Uganda v Senyonga (Criminal Session Case 124 of 2023) [2024] UGHC 667 (13 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT UGANDA AT JINJA **CRIMINAL SESSION NO.124 OF 2023**

UGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

# SENYONGA HENRY ::::::::::::::::::::::::::::::::::::

# BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA

### **NTAMBI**

# **RULING ON A PRIMA FACIE CASE**

Senyonga Henry herein referred to as the accused was indicted with the offence of rape contrary to sections 123 and 124 of the Penal Code Act.

It is alleged that the accused on the 13th day of April 2021 at Kamuli Road Zone in Mpumudde in Jinja City unlawfully had carnal knowledge of Hudah Ahmed without her consent

At plea taking, the accused pleaded not guilty to the indictment.

### **Representation**

The prosecution was represented by David Mugamba and Ismail Nsamba from the Office of the Directorate of Public Prosecutions. The accused was represented by Counsel Daniel Mudhumbusi on State brief.

### **Submissions by Counsel**

At the close of the prosecution's case, both the State and Defence did not make any submissions on a prima facie case and left it to Court to make a decision.

### **Court's analysis**

### **Burden and Standard of proof**

In criminal trials, the burden of proving the case lies on the prosecution which must do so beyond reasonable doubt. This burden does not shift to the accused except where it is expressly provided so by the law. See: Wamango and Others v. Uganda [1976] HCB 74.

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The prosecution led the evidence of five witnesses; Hudah Ahmed(PW1), PC Ochwo Augustine (PW2), Detective Corporal Kibeti Moses (PW3), Masinde Vincent (PW4) and Buluke Ronald (PW5).

### The Law

At the close of the prosecution case, Section 73 of the Trial on Indictment Act (TIA) Cap 23 as amended, requires this court to determine whether or not the evidence adduced has established a prima facie case against the accused. It is only when a prima facie case has been made out against the accused that he/she should be put to his defence.

### Section 73(1) od the TIA provides that; -

"When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence, if any, of the accused person before the committing court has been given in evidence, the court, if it considers that there is no sufficient evidence that the accused or any one of several accused committed the offence, shall, after hearing the advocates for the prosecution and for the defence, record a finding of not guilty".

### Prima facie case.

By law it is expected of the prosecution that, at the close of its case, it has made out a prima facie case, one on the face of it, is convincing enough to require that the accused person be put on his defence. Justice Stephen Mubiru in the case of Uganda Vs Obur Ronald & 3ors Criminal Appeal No. 0007 of 2019 (HC) stated that: -

"A prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence, would convict the accused person if no evidence or explanation was set up by the defence (See Rananlal T. Bhatt v R. [1957] EA 332). The evidence adduced at this stage, should be sufficient to require the accused to offer an explanation, lest he runs the risk of being convicted. It is the reason why in that case it was decided by the Eastern Africa Court of Appeal that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence. The prosecution though at this stage is not required to have proved the case beyond reasonable doubt since such a determination can only be made after *hearing both the prosecution and the defence.*"

In Uganda vs Mulwo Aramathan Criminal Case No. 103 of 2008 Musota J. (as then he was) further clarified on proof of a *prima facie* case as follows:

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"A prima facie case does not mean a case proved beyond any reasonable doubt since at this stage court has not heard the evidence for the defence."

According to "A Guide to Criminal Procedure in Uganda" B. J. Odoki 3rd Edition at page 120, it is stated that in order for the court to dismiss the charge at the close of the prosecution's case, court must be satisfied that: -

- a. There has been no evidence to prove an essential element of the alleged offence, or - b. The evidence adduced by the prosecution has been so discredited as a result of cross examination or, is so manifestly unreliable, that no reasonable tribunal could safely convict on it.

At this stage, it's incumbent on Court to conclude whether the prosecution has led sufficient evidence capable of proving each of the ingredients of the offence brought against the accused and whether such evidence has not been so discredited as a result of cross examination, or is manifestly unreliable that no reasonable court could safely convict on it.

The Law & Evidence

### **Offence of Rape**

Section 123 of the Penal Code Act Cap 120 as amended defines rape as: -

"any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, commits the felony termed rape."

His Lordship, Chief Justice Lord Campbell (as he then was) in the case of Fletcher (1959) 8 Cox cc 131 had this to say on definition of rape;

".... The definition of rape may now be considered Res Judicata... It is carnal knowledge of a woman against her will or without her consent."

Also, in the case of DPP versus Morgan & 3 others (1976) AC 182, Lord Hailsham (as he then was) said;

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

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her will or that there has to be a threat of violence as a result of which she will over borne."

The burden lies upon the prosecution to adduce evidence to prove the following elements of the offence of rape which include: -

- 1. That there was sexual intercourse with complainant. - 2. That the complainant did not consent to that sexual intercourse or that the sexual intercourse was procured by use of force or threat( $s$ ). - 3. That it was accused who had sexual intercourse with the complainant.

Therefore, for the accused to be required to defend himself, the prosecution must have led evidence of such a quality or standard on each of the above essential ingredients to prove the offence of aggravated robbery.

# 1. That there was sexual intercourse with complainant.

The law with regard to proof of sexual intercourse has long been settled. In the case of Bassita Hussein versus Uganda, Criminal Appeal No. 35 0f 1995, the Supreme Court of Uganda held as follows:

"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 of Defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt."

In the case of Uganda v Otim James (HCT-CR 9 of 2015) [2018] UGHCCRD 217 (16 November 2018), Hon. Justice Alex Mackay Ajiji, stated that: -

"Regarding the first ingredient, carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ where sexual organ means a penis. Proof of penetration is normally established by the victim's evidence, medical evidence and any other cogent evidence."

PW1 Hudah Ahmed testified in court that on 13th April 2021, she was raped by the accused at round 5.00am after moving out of the room within which she resided in Mpumudde to get ablution for prayers. That it is while she was still outside that the accused attacked her, forced her into her room where he threw her on the bed, opened the zip of his trousers and he slept on top of her. PW1 testified that she felt a lot of

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pain as she was forced to have sex with the accused and that the ordeal took about $30-40$ minutes.

PW4 Vincent Masinde, a Medical Officer working with the Police at Nsambya Police Health Centre IV testified that PW1 Hudah Ahmed, in her history narrated to him that on 13th April 2021 at 5.00am as she was opening the shop, somebody came and forced her inside the house and pushed her on the bed, strangled her neck and forced her into sex. PW4 testified that PW1 was mentally well oriented, was feeling pain around the neck and chest and had scratches around the neck. He told court that he sent PW1 to the laboratory for HIV and HCG tests which results were both negative. That he administered PEP and emergency pills to prevent any likely pregnancy.

It was PW4's testimony that when he examined her genitals, he observed a whitish fluid coming out of the genitals and that her pubic hair was grown but she had shaved at the time. He told court that the victim did not have any physical injuries in her genitals. That on conclusion of the victim's medical examination, he signed Police Form 3A, stamped it and included his telephone contact thereon.

In cross examination, PW4's oral testimony and the evidence he recorded on PF3A was discredited by the defence. In cross examination, PW4 denied having observed a whitish discharge from PW1's genitals. He was questioned by the defence as to whether he had observed an old or newly ruptured hymen in the victim's genitals to which he responded that he had observed an old ruptured hymen. However, the defence brought it to the attention of court that PW4 had recorded a ruptured hymen and not an old ruptured hymen on PF3A.

Further in cross-examination PW4 was questioned as to whether the probable cause for the victim to have experienced pain while passing urine was due to forceful sexual intercourse to which he responded that the other causes for this condition were infections or any other type of injury or trauma. PW4 testified that he did not ascertain what the cause of the victim's pain was while passing urine and only relied on what the victim told him as having been caused by forceful sex. It was his testimony that he could not confirm whether PW1 had infections in her genitals since he only tested her for HIV &HCG (pregnancy test.)

In the case Hussein Bassita V Uganda, supra, it was held that it was not a hard and fast rule that medical evidence must be produced to prove a sexual act. Their Lordships also added that the prosecution was at liberty to bring all the other evidence as long as the same had the effect of proving the fact beyond reasonable doubt.

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Furthermore, in Mugoya Vs. Uganda [1999] 1 E. A 202, the Supreme Court held that in cases involving sexual offences, there was need for corroboration of both the evidence proving that sexual penetration of the complainant took place and the complainant's evidence that implicating the accused in the commission of the offence.

In the instant case, according to the medical evidence adduced by the prosecution in Police Form 3A exhibited as PEX2, PW4 recorded under Paragraph 7(e) that on examination of the victim's genitals, he observed a ruptured hymen and that the victim felt pain while passing urine but that she had no visible injuries in her genitals. Under Paragraph 8 of PF3A, PW4 documented that the probable cause of the victim's injuries was due to forced sexual intercourse when not ready. Furtherstill on the Pictogram on PF3A, he indicated that the victim had a ruptured hymen with no visible injury but felt pain.

It is rather unsettling and mind boggling that PW4 on the one hand documented on PF3A that the victim had no physical injuries and on the other hand that the probable cause of the victim's injuries was forced sexual intercourse. Further, although he testified in court that he had observed whitish fluids coming out of the victim's genitals, such vital information was omitted on PF3A. This court is extremely puzzled that a Medical Officer with over 28 years' experience could fail to include such vital information on the Police Form 3A which is vital in matters involving sexual offences. Therefore, this court finds that these are major contradictions in the evidence adduced by the prosecution through PW4 and is highly doubtful whether any proper medical examination was conducted by the victim on PW4 at all!

It is the finding of this court that the defence discredited the medical evidence adduced by the prosecution through PW4 in corroborating the direct evidence of PW1 in proving there was sexual intercourse. I therefore, find that the prosecution has not led sufficient evidence capable of supporting this ingredient.

# 2. That the complainant did not consent to that sexual intercourse or that sexual intercourse was procured by use of force or threat(s).

In matters of rape, this ingredient of proof of lack of consent is normally established by the victim's evidence, medical evidence and any other cogent evidence.

PW1 Hudah Ahmed testified in court and stated that on the day the incident happened, the accused attacked her, pushed her inside the house and locked the door. That although she tried to raise an alarm, the accused grabbed her mouth and pulled out a knife which he used to threaten her not to say anything. PW1 further testified

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that the accused pushed her on the bed where she fell on her two-year-old son who started crying. That the accused pulled out the knife and pointed it towards her son and as a result of fear that her son would be hurt, she decided to cooperate with the accused who went ahead and raped her for about 30-40 minutes which ordeal caused her a lot of pain.

According to the PW4 Vincent Masinde testimony in court he indicated that PW1 Hudah Ahmed in her history narrated to him that on 13th April 2021 at 5:00am as she was opening the shop, somebody came and forced her inside the house and pushed her on the bed, strangled her neck and forced her into sex. PW4 testified that PW1 was mentally well oriented and was feeling pain around the neck and chest and had scratches around the neck.

In the instant case according to the medical evidence adduced by the prosecution through PW4, it is indicated on Police Form 3A exhibited as PEX2 that under Paragraph 7(a) that on examination of victim's the head and neck, PW4 recorded that the victim felt pain on the neck following strangulation. Under paragraph $7(c)$ , he recorded that the victim felt pain on the lower abdomen and waist and under Paragraph $7(d)$ , she felt slight pain on both limbs. It is this court's observation that PW4 On the Pictogram PW4 with arrows indicated that PW1 felt pain at the points including neck, the upper back and lower back. Court notes that PW4 omitted to indicate the victim's limbs as some of the body parts in which she felt pain on the pictogram on PF3A as mandated. It is this court's observation that PW4 did not indicate the medical observation of these injuries but based on PW1's feelings and narration.

Although PW1 gave direct evidence that she was attacked and forcefully raped by the accused, for matters of non-consensual sex to arise, there should be proof of the sexual act. The the first ingredient of proof of sexual intercourse having not been sufficiently proved by the prosecution, it would be a wild goose chase for this court to prove lack of consent for a sexual act that has not been proved. I am satisfied that the prosecution has not adduced sufficient evidence to prove this ingredient either.

### 3. That it was accused who had sexual intercourse with the complainant.

Lastly, the prosecution had to prove that it is the accused who committed the unlawful act. This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused at the scene of crime not as a mere spectator but as the perpetrator of the offence. The law relating to a single identifying witness is that court can convict on such evidence after warning itself and the assessors of the special need for caution before convicting on reliance of the correctness of the identification. The reason for special need for caution is that there is a possibility that the witness might be mistaken. (See: Christopher Byagonza versus Uganda Crim. Appeal No. 25 of 1997 and Abdala Nabulere & Another versus Uganda Crim. Appeal No. 9 of 1978/1979 HCB 77.

In Abdala Nabulere & Another versus Uganda (Supra) which I will quote extensively, the Court observed that: -

"Where the case against an 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 correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came be made, particularly, the length of time the accused was under observation, 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.

In our judgment, when the quality of identification is good, as for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused well before, a court can safely convict even though there is no 'other evidence to support to identification evidence; provided the court adequately warns itself of the special need for caution. If a more stringent rule were to be imposed by the courts, for example if corroboration were required in every case of identification, affronts to justice would frequently occur and the maintenance of law and order greatly hampered.

When, however, in the judgment of the trial court, the quality of identification is poor, as for example, when it depends solely on a fleeting glance or on a long observation wade in difficult conditions; if for instance the witness did not know the second accused before and saw him for the first time in the dark or badly lit room, the situation is very different. In such a case the court should look for 'other evidence' which goes to support the correctness of identification before convicting on that evidence alone. The 'other evidence' required may be corroboration in the legal sense; but it need not be so if the effect of the other evidence available is to

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make the trial court sure that there is no mistaken identification. A good example is the case of Wasajja v. Uganda (1975) EA 181. The coincidence of a person previously identified behaving strangely by putting up a fabricated alibi of his movements at the time the offence was committed or telling lies in some material aspect of his evidence can, in a proper case, amount to 'other evidence' sufficient to *support a conviction.*

In the instant case the learned trial judge properly warned himself of the danger of convicting on the evidence of identification alone and cautioned himself on the possibility of a mistaken identity. He was satisfied that the quality of identification was good in this case. The judge found Mary an honest witness and accepted the correctness of her identification. Mary saw the appellants first cutting the deceased albeit in a badly lit hut but she saw then later outside on the verandah under bright moon light."

In the case of John Katuramu versus Uganda Criminal Appeal No. 2 of 1998 it was held that;

"The legal position is that the court can convict on the basis of evidence of a single identifying witness alone. However, the court should warn itself of the danger of possibility of mistaken identity in such case. This is particularly important where there are factors which present difficulties for identification at the material time. The court must in every such case examine the testimony of the single witness with greatest care and where possible look for corroborating or other supportive evidence. If after warning itself and scrutinizing the evidence the court finds no corroboration for the identification evidence, it can still convict if it is sure that there is no mistaken identity."

"The court must closely examine the circumstances in which the identification was made. These include the length of time the accused was under observation, the distance between the witness and the accused, the lighting and the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good then the danger of mistaken identity is reduced, the *poorer the quality the greater the danger.*"

In the instant case, PW4 testified that she was raped by the accused at 5.00 am in her room at Mpumudde having been forced into the room on her way back from getting ablution outside the house. It was her testimony that there was no electricity in the area on that day and that she used the torch on her mobile phone as a source of lighting. That after getting ablution, as she moved back to her room which was about 13m away from her, she looked back and saw a strange person, the accused. It was

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her testimony that the accused was wearing a jean trouser and a red sweater on that fateful morning and had tied a cloth on his entire face. That that there was no other source of lighting in the neighborhood and she only used the torch on her mobile phone to provide her with light. She told court that she was able to recognize the accused's voice and that she was able to see what was happening in the room with the light from the torch of her mobile phone. PW1 testified that the accused pushed her inside the house, closed the door and although she asked him what he wanted from her, he did not respond.

PW1 testified that the accused pushed her on the bed where she fell on her 2-yearold child who woke up and started crying. That the accused then threatened her child with a knife and due to fear of hurting her child, she decided to cooperate with the accused who raped her for about 30 to 40 minutes. She told court that she was able to see the accused since the cloth that covered his face moved exposing his face during the scuffle as he pushed her into the room. She informed court that the cloth moved to the accused's nose and as a result she was able to see his forehead recognised his voice. PW1 also stated that she also recognized the accused from his body size and height. PW1 further testified that after reporting the matter to the Police, she called the Police officer and directed him to the accused's residence on 13th April 2021. That while at the Police Station, she told the Police officer that she knew the accused and was sent for medical checkup at Gaddafi Barracks.

However, in cross examination, PW1 denied having known the accused's home before his arrest and that she only got to know the accused's residence on the day the offence was committed. Still during cross examination, it was her testimony that she had known the accused for one and a half months prior to the incident as a person who had sold her vegetables twice and interacted with him while buying vegetables. During cross examination PW1 testified that she had recorded a statement at Police but could not identify it as she did not have her glasses with her in court and requested for time to obtain prescription glasses. She then told court that she could not read with or without glasses and had undergone medical examinations to confirm the same. She testified that she had had eye problems since 2008 while she was in Primary Four and that she had stopped studying in Senior Four in 2016 and could only read and write under difficulty. She then testified that she completely stopped to read and write in 2016. PW1 remained silent when questioned as to whether she could not read and write by 2021 and who had signed her statement on her behalf that she recorded at Police in 2021. PW1 testified that she was able to see at night and confirmed that the statement was recorded by the police officer and confirmed her particulars. PW1 confirmed that she told Police in her statement that the person who raped her was wearing a red mask which was covering his face from the forehead to the chin and that his mouth was covered. PW1 confirmed that the mask

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slipped down the accused's face and stopped at the beginning of his nose. While being cross-examined, she disagreed that a mask could affect someone's voice and confirmed that she was able to differentiate the assailant's voice from other mens' voices.

In the instant case, the evidence adduced by PW1 alludes visual and voice identification which took place early in the morning at 5 am. The question that needs to be determined by this court is whether the single identifying witness was able to recognize the accused with the lighting from the torch on her mobile phone given that there was no electricity in the area where she resided in Mpumudde that morning the incident occurred. The factors for identification as indicated in **Abdala Nabulere** & Another versus **Uganda** would apply to both visual and voice identification.

I observe that the victim's visual identifications was really unfavorable at 5am since at that time, it is normally still dark and the fact there was no light in the whole neighborhood due to the lack of electricity and in the victim's room only made it to difficult for the attacker to have been identified by the victim, PW1.

Further, the fact that the person who attacked the victim was wearing a mask on his entire face which moved down to just above his nose during the scuffle to force the victim into her room where she was raped still contributed to the difficulty on the part of the victim in identifying the attacker. The victim's testimony that she was able to identify the accused from his forehead as the attacker when the mask he was wearing fell just above his nose during the scuffle is unconvincing to this court given that in her statement at police, she told Police that the accused had grabbed her mobile phone and had switched off the torchlight from her mobile phone as he pushed her into the house. It is this court's observation that there was no light in the victim's room while she was raped which made it difficult for her to identify the accused as the attacker.

During cross examination it was established that the accused has eye impairment which she has had for over 13 years. Therefore, with the poor lighting at the scene of crime coupled with the partial covering of the attacker's face with a and the victim's/ eye witness' eye impairment history, the evidence of PW1 needed to be corroborated. Court observes that there was laxity on the Police to conduct an identification parade to rule any other suspects.

Secondly on the aspect of voice identification, PW1 testified that she recognized the attacker's voice as that of the accused. This presupposes that PW1 fairly knew the accused whom she was able to identify him by bis voice even when his mouth was covered with a mask. PW1 informed court that she had bought vegetables from the accused twice and that she would briefly interact with him. In the case of Sabwe

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Abdu Vs. Uganda [2010] UGSC 15 (3 February 2010) the Supreme Court held that: -

"The appellant was properly identified as the person who committed the offence and, therefore, dismissed the appeal on the ground that there was evidence on record that the two girls were familiar with the appellant because he lived about a quarter of a mile from their home, they always passed by his home as they went to school and they used to hear him speak to other people. The appellant also used to come to their home where they would hear him speak to their father. Court agreed with the trial judge's finding that given these circumstance the girls would be able to identify the appellant by voice even if they had never directly talked to him. That to identify a person's voice, one does not necessary have to have talked with that person."

I find that the above cited case is distinguishable from the facts of the instant case in matters of voice identification. Although PW1 testified to have previously spoken to the accused and also heard him interact with neighbors, in the circumstances of this case, the mouth of the accused was covered and even when the mask fell up to his nose, his mouth remained covered. It is without a doubt that the voice of a person speaking while his mouth is covered differs from a voice heard from a person whose mouth is not covered. In these circumstances, court observed that the voice identification of the accused required corroboration.

I therefore find that the visual and voice identification of PW1 as a single identifying witnesses needed corroboration. The prosecution has not adduced any evidence to corroborate these two forms of identification by the victim PW1. The laxity on the Police to carry out identification parade to reenacting the circumstances of identification by the victim PW1 in her testimony, was needed in this case to rule out any possibility of mistaken identity. Therefore, in the premises, it is unsafe for this court to rely on the identification of a single witness given that the identification was made in unfavorable conditions.

Conclusively, I find that no sufficient evidence has been adduced by the prosecution to connect the accused person to the commission of the offence of rape as charged.

I therefore hold a submission of no case to answer and accordingly find the accused not guilty of rape and I do discharge him of the offence under Section 73(1) of the Trial on Indictments Act Cap 23 as amended. The accused person is hereby set free forthwith unless charged with other offences.

I so order.

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HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA JUDGE 13th May, 2024.

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