THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION NO. 129 OF 2016 UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR VERSUS MUSEEMYA STEVEN:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED BEFORE: HON. JUSTICE EMMANUEL BAGUMA JUDGMENT. Musemya Steven aged 38 years, a peasant farmer and a carpenter and a resident of Muduuma in Mpigi District is indicted for the offence RAPE contrary to Section 123 and 124 of the Penal Code Act. The state alleged that on the 4th day of December, 2015 at about 0200HRS, at Muduuma village in Mpigi District, Musemya Steven had unlawful carnal knowledge with Nagujja Benadatta without her consent. When the accused was brought before Court for plea, he denied the charges and a plea of not guilty was recorded. After a plea of not guilty is entered, the burden to prove all the ingredients of the offence beyond reasonable doubt is on the prosecution. However if doubt arises in the prosecution case, that doubt is to be resolved in favour of the accused person. See a case of John Katuramu & Others v Uganda; Supreme Court Criminal Appeal No. 35 of 2002 (unreported) The law on criminal justice system is that a person is to be presumed innocent till proven guilty or pleads guilty on his or her own will. SeeArticle 28 (3) of the Constitution of Uganda The ingredients of the offence of Rape which the prosecution must prove are; Unlawful sexual intercourse Of a woman of 18 and above 18 years Without her consent By the accused The state called four prosecution witnesses that is;Nagujja BenadattaPW1, Kiyimba Paul PW2, Joseph Musagye PW3 and Nakatte Gladys PW4. The state also tendered in court Police Form 3A on which the victim was examined on 4th/2/2016 at Muduuma health Centre by Sekawungu a medical officer and PF24A were admitted facts and tendered in court as exhibit PE.1 and PE.2 respectively. Whether There Was Unlawful Sexual Intercourse In the bid to prove its case, prosecution produced in court PF3A on which the victim was examined and tendered in court as PE.1 and the evidence of PW1 (the victim). PW1 told court that she knew the accused person since childhood and they stayed on the same village. She said I quote; “On the 4th December, 2015. I remember what happened. I was inside my house alone at night. The accused kicked my door and he entered inside my house and got hold of my arm and twisted it. He used force and had sexual intercourse with me. I made an alarm and he ran away” In cross- examination, PW1 said that there was moon light which could go inside the house which assisted her to identify the accused. PW1 also told court that she was able to identify the accused person by voice since they talked for some time and she had known him since childhood. PW2 Kiyimba Paul testified to court that in December 2015 at around 7:00am as he was going to the garden, he heard the victim calling him in the banana plantation. He went there and the victim told him that someone went to her house and she was bleeding.He then called his mother who went and helped the victim. PW4 Nakatte Gladys told court that while at home in the morning at around 7:30am, PW2 came and told her that the victim was in the banana plantation and was calling her. Immediately she went to see the victim in the banana plantation. The victim was in the night dress and she asked her what had happened. The victim told PW4 that she had been attacked by someone who broke into her house and raped her. The victim had a twisted hand and she requested PW4 to take her to her house which she did. PW4 said that the victim was bleeding and she got for her other clothes. The victim asked PW4 to call the Vice Chairman Kayemba which she did.PW4 left after Mr. Kayemba had come. In re- examination PW4 told court that the victim did not tell her who had raped her immediately but told her later. Another piece of evidence is the medical evidence contained in PF3A on which the victim was examined which indicate that; The victim’s Upper and Lower limbs were swollen above the wrist, The victim’s Genitals had tears on fourchette and aside labia majora and the said probable cause was forced penile penetration and trauma. In line with the above, it is clear from the evidence of PW1who told court that while in her house at night, the accused first asked her to open for him and she refused. When she refused, the accused decided to break the door and he entered. He got hold of the victim, twisted her hand and raped her. The victim’s evidence was corroborated by the evidence of PW2 and PW4 who told court that they found the victim in the morning in the banana plantation bleeding. Another piece of evidence in corroboration of PW1’s evidenceis the evidence in PF3A on which the victim was examined on 4th/12/2015 and a medical practitioner Pius Ssekangu found that there was a tear on fourchette and the probable cause was found to be forced penile penetration and trauma. The above evidence enabled court to conclude that the state proved beyond reasonable doubt that PW1 was subjected to sexual intercourse without her consent. See a case ofBassita Hussein Vs. Uganda, Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda Whether the Victim Consented In the case of Fletcher (1959) 8 cox cc 131His Lordship, Chief Justice Lord Campbell (as he then was) defined rape to mean. “....Rape may now be considered Res judicata... It is carnal knowledge of a woman against her will or without her consent.” In the instant case, PW1 told court that the accused broke into her house, twisted her hand and forced her into sex without her consent and she started bleeding. PW1’s evidence was corroborated by the evidence of PW2 and PW4 who said that they found the victim in the banana plantation bleeding. The evidence of PW1 was further corroborated by Police Form 3A which was tendered in court asPE.1. It also showed that force was inflicted on the victim and she got swellings above the wrist and a tear on fourchette. All the above evidence indicates that; whoever had sexual intercourse with the victim, had it without her consent. See a case of Nakhozi V Rep [1967] EA and Dpp Vs Morgan and 3 others (1976) AC 182. Participation of the accused in the commission of the offence. PW1 told court that on the 4th/12/2015 while in the house sleeping, the accused came and knocked at her door and asked her to open for him but she refused. She said the accused broke into her house and entered, twisted her hand and forced her to have sexual intercourse with him. The victim testified to court that she was able to identify the voice of the accused person when he asked her to open for him since she had known him since childhood. Secondly, when he entered the house, the victim was again able to identify the accused using the light from the moon which could penetrate into her house. However, the offence having been committed in the night, what is left with court to determine is whether the accused person was properly identified? In the case of Bugere Moses Vs. Uganda Supreme Court Criminal Appeal No.1 of 1997 and Abdala Nabulere&Another Vs UgandaCr. App.No. 9 of I978(1979),It was stated that; the starting point in cases involving identification is that a court ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were or were not difficult, and to warn itself of the possibility of mistaken identity. The court should then proceed to evaluate the evidence cautiously so that it does not convict or uphold a conviction, unless it is satisfied that mistaken identity is ruled out. Therefore, in a bid to avoid mistaken identity, courts have put in place factors to consider in ensuring proper identification and there as given below; Familiarity of the accused to the witness at the time of the offence Conditions of lighting. Proximity of the accused to the witness at the scene of the crime. The length of time the accused was under the observation of the witness. PW1 told court that the accused came and knocked at her door in the night and asked her to open for him but she refused. She said that when the accused called her, she was able to identify his voice since she had known him since childhood. Secondly, PW1 further told court that when she refused to open for the accused, the accused broke her door and entered the house. She said that while the accused was in the house, he twisted her hand and forced her to have sex with him and that she identified the accused person using the moon light which portray through her house. In sexual offences, the distance between the accused and the victim is usually very close Lastly, the fact that the accused forced the victim to have sex with him without her consent, there must have been a struggle and the struggle is presumed to have lasted for such a time which enabled the victim to identify the accused person. PW1’s evidence was corroborated by the evidence of PW4 whom the victim reported to the next day in the morning after the commission of the offence. The victim told PW4 that it was the accused who broke into her house and raped her. However on the other hand, DW1 (Museemya Steven) told court that before his arrest, he had heard that the victim was raped. He said that he had the information about the rape of the victim from one Joseph but he did not tell him who had done it. DW1 said that in January, 2016 he went to LC1 Chairman to report a case about Masanje Joseph who was alleging that he was a thief in the village. The Chairman told him that he will worn Masanje Joseph and that he was also alleging that DW1 raped the victim but the Chairman told him that he had no idea that DW1 was involved in the rape case. He said in cross-examination that he stays in Muduuma village and he had known the victim since childhood and he said he had no grudge with the victim. It is noted that the accused told court series of evidence about what happened before his arrest but he never denied having committed the offence. Therefore, having considered the evidence of both the defence and the prosecution witnesses, the fact that the victim knew the accused prior to commission of the offence which the accused is also in agreement with, this court is satisfied that the victim properly identified the accused as the person who raped her. Thus, the prosecution proved the offence of Rape beyond reasonable doubt. The accused is hereby found guilty and convicted as charged. Emmanuel Baguma 18/09/2018 Accused in court. 9:00 a.m. Attendance M/s Betty Agola Pr. State Attorney. Ms. Kumbuga Richard for accused on state brief. M/s Mulinde Victoria Court Clerk. Mr. Tabula Edward Ms Najjemba Regina Assessors. Prosecutor: This case was for yesterday 17/4/2018 . it is coming for judgment. Defence: That is the position my Lord. Court: Judgment is ready and read in open court. Prosecutor: These are the aggravating factors. The offence of rape is grave in nature and carries a maximum sentence of death. The victim was 81 years old at the time. There was use of violence and the victim suffered both mental and physical injury. Her arm was twisted and the born got a problem. The offences of rape are on the increase in the area. The convict was not remorseful during the trial in the view of the above I pray for 25 years imprisonment. I so pray. Defence Counsel: The mitigating factors are as follows: The convict is the first offender he has no previous criminal record, he is capable of reforming given a second chance. The convict has a family one wife and seven children. He was useful to the society and family. Given him 25 years will be harsh and I will affect his children. I pray that court exercises mercy while sentence. The prosecutor has told court that the accused was not remorseful. However, the accused has a right of appeal. Furthermore I pray that while sentence, the time spent on remand should be put into consideration. The accused has been on remand since 9/2/2016 which make it two years seven months and nine days. On the issue of harm by the prosecutor when the victim was testifying looked and appeared a person whom had over come the issue and had moved on with her life. 1 pray that court is lenient while sentencing. My humble prayer and suggestion to the sentence. I pray for 10 years to enable the accused join his family after the sentence. I so pray. Court: Sentence will be in the afternoon. Emmanuel Baguma Judge 18/9/2018. Later on at 2:30 p.m. Attendance: Court is assembled as before. Sentence and reasons for the sentence: The convict was found guilty of the offence of rape c/s 123 and 124 of the Penal code Act after a full trial. In her submissions on sentencing, the learned Regional State Attorney prayed for 25 years as deterrent sentence and on the ground that the maximum punishment is death and that the manner in which the offence was committed was violent. Counsel for the convict prayed for a lenient sentence and asked court for 10 years on the ground that the convict is the first offender and has no previous criminal; record and also requested court to subtract the time/period the convict has been on remand i.e that the convict has been on remand , since 9//2/2016 which makes it 2 years, seven months and 9 days that the convict can reform given an opportunity. That the convict has a family one wife and seven children. I have considered all the aggravating and mitigating factors, mentioned by both the prosecution and defence counsel. I have also considered all the circumstances which the offence was committed. Sentence: The convict is sentenced to 16 years imprisonment. I will subtract the two years, seven months and 9 days, the accused has been on remand. The convict is therefore after removing the time spent on remand serve a period of 13 years, four months and 21 days imprisonment. Emmanuel Baguma Judge 18/9/2018. Court: Right of appeal within 14 days explained to the convict. Emmanuel Baguma Judge 18/9/2018.
