THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MBARARA
TUSIIME YONA ……………….……………………………………………………..ACCUSED
BEFORE: THE HON. MR. JUSTICE P. K. MUGAMBA
The prosecution case is that accused had been husband to the sister of the victim. That sister had since died leaving two orphans. There was an arrangement for the orphans to get supplies of milk from their maternal grandfather. On the day material to this case the victim had gone to accused’s home to deliver milk at about 5 p.m. While she was there accused had summoned her into his house after which he had locked the door. He had proceeded to have sexual intercourse with the victim forcefully. Later the victim had been rescued by her father, PW2 and the secretary for defence, PW3. Accused was thereafter arrested and charged with the offence. A medical examination of the victim was carried out. The report is exhibit P.3.
ii. That the victim had sexual intercourse on the occasion, and
iii. That accused participated in the crime.
The victim testified as PW1 saying that she had sexual intercourse on the occasion alleged. The defence itself does not contest evidence that the girl had sexual intercourse. Consequently I find this ingredient proved by the prosecution beyond reasonable doubt.
The prosecution must prove also that accused participated in the alleged crime. This must be proved by the prosecution to the required standard I have already related to. It is not the responsibility of the accused person to prove his innocence. In this case accused set up a defence of alibi. He stated on oath that at the time in issue he had taken cattle for grazing four miles away from the scene. He added that he did not return home on that material night. When an accused person sets up a defence of alibi it is not his duty to prove it. It is the responsibility of the prosecution to disprove and destroy it by adducing evidence which places the accused person squarely at the scene of crime. See Watete alias Wakhoka & 3 others vs Uganda [1998-2000] HCB 7. For the prosecution the victim stated that accused had been at home on the evening in issue and that he was the one who called her into the house and locked her inside before he had sexual intercourse with her. There is also the evidence of the father of the victim, PW2, who stated that he had found accused at his home on the night in issue and that he had raised an alarm as a result of which accused was arrested. There is also the evidence of PW3 who stated that when he was called to the scene he found the victim outside the house while accused was inside the house. In addition there is the extra judicial statement in which accused admits he had carnal knowledge of the victim for the first and only time ever on the occasion.
The prosecution evidence has to be evaluated alongside defence evidence. As I have pointed out prosecution evidence must have preponderance over defence evidence in order to disprove the alibi. For reasons best known to itself the prosecution elected not to cross-examine the accused on his defence statement made on oath. I hold this was an unfortunate departure. In a similar case the Supreme Court pronounced itself on this matter. In Abasi Sali & Kasendwa Muhamed vs Uganda Criminal Appeal No. 7 of 1998 reported in 1 SCD (Crim) 1996/2000 at page 125, 135 the following wisdom appears:
We think, with respect, that both the trial Judge and the Court of Appeal erred when they did not evaluate the defence evidence. In our view the evidence of alibis raised a reasonable doubt which must be resolved in favour of the appellants.----’
In their joint opinion the gentlemen assessors advised me that while the prosecution had proved two ingredients, the age of the victim and the fact that she had had sexual intercourse, beyond reasonable doubt there was no such proof of accused’s participation in the crime alleged. They advised that I should find accused not guilty. For the reasons that I have given in the course of this judgment I agree with that opinion. I find accused not guilty and acquit him of the charge.
25th April 2005