Uganda v Ndifuna Constantine (Criminal Session Case No. 68/2018) [2019] UGHCCRD 60 (7 June 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION CASE NO. 68/2018 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR                                                  VERSUS NDIFUNA CONSTANTINE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED BEFORE: HON. JUSTICE EMMANUEL BAGUMA RULING The accused person was indicted of two counts; aggravated robbery Contrary to Section 286 (2) and Rape C/S 123 and 124 of the Penal Code Act, Cap 120.   The particulars in count one were that Ndifuna Constantine on the 15th day of February 2017 at Nakikolo Cell in Wakiso district robbed one Nannozi Norah of 280,000/= two mobile phones, airtime vouched of both airtel and MTN, cigarettes all valued at 600,000/= and at immediately before or after the said robbery threatened to use a pick axe, a panga and a chisal on the said Nannozi Norah.   In Count two; it was alleged that Ndifuna Constantine and others still at large on the 15th day of February 2017 at Nakitokolo cell in Wakiso district, unlawfully had carnal knowledge of Nannozi Norah without her consent.   For the offence of aggravated robbery to be established, prosecution has to prove the following ingredients; That there was theft of property. That there was violence. That a deadly weapon was used or threatened to be used. That the accused participated in committing the crime   For the offence of Rape to be established, prosecution has to prove the following ingredients; Sexual Intercourse with the complainant. That the complainant did not consent to that Sexual Intercourse That it was the accused person who carried out the unlawful sexual intercourse.   In Uganda vs. Dick Ojok (1992-93) HCB 54: it was held that in all criminal cases, the duty of proving the guilt of the accused person always lies on the Prosecution and that duty does not shift to the accused except in a few statutory cases and the standard by which the Prosecution must prove the guilt of the accused person is beyond reasonable doubt.   The prosecution adduced evidence of two witnesses;PW1, the complainant testified that on 15/2/2017 at her home in the morning at 4:00 am while in her bedroom, she saw light from a torch in the corridor and the person told her to lie down.  She stated that the person asked for money and he picked 200,000/= under her carpet which was the only money she had.She also stated that the person then raped her and left. PW1 also testified that she went to police and the police brought a sniffer dog which led them to the house of the accused person and when the accused returned to his home, the dog jumped on him,and  the police searched the accused person and got some money from him which they did not disclose to her.   PW2, the police officer in dog section testified that he proceeded with the sniffer dog at the scene of crime from the bedroom of the complainant, to the accused person’s house. He stated that the dog remained inside the accused person’s house and when he came back, it jumped on him. PW2 stated that they carried out a search and recovered 250,000/= in coins which was confirmed by the complainant as her money from selling water.   The medical report admitted at beginning of trial and marked PEX 1 indicated that the victim’s hymen was raptured long ago with ridges widened and some bruises around the vaginal walls and the cause was probable penile penetration.   It is trite law that prior to placing an Accused person to his/her Defence, the Prosecution is required to have established a prima facie case against such accused person. It is now well-established law 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 vs. R [1957] E.A 332). In the instant case, PW1 testified that she did not identify the accused person that night and did not see whether he was holding any weapon/object. She also stated that money was recovered but was not disclosed to her. PW2 in his testimony stated that they recovered 250,000/= which the complainant confirmed that it was her money from selling water. He also stated that he made a statement and stated that they found the accused in his room, but when he was testifying, he stated that the accused was not at his house when the dog led them there and that he later showed up and the dog jumped on him. This therefore means that the only evidence linking the accused person to the scene of crime is that of the sniffer dog which I do not find very credible. I also noted that the medical report indicated that the hymen was raptured long ago yet the examination was carried out on that same date the incident was alleged to have happened. On that note I do not find prosecution evidence credible enough to warrant putting the accused person to his defence, hence prosecution has not made out a prima facie case against the accused person. I therefore find that the accused person has no case to answer. I accordingly find the accused person, Ndifuna Constantine not guilty on both counts; Aggravated robbery and Rape and therefore acquit him under S. 73 (1) of the Trial on Indictment Act. …………………………………………………. Emmanuel Baguma Judge. 7/06/19.

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