Uganda v Sasazi and 3 Others (HCT-00-CR-SC 89 of 2011) [2012] UGHC 412 (2 May 2012)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT LUWERO HCT - 00 - CR - SC - 0089/2011.

UGANDA ..... ......................................

#### **VERSUS**

1. SASAZI JOSHUA } 2. MATOVU DIZA }.....................................

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- 3. WAJJA AMOS - 4. SENYONJO VINCENT }

# BEFORE: THE HON. MR. JUSTICE RUGADYA ATWOKI JUDGEMENT

The accused persons in this case Sasazi Joshua Al, Matovu Diza A2, Wajja Amos A3 and Senyonjo Vincent A4 were indicted for rape c/s 123 and 124 of the Penal Code Act in the 1st count, and robbery with aggravation c/s 285 and 286(2) of the Penal Code Act in the 2<sup>nd</sup> count. The particulars of the indictment were that the accused persons in the night of 3<sup>rd</sup> June 2010, at Mulungiomu village in Nakasongola district, had sexual intercourse with one Nakakembo Juliet without her consent, in the 1<sup>st</sup> count. It was alleged in the $2^{nd}$ count that the four accused persons during that same night robbed Senkula Godfrey; the husband of Nakakembo Juliet of household properties which were named in the indictment plus cash sh. 174000, and that during that robbery, the accused persons used deadly weapons on him, namely knives and pangas.

Each of the accused persons denied the offences charged. The prosecution produced a total of 5 witnesses in the attempt to prove the indictment. The brief facts of the prosecution case were as follows. During the night of 3<sup>rd</sup> June 2010, Senkula Godfrey was in his house asleep together with his wife PW4 and their 6 children, the oldest being 9 years and the youngest being 6 months old. This was a single room round house white painted inside with lime. There was a curtain separating the children's sleeping quarters from that of their parents, save for the six month old whose cot was next to the bed of the parents.

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With a very loud bang, their hind door was smashed open and this opened directly to their bed. Senkula and his wife immediately sat up, and 4 thugs entered flashing torches and put a knife on Senkula's throat and threatened to cut him if he made any noise. He did not. The thugs cut down the curtain which separated the children from the parents and striped it into pieces. They used those stripes of the curtain to tie him, his wife and the children up.

His arms and legs were tightly tied and a blanked was thrown over his face and he nearly suffocated. He cried out and some person outside the house, only referred to as 'affande' instructed those inside to loosen the knots, and this enabled Senkula to drag the blanket off his face enabling him to have a full view of proceedings.

The thugs tortured him and his wife severely as they demanded for money. He pleaded with the thugs to save their lives but take whatever they wanted from the house. He offered the only money he had. This was in a book which was under the mattress where they were sleeping. The thugs got out the book and took sh. 170,000/- which included three notes of 50,000/- each. They demanded for more, and he assured them that was all the money on him save for sh. 4,000/- in his trouser pocket. They took it also. They ferried out and took his two mattresses, a spray pump, three cell phones, a trouser, gomesi, blanket, bed sheets and DVD, radio, shoes, exercise books and other household properties.

While the thugs were inside the house, they threatened to burn up everyone. Paraffin was poured on the net at the cot of the kid and up to three matchsticks were lit threatening to burn the kid and all in the house. With the third matchstick, the thugs lit up a lantern lamp, and as they manhandled Senkula and his wife, they were also fondling her. They threw her on the floor as she fought them like a wild cat. They untied her and while the others held her down and legs apart, two of the thugs had sexual intercourse with her in turn as the husband and her children watched helplessly.

Later the thugs ate the food in the house and went away with their loot. Senkula managed to untie himself, and after untying his wife, he ran out of the house in pursuit of the thugs leaving the wife to untie the children. He followed the route to the neighbour, and he met a child being

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chased by one of the thugs. When the thug saw him, he shouted a warning that the one they left tied had untied himself and they were dead meat. The thugs who were in the house of the neighbour all took off.

Senkula rang the police using the cell phone of the neighbour as his had been stolen. In the morning the police brought in a sniffer dog and it led the team to the bush where some of the stolen items were recovered. The dog led them to the house of A1, and he was later arrested. Senkula managed to identify the rest of the accused persons in their respective villages, and they were all arrested. The wife identified A1, A2 and A3 at a police identification parade. The four accused were charged accordingly.

The accused persons each denied the offences charged. Each gave a statement not on oath. None called any witnesses. A1 told court that on 3<sup>rd</sup> June 2010 he went to his usual work of selling pineapples at Kakooge and Katuugo. In the evening he returned home and slept. He never went anywhere that night. At about 4 am, Police came and arrested him from his home for an offence he knew nothing about.

A2 told court that in the morning of 3<sup>rd</sup> May 2010 he got his axe and went to cut trees. He returned at 1.00 pm, and rested. He returned to his chores in the evening and retired at 6.00 pm. At 9.00 pm, police came and arrested him. He did not know anything about the allegations against him.

A3 denied the offences. He was a charcoal dealer. In the morning of 3<sup>rd</sup> June 2010, he was weak and did not go to work. Instead he cleaned his compound. At 3 pm, he went to his grandmother's place and had a meal. He returned and went to bed. In the morning of 4<sup>th</sup> June 2010, he went to work and returned at 6.00pm. He went to bed at 8 pm, and listened to his radio. Police came at about 11pm and arrested him. He did not know anything about the offences charged.

A4 was at home in the morning of 3<sup>rd</sup> June 2010. He went to dig as usual and in the evening he went to the shops where he remained till 8 pm. He returned home and went to sleep with his wife and children. The same was the routine the following days till 23<sup>rd</sup> June 2010 when police

arrested him for offences different from the current ones. But on 24<sup>th</sup> February 2011, he was taken before Grade I magistrate Aweri Anthony and charged with the current offences which he knew nothing about. Each of the accused persons denied the offences charged and set up alibi as a defence.

The burden of proof in a criminal case is always on the prosecution. It does not shift during trial except in a few statutory offences, and neither rape nor aggravated robbery is one of them. The prosecution must prove each of the ingredients which constitute an element of the offence charged beyond reasonable doubt. Woolmington v. The D. P. P. [1935] A. C. 465, Ojepan Ignatius v. Uganda (SC) Cr. App. No. 25 of 1995, (unreported). The accused should not be convicted on the weakness of his defence, but on the strength of the prosecution case. See Oloya v. Uganda [1977] HCB 4.

## $1^{st}$ Count – Rape.

In an indictment for rape, the following ingredients must be proved by the prosecution beyond reasonable doubt.

1. That there was an act of unlawful sexual intercourse;

2. That the act of sexual intercourse was without the consent of the complainant:

3. That the accused persons participated in that act of unlawful sexual intercourse.

The Supreme Court in the case of Kibale Ishma v. Uganda Cr. App. No. 21 of 1998, (SC), (unreported), held that the judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the complainant, but having done so, he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. See also Chila and Another v. Rep. [1967] E. A. 722.

Also in Sam Buteera v. Uganda, SC Cr. App. No. 21 of 1994, the Supreme Court held that the trial judge was correct to hold that she could act on the victim's evidence without any other


corroborative evidence, so long as she was alive to the danger of doing so, and had amply warned the assessors and herself of that danger.

During the summing up, I warned the assessors, as I also warned myself of the danger of basing a conviction on the uncorroborated testimony of the complainant. Having so warned myself I could proceed to convict even in the absence of corroboration if I was satisfied that the testimony of the complainant was truthful.

## Act of sexual intercourse.

The evidence in this regard was fromPW4 Nakakembo Juliet. She was in the house asleep with her husband PW1 when thugs smashed the door and entered. They tied them all up and later threw her down on the floor. Then her legs were untied and one assailant removed his trousers and threw it on the bed and proceeded to have sexual intercourse with her as the other three thugs held her down and kept her legs apart. She struggled and shouted in vain as the thugs had tortured her severely. Her two years old child came to her in fear and protest and the thug who was having sexual intercourse was not amused by her interference and gave her a horse kick which threw the kid metres away, and she fell silent.

While the assailant was at it, one of them asked if she was sweet and he responded that she was ordinary. Nonetheless a second thug got on top of her and engaged her in penetrative sexual intercourse as the other three held her firmly down. All along her husband was watching the entire sordid affair.

The husband PW1 told court that indeed assailants entered their house, tied them all up, and threw his wife on the floor from where two of them had sexual intercourse with her in turns as he helplessly watched. She fought desperately but the four men overpowered her. That was evidence of an eyewitness. It was the evidence of corroboration of the act of sexual intercourse.

Further corroboration in this regard was from the medical evidence. PW5Mateega Moses tendered the report of the examination of Nakakembo Juliet PW4 on police form 3 and its appendix. This was under S.68 of the Evidence Act, as this witness, a Medical Clinical Officer of Nakasongola Health Centre IV was conversant with and could easily identify the handwriting

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and siSnature of Dr' Danicl Kirunda ol'thc samc hcalth facility. who was not able lo auend coun due to absence au'ay from the station, and his atlcndance would cause unduc rjclay in the trial. l'hese we re adm itted.jointly as prosecution cxhibit pE4.

I)r' Danicl Kirunda cxanrincd Nakakenrbo Julict on 4rr'June 2tll0 al Nakasongola llcalth Centrc lV' His findings were that the there was moderate tendemess at the vaginal orifice significant of lbrceful penetration. Therc werc bruiscs on thc lefi knec. on lhe appendix, the doctor noted that this was a 27 years old woman with hymen ruptured long ago. He noted in answer to question <sup>5</sup> on the appendix that lhcre rvere no injuries or inflammalions around the private parts. In answer O to queslion 7 on that form, thc doctor statcd that trrcre were injuries on the thighs, regs, erbows and back.

In cross examinalion the wirness pw5 who tendered rhis police form 3 and its appendix told court that the above obscrvation was inconsistent with the earlier one on the pF 3 thal there was moderate tenderncss in the vaginal orifice. lt was subrnitted for the defence that the medical evidence was lherefore not useful as it contained an inconsislency which went to the root ofthe case.

<sup>I</sup>was not salisfied that this was so. The only inconsisrency was with regard to the narure of the injury in the private parts of the sexual assauh victim. The report of the doctor was clear. He slated what the examination revealed. This was in great derail. The doctor went ahead to indicate his course oflreatment in view of his findings on that form pF3,

The witness PW5 interpreted to courl what thc doctor prescribed for his patient Nakakernbo Julict after he examined her. He prescribed for her somc anti retroviral drugs in evenl therc was HIV' he prescribed some antibiotics, and drugs for preventing HIV soon after sexual intsrcourse. There would be no reason for the docror to prescribe the drugs he did ifhe was not satisfied that thcre was sexual intercourse and injury rcsulting there frorn. To do as he did furrher showed that his findings rvere that there was sexual intercourse and he was trying to save this lady from the possibility ofacquiring IllV/ AIDS from the sexual intercourse.


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Dcspite the apparent contradiction in the Pi'3 and irs appendix, I was satisficd rhat lhe medical cvidence further proved that the woman Nakakembo Juliet was involved in an act of sexual intercoursc during the night .f 3'd June 2010. The prosecution proved rhal ingredient beyond rcasonable doubt.

#### Abscncc of conscnt,

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The evidence of absence of conscnl to the act of sexual inlcrcourse wm from PW4 Nakakemho Juliet. She was the victim of the sexual assault. Her evidence u,as that rhe thugs who entered O their house ried hcr up as well as her husband Senkula PWl. They threatened to cut his throal with a knifc ifhe madc any noise. They tortured her and her husband sevcrcly as thcy demandcd lor moncy. They threw hcr fiom the two mattress bed to the floor. They untied her legs and one assailant removed his trousers. She struggled violenrly and for her struggles she was beaten with slicks, the other three thugs held apart her legs and kept hcr pinned down such that the trouser less thug 8ot on top ofher and had penetrative sexual intercourse with her. She sustained injuries as a result olthe sevcre assault with sticks.

The thug on top ofher even had the remerity to te his fellow thugs that she wasjust ordinary, as she refused to comply with his demands to make arousal moans just like she does when making love to her husband.

PWI Senkula was the lrusband of PW4. He was present when the sexual assault incident was laking place and witnessed it all. He told court practically what his wife stated in court. He told court that he was tied up and left helplcss on the bed. I-lis wife fought the thugs desperatety when they threw her down as they struggled to have sexual intercourse with her. The struggle and eventual sex act lasted nrore lhan 30 minutes. Thc witness told court that this long struggle and attempt by his wife ro fight off the thugs furrher enabled him to fully identify rhem. Thar evidence amply and fully corroborated the evidence of PW4 that there was no consent to the act ofscxual intercourse.

Further corroboration in this rcgard u,as from the medical evidence. Thc findings of Dr. Daniel Kirunda in exhibit PE4 were that the woman Nakakembo Juliet sustained injuries on her left

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anterior knee. He described the injuries as grievous harm. His opinion was that the woman was strong enough to put up resistance, and that the injuries were consistent with putting up resistance. His opinion was that the tenderness at the vaginal orifice was consistent with forceful sexual intercourse. Evidence of injuries was the further evidence of corroboration that Nakakembo was not a willing participant in the act of sexual intercourse with the thugs. In court she even showed what had turned out to be a more or less permanent disability on her ankle. It was swollen and she was walking with obvious pain, one and a half years later. The defence did not contest that the act of sexual intercourse, if proved was without the consent of the victim. The prosecution proved beyond reasonable doubt that there was no consent to the act of sexual intercourse.

### Participation of the accused in the act of sexual intercourse.

The participation of the accused in the act of sexual intercourse depended on the evidence of identification. This evidence was from PW4 Nakakembo Juliet and PW1 Senkula Godfrey. The two were eye witnesses to the events of that night.

Each of the accused persons denied the offence and set up alibi as a defence. A1 told court that he was at home sleeping after selling his pineapples at Kakooge and Katuugo. A2 was also at home sleeping having spent the day cutting trees. A3 was in his house asleep after spending the day at home cleaning his compound and then going for a meal at his grandmother's place. A4 was equally at home asleep with his wife and children when he was arrested many days after the alleged incident.

This was not a case of identification by a single witness. During the summing up, I warned the assessors, and I also warned myself to exercise great caution when dealing with identification evidence especially where the identification was made in conditions, which were not favourable for a correct identification. Identification in this case was made at night and with the scare of being killed by the intruding thugs.

Where the conditions are not favourable for correct identification, what is required is evidence of corroboration. Corroboration has been defined by the Supreme Court in the Kibale Ishma v.

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Uganda (supra), to mean independent evidence which affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed, but also that the accused committed it.

### Identification.

The defence contention was that there was no proper identification of the assailants. The law relating to identification was laid out in the leading cases of Abdulla Nabulere and others v. Uganda (1979) HCB 79, and Bogere Moses & Another v. Uganda Cr. App. No. 1 of 1997, (SC). The Court of Appeal for Uganda, in the case of Abdalla Nabulere v. Uganda, (supra), summarised the position in these words,

" where the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correct identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one, that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances the identification came to be made, particularly the length of time, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good the danger of a mistaken identity is reduced, but the poorer the quality the greater the danger."

See also Yowana Sserunkuma v. Uganda (SC), Cr. App. No. 8 of 1989, (unreported), in which the court opined that evidence of identification especially at night and with a case of a single witness may be accepted but only after the most careful scrutiny. What is wanted is other evidence to confirm that the identification is not mistaken. The court said that a careful scrutiny is not the same thing as an elaborate justification accepting dubious evidence. See also Roria v. Republic [1967] EA. 583.

Where the conditions are unfavourable for correct identification what is needed is other evidence pointing to the guilt from which it can be reasonably concluded that the evidence of

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THE O identification can safely be accepted as free from the possibility of error. The true test is not whether the evidence of such witness is reliable. A witness may be truthful and his evidence apparently reliable and yet there is still the risk of an honest mistake particularly in identification. The true test as set down by the cases is whether the evidence can be accepted as free from the possibility of error.

PW1 told court that when the thugs smashed open his hind door, he woke up instantly as did his wife. The thugs who were four in number pounced on them and one of them put a knife on his throat and threatened to slice it if he or his wife made any noise. The thugs had three torches and a phone which also had a torch. They were flashing these around in this single round room which was white lime painted.

The witness had not seen these assailants prior to this event. One of them A4 cut the curtain, striped it into pieces and tied him up helped by A2. The two then tied up his wife. A1 and A3 were meanwhile tying up the children. A4 assaulted both himself and his wife as he demanded for money. The witness said the first identification was when A4 and A2 were tying him up. They had to use the torches as they did this. They were that close, in body contact with him as they did so.

A4 then threatened to burn their six month old child. He poured paraffin from the hurricane lamp on the net which was on the baby cot. This was their lamp. A4 lit a matchstick and threatened to put the house on fire. When it burnt out, he lit another as he demanded money. He lit a 3<sup>rd</sup> one and used it to light up the hurricane lamp. With the three matchsticks and later with the lit lantern, the witness told court he was able to properly identify all the 4 assailants. The lantern remained lit throughout the operation.

The witness told court that he begged A4 to spare his life and the lives of his family and instead take the money they were demanding. He showed him the hiding place, and A4 removed the money from an exercise book which was under the mattresses. A4 told one thug outside whom they all referred to as 'affande' that the witness had given them very little money.

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He witnessed A1 who was wearing gumboots climb his bed and remove three wooden boxes from the ceiling. These contained his tools and house hold items. The same A1 removed the two mattresses from his bed and left him lying on the wood.

The witness told court that his wife fought with the thugs as they fondled her in the process of tying her up. She was tied up by A4 and A2. In the struggle, she was hauled down on the floor, and A3 removed his trousers and threw it on the bed. The other three thugs had to hold PW4 down firmly as she was fighting with all she had. The thugs held her legs apart and her hands and chest. Then A3 was able to get on top of her and have sexual intercourse with her.

The witness PW1 further told court that A4 asked A3 whether she was sweet and A3 responded that she was ordinary. When he was done A2 also got on top of PW4 and had sexual intercourse with her also as the others held her firmly down with legs apart. The witness told court that the sex orgy lasted about 30 minutes for A3 and a little less for A2. The thugs then hauled PW4 back on the bed, now with no mattresses. They proceeded to eat the food in the house. This was potatoes, meat posho and beans plus yellow bananas.

The thugs vandalised his motor bike as the witness observed all this. They ferried the properties out and left leaving a torch behind. They were inside the house for about two hours. That was the extent of the identification of the assailants by PW1 inside the house.

PW4 in her evidence told court all that her husband stated. She did not know the assailants prior to this incident. She told court she was put through an ordeal which will not be erased from her mind throughout her life. She was thoroughly beaten up by the thugs as they forced her into sexual intercourse on the floor of their single roomed house in the presence and observation by all her six children plus her husband. She was stripped naked and as A1 and A2 held her less apart A4 held he hands and chest. A3 got on top of her and engaged her into forceful had sexual intercourse. When he was done, A2 also took his turn. The four assailants were thus in physical body contact with her. A3 spent about 30 minutes while A2 spent slightly less. The thugs spent about two hours inside the house in total. All this time, the lantern was lit after A4 threatened to

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burn up thcir 6 month old baby. Thosc werc the conditions under which the identification was rnadc' l'he evidencc of pw4 ampry corroborated that of pwl regarding identification.

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Therc rvas furlhcr evidence of corroboration rcgarding the identity of thc assailants. This was a from the evidence of arrest ollhe accuscd pcrsons.

PWI told courl thal he moved with the porice officer who had a porice dog pw2 wabwire srefla. l-he sniffer dog led rhc parry to a house in Kyambogo vi agc, some a mlls awayfrom the scene of crime. This witness found inside the house a photo arbum in which was a photo of a pcrson whom he promptly identified as one oflhe assailanls. The police clandestinely laid siege on thc house and in the night at about {0041m, when rhc occupant sncaked in, rhe porice arrested him. This was A I in courl.

The police rang him the foilowing day with information rhar they had arresred \*#;" assailants- when he wenl lo rhe porice station at Kakooge, he tord the porice that that was not one ofthe assailants who entered his house. The policc released that person. 1.hat was rhe extenl of the clarity of his identification ofthe assailants.

He kept on looking for the other assailants and he even altered his appearance so he could not be easily identified. l{e located a suspect and was informed lhat the suspect was called Matovu, <sup>a</sup> rcsident of Kyambogo village near the home of one Mutakomakuirala. He went and identilied the house of this person and he informed police who came and arrested A2 at about g.30 pm.

Upon arrest, A2 revealed thal he was with Amos and Joshua. AI is Joshua Sasazi whire A3 is wajja Amos. The suspect furlhcr revealed to this witness that for him he only ate rhe food, but did not participate in the rapc. This suspect 42 Matovu Diza red him and the police that same night to the housc of one of his accomplices. At that house a young man opened the door and upon secing him, this witncss PWI informed thc police that this was not one of the assailants who cntered his house. The porice ordered the young man to take them to the home of Amos, and when they arrived, the witness immediately identified the said Amos as one of the assailants. The

police arrested A3. That was more evidence of the clarity and confidence in identification of the assailants by PW1.

The witness further told court that he continued looking for the 4<sup>th</sup> assailant, and sometime later, he sighted him at Kabwalula village. He was informed this was Senyonjo a resident of Kabusinde village. He alerted police in Kakooge, but they were not helpful. He contacted the police in Kampala who with help of Kakooge police arrested Senyonjo after intense fighting and heavy gunfire. That evidence of arrest was not controverted. It was the further corroboration of the identity of the assailants by PW1.

It was submitted for the defence that the arresting police officer or officers ought to have been called to testify. Indeed that would have been the proper procedure. The absence of the evidence of arrest by the police officers was not fatal to the prosecution case, as the accused persons in<br>their respective unsworn testimonies related to their respective arrest by the police, which evidence confirmed and dully corroborated the evidence of PW1 in this regard. This defence evidence further corroborated the evidence of identification of the assailants by PW1.

There was further evidence of corroboration of the identity of the assailants. When A1, A2 and A3 were arrested PW4 was asked to go to Nakasongola police station. She went and in three different parades, she identified A1, A2 and A3 as three of the four assailants who entered their house, robbed them and raped her. The police identification parade forms PF 69 were exhibited by PW3 D/W/Sgt. Nakajja Grace as exhibits PE1, PE2 and PE3 respectively for A1 Sasazi Joshua, A2 Matovu Diza and A3 Wajja Amos.

It was submitted for the defence that the identification parades did not conform with the rules, as there was no relative or Counsel for any of the suspects present. This question of the absence of either a relative or Counsel for any of the suspects at the identification parade was put to the police officer who conducted the identification parade and she answered it in the affirmative. The exhibits PE1, PE2 and PE3 also were to the same effect.

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The witness PW3 was asked if any of the suspects requested that an advocate be present and she replied that none asked so, and thus no advocate was present. That would put paid to the query about the absence of an advocate at the identification parade. The evidence of PW4 whereby she identified the three suspects as the persons who entered their house, robbed and raped her was the further corroboration of the participation of the accused persons so identified in the sexual intercourse.

It was submitted that A4 who was not identified at the parade ought to be acquitted as there was no evidence which proved beyond reasonable doubt that he was a participant in the incident. I will deal with that later below.

## Defence.

The accused, when he sets up an alibi as a defence, he or she does not thereby assume any responsibility of proving the alibi. The prosecution is under a duty to negative the alibi by evidence. The prosecution must produce evidence which places the accused squarely at the scene of crime. In Bogere Moses & another v. Uganda Cr. App. No. 1 of 1997, (SC) (unreported), the court gave what amounts to putting the accused at the scene of crime. It held that this,

" must mean proof to the required standard that the accused was at the scene of crime at the material time. To hold that such proof has been achieved, the court must not base itself on the isolated evaluation of the prosecution evidence alone, but must base itself upon the evaluation of the evidence as a whole. Where the prosecution adduces evidence showing that the accused person was at the scene of crime, and the defence not only denies it, but also adduces evidence showing that the accused person was elsewhere at the material time, it is incumbent on the court to evaluate both versions judicially and give reasons why one and not the other version is accepted. It is a misdirection to accept the one version and then hold that because of that acceptance per se the other version is unsustainable."

PW1 told court that he clearly identified the four accused persons at the scene of crime. His identification was so clear that he was able to assist the police in arresting the suspects. When the police arrested persons whom the witness did not identify at the scene, he stated so and these



persons were subsequently released. He did not know these accused persons prior to the incident. But he was able to ably and clearly identify them to the extent that he sought them out from their respective villages, which villages were not near his own.

PW1 told court that he did not have any grudge with any of the four accused persons. There was a lit lantern almost all the time the assailants were inside the house. They spent almost two hours in the house, part of that time they were having sexual intercourse with his wife. No wonder that their images were firmly fixed in his mind, and he practically single handed sought them all out and had them arrested.

His resolve to arrest the assailants was matched by his clarity of their identity. When on two occasions the police arrested a person who was not part of the assailants, PW1 did not hesitate to point out that was not one of the assailants, and such a person was released.

PW1 told court that A4 was the one who tied him and his wife. He had to use a torch as he did so being aided by A2. A4 tortured him severely, till some 'affande' who was outside the house ordered that he should not be killed and that was when A4 reduced the pressure of the tight ropes binding the witness, thus allowing him temporary reprieve. A4 however continued to demand for money and poured paraffin on the net of the baby, and lit up match sticks. He eventually lit the lantern lamp. A4 retrieved the money from under the mattress, and demanded for more. He threatened more punishment when he looked in the trouser pocket and did not find the extra promised money. The witness was saved when A1 informed A4 that he had already picked the money from the trouser of PW1. A4 held PW4 as A3 had sexual intercourse with her. He even asked A3 if she was sweet. After the sex orgy, A4 together with A2 once again tied PW4 and threw her on the bed. Later A4 joined the other thugs and they ate the food. All this happened as the lantern was still lit, and it took about two hours. He was within touching distance from the witness, and at other times he was in physical contact with him.

That was the extent of the identification of A4 by PW1. That identification was made in conditions which made it possible for an error free identification. This identification was corroborated by PW4. She witnessed all that the husband PW1 testified about. She was the

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victim of the sexual assault. She told court that she clearly identified all her assailants including A4. She testified that A4 was the one who tortured them most.

That identification evidence clearly placed the accused A4 at the scene of crime. Even without the identification parade evidence, the evidence on record sufficiently broke his alibi.

deep in the might. Al told court in his unsworn testimony that he was arrested at about \$.00 m. That confirmed the evidence of PW1 respecting the arrest. PW1 testified that A1 tied up the children. He tortured and assaulted the victims PW1and PW4 with a stick. He held the wife PW4 down on the floor as A3 and A2 had sexual intercourse with her. He was wearing gumboots and he climbed on the bed and removed wooden boxes from the ceiling. He was the one who removed the two mattresses from the bed and ferried them out of the house. He ate food along with the others. That evidence from PW1 was amply corroborated by PW4. This was further corroborated by the identification parade evidence where PW4 dully identified him from some 8 people. His evidence that he was at home was therefore a lie. This prosecution evidence clearly and properly placed him at the scene of crime.

A2 told court that he was arrested on at 9.00 pm on $3^{rd}$ May 2010. He insisted that this was the date of his arrest. That was a deliberate lie. He was arrested in June because by May, the alleged offence had not been committed. However, he told the truth when he said he was arrested at 9.00pm. That time of arrest confirmed and corroborated the evidence of PW1 regarding the arrest of A2. PW1 told court that A2 was the one who tied him up together with A4, and also tied up his wife PW4. He demanded for money, and later held his wife PW4 as A3 had sexual intercourse with her. He also proceeded to have sexual intercourse with her thereafter. He also ate food. This identification evidence was corroborated by PW4. She was the victim of the sexual assault. The incident took place in a small room, white painted which made it brighter as there was lantern lamp light. There was physical body contact as he tied up the victims, and during the sex act. The entire incident lasted more than two hours, along enough timeds make<br>a proper idential cation.

A2 was also identified by PW4 at the police identification parade. That was the further evidence of identification. The evidence of A2 that he remained at home during the night was a lie. His

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evidence that he was arrested one month before the incident took place was another lie. The identification evidence clearly and squarely placed him at the scene of crime. His alibi was<br>broken. He Hold Lies. This was quarther corroboration as hies are<br>naconsistent with innocence.

A3 told court that he was at home sleeping during the night in question. He was arrested at about 11.00pm. That evidence of the time of arrest corroborated the evidence of PW1 regarding the arrest. PW1 told court that A3 was the thug who tied up his children. He assaulted the victims severely, and had sexual intercourse with his wife. When interrupted in his sex orgy, A3 hit their two years old child with a horse kick which made her land and took her out of action so to speak. He took part in the eating of the food. This evidence was amply and fully corroborated y PW4. She was the victim of the sexual assault. There was light from the lantern during the incident which took about two hours, including the near 30 minutes of sex with PW4. There was physical body contact. The identification was made in circumstances which made for an error free identification. Further corroboration was from the police parade where A3 was properly identified by PW4. The evidence A3 that he remained at home that night was a lie. The prosecution evidence properly placed him at the scene of crime. His alibi was broken.

It was submitted for the defence that PW1 recorded a statement at the police soon after the incident, but he disowned it and recorded a second statement later. That showed he was not a truthful witness. PW1 told court that the police at Kakooge was not very helpful. One of the suspects was either related or friendly to the Investigating Officer.

This forced him to approach the police at Kireka for assistance. That would explain why the witness refused to own his 1<sup>st</sup> statement. He told court that it had glaring errors, for example that he did not identify the assailants. He wondered how he could have told the police so, yet he was the one who led to the arrest of those assailants. That was a satisfactory explanation to me. In any event this so called $1^{st}$ statement was not exhibited.

The prosecution evidence placed each of the four accused persons properly and squarely at the scene of crime. Their respective alibis were broken.

NAL<br>3/2021

## Common inlention

Section 20 ol the Penar code Act provides rhat when rwo or morc pcrsons form a comrnon intention lo prosecute an unlawful purpose in conjunction with one another and in thc prosecution of such unlawful purposc an offcncc is commilted ol' such a nature lhat its commission is a probabre consequencc of rhe prosecution of such purpose, each of thcm is deemed to have committed the offence.

That provision has been herd to mean, inter aria, lhat it is nol necessary for the accused persons to havc had any conccrted agreement beforc lhc altack on their viclirn, but thcir intcnlion may bc inferred from their presencc, their aclions or commissions and failure to disassociate onesell. from the attack; and that if the viorence ofany degree had been used in prosecuting a common dcsign incidentally resulting in death, if the offence charged rvas a probable consequence ofthc use oflhat violcnce, then all sharing in thc design are nrurdercrs. Ilumukali I\_ tvltna & 4 Othrrs v. Ueanda SC. Cr. App. No. 3g of l9g9 (unrepo(ed)

While the above case was concerned with murder, the principle in the case and the interprelation therein of S. 20 of the Psnal Code Act by the Supreme courr is equa y, in my opinion, rcrevanl and applicable in the case ofa sexual assault resulting in rape.

The accused persons entered the house ofthe complainant in the rape case, assaulted the husband and tied him up. I'hey demanded for money. A4 and A2 ticd up the comprainant and as they did so, they were fondling her. She protested vehementry, and for her cries, she was severcry assaulted aad thrown from the bed on ro thc floor in a stale of nakedncss. A I and A2 and 44 held her firmly down. one was hording thc chest and arms as the other two each herd her regs apart' This sexual assault on the complainant was an act whose probable consequence was sexual intercourse without the consent of the complainant. A3 removed his trousers and got on top of thc now hapless and helpless woman and had sexual intcrcourse for up to 30 minutes as the three assailants firmly held her down.

That was not all, 44 asked A3 lcwd questions about the sexual act as il progressed, and A3 answered his colleagues qucstion in a manner highly derogatory an\_d--shamefur of the woman.

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o Not done with their common intention A2 took his turn next and had sexual intercourse with the complainant as the other assailants now also joined by A3 continued to hold her firmly down so the sex orgy could continue.

Clearly the four assailants were full participants in the act of sexual intercourse against PW4. The prosecution evidence proved this ingredient beyond reasonable doubt. This was not with her consent. The offence of rape against the four accused persons was proved beyond reasonable doubt.

## 2<sup>nd</sup> Count – Robbery with aggravation.

The accused person denied the offence of robbery with aggravation. The offence of robbery as charged has the following essential ingredients which must be proved by the prosecution beyond reasonable doubt.

a) that there was a theft:

b) with violence;

c) that there was use or threat to use a deadly weapon during, immediately before or after the theft, or causing death or grievous harm; and

d) that the accused person participated in the theft. See Wassajja v. Uganda [1975] HCB 181.

### Theft and violence

With regard to the ingredient of theft, this is defined in section 254 of the Penal Code Act to mean the taking, without the consent of the owner, and with no claim of right, something which is capable of being stolen, with the intention to permanently deprive the owner of the same. It is our law that there must be asportation. Wassaja v. Uganda [1975] HCB 181. This will be handled together with the ingredient of violence.

The evidence in that regard was from PW1 Senkula Godfrey. He told court that thugs broke into his house and tied him up. They also tied up his wife PW4 and their children. They ferried out household properties which included two mattresses, a spray pump, 2 nokia phones, a Samsung

DATE

phone, a radio, exercise books, a gomesi, bedsheets, a pair of shoes, a flat iron and other household items. They tortured him and his wife severely as they demanded for money.

The witness told court he was tied with strips from his own net which divided his part from the childrens part of the single room house. He revealed where the money was hidden, and the thugs took out shs 170,000/= which was in 5 notes of sh 50,000/= each. They demanded for more and this was only sh $4,000/$ = in his trouser pocket which they also took.

When the thugs eventually left, he untied himself and followed them. He encountered them at the neighbours place and they took off. The next morning police brought in a sniffer dog, and it traced the thugs to a bush from where some of the stolen properties were recovered. Those recovered included two mattresses, a spray pump, flat iron, shoes and a small bag. The witness identified them and the police handed them back to him.

PW4 Nakakembo Juliet was the wife of PW1. She was asleep in their one roomed house when thugs smashed the door and entered. They tied them up and tortured them several as they demanded for money. The medical report exhibit PE4 revealed that she sustained injuries which the doctor described as grievous harm.

Her husband PW1 gave the thugs the money which was hidden under the bed as he begged them to spare their lives. They also took money which was in his trouser pocket. The thugs ferried away their properties including the two mattresses on their bed, her gomesi, her husband's trouser, their three cell phones, a DVD, spay pump, radio, flat iron bed sheets and blankets and other house hold properties. In the morning some of these properties were recovered by police with a sniffer dog. But the money, cell phones and other properties have never been recovered.

The evidence of the wife PW4 fully corroborated the evidence of PW1 that their properties were stolen during the night of 3<sup>rd</sup> June 2010. The police officer with the sniffer dog arrived at the scene, the home of PW1 and PW4, and found mayhem. The house was in total chaos. Things were thrown everywhere. Her dog led the search party which included the complainant PW1 to a spot in the bush well away from their house where properties were hidden. They recovered these

**FRTIFIED TRUE**

**ISTRAR**

OF THE ORIGINAL

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properties which the complainant identified as some of those stolen from his house in the night. That evidence was not controverted.

The prosecution evidence was clear that property belonging to PW1 were taken by thugs, who had no claim of right over the same. The owners were permanently deprived of use of the same. That evidence showed that the complainant PW1 and his wife were severely tortured by the thugs as they effected the theft. They were tied up, their door was smashed open, they were assaulted with sticks. That was evidence of violence.

It was submitted that the recovered property ought to have been exhibited. I agree, the prosecution ought to have exhibited the properties which were recovered. But that failure by the prosecution did not diminish the value of otherwise credible evidence of theft with violence and recovery of some of the stolen property. The prosecution proved the ingredient of theft and that of violence beyond reasonable doubt.

# Use of a deadly weapon or causing grievous harm

The prosecution adduced the evidence of PW1 and PW4. These two witnesses told court that they were severely tortured and tied up with the strips of the curtain net which used to separate their space from that of the children. Thugs had a knife and sticks. They used the knife to cut the curtain down and strip it up in order to tie up their victims. PW1 told court that the thugs put the knife under his throat and threatened to slice it of should he fail or refuse to give them money. He gave all that was in his possession. He told court that the thugs poured paraffin on the bed and net of their 6 month old child and threatened to burn her and the rest of them. He begged that they take property but spare their lives. The thugs even lit matchsticks in the attempt to burn the child.

PW4 witnessed all this. She was also a victim. She was tied up and severely beaten up. The medical report exhibit PE4 was explicit. It stated that Nakakembo Juliet sustained injuries to her body which the doctor classified as grievous harm. What was more, she was sexually assaulted. That was the degree of violence. That evidence of the wife PW4 amply corroborated the evidence of the complainant. The medical evidence was the further corroboration.

**IED TRUE**

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Section 286(2) ofthe lrc,ar code Acl, undcr which the accused persons werc chargcd is rvordcd th us:

'(2) Notwithstanding subsection (r)(b), wherc ar rhc time of or imnrediatcry bcrorc o'imnrcdiately altcr thc timc ofrobbcry, an offendcr is in possession ofa dcadry weapon, or causes dealh or grievous harm lo any person, the offendcr or any other person jointly concerned in committing the robbery sha , on conviction by the high coun, be riabre ro suffer dearh. (emphasis added).

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The prosecution evidence was that thcre was use ofa knifc in the robbery. This was the cvidence of PWI. I-le told court rhar the rhugs threatened lo cul his throat if he made any noisc. The knife was uscd or applied to pwr. No doubt a krrife is a deadry weapon. Ir fits in the definition of <sup>a</sup> deadly rveapon in s. 286(3) ofrhe penar code Act. rt is made or adapted for cutting, and when used for ol"fensive purposcs it is capable ofcausing death.

Howevcr no knife was recovered. It does not mean thal in evcry case, where a deatfly weapon is alleged to have been uscd, it mus( be recovered and exhibitcd before court accepts lhal evidence as credible. That wourd be impracticar as in many cases; lhc attackcrs wi flee with their wcapons' There was thc evidence ofPW4. She told coun that her husband was threatened with <sup>a</sup> knife. she was an eye witness. I wourd acccpt the evidcnce that a deadry wcapon was used in rhe thefi.

The evidcnce of PW4 was that during the robbery, she was severery tortured and assaurted by the thugs with sticks. She sustained scvere injuries. She even showcd court an ankre which, so many months Ialcr was still sworlcn, and according ro her teslimony was stiU painlul. The medical evidcnce in exhibit PE4 showed that the witness sustained injuries which the doctor classified as grievous harm' That is the crassificarion envisaged in subsection (2) ofS. 2g6 ofthe penal code Act ciled abovc f<rr thc offence or aggravatcd robbcry. 'rhe medicar evidencc was the further corroboration of the prosecution evidence in proofofthis ingredient. The prosecution proved the ingrcdient ofthe use of a deadry weapon and causing gricvous harm bcyond reasonable doubr.

<sup>22</sup> 4l

### Participation of the accused

The prosecution had to prove that the accused persons participated in the theft. This depended on the identification of the accused at the scene of crime. The evidence in this regard was from PW1 and PWZpDuring the summing up to the assessors, I warned them as I warned myself of the need to take great caution when dealing with the evidence of identification.

I have exhaustively dealt with the evidence of identification of the accused persons at the scene of crime when dealing with the count of rape. It is the same in this count of robbery with aggravation in all material particulars. It would be meaningless to repeat it here.

I have also dealt quite exhaustively with the defence of alibi which each of the 4 accused persons set up, when dealing with the count of rape. It is the same as in the count of robbery with aggravation and I will not repeat it here. Suffice to repeat only that the prosecution evidence placed the accused persons squarely and properly at the scene of crime. Their respective alibis were broken.

#### **Contradictions**

I have dealt with the contradictions in prosecution evidence in the course of this judgment. One of these related to the medical evidence. This was in respect to the appendix to PF 3 which showed that there were no injuries in the private parts of PW4 consistent with forceful sexual intercourse. The ingredients of the offence of rape do not include forceful sexual intercourse, but rather a sexual act without the consent of the complainant. Absence of injuries therefore would not per se negative sexual intercourse. I examined and considered the other findings of the doctor which made the medical evidence credible corroboration of the sexual act.

The other complaint about medical evidence was the evidence by PW4 of what Counsel for the accused described visible sign of permanent disability. His complaint was that this was not reflected in the medical report exhibit PE4. The short answer would lie with that counsel. Why did he not ask the witness PW4 when that near permanent disability manifested itself. She told court that she mentioned all her ailments from the torture to the doctor. The examination took place the very morning after the incident on 4<sup>th</sup> June. The swelling and painful knee may or may

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not have becn manifest thcn. The absencc of this does nol render the mcdical evidencc unreliable.

It was argued thal the evidcrnce of l'Wl be lreated with a pinch of salt. Ile told court that when thc policc sniller dog led lhe scarch party to the housc which was eventually revealed 1o bc thal of Al, the door was locked. But PW2 the dog handler told court that they entered the house as the door was open. 'l ha( was certainly a conlradiclion. I found that to be a minor contradiction as it did not go to the root of the case, and il was no1 intended 1o deceive court. Thc cvidcnce was that the police dog lcd the search team lo a housc a whole 4 milcs arvay fiorn thc sccnc olcrinrc, in Kyambogo village and lhis house was discovered to he lhat of A l. He was laler arrested from that very house.

The accused AI told court lhat hc was arrestcd from his house in Kyambogo vitlage. This delence evidence corroborated the evidence of PW I of the arrest of A I . Thc police dog rvas only follorving the trail ofthe suspect from the scene olcrime. This trail led to the recovery of some of the stolen property. The police dog was doing what it is trained to do. It did not know the accused prior (o the incidcnt or even after as he was not at home when it arrived. Thc handler PW2 told cou( that had he been present, it would no doubt have attacked him to show thar he was indeed the person whose trial it picked up from inside the house of PW I and PW4 some 4 miles away.

The contradiction whether lhat house was opcn or locked when the police dog led the search team to the srure was a minor inconsistency. On the other hand, that evidence was a further corroboration of the prosecution evidence of the panicipation of the accuscd person in lhe offence charged.

It was hefd in Bumakali l-uhranra &4 Others v. Upanda SC. Cr. App. No. 38 of <sup>1989</sup> (unreporled) citing rvith approval Allicd Taiar v. Usanda Cr. App. No. I 67 ol' 1969 ( I')AC]Aunreported), that inconsistencies and contradictions in the prosecution case may bc ignored if they are minor and do no1 point to deliberate untruthlulness on part ofthe prosecution witnesscs.

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I ignored the inconsistencies as I did not believe that they were intended to deceive, and could be, and were indeed properly explained off.

I was satisfied that the prosecution adduced evidence which placed all the four accused persons squarely at the scene of crime. Their respective alibis were sufficiently broken. The prosecution proved beyond reasonable doubt the ingredient of the participation of the four accused persons in the theft and in the act of sexual intercourse.

The lady and gentleman assessors advised court to find the four accused persons guilty of the offence of robbery with aggravation, and A2 and A3 guilty of the offence of rape and A1 and A4 guilty of assisting in the commission of the rape.

I found the four accused persons guilty of the offence of rapc c/s 123 of the Penal Code Act in the 1<sup>st</sup> count and I convict them accordingly. I found the four accused persons guilty of the offence of aggravated robbery c/s 286(2) of the Penal Code Act in the 2<sup>nd</sup> count and I convict them accordingly.

Rugadya Atwoki

Judge 02/05/2012.

FIED TRUE $9/3/202$