Uganda v Singa (Criminal Session Case 141 of 1992) [1994] UGHC 78 (15 August 1994)

Full Case Text

## TH2 RiftILK OF JPASM IK THIS H1GF COuGJ OF JJGA1WA HOLDEN. AT

BEFORE: The Honpuriible^ .?■\$!?.

## JUDGJffiNT

The accused herein who is called JACKSON SjAJGA and aged 32 years was. indicted for the offence of rape contrary to sections &gt; ' i • 11? and llu of the Penal Gode Acta

The particulars of the indictment alleged that on the 1\$q|j| i}.1| day of June? 1991? at Mui-iis.ha village? in Bahama county? I'iki i ;[|l( | |i Mbararu district? • ic accused had unlawful carnal knowledge of .. \_\_\_ . . • pilli ; JOVANT BAT0RCK1RE v/ithout her consent•

The accused denied the offence; and as a result? the i >. prosecution called three witnesses to establish its case against hjim.

In brief? the prosecution case was that on the evening of the 16th of June? 1991? while the complainant (PW1) was returning home after visiting one Musinguzi? she was waylaid by the accused who forcefully and without her consent her<> According to PWl's evidence? the had sewual intercourse wit!r above incident took pla.ee >1 at around 7•3Op.m 9 to recognize the ac on once? i"/he accus•?. There was bright moonlight cased wiiom she knew before. the sal and PW1 was d pushed a coffee stick in FJl's private parts causing her severe pai,i and bleeding<> Pv/l later went to but was not given a.ny medical chits since she was unable the doctor's bill.

evidence describing the scerr of crime7 and rel-fiy the accused confcssion or admission of c.n nee in issue ticor his ari

Finally; there was PV/j's a charge and caution stc.tement taken by him from the accused.

I admitted the said statement in evidence as "Exhibit Pl" after holding a trial within a trial. I was satisfied that it was voluntarily given by the accused; "rd that PW3 (an Inspector of Police at the time) was of the rigrt rank in the police force (see section 2Zj. of the Evidence- Act as amended by Act 2/o5) and had substantially followed, uhe. law in : orting it.

At the end of the prosecution case? despite the fact that the defence submitted that tho *\k-.-* no c.-.ae to answer? I ruled un^t uhere was? -L did so, ran.inly because I felt mat at that point? there was strong evidence against the accused which included a confession. I therefore put the accused on his defence

The accused decided to make an unsworn statement in which he denied knowledge of the offence in issue.

In my summing up to the assessor who remained after court dispensed with the other one who was unable to continue with us? 60:1 directed him and myself that the burden of proof in criminal cases lay upon the prosecutin' u?-- : \:1.\_ defence *j.n* that the standard of proof is proof c;.-.'c:. reasonable doubt. (See Woolunington v. DPP (1935) AC Zj.62.)

In order for the prosecution t rape? it has to rove the following ingredients,

- (a) that there was unlawful carnal knowledge of the complainant (i.e a woman or girl), - (b) that such was had, without the complainant's consent; and

In law, carnel knowledge of a woman or carl is complete once there is penecration (however slight) of the female sex organ by the mile sex or an (see Holsbury's Laws of England (3rd Ed.) Vol. 10 P.746 paragraph 1438 and Archbold - Criminal Pleading, Evidence and Practice (38th Ed.) at P.1124 paragraph 2878).

As far as the ingredients above are concerned, all of them can be proved by the complainant's evidence if corroboration can be found for it or if court is satisfied in every way that she was speaking the truth. (See Chila vs. R. [1967]E. A.722.

The complainant (FW1) is the only person who was at the scene of crime, when the offence in issue was allegedly committed by the accused against her.

However, before court would begin looking for corroboration in respect of her evidence, it is important to be satisfied first of all, that her ovidence is eredible.

Accordingly, the pertinent question to ask here is whether PWl's evidence is credible?

My short answer is that it is not.

PW1 was a rather difficult witness during the hearing. She contradicted hereself many times in her evidence. Forexample, at one point in hor evidence, she told court that she did not drink any boar on the ovening in issue. At another point, she contradicted that are said she drank some that (a local brew) that evening from Nyabatoto's home. 一计前们

In another area, she said she did not drink beer with several men that evening. Later on she admitted that indeed she drank be that evening with Misingusi and Funti.

Her version concerning who left who, on the evening in issue at Musinguzi's (between herself and the accused also left much to be desired, because this changed as she wished during the hearing).

In addition to the above, WMI's evidence in court contradicted certain areas of her police statement. Forexample, in court she said that the accused waylaid her in a bushy coffee plantation,

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but according to her police state ant (exhibited herein as "Exh. DI" he found the accused standing on the path as the work home and the accused grabbed her and forcefully had sequel intercourse with her.

In another area of her evidence, she told court that she left the scene of crime for home at around 10.00p.m. However, according to her police statement, she was very weak after the alleged crime. She left the scene of crime towards morning!

Looking at the above contradictions against the background that PW1 had drank some local brew in the evening in issue; and was indeed coming from a drinking place when the alleged misfortune befell her, I find it difficult to resist the thought that it is posible she was drunk at the time in issue.

If, the above likelihood exists, (and indeed the prosecution did not dispel it) then it comes to mind that FWI's evidence is unreliable.

After reaching the above conclusion, it becomes useless to look for corroboration for it.

According to the case of Efurance Ndayakwa and 2 others v. Uganda Cr. App. No. 2/77 (A Supreme Court case) reported in the [1978]HCB P.182

> "Corroboration is usually looked for to confirm evidence which is sufficient and satisfactory and credit worthy. When a witness has shown himself to be untruthful on a material issue, no amount of corroborative evidence can reader it safe to rely on his evidence. In other words, unless a witness is intrinsicall credible, his evidence can neither afford correbation not be thought to require it."

If PMI's evidence was the only evidence for the presecution upon which a conviction could be based in this case, the conclusion above, would have disposed of it entirely. However, we still have the evidence of PW2 and PW3 which if found good, could sustain a conviction against the accused.

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According to PM2 who is PM1's step-brother, he visited PMI the day that followed the events in issue. PW2 then went and saw the seeme of crime which was about 100 metres away from PWI's home. He said that he saw a lot of blood on the said scene, some sticks which were blood-stained, and a scattered bush. PW2 later witnessed the arrest of the accused who was found with mudd blood-stained clethes which the police took in their custody. According to this vitness, the accused also admitted the offelide in his hearing. This was at the time, when the police had him !! under arrest.

Apart from the fact that TW1 did not mention FW2's name her relatives who visited her soon after the alloged offence, und muddy blood-strined clothes referred to by PW2 above, were not produced in court as exhibits. In fact FW3 - a police officer who testified in this case, denied having received any exhibits in this case.

Further, when FW2 was pressed during the hearing of this case to tell court exactly what the accused said that the accused admit that "he is the person who did it".

Even assuming that it was true that the accused confessed on admitted having committed the offence in issue in W2's hearing while he (the accused) was in police hands, court is not sure of full circumstances under which such confession or admission wes made. Forexample, were the police officers before whom such a confession or admission was made, of the right rank as is required under S.24 of the Evidence Act? What prompted the accused to confession . i. I. . . . . . . . . . . . . . . . . questions, TW2 could sufficiently answer since he is merely a teacher and not a police officer.

In view of the above short-comings in respect of PW2's evidence, it would appear that that evidence is of little value (if any) to the prosecution case.

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This leaves only FW3's evidence. PW3 is the police officer who took a charge and caution statement from the accused after the offence in issue was committed.

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In this charge and caution statement the accused is alleged to have admitted having committed the offence in issue. In brief, this is what the accused is supposed to have said. That on the day in issue, he went to Musinguzi's place and bought himself ; [alcohol (enguli). At the said time, Fol was also present. She was drinking ttonto with some other people. The accused left the place and went away. However, he returned later, after which the complainant (PW1) decided to leave. Since PW1 was going in the same direction with the accused, the accused asked her whether they should go together, and she agreed. They then walked together. $\exists x \in \mathbb{R} \text{ is finite} \text{ is the solution of } \mathbb{R} \cup \mathbb{R} \text{ is finite}$ had sexual intercourse with her. However, the complainant did not struggle because she was drank. After the said act, the accused pushed sticks in the complainant's private parts. He did this because he was drank. He then went away.

After looking closely at the above statement/confession, I wondered whether on the face of it, it did not raise the heated issue of consent. It would appear that although the accused forcefully got hold of the complainant and had sexual intercourse with her, the complainant did not struggle because she was drank. Does this mean that the complainant consented to the act of sexual intercourse by the accused? Is it possible that after she had consented, she was merely infuriated later by the fact that the accused hurt her when he pushed the coffee stick in her private parts thus causing her to bleed?

The above apart, even assuming that where was no consent on the part of PW1 and that the above charge activities streament trully qualifies to be called a confession, it be renumbered that for the purposes of this case, it would be called a retracted or repudiated; for indeed the accused in his defence during the hearing, wholly denied knowledge of the offence in issue.

In the case of Tuwemoi v Uganda [1967]E. A. SA the Court of Appeal for Eastern Africa (us it then was) held that it was dangerous to act upon a retracted or repudiated confession of an accused, unless court was Billy satisfied after considering all the circumstances, dist it was true.

The question to resolve now, is whether court is fully satisfied that in all the circumstances, the above retracted or repudiated confession is true?

My answer to the above question is in the negative. This is so, because if one carefully looked at the said confession in comparison with PWI's story, one would immediately find that a number of its details were at logger-heads with PWI's story. Forexample, according to PWI's story, she did not leave Musinguzi's place on the evening in issue with the accused. She did not go straight home. She branched off first at her brother's home do get shelter from rain. The was not drank. She strungled and man an slarm during the countssion of the offence in issue. However, the alls of confession constrainted all the above.

Further, when the above is received against the background that PW3 who took the alleged confession from the accused had first of all perused some alleged admissions by the accused of the offerce in issue, whose antecedents a weared very dubious, one is left with a lot of uncase concerning the truthfulness of the said confession.

With that doubt lingering in/mind, concerning the alleged confession, I an willing to agree with the assessor herein that the alleged confession is unreliable and court cannot / a conction on it. This clearly loaves no credible evidence on record agains the accusate

I accordingly acquit him of the offence of repe and order the immediate release unless he is being hold on some other lawful charges.

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$\n *class* - 2\n$ E. S. Lugayizi

Ag. JUDGE $15/8/1994$

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Read before: Accused Mr. Zehurikize for accused, Mr. Wagona for the State, Mr. Baguma Court/clerk.

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Eskinga

E. S. Lugayizi Ag. J. O. D. G. E. 15/8/1394