Uganda v Serubeni Stephen (Criminal Session No. 0046 of 2023) [2024] UGHC 1277 (6 December 2024)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KISORO CRIMINAL SESSION NO. 0046 OF 2023 (Arising from KIS No. oo02 of 2022) (Arising from CRB No. 065 of 2022)** 10 **UGANDA** :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTOR VERSUS SERUBENI STEPHEN**:::::::::::::::::::::::::::::::::::::::::::::::::::::::**ACCUSED**

## 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

Serubeni Stephen who for the rest of my Judgment I shall refer to as "the Accused" is indicted for Rape Contrary to **Section 123** and **124** of the **Penal Code Act**. The particulars giving rise to the offence are that Serubeni Stephen on the 12/01/2022

20 at Kagano village, Muhindura Parish, Kanaba Sub County in Kisoro District had unlawful carnal knowledge of Haffu Fiyadola without her consent.

The Accused pleaded not guilty.

**Representation.**

Ms. Nagayi Noline (State Attorney) appeared for the Prosecution while Mr. 25 Kibulirani Nicholas represented the Accused on state brief.

The Assessors for this trial were Mr. Rwengeyo Joseph and Ms. Idah Mugenga.

During the preliminary hearing pursuant to **Section 66** of the **Trial on Indictment Act** the following evidence was admitted as uncontested.

5 Police Form 3A in relation to the medical examination of the Victim Haffu Flyadola conducted on the 18/01/2022 at Kagano Health Centre III by a senior clinical officer one Tulina Milcah and the same was received as Exhibit P1.

Police Form 24A in respect of the medical examination of the Accused conducted at Uganda Government prisons, Kisoro Health Centre on 24/01/2022 where in

10 the Accused was found to be an adult of 19 years with a normal mental status., received as Exhibit P2.

**The burden and standard of proof.**

This being a criminal trial it is one whose proof lies squarely on the Prosecution and never shifts to the Accused. It is also proof beyond reasonable doubt. Any

15 doubts unless fully explained must be resolved in favour of the Accused and the Accused must only be convicted on the strength of the Prosecution case and not on the weakness of the defence case.

**See: Ssekitoleko versus Uganda [1961] EA 531.**

To prove the charge of rape the Prosecution is required to prove the following 20 essential ingredients beyond reasonable doubt.

- **1) That there was sexual intercourse/carnal knowledge of the Victim.** - **2) That the Victim did not consent to the sexual intercourse/carnal knowledge.** - **3) That the Accused participated in the sexual intercourse/carnal** 25 **knowledge of the Victim.**

5 **Section 123** of the **Penal Code Act** 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 representation as to the act or in the case of a married woman by personating her*

10 *husband, commits the felony of rape"*

**a) Carnal knowledge.**

In regard to proof of sexual intercourse the Supreme Court in **Bassita Hussein versus Uganda SCCA No. 0035** of **1995** held that the act of sexual intercourse or penetration may be provided by direct or circumstantial evidence and 15 corroborated by medical evidence or other evidence.

In Archibald's criminal pleading. **Evidence and Practice (42nd ed), (1985) P.1793 Paras – 20 -343** states,

*"To constitute the offence of rape, there must be penetration. But even the slightest penetration will be sufficient…"*

- 20 The Prosecution in proof of its case presented the Victim Haffu Flyadola (PW1) who testified that it was on the 12th a Friday in 2022 at around 7:30PM when she was on the way home from shopping Irish Potatoes and being followed by the Accused and another man called Michael and that the two of them caught up with her grabbed her by the hand on both sides, tripped her and she fell down, they - 25 then dragged her to a garden of onions where there were many stones. It is her evidence that in this garden the Accused pulled her dress up, tore off her knickers and started to have sexual intercourse with her. According to Haffu (PW1) the

- 5 Accused was humping so fast that she got pain in her stomach. She sustained injuries on her thighs and her buttocks also swelled. Haffu states that as the Accused was having sexual intercourse with her Michael was holding her down. She states that she raised an alarm and a neighbor one Jaspher (PW3) who was passing by came and the Accused and Michael ran away. - 10 Her evidence is corroborated by that of Ibrahim Ziraguma alias Jaspher (Pw3) who testified that in January of 2022 between 7:00PM and 8:00PM he was at Kanaba stage waiting for a customer when he heard someone making an alarm that "*please come to my rescue they are killing me*". Ibrahim (PW2) states that he responded to the alarm and as he got closer he could hear a voice saying "*fuck her* - 15 *fuck her"* and the voice was for one Michael.

That he slopped to the scene and it was in a garden of onions where he found the Accused having sexual intercourse with Haffu (PW1) and he tried to grab the Accused but he managed to run away together with Michael.

Corroborative medical evidence can be attained in Exhibit P1 which is Police Form 20 3A conducted on the 18/01/2022 which is at least 6 days after the incident but inspite of this delay the Victim Haffu was found to have scratches/lacerations on both her thighs with inflammations on her buttocks and anus that were tender on examination. The possible cause of the scratches/lacerations on her thighs is stated to have been as a result of fighting with her attackers while the 25 inflammation on her buttocks and anus was the friction on the ground.

I accept the evidence of the Victim Haffu (Pw1) that in the night of the 12th in 2022 she was engaged in sexual intercourse. Her evidence was given in a candid

- 5 manner and well corroborated by Jaspher (PW1) who found her assailants still in the course of the sexual act and the medical evidence has provided non refutable evidence to the fact that she was involved in sexual intercourse on a surface that was not condusive and that is a garden of onions that had several stones that caused her injuries. - 10 This evidence was not changed by the Prosecution.

It is therefore my finding that the Prosecution has proved beyond reasonable doubt that the Victim was involved in sexual intercourse.

**b) Lack of consent.**

It is the evidence of Haffu (PW1) that the Accused and Michael grabbed her by the 15 hand on both sides, tripped her to a Stoney garden of onions where Michael held her down as the Accused pulled up her dress, tore off her knickers and proceeded to have sexual intercourse with her.

The Victim testified that she tried to fight them but she was overpowered and raised an alarm. Ibrahim (PW2) heard and responded to this alarm. Exhibit P1 20 clearly details that the scratches/lacerations to the thighs of the Victim could have been as a result of her fighting with her attackers. The inflammations on her buttocks and anus are stated to have been as a result of friction on the ground. The Victim stated that the garden of onions had stones.

I find overwhelming evidence that the Victim Haffu (Pw1) did not consent to the 25 sexual intercourse.

I find the Prosecution has proved the 2nd ingredient beyond reasonable doubt.

## 5 **c) Participation.**

It is the defence of the Accused which was unsworn that all witnesses who testified against him in this case told lies and that he knows nothing about the charges against him. I find this defence to be shallow and afibble attempt by the Accused to coin some kind of defence.

- 10 The Victim in this case Haffu (PW1) testified that she knows the Accused, that they were both born in the same village and were neighbours in Kagano. The Victim also testified that the Accused and a one Michael followed her from behind for some time leading her into believing that they were also going home. According to the Victim the time was approximately 7:30PM and there was - 15 moonlight that enabled her to identify the Accused and Michael. This Court takes note of the fact that sexual offences are committed most times in very close proximity and not at arm's length therefore with the close proximity and not at arm's length therefore with the close proximity of the Accused being on top of his Victim there could have been no error in the identification of the Accused.

20 The evidence of Ibrahim alias Jaspher (PW3) further corroborates that of the Victim when he testified to coming so close to the duo during the rape that he almost grabbed the Accused but the Accused managed to escape.

Ibrahim also testified that there was moonlight on the night in issue that enabled him to identify the Accused and Michael. Further corroboration can be attained

25 from the evidence of Benon Yokana (PW2) the Chairperson of the Batwa community in Kagano who testified that in the morning of the 13/01/2022 at 7:00Am the Victim Haffu (PW1) reported to him that the previous night she had 5 been raped by the Accused and Michael and that he could see that she had injuries on her face and strangle marks on her neck.

The consistency with which Haffu (PW1) has named the Accused as her attacker and this early on in this case leaves no doubt in my mind that she is telling the truth and is not in any way mistaken about the identity of her attackers. I

10 therefore accept her testimony corroborated by that of Ibrahim (PW3) as a true account.

The defence of alibi that the Accused has raised has been discredited by the Prosecution evidence and the Accused has been placed at scene of crime committing the crime.

15 After considering the evidence adduced by the prosecution and the defence together and in full agreement with the assessors it is my finding that the prosecution has proved its case beyond reasonable doubt and I find the Accused guilty of the offence of rape Contrary to **Section 123** and **124** of the **Penal Code Act** and convict him of the same.

20 Before me,

……………………………… **Samuel Emokor Judge** 25 **06/12/2024**