Uganda v Singa (Criminal Sessions Case 141 of 1992) [1994] UGHC 106 (15 August 1994)

Full Case Text

Justice F. M. S. Egonda-Ntende

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT **VBARARA**

CRIMINAL SESSION CASE NO. 141/92141/2-

PROSECUTOR UGANDA: ........

VERSUS

.......... ACCUSED JACKSON SINGA: ............ BEFORE: The Honourable Mr. Ag. Justice E. S. Lugavizi

## JUDGMENT

The accused herein who is called JACKSON SINGA and aged 32 years was indicted for the offence of rape contrary to sections 117 and 118 of the Penal Code Act.

The particulars of the indictment alleged that on the 15th day of June, 1991, at Muriisha village, in Ruhama county, in Mbarara district, the accused had unlawful carnal knowledge of JOVANT BATOROKIRE without her consent.

The accused denied the offence; and as a result, the prosecution called three witnesses to establish its case against him.

. 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 had sexual intercourse with her. According to PWI's evidence, the above incident took place at around 7.30p.m. There was bright moonlight and FW1 was able to recognize the accused whom she knew before. After the said offence, the accused pushed a coffee stick in FVI's private parts causing her severe pain and bleeding. PW1 later went to hospital, but was not given any medical chits since she was unable to pay the doctor's bill.

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Apart from the above evidence, there was also PW2's evidence describing the scene of crime, and relating the accused's confession or admission of the offence in issue after his arrest.

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Finally, there was PWj's evidence. This evidence was about a charge and caution statement 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; and that PW3 (an Inspector of Police at the time) was of the right rank in the police force (scq section 24 of the Evidence Act as amended by Act 2/\$5) and had substantially followed the law in recording it.

At the end of the prosecution case, despite the fact that the defence submitted that there was no case to answer, I ruled that there was. 1 did so, mainly because I felt that 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, I directed him and myself that the burden of proof in criminal cases lay upon the prosecution and never shifted to the defence and that the standard of proof is proof beyond reasonable doubt. (See Woolunington v. DPP (1935) AC 462.)

In order for the prosecution to succeed in a case of rape, it has to prove 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 - (c) that the accused v . ? the one who actually had such unlawful carnal knowledge of the complainant.

In lav;, carnal knowledge of a woman or g .rl is complete once there is penetration (however slight) of the female sex organ by the male sex organ (see Halsbury's Laws of England (3rd Ed.) Vole 10 P.746 paragraph 1436 and Archbold - Criminal Pleading, Evidence and Practice (36th Ed.) at P.1124 paragraph 2876).

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, ih [1967JE. A.722.

The complainant (PW1) 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 vzould begin 'Looking for corroboration in respect of her evidence, it is important to be satisfied first of all, that her evidence is credible.

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 hcreself many times in her evidence. Forcxamplc, at one point in her evidence, she told court that she did not drink any beer on the evening in issue. At another point, she contradicted that and said she drank some ttonto (a local brew) that evening from Nyabatoto's homo.

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

Her version concerning who loft 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, IVl's evidence? in court contradicted certain areas of her police statement. Forcxamplc, in court she said that the accused waylaid her in a bushy coffee plantation,

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but according to her police statement (exhibited herein as "Exh. D1" he found the accused standing on the path as she went home and the accused grabbed her and forcefully had sexual invercourse with her.

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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 render it safe to rely on his evidence. In other words, unless a witness is intrinsically credible, his evidence can neither afford correlation new be thought neither afford corrobation nor be thought to require it."

If PW1's evidence was the only evidence for the prosecution 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 PW2 who is PWl's stop-brother, ho visited Pv/1 the day that followed the events in issue. PW2 then went and saw the scone of crime which was about 100 metres away from Ftfl's home. He said that ho 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 muddy blood-stained clothes which the police took in their custody. According to this witness, the accused also admitted•th<, offence in his hearing. This was at the time, when the police had him under arrest.

Apart from the fact that Iwl did not mention Fv72:s name among her relatives who visited her soon after ths alleged offence, the muddy blood-stained clothes referred to by Pw2 above, were not produced in court as exhibits. In fact PW'3 - a police officer who testified in this case\* denied having received any exhibits in this case.

Further, when PW2 was pressed during the hearing of this case to tell court exactly what the accused said that the accused admitted that "he is the person who did it".

Even assuming that it was true that the- accused confessed or admitted having committed the offence in issue in I\/2's hearing while he (the accused) was in police hands, court is not sure of the full circumstances under which such confession or admission was made. Forexamplo, 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 confossnr.r . ,i., . ...... .. . Amt. hour? These were not questions, FW2 could sufficiently answer since ho is merely a teacher and not a police officer.

In view of the above short-comings in respect of rW2fs evidence, it would appear that that evidence io of little value (if any) to the prosecution case.

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

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, FW1 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. $\text{and} \quad \text{and} \quad \text{and} \quad \text{and} \quad \text{and} \quad \text{and} \quad \text{and} \quad \text{and}$ 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 there was no consent on the part of PWI and that the above charge and caution statement trully qualifies to be called a confession, it be remembered 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.

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In the case of Tumemoi v Uganda [1967]E. A.84 the Court of Appeal for Eastern Africa (as it then was) held that it was dangerous to act upon a retracted or repudiated confession of an accused, unless court was fully satisfied after considering all the circumstances, that 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 to get shelter from rain. She was not drank. She struggled and made an alarm during the commission of the offence in issue. However, the alleged confession contradicted 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 offence in issue, whose antecedents ampeared very dubious, one is left with a lot of unease concerning the truthfulness of the said confession.

With that doubt lingering inAmind, concerning the alleged confession, I am willing to agree with the assessor herein that the alleged confession is unreliable and court cannot / a conction on it. This clearly leaves no credible evidence on record against the accused.

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

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15/5/1994

Read before: r- -t .-4-r v

Accused

Mr. Zehurikize for accused,

Mr. Wagona for the Statey

Mr. Bagunia Court/clerk,

^•8° .4. So So Lugayizi 15/3/1994