorcycle on hire for transport) to head to his house to pick a jumper $\mathsf{S}$ (warm jacket) since it was cold. On his way back to the disco place, while on the boda-boda, at around Paragon Hotel, PW4 asked the rider to drop him off so as to see what was happening ahead. The rider obliged. PW4 saw some four boys standing behind an electric pole. The boys saw PW4 and took off. PW4 did not identify any. PW4 saw a lady lying down 08 10 metres away from where the boys had stood. On PW4's request, the rider helped PW4 and the two took the lady to the hut of PW4. The rider left them at the hut and rode away. PW4 developed sexual feelings for the lady who was semiconscious. She looked beautiful. He had sexual intercourse with her at his hut. PW4 then called the accused (on phone) to return to 15 the house so that he could go and relieve the accused as DJ. The accused obliged. The accused returned to the hut at 3:00am. The accused also had sexual intercourse with the victim in the presence of PW4 who had a torch light. The accused then went back to the disco place while PW4 went away to pass time at another place (PIA 2 disco hall). Both left the hut at 4:30 20 am. The next day (26th December, 2018) in the evening at 9:00pm, PW4 took the victim to Gulu Regional Referral Hospital in a state of unconsciousness. PW4 recorded a plain statement at Police and subsequently recorded a charge and caution statement admitting the crime. He was charged, enrolled for plea bargaining, and pleaded guilty to 25 rape and was sentenced by court. Being a juvenile when he committed rape, court found two years' imprisonment appropriate, and after

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deducting one year and nine months spent on pre-trial remand, PW4 was $\mathsf{S}$ sentenced to three months' imprisonment which he served and was released.

PW5 Okettayot Francis testified that he used to rent close to the accused person's place of abode at Tegwana, so the accused was a neighbor as at 10 December, 2018. PW5 could see the accused come from near-by but was not sure whether the accused was renting. At the same time, according to PW5, he could see the accused come from the mother's home. PW5 also stated that the Accused used to sleep at a house he shared with Oketta Julius (PW4). About three to four boys used to stay in that house. It was a 15 hut. They are PW4, the accused person, the son of PW5 (Oketa Peter Paul), and the land lord's son. The land lord was Omona Michael. It was a big grass-thatched house. PW4 used to serve as Local Council One (LC1) Defence Secretary whenever the substantive office holder was absent. On 20 the morning of 26th December, 2018, PW5 learnt from Rukia, the wife of the Defence Secretary that PW4 (Oketta Julius) was planning to have an unconscious lady taken away on a boda boda to be dumped somewhere to die. As PW5 and others were being told about the matter, PW5 saw the lady being helped onto a motorcycle. PW5 and others stopped the cyclist, 25 to find out where the lady was coming from, and what had happened to her. Oketta Julius (PW4) told PW5 and others present that he had found the lady along Ring road on the night of 25th December, 2018 as he

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returned from a disco place and he took her to his rented hut. Oketta (PW4) $5$ did not state what had happened to the lady but claimed he had only helped her. PW5 and others agreed the lady could then be taken to the Hospital. The lady was taken on a motorcycle ridden by a one Okidi, with Oketta Julius (PW4) sitting to support her from the back. That was in the 10 morning of 26th December, 2018, PW5 claimed. On 27th December, 2018, two Police Officers came to the area. The Police officers and PW5 entered a grass-thatched hut. There, PW5 and the Officers saw vomit, three used condoms, and unused ones. There were two beds with mattresses. The Police did not take Oketta (PW4) to the scene. PW5 says he was informed 15 Oketta had already been arrested. PW5 did not see the accused at the scene. He had last seen the accused on 24th December, 2018. The next

### The Defence case

Having found a prima facie case, pursuant to section 73 (2) of the Trial on 20 Indictments Act, court put the accused to his defence, and explained his rights. The accused chose to give unsworn statement, and call witnesses. He testified as DW1. He denied raping the victim. He admitted he was a DJ. He testified that on 25th December, 2018, his boss told him that his music system had been hired so the accused person and PW4 (Oketta 25 Julius) were to transport it to Aywee for a disco. At 4:00pm, the system was taken. PW4 and the accused played the system till midnight. PW4 had

sighting of the accused was in court $(29/05/2024)$ .

Haselw. $\mathsf{S}$ had injuries on two left fingers so he told the accused he needed to access a clinic for the dressing of the wounds. PW4 left, saying he was going to look for a clinic. He left the accused at the music place and never returned. The accused operated the music alone till morning. At 8:00am of 26th December, 2018, the driver of their workplace (Patogo) nick-named Afrigo $10$ came to pick the accused and the music system. The two loaded the system on the vehicle- a small Diana, and took it to the store of the boss. The boss of DW1 gave him another program of the day. He told DW1 about a funeral at Koc-Goma where DW1 was to go and operate the music system. DW1 told his boss (Patogo) that, having worked alone the whole night, he was 15 sleepy and so DW1 requested that another DJ be sent. DW1 left the store and went to his parent's home in Labour Line.

DW1 concluded, the foregoing is how he spent his night of 25th December, 2018 till the morning of 26th December. He rejected the claim that he used 20 to be housemate of PW4. He asserted, his parent's house where he lived was in Labour Line and not Tegwana. He had never slept anywhere else other than the parents' house. PW4 was a work-mate, and not a friend. Regarding PW4's claim that DW1 had left the driver (Afrigo) operating the music system at the alleged interval of DW1's alleged absence during the night of 25th, DW1 said he was the only one who played music till the 25 morning of 26th December, 2018 and he never left Aywee at any one point. Regarding the victim's claim that the accused was one of the men who

HeAven.

$\mathsf{S}$ grabbed her along Ring road, DW1 said it is false. Regarding the claim by PW1 that she and DW1's mother visited the accused in prison and that the mother of the accused allegedly requested PW1 to forgive the accused, DW1 denied the alleged visit, and said he was not aware of the claim that a request for forgiveness was made by his mother.

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DW2 Omona Michael who is the alleged owner of the hut, denied ever seeing the accused person. He denied that the accused was his tenant as at December, 2018 or at all. He said he was seeing the accused person for the first time at court. DW2 said he knew PW4 (Oketta Julius) and has known him since childhood. The house of DW2 from that of Oketta's 15 parents is 70 metres apart. PW4 lived at his parents' home, but could hang around DW2's place. PW4 never rented the house of DW2. DW2 conceded he never visited home in December, 2018 as he was farming in Nyamukino- Nwoya District. He did not return home for Christmas of 2018. He, however, denied that he had grass-thatched house for rent in 20 2018. He only had corrugated-iron sheet houses for rent. Five grassthatched houses existed within his homestead but they were used by his family members. He had two wives. Each wife occupied a hut. The third hut was occupied by school-going male children, and the remaining two huts were kitchens for each wife. The eldest son who would occupy the hut 25 was in Advanced level in 2018 and in December of the year, he was living in Kampala with a niece of DW2. DW2 denied that the son of PW5

Hugodin.

(Oketayot Francis) used to spend nights with DW2's son. He admitted that $5$ although he did not know PW5, he knew about Oketta Peter Paul (son of PW5) as the mother (spouse of PW5) used to rent the house of the witness.

DW3 Akena Douglas said he was a technician and a driver at Patogo (the then work place of the accused and PW4). Court notes that DW3 is the 10 man who carried the nick-name Afrigo. According to DW3, Patogo deals in electronics and sound system, and hires out music system and vehicles. DW3 has worked there for eight years. DW3 knows the accused person and PW4 (Oketta Julius). Both the accused and PW4 were DJs at Patogo. On 25th December, 2018 at 7:00pm, DW3, the accused, and PW4, took 15 music system to Aywee. DW3 drove the vehicle transporting the system. It was a Town-ace. The music system was setup, and it was the accused and PW4 who remained at Aywee to operate it, being DJs. DW3 left Aywee at 8:00pm and went back home. He next went back to Aywee in the morning of 26th December, 2018 to pick the system. He found only the accused 20 person at Aywee. PW4 was not there. The accused and other boys loaded

the system onto the vehicle. DW3 and the accused transported it to the store. When DW3 inquired why PW4 was not at Aywee that morning, the accused informed the witness that PW4 had gotten drunk and left him at the music place alone. The accused did not tell DW3 where PW4 had spent 25 the night. On 26th December, 2018, DW3 and PW4 took the music system to Koc-Kweyo at 10:00am. PW4 joined DW3 and the accused person at the

HUADOM

store. DW3 denied ever steeping in as DJ for the accused person on the $\mathsf{S}$ night of 25th December, 2018 or the following morning. He was at home. In cross examination, the witness stated that whereas he is a technician and can operate music system when doing repairs, he is not a DJ and he never acted as such on the night/morning in question. He also stated that he did not know whether during the night/morning in question, the 10 accused person left the music venue or stayed the whole night till morning.

### **Submission**

The Defence and the State counsel addressed court orally. They laid out the ingredients of the offence, and highlighted the salient aspects of the 15 evidence and the law. I have considered their arguments for which I am grateful.

### Summing up the evidence and the law

After the respective submissions, I summed up the evidence and the law 20 to the assessors and the summing up notes is on record. The assessors returned their joint opinions which one of them read out and court recorded. I have considered their opinion in this Judgment.

#### 25 The burden and standard of proof

Given his plea of not guilty, the accused enjoys the constitutional presumption of innocence under article 28 (3) (a) of Constitution of

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$5$ Uganda, 1995. The accused put in issue all the allegations made against him. The prosecution thus bears the burden of proving the guilt of the accused person beyond reasonable doubt. Apart from insanity and few statutory exceptions which are not applicable here, the burden of proof never shifts to the Defence. See: Woolmington Vs. Director of Public Prosecutions [1935] A. C 462; Chan Kau Vs. R [1955] A. C 206; Uganda 10 Vs. Dick Ojok (1992-93) HCB 54.

The Prosecution must, therefore, prove each and every ingredient of the offence against the accused person beyond reasonable doubt. Proof beyond reasonable doubt, however, does not mean, proof beyond the shadow of 15 doubt. The degree of proof need not reach certainty. This is because court could end up considering fanciful possibilities with a potential of deflecting the course of justice. What, therefore, is required, is strong evidence against the accused person that leaves only a remote possibility in his 20 favour. In my view, if a court finds on the evidence that, what a person is accused of, is possible, and not in the least probable, then the standard of proof is said to have been met. Nothing short of that would suffice. See: Miller Vs. Minister of Pensions [1947] All ER 272, at 373-374, Lord Denning.

The accused person does not assume any burden of proof, in line with section 101 (2) and section 103 of the Evidence Act Cap. 6. Where there is

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any doubt in the prosecution case, the accused person is given the benefit $5$ of doubt. Any defence not raised by the accused, once there is evidence of it, must be availed to the accused person. See: Abdu Ngobi Vs. Uganda, SC. Crim. Appeal No. 10 of 1991; Obwalatum Francis Vs. Uganda, SC Crim. Appeal No. 030 of 2015; Mancini Vs. DPP (1942) AC 1; Didasi $10$ Kabengi Vs. Uganda (1978) HCB 216.

An accused, therefore, is only convicted on the strength of the prosecution case and not because of the weakness in his defence or lack of defence. See: Israel Epuku S/O Achutu (1934) 11 EACA 166; Sekitoleko Vs.

Uganda, [1967] EA 531. Therefore, even if an accused person leads no 15 evidence, or keeps quiet, the court must still, at the end of the case, find if the legal burden is discharged. That is, whether the Prosecution has proved the guilt of the accused beyond reasonable doubt. All ingredients of the offence must be strictly proved and a court cannot merely rely on concessions made by the accused person. See: FW Crowie Vs. R [1961] 1 20 EA 38 (CAN).

Furthermore, evidence of the prosecution must be examined and weighed against the defence evidence so that a final decision is only taken when both sides have been considered. It is thus proper to consider the strength and weaknesses of each side, as a whole, and apply the burden of proof as always being on the prosecution and decide whether the defense has raised

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a reasonable doubt. If the defense has successfully raised a reasonable $5$ doubt, the accused must be acquitted. See: Abdu Ngobi Vs. Uganda, S. C

# Crim. Appeal No. 10 of 1991.

I should add that the fact that the accused made unsworn statement cannot be the subject of comment by the prosecution as that is his right. In any case, the burden of proof of the accused's guilt is always on the prosecution.

Having stated the key legal principles which will guide this court, the following are the ingredients of rape;

- 15 i) Unlawful sexual intercourse with the victim - ii) Lack of consent to the sexual intercourse - Participation of the accused in the unlawful sexual intercourse. iii)

In Kibazo Vs. Uganda (1965) EA 507, it was held that, in a charge of rape, the onus is on the prosecution to prove that sexual intercourse took 20 place without the consent of the complainant. In DPP Vs. Morgan & 3 **others (1976) AC 182**, Lord Hailsham held on the aspect of rape, thus:

"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 25 fight or blows have to been inflicted. It does not mean there has to be some violence used against the woman to overbear her will or that

there has to be a threat of violence as a result of which she will be $5$ over borne."

I proceed to evaluate the evidence on record regarding each ingredient of the offence.

# Sexual intercourse

In Bassita Hussein Vs. Uganda, Crim. Appeal No. 35 of 1995, the Supreme Court held as follows:

15 "The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim's evidence must always be adduced in every case...whatever evidence the prosecution may wish to adduce to 20 prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt."

Carnal knowledge of a woman or a girl, means penetration of the vagina, however slight, by a sexual organ, which is penis. See: *Adamu Mubiru Vs.*

Uganda, CACA No. 47 of 1997. Penetration can be proved either by the 25 victim's evidence, medical evidence, or any other cogent evidence. See: Remigious Kiwanuka Vs. Uganda, SC Crim. Appeal No. 41 of 1995;

Hurson. Muze Imana Vs. Uganda, CACA No. 85 of 1999. It is, however, not a $5$ hard and fast rule that, medical evidence be produced to prove a sexual intercourse. See: Hussein Bassita Vs. Uganda, SC Crim. Appeal No. 35 of 1995 (supra). Once medical evidence is adduced by the prosecution, court will consider it. Court may also consider other cogent evidence.

In the instant case, both the Defense and the prosecution agreed in the memorandum of agreed facts that the victim (PW1) was examined by a Clinical Officer who found wounds on the left and right labia and vulva of the genitalia with the probable cause being both blunt and sharp objects.

15 The Police Form 3A was admitted in evidence as PEX1. PW1 also testified that along Ring road, after being undressed by an assailant, the unknown assailant performed sexual intercourse with PW1. PW1 squeezed the penis of the assailant and he got off. The assailant then hit PW1 on the head and she lost consciousness. I note that in her Police statement recorded on 24th 20 January, 2019, PW1 stated that after she was hit on the head, she fell down and others started running away saying "the girl is dead." PW1 further stated that she did not know whether the assailants performed sexual intercourse on her (at the scene along Ring-road) because she was unconscious. At the Police Station, PW1 does not state that a sexual act was performed first, and she was hit later. However, PW4 who is a self-25 confessed criminal, testified that he found the victim lying down behind

HuAoQue.

the street light along Ring road, and he took her to his hut on a boda-boda

$\mathsf{S}$ where he had sexual intercourse with PW1 because she was very attractive. In the circumstances, I hold that the first ingredient of the offence of rape has been proved beyond reasonable doubt. It does not matter which act of rape we are talking about. It is still a sexual act and in any case, the one that is the subject of the indictment is the rape at the 10 hut. Both counsel and the assessors accepted that sexual intercourse was proved beyond reasonable doubt. I agree with them.

## Lack of consent

Lack of consent to sexual intercourse is normally proved by the victim's 15 evidence, medical evidence and other cogent evidence. See: **Uganda Vs.** Wadri Farouk, Crim. Session Case No. 0039 of 2014 (Mubiru, J.)

In the instant case, PW1 testified that she was forcefully undressed along Ring road and the assailant inserted his penis into her vagina, and she reacted by squeezing his penis. If indeed PW1 was sexually assaulted along 20 Ring-road, I think her act of squeezing the penis of the assailant shows lack of the victim's consent. However, I have expressed some doubt regarding the sexual assault along Ring road, given the contradiction between what the victim told the Police and what she stated on oath, and 25 the fact that nowhere does the summary of the case mention it. Be that as it may, I find that sexual act at the hut of PW4 by PW4, is not in doubt, and it is that act which seems to be the subject of the indictment. PW4

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says when he sexually abused the victim, she was semi-conscious. $\mathsf{S}$ However, the victim says she did not remember anything after she passed out along Ring road. In fact, the victim did not know that PW4 took her to his hut and performed sexual act on her. Given his confession and plea of guilt and conviction, and his evidence given on oath, I hold that by performing sexual act on the victim who was unconscious or semi-10 conscious, the same was without the consent of the victim (PW1). The evidence of PW4, therefore, proves beyond reasonable doubt that the victim did not consent to the sexual intercourse as she was not capable of giving consent in her state of semi-consciousness or complete unconsciousness. Both sides agree that this ingredient was proved beyond 15 reasonable doubt. The assessors, too, advised me to find so. On the evidence, I find that lack of consent has been proved by the prosecution beyond reasonable doubt.

## Participation of the accused in the unlawful sexual intercourse 20

This ingredient is strongly contested by the Defense. By their submission, they assert that it was only PW4, the self-confessed criminal who was ultimately convicted on plea of guilty, and has since served his sentence, who was the only participant in the crime.

To begin with, participation in an unlawful sexual intercourse is proved by adducing evidence, direct or circumstantial, placing the accused at the

Hurden:

scene of the crime, not as a mere spectator but as the perpetrator of the $5$ offence. See the case of Uganda Vs. Otim James, Crim. Session case No. HCT-CR-009 of 2015 Alex Mackay Ajiji, J.

I shall begin with the incident along Ring road. Whereas PW1 told court that the accused was at the scene of the crime and that she identified him 10 along Ring road, she was categorical that it was not the accused who sexually assaulted her at Ring road. As noted, the summary of the case does not stretch the allegations of rape to cover what PW1 now claims happened along Ring road. Ring Road is only mentioned in the summary of the case with regard to the assault of PW1 by persons who are at large. 15 Sexual assault is not mentioned but the assault causing actual bodily harm. It was at Ring road that PW1 lost consciousness. At Police, PW1 stated that she did not identify any of the four men who waylaid her. In court, she claimed she was intercepted from a spot which had light and the accused and PW4 were part of the men. She was then allegedly dragged 20 to a dark spot behind the street light. This contradicts what PW1 told Police that she did not know the persons who grabbed her. On his part, PW4 testified that he was heading back to Aywee Disco place after picking his jumper and when he approached the scene, he saw four men who took off. PW4 was thus categorical that when he left Aywee momentarily to go 25 pick his jumper at Tegwana hut, it was the accused who remained operating the music system. It is thus inconceivable that the accused

HLASQue.

could have been at Ring road at the time PW4 was heading back to Aywee. $\mathsf{S}$ It is not shown that the accused person left Aywee and joined the criminal gang during PW4's absence. The victim does not state for how long the accused was under observation. She concedes she was not familiar with the accused, having not met him before the night of the ordeal. Although PW1 claims the accused participated in grabbing her at the point where 10 there was light, PW3 who visited the crime scene at Ring road, did not indicate in his sketch plan the positioning of the street light and where the victim lay. In my view, the identification of the accused person along Ring road, was not proved by the victim who was the only identifying witness, whatever its worth in as far as rape is concerned. I also note that PW1 was 15 drunk as confirmed by PW4 who says when he found her unconscious at the road side, she reeked of alcohol. Whereas PW1 dishonestly claimed on oath that she only drunk soda that night, at Police, she said she drunk some little beer. How little she drunk, it was not expounded. Her friend PW2 told court that PW1 drunk tusker lite beer. I think PW1 was drunk 20 and having been drunk and given the conditions and circumstances of the identification, where she does not state the length of time the assailants were under observation, and familiarity with them, I hold that the accused was not identified along Ring road on the fateful night. The quality of identification was poor. See: Abdalla Bin Wendo Vs. R (1953) 20 EACA 25 166; Abdalla Nabulere & 2 others Vs. Uganda [1975] HCB 77.

HaroQue.

The most relevant scene of the crime, in my view, is the hut where the $\mathsf{S}$ victim was taken by PW4. This is what the summary of the case alleges. PW4 indeed confessed he raped PW1 in the hut. PW4 goes on to claim he called the accused who was in Aywee so that the accused could come to the hut as PW4 goes back to Aywee to relieve the accused person. PW4 claims the accused obliged, and while at the hut, the accused asked about 10 the victim who was lying naked on the bed of PW4. The accused then decided to perform sexual intercourse with the semi-conscious victim. He used a condom. It was a kiss type. The question this court asks itself is: why PW4 would first call the Accused to the hut if truly PW4 wanted to relieve the accused at Aywee disco place? In court's opinion, the orderly 15 way of relieving a colleague DJ, in the circumstances, would have been for PW4 to first head back to the disco place, and then take charge of the music system in relieving his colleague who would then return to the hut to rest. Both Learned counsel's arguments revolved around who kept the music system operating from about the time PW4 alleges the accused 20 person joined him at the hut at about 3:00am till 4:30am of 26th December, 2018. To fill the gap, PW4 claims the accused told him he had left a driver/ technician (DW3) in charge of the music system. Of course, this statement is hearsay as the accused denies the claim and so did the driver. The driver/technician (DW3) told court that he never acted as DJ on the night/ 25 morning in question. He only took the music system at around 5-6pm with PW4 and the accused person, and left for home at 8:00pm. He next went

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5 back to Aywee in the morning of 26th December, 2018 at 8:00am to collect the music system. While there, DW3 found only the accused person.

It is clear to me that the evidence of PW4 is that of an accomplice. Who then is an accomplice? In the case of **Nasolo Vs. Uganda [2003] 1 E. A 181 (SCU)**, the Supreme Court of Uganda stated:

$10$

"In criminal trials a witness is said to be an accomplice if, inter alia, he participated as a principal or an accessory in the commission of the offence the subject of the trial. One of the clearest cases of an 15 accomplice is where the witness has confessed to the participation in the offence or has been convicted of the offence either on his own plea of guilty or on the court's finding him guilty after trial. However, even in the absence of such confession or conviction a court may find on the strength of the evidence before it at the trial that a witness 20 participated in the offence in one degree or another. Clearly, where a witness conspired to commit or incited the commission of the offence under trial, he would be regarded as an accomplice."

Section 132 of the Evidence Act cap 6 provides that an accomplice shall 25 be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. In Ayor and another Vs. Uganda, [1968] 1 E. A 303

Hussoum.

$\mathsf{S}$ (HCU), Dickon, J., considered the import of the then section 131 of the Evidence Act which is word for word with the current section 132 of Cap 6. Court noted that the section does not mean any tribunal simpliciter or willy-nilly may convict an accused person upon the uncorroborated evidence of an accomplice. The learned Judge observed that there are certain principles and safeguards which must be adhered to before any $10$ court may proceed to convict on the uncorroborated testimony of an accomplice. The court noted that in a criminal trial, where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the Judge or the Magistrate to warn himself that, although he might 15 convict on his evidence, it is dangerous to do so unless it is corroborated. It was observed, this rule although a rule of practice, has now the force of a rule of law and where the Judge or a Magistrate has failed to warn himself in accordance with it, the conviction would be quashed, even if, in fact there is ample corroboration of the evidence of the accomplice; unless 20 the appellate court, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the Appellant, dismiss the appeal if it considers no substantial miscarriage of justice has actually occurred. In support, Dickson J, cited R Vs. Baskerville, [1916] 2 K. B. 658; and Davies Vs. Director of Public Prosecutions, [1954] 1 All E. R. 25 507.

Haddun In R Vs. Baskerville (supra), the prisoner had been charged with $5$ committing acts of gross indecency with two boys. The only direct evidence of the commission of the acts charged was that of the boys themselves who were accomplices, from their own statements. A letter was produced addressed to one of the boys and contained ten shillings Treasury note. By 10 the letter, the boys were being invited to the Appellant's flat. The Appellant signed the letter. The Appellant gave evidence and admitted that the boys who were of a humble position in life, went to his flat by invitation, and he accounted for it. The jury found him guilty after the judge warned the jury that they ought not to convict the prisoner on the evidence of the boys unless it was in the jury's opinion, corroborated in some material 15 particular affecting the accused. The Judge, however, also told the jury that the letter afforded evidence which they would be entitled to find as sufficient corroboration. At page 658 of the report, it was stated by court,

thus:

"...where on the trial of an accused person, evidence is given against him by an accomplice, the corroboration which the common law requires is corroboration in some material particular tending to show that the accused committed the crime charged. It is not enough that the corroboration shows the witness to have told the truth in matters unconnected with the guilt of the accused."

Heaven.

- 5 It was further stated that "the evidence of an accomplice must be confirmed not only to the circumstances of the crime but also to the identity of the prisoner. It does not mean that there must be confirmation of all circumstances of the crime, as we have stated that is not necessary. It is sufficient if there is confirmation as to the material circumstances of the crime and the identity of the accused 10 in relation to the crime. The corroboration need not be direct evidence that the accused committed the crime, it is sufficient if it is merely circumstantial evidence of his connection to the crime." - I should state that corroboration affects the accused by connecting him or 15 tending to connect him with the crime; confirming in some material particular not only the evidence that the crime was committed but also that the accused committed it. See: Republic Vs. Ishwerlal Purolin [1942] 9 EACA 58, at 61; Mutonyi Vs. Republic [1982] KLR 203; Bogere Moses & another Vs. Uganda, Criminal Appeal No. 1 of 1997; 20 Halsbury's Laws of England, 4 Edition, paragraph 454.

In Nasolo Vs. Uganda, supra, citing the case of 0100 Vs. R [1960] EA **66**, corroboration was defined to mean an independent evidence direct or circumstantial which confirms in some material particular not only that the offence has been committed but also that the accused committed it.

HUADDUN.

$\mathsf{S}$ See also: Bikuma Vs. Uganda, Cr. Appeal No. 24 of 1989 (UR); Rwalinda John Vs. Uganda, Criminal Appeal No. 03 of 2015 (SCU)

In Rameshwar Vs. V. A. (1952) sc.54, the Supreme Court of India held that there must be additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act on it.

In Fabiano Obeli & others Vs. Uganda, [1965] E. A. 622, the Court of Appeal quashed convictions of the first two appellants, where the trial Judge failed to direct the assessors or himself on the need for corroboration of accomplice evidence; and there being in fact no evidence against those two appellants except accomplice evidence.

I am guided by the above decisions which clearly represent the correct statement of the law. In the instant case, there is no evidence, direct or 20 circumstantial, to corroborate the claims by PW4 that the accused person joined him at the hut and participated in the sexual act with the victim. PW4 alone spoke about it. No one else said he/she saw the accused at the hut where the rape took place on the night or the morning in question. No telephone print out was, for example, obtained to corroborate PW4's claim 25 that he called the accused to come to the hut at about 3:00am or thereabouts. On the contrary, it was PW4 alone who, according to PW5, was seen in the morning of 26th December, 2018, trying to help his victim

Husolus.

onto a motorcycle. When asked by PW5 and the persons present, PW4 did $5$ not reveal what had happened to the victim. I think PW4 was dishonest in some respects. As stated by PW5, PW4 appears to have harboured plans of dumping the victim somewhere to die as some wrong elements were advising him. It is obvious that PW4 did not share this criminal idea with the accused person, to show that they were in it together. The Good 10 Samaritan-turned self-confessed criminal created more doubts in his story. As noted, he does not plausibly state who was operating the music system during the alleged interval he claims the accused was with him at the hut in a mini sort of sexual orgy.

In my view respectful opinion, having raised an alibi that he was at Aywee on the entire night till morning of the incident, the Police ought to have investigated the accused's alibi. It was not enough for the Police to rely solely on the claims of PW4 and sit back and relax. It has been held that one of the ways of disproving an alibi is by investigating its genuineness, and it is the duty of Police to do so. See: Androa Asenua & another Vs. Uganda, Crim. Appeal No. 1 of 1998

In the present case, therefore, the Police miserably failed in its duty of carrying out full and meaningful investigations into the matter. For 25 example, they did not speak to any of the revelers who were at Aywee Disco place, or any of the staff of the place where the disco was held, and who

Hudodum.

worked that night. No one testified that the Accused did not do his disc $5$ jockeying the whole night of 25th December, 2018 without a break till the morning of 26th December, 2018. It is also not shown that after offloading the music system back into the store, the accused went back to the hut of PW4 and sexually assaulted PW1 that morning. Whereas PW4 stated at Police that he left the victim at the hut the whole day of 26th December, 10 2018 as he took the music system to Koch-Goma (Koc-Kweyo) at a funeral place, and that the accused remained behind, PW4 does not state that the accused person remained behind at the hut. PW4 also told Police that when he returned from Koch-Goma, he found the victim still unconscious, and took her to Gulu Referral Hospital. He does not purport that the 15 accused kept the victim company in PW4's absence. Whereas I note some inconsistency regarding the time and the date the victim was taken to Hospital, the same is not material. The Police Investigator (PW3) said PW1 was taken after two days of staying at the grass-thatched hut. I also find the claim that the accused used to sleep at the infamous hut and was a 20 co-tenant of PW4, inconclusive. Even if the claim had been proved, the prosecution would still have been required to demonstrate that the accused spent the night or the morning in question at the said hut or had access thereto when the victim was there. Finally, I have already disbelieved the claim that PW4 wanted to relieve the accused. This is 25 further supported by the fact that after having had sexual intercourse with

Husoden.

PW1, instead of PW4 going back to Aywee to relieve his colleague as he had $\mathsf{S}$ purported, PW4 went straight to PIA 2 Disco hall to pass time.

The law is that where a case is proceeding on the uncorroborated evidence of an accomplice, a judge must warn himself and the assessors of the danger of acting on an accomplice's evidence without corroboration. And 10 whereas failure to warn himself of the necessity for corroboration is not fatal to an accused's conviction if the Judge made a finding that the evidence was corroborated, in this case, there is no corroboration whatsoever of the claims by PW4. The Investigating Officer (PW3), testified that the accused stated that PW4 made the claims to implicate him 15 because the accused had reported the incident to their boss and PW4 was sacked. The defence claim was not destroyed by the prosecution. The used condoms which PW3 said he saw, were not photographed by the scene of crime officer (SOCCO). If he did, then it was not adduced in evidence. In any case, the SOCCO did not testify. The content of the condoms, if any, 20 was not examined and subjected to DNA to link the accused to the rape. Given that PW4 admitted he used a condom and since it was not shown that the accused was at the scene, I find that it is PW4 who used all the condoms found at his hut. There is evidence that he spent sufficient time with the victim from the time he took her to the hut till when he took her 25 to the Hospital the following evening on returning from Koch-Goma funeral place. I think having confessed that the lady was so attractive, I think PW4

Happalur.

- raped her more than once. He could not have used only one condom. $\mathsf{S}$ Therefore, I reject the claim that it was the accused who used the other condom, which still would mean, one used condom is not accounted for. There is thus no corroborative evidence that the accused person was at the scene of the crime and that he participated in raping the victim. In the - circumstances, I agree with the Defence and the gentlemen assessors that 10 the participation of the accused has not been proved by the prosecution beyond reasonable doubt. Accordingly, I acquit A2: Oyoo Stephen of rape, and order that he be released from prison custody forthwith unless held on other lawful charge.

Dated, signed and delivered in open court at Gulu this 18th June, 2024

**JUDGE**

Heredur. 18/06/2024 George Okello

## Ruling read in Court $5$

10:00 am 18th June, 2023

## $10$ **Attendance**

Accused person in Court

Ms. Barbra Beatrice Angufiru and Mr. Openy Samuel, on State Brief, for the accused

$\mathfrak{b}$

Ms. Kyomugisha Kurusumu, State Attorney, holding brief for Ms. Sarah

Amony, Chief State Attorney. 15

> Assessor - Ocen Daniel, in Court: second assessor Ongom Alfred absent away on medical checks in Kampala.

Mr. Ochan Stephen, Court Clerk/ Acholi Interpreter

George Okello

**JUDGE**