Uganda v Mutabazi Aron (Criminal Session Case No. 118 of 2017) [2019] UGHCCRD 58 (7 June 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION CASE NO. 118 OF 2017 UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR                                                   VERSUS MUTABAZI ARON::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED                         BEFORE: HON.JUSTICE. EMMANUEL BAGUMA JUDGMENT The accused person was indicted with the offence of Rape C/S 123 and 124 of the Penal Code Act. It was alleged that Mutabazi Aron on the 30th of December 2016 at around 1:00 am at Sanga ‘A’ LC1 Buwama Sub-County in Mpigi district had unlawful carnal knowledge of a woman Nansubuga Kana without her consent. On arraignment, the accused pleaded not guilty.  By that plea, the Accused set in issue all the essential ingredients of the offence charged.  In a nutshell, that meant that each and every ingredient of the offence charged had to be proved beyond reasonable doubt in order to secure a meaningful conviction of the Accused.  It is trite law that the Accused bears no burden to prove his innocence since he is presumed innocent until proved guilty.  This principle of law was laid down since the decision in Woolmington Vs. DPP [1935] A.C. The same principle is enshrined in Article 28(3) (a) of the Constitution of Uganda. The prosecution has the burden of proving the case against the accused beyond reasonable doubt. The burden does not shift to the accused person and the accused is only convicted on the strength of the prosecution case and not because of weaknesses in his defence, (See Ssekitoleko v. Uganda [1967] EA 531 462).  For the accused to be convicted of rape, the prosecution must prove each of the following essential ingredients beyond reasonable doubt:- That there was Unlawful Sexual Intercourse with the complainant. That the complainant did not consent to that Sexual Intercourse That it was the accused who had the unlawful Sexual Intercourse with the complainant.  In a bid to discharge the burden of proof placed on it by law, the prosecution called evidence of four witnesses, including PW1, Nansubuga Kana, the complainant. The accused person gave sworn evidence and called no witnesses. The Medical Examination Report, Police Form 3A in respect of the complainant or victim was tendered in under S.66 of the Trial on Indictment Act. As to whether there was unlawful Sexual Intercourse with the complainant, the prosecution relied on the Medical Report, Police Form 3A. The Medical examination revealed that there is no evidence of sexual abuse as the victim came after 72 hours. The medical form also revealed soft tissue injuries in the neck caused by possible trauma. The complainant, testified that the accused person found her in her house sleeping at night, attacked her, got hold of her neck and mouth and raped her. She stated that she identified him by dread locks he had and she used light from the moonlight. PW2 testified that the victim told him that she was raped by the accused person, and he took her to police to make a statement. PW3 stated that she recorded the statements of the victim and went to the scene of crime but got no exhibits. PW4 the medical officer who examined the victim testified that he found no evidence of injury in her genitals. The law with regard to proof of sexual Intercourse has long been settled.  In Bassita Hussein Vs. Uganda, Criminal Appeal No. 35 of 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 Medial evidence or other evidence…” In the instant case, the medical officer who examined the victim testified that he found no evidence of rape. The same is corroborated by the medical form PEX3 which indicates that there was no evidence in the complainant’s genitals of sexual abuse. In the circumstances, I find that prosecution has failed to prove ingredient one beyond reasonable doubt. Secondly, proof of lack of consent is normally established by the victim’s evidence, medical evidence and any other cogent evidence. The complainant testified that the accused person held her mouth and neck and had sex with her. The medical evidence we have seen above indicates that there was no evidence of injury in her genitals. It is therefore my finding that prosecution has also failed to prove ingredient two beyond reasonable doubt. Lastly, the prosecution had to prove that it is the accused person 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 complainant testified that she knew the accused person as her neighbor and that she recognized him by his dread locks and used light from the moonlight. PW2 testified that the accused person had long hair with a cut not twisted locks. PW3 also stated that the accused person had a long hair cut and not twisted locks. PW3 also stated that PW1 told her that she made an alarm and neighbors responded including the accused person yet in her testimony, PW1 stated that she kept quiet. In his defence, the accused person denied committing the offence and stated that he was at Kayabwe trading center that fateful night. I find that there were some inconsistencies and contradictions in the prosecution evidence regarding the description of the accused and the narration of what took place. I find that Prosecution has not placed the accused person at the scene of crime as the perpetrator thus ingredient three has not been proved beyond reasonable doubt. Therefore, I disagree with the assessors’ opinion and thereby acquit the accused person of the offence of Rape contrary to sections 123 and 124 of the Penal Code Act. ……………………………………… Emmanuel Baguma Judge 7/06/19.

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