THE REBUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CRIMINAL SESSION CASE NO: HCT-CR-SC-0077-2002
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
VERSUS
TWINOMUJUNI GEORGE::::::::::::::::::::::::::::::: ACCUSED
BEFORE: HONOURABLE MR. JUSTICE MOSES MUKIIBI
JUDGEMENT:
The accused person, TWINOMUJUNI GEORGE ALIAS KYAKABALE, was indicated for the offence of Rape contrary to sections 117 and 118 of the Penal Code Act. The Particulars of the offence alleged that on the 23rd day of May, 2001, at Buwanku landing site, Ngoma, in the Luwero District, Twonomujuni George Alias Kyakabale did have unlawful Carnal Knowledge of KEKIKOGE KASALINA without her consent.
On arrangement the accused person denied the indictment where upon the prosecution called five witnesses to prove its case. The accused person made an unsworn statement but called no witness in his defence.
The prosecution case is as follows:-
The victim, Kekikogye Kasalina, was coming from Kyenkwanzi market on 23/5/2001 at around 4.00pm. She was following other people who included Kateete, Katurebe, Sirili and Rwenyakiro on their way to Buwanku landing site on river Mayanja. Upon reaching the landing site the victim found the other group of people already gone across the river using a boat. She had remained alone. She shouted at the boatman to come back and take her across. Twinomujuni George Alias Kyakabale came rowing a boat. He jumped out of the boat and got hold of the victim. He pushed her and the ground while demanding for sex. The victim tried to raise an alarm but there was nobody to come to her rescue. The accused held the victim by the neck. He also placed his hand over the victim’s mouth to prevent her from shouting. The accused over powered the victim, forcefully inserted his penis into the victim’s vagina, fucked her and held tightly till he ejaculated. After the act the victim kept cool, boarded the boat and agreed to be taken across the river by the accused. The accused rowed the boat across the river. Upon reaching the shore on the other side the victim informed the people present that the accused had raped her. Immediately upon hearing this the accused jumped out of the boat and ran away. The victim’s dress had got torn during the struggle and it was wet and soiled. The victim went to report to the L.C.1 Chairman, and later to police at Ngoma. From Ngoma Police Post the victim was referred to Magaga Frank (PW5) a Senior Clinical Officer at Ngoma Health Centre.
The victim was medically examined on 25/5/2001. Police Form 3, the medical examination report, and an Appendix thereto both dated 25/5/2001, signed by Magaga Frank and stamped were admitted in evidence and jointly marked Exhibit P.1.
The accused remained in hiding until on 3/6/2001 when he was arrested and taken to Ngoma Police Post. He was transferred to Luwero Police Station, formally charged and taken to court.
In this unsworn statement the accused raised the defence of a grudge between him and the victim relating to the running of a bar business at the landing site. He also told court that there existed a grudge between him and one Nsekerairwe Roving, the husband of the victim, arising from the fact that the later was ordered by the LC1 Committee to pay Compensation to the accused following a case of assault. The accused testified that the victim and her husband fabricated the charge of Rape against him. He admitted having transported the victim in about across the river, but he alleged that the victim had no money to pay the fare, and there ensued a scuffle with her when accused tried to retain her bag. The accused alleged that the victim’s husband and one Kateete looted property from his bar business, and that he went back to his home at Kiwoko and waited until he was arrested.
The elements which the Prosecution is required to prove beyond reasonable doubt in this case are:
That there was unlawful sexual intercourse with the victim on the 23rd day of May, 2001;
That the sexual intercourse was without her consent or against her will; and
That the accused was responsible.
For the first element, the prosecution is required to prove that the victim’s vagina was penetrated, however slightly, by the ravisher’s penis.
Kasalina Kekikogye (PW1) testified as follows: The accused lay on her stomach. He placed his penis into her private part and remained there until he finished. It took almost an hour. He did what he wanted until he finished. All that time his penis was inside her vagina. The next day the witness went to Ngoma Sub County and, thereafter a letter to take to a Doctor. She went to a Government Health Unit at Ngoma. A man examined her. She was feeling pain inside her stomach. She felt pain in her ribs, as if they had been fractured. A medical officer examined her tubes. Her female organ was examined. She had been injured inside the vagina. The accused had used a lot of force. The witness felt as if her internal organs were being ruptured.
Magaga Frank (PW5) testified as follows:-
He is a Senior Clinical Officer stationed at Ngoma, Heath Centre. On 25/5/2001 he examined Kekikogye Kasalina, aged 36 years old. He examined her private parts. She had genital lacerations or wounds in her private parts. The cervix, an opening of the uterus, was tender to touch. There was little blood oozing from the lacerations. The lacerations were on the labia minora, the vagina lining. There had been Penetration. There were bruises on the chest wall interiorly. He concluded that someone forcefully penetrated the victim’s genital organ, most likely with a penis.
[The witness tendered in evidence what became Exhibit P.1]
In response to Cross examination the witness testified that the injuries were about two or three days old. He said that a venerial disease can cause such wounds in the Private Parts. He testified that the bruises on the chest could have been caused by involvement in a fight.
However, the witness clarified that if the lacerations on the labia minora were caused by Venerial Disease (VD) they would be associated with pus. He confirmed that in this case the injuries were traumatic wounds caused by forceful sex.
The learned defence counsel Mr. Ngobi submitted that there was no proof of penetration. Counsel referred to the evidence of Magaga Frank (PW5) who said that he saw lacerations on the labia minora. Counsel contended that the labia minora are lips of the vagina. She submitted that Magaga Frank (PW5) did not know the actual vagina. Counsel argued that lacerations on the labia minora inflicted on 23rd May, 2001 could not possibly ooze blood on 25th May, 2001 when the victim was examined.
On the other hand the Learned State Attorney Mr. Twinomuhwezi submitted that the labia minora is an inner part of the vagina. He also referred to the evidence of Magaga Frank (PW5) and submitted that in the Clinical Officer’s opinion there was forceful penetration of the victim’s vagina. He submitted that the evidence of Magaga Frank (PW5) corroborated that given by the victim.
It has long been the practice of this Court in sexual offences to require corroboration of the complaint’s evidence before acting upon it. Such corroboration is in the form of additional evidence rendering it probable that the complainant’s story is true and that it is reasonably safe to act upon it. The corroboration which a court looks for is independent evidence, whether direct or circumstantial, confirming in some material particular not only that sexual intercourse with the complainant took place, but that the accused was responsible.
See: CHILA AND ANOTHER V. R (1967) E.A.722 (C.A)
In ARCHBOLD – Criminal Pleading, Evidence and Practice, 36th Edition, (by Butler and Garsia) Parag. 2879 at Page 1079 the learned authors wrote:
“To constitute the offence of rape, there must be penetration. But any even the slightest penetration will be sufficient. Where a penetration was proved, but not of such a depth as to injure the hymen, still it was held to be sufficient to constitute the crime of rape. Proof of the rupture of the hymen is unnecessary.
It is now unnecessary to prove actual emission of seed; Sexual intercourse is deemed complete upon proof of penetration only”.
See: R.V. MARSDEN (1891) 2 Q.B.149.
In Bassita Hussain V. Uganda, S.C.Crim.Appeal No. 35 of 1995 the Supreme Court said that the act of sexual intercourse or penetration may be proved by direct or Circumstantial evidence. Sexual intercourse is proved by the victim’s own evidence, and corroborated by medical or other evidence.
In the instant case Kasalina Kekikogye (PW1), the victim, clearly testified that the assailant placed his penis into her private part and remained there until he finished. It took almost an hour and all that time his penis was inside her vagina.
Magaga Frank (PW5), the Senior Clinical Officer, corroborated the victim’s story when he testified that he observed lacerations on the labia minora, which were traumatic wounds caused by forceful sex. He concluded that someone had forcefully penetrated the victim’s genital organ.
In my view the victim’s testimony was consistent and credible. I do believe it. Medical evidence confirmed the victim’s evidence in Material Particulars. I am therefore satisfied, as was the assessor, that the prosecution proved the first element beyond reasonable doubt.
For the second element the prosecution is required to prove that the victim did not willingly consent to the sexual intercourse.
Kasalina Kekikogye (PW1), the victim testified as follows:
The accused came out of the boat. He grabbed her and threw her down. When she tried to scream for help he held her mouth. She was dressed in a Kikoyi, address and a knicker. The accused tore her Knicker and the dress. He tried to strangle her. When she reached the shore on the other side of the river she immediately shouted to the people that she was dying. William Kateete (PW2) pulled her out of the boat. She told Kateete that she had been raped. Thereafter she reported to the authorities. She surrendered her torn dress and knicker to Ngoma police post. Her dress was black with white dots. It was torn around the stomach area and the lower parts. In response to Cross-examination she clarified that the accused held her by force and inserted his penis into her vagina.
Katete William Luyaga (PW2) testified as follows:
He saw Kekikogye and Kyakabale coming in a boat. He saw Kekikogye crying in a boat. The boat was about five metres from the shore. Kekikogye said:
“ Kyakabale has raped me. Kyakabale has raped me”. The witness saw Kekikogye’s dress torn around the breasts and at the back.
Kiiza Geoffrey (PW3) testified that he is an LDU at Buhanku village. He saw Kekikogye’s dress. It was green with white spots. It was torn around the waistline, the stomach area, and at the side.
No.30787 DC Twinomujuni Vicent (PW4) testified as follows:-
On 25/5/2001 he was at Ngoma Police Post when Kasalina Kekikogye (PW1) reported to him a case of rape. He gave her medical examination forms to go for treatment. He looked at her neck and noticed marks of scratches. She handed to him a dress from a polythene bag. It was green with white spots. It was torn at both the left and right front sides and behind. He treated the dress as an exhibit and kept it in a store.
Magaga Frank (PW5) testified that when he examined Kasalina Kakikogye on 25/5/2001 he was bruises on her chest wall anteriorly. He was of the opinion that the bruises on the chest could have been caused by involvement in a fight.
In his defence the accused offered an explanation for the presence of bruises on the victim’s chest wall. He testified that Kekikogye had a hand bag, and as she was boarding the boat she gave her hand bag to the accused. The accused put it around his neck because the boat was dirty. When they reached the other side of the river Kekikogye had no money to pay for her transport. She asked for her bag but the accused refused to surrender it. Apparently there was a scuffle and Kekikogye shouted.
Learned Counsel for the defence contended that the bruises on the chest could have been caused by a struggle for the bag.
There was inconsistency in the description of the dress which KekiKogye was wearing on the day of the day of the alleged rape. Kekikogye said that her dress was black with white dots. Kiiza Geoffrey (PW3) and DC Twinimujuni Vicent (PW4) said that the dress was green with white spots. Katete William (PW2) testified as follows:-
“We took Kekikogye to the house. We were in confusion and it became dark. I saw her dress torn around the breasts and at the neck. I do not know colours of dresses”.
The learned State Attorney, Mr.Twinomuhwezi Henry submitted that the prosecution witness were villages who have little knowledge of colours.
This Court has repeatedly said that where an exhibit cannot be produced in evidence it should be described as carefully and exactly as possible by witnesses who saw it. Mere failure to produce the exhibit is not detrimental to the case of the prosecution where there is evidence of careful and exact description of it made by witnesses who saw it.
See: Uganda V. Katusabe [1988-91]
HCB 59 (Mukasa – Kikonyogo, J. as she then was.)
Uganda V. Charles Komiswa [1979] HCB 86 (CA).
In the instant case I have noted two common factors in the description of the exhibit: the dress.
It had white dots or spots.
It was torn.
What is not agreed is the back ground colour of the dress. It should have been expected that Kekikogye (PW1) as the owner of the dress should have known its colours very well. It may be possible that she, like Katete William (PW2), did not know colours. Kiiza Geoffrey (PW3) and DC Twinomujuni Vicent (PW4) saw the dress during the day on 25th May, 2001. I do not think that two people could have been wrong in the description of the dress.
I think the inconsistency with regards to the description of the back ground colour of the dress is minor, and, in my view, it does not point to deliberate untruthfulness. The inconsistency does not go to the root of the case. So I am prepared to ignore it.
See: RUKUNDO FRED AND ANOTHER V. Uganda Crim. Appeal No. 10/96 (CA).
Uganda V. DUSMAN SABUNI (1981) HCB 1.
In the instant case Kekikogye (PW1) said that her dress was torn around the stomach area and the lower parts. Katete William (PW2) said that Kekikogye’s dress was torn around the breasts and at the back.
Kiiza Geoffrey (PW3) said that the dress was torn around the waist line, the stomach area and at the side. DC Twinomujuni (PW4) said that the dress was torn at both the left and right front sides and behind.
I do believe the prosecution evidence that Kekikogye’s dress was torn.
Katete William (PW2) testified that he was Kekikogye crying in the boat, and then he heard her say:
“Kyakabale has raped me”.
This court has followed the holding in KiBAZO V. Uganda (1965) EA 507 at P.510 that in sexual offences the distressed condition of the complainant is capable of amounting to corroboration of the complainant’s evidence.
The weight to be attached to such evidence as corroboration varies according to the circumstances of the case and the evidence. The court must be satisfied that the distress was real and not simulated.
See: R.V. JAMES HENRY KNIGHT (1966) SO Crim. Appeal R. 122.
In the instant case the victim testified that she spent the night as Buwanku landing site in Edisa’s house. She was in the Company of Katete, Chairman LC1 Badiidi and Siriri.
William Katete (PW2) also testified that Kekikogye spent the night at Edias’s house. He said that from the landing site to Kekikogye’s home was a distance of 60 metres.
Apparently Kekikogye (PW1) decided to spend the night in a place where there were several independent witnesses. She did not want to go home before she reported to the authorities.
In the circumstances of this case I am of the view that the distressed condition of Kekikogye (PW1) was real, and it amounts to corroboration of her evidence that her attacker held her by force and inserted his Penis into her vagina.
I reject the accused’s story of the circumstances in which Kekikogye sustained bruises on her chest wall. I do not consider it a credible story.
In KAYONDO ROBERT V. Uganda, criminal Appeal No. 18/96 (CA) (unreported) the Court Appeal said:
“Among the corroborating circumstance almost generally present in cases of rape are the signs and marks of struggle upon the complainant which strengthens her evidence of lack of consent.”
In the instant case the victims evidence of lack of consent is corroborated by evidence of William Katete (PW2) of her distressed condition; evidence of William Katete (PW2), Kiiza Geoffrey (PW3) and DC Twinomujuni (PW4) of a torn dress; evidence of DC Twinomujuni (PW4) of marks of scratches on the victim’s neck; and evidence of Magaga Frank (PW5) of bruises on the victim’s chest wall anteriorly.
I am, therefore, satisfied, as was the assessor, that the prosecution proved beyond reasonable doubt that the sexual intercourse was without the victim’s consent or against her will.
For the third element the prosecution is required to prove that the accused was the assailant who had sexual intercourse with the victim on the 23rd day of May, 2001.
Kasalina Kekikogye (PW1) testified as follows:
The accused had a small bar at Buwanku landing site. On 23rd May, 2001 she was returning from the market at Kyenkwanzi. She reached the landing site and called out for help. The accused, who lived across the river, came rowing about alone. [the victim identified the accused in Court]. He came out of the boat. He grabbed the witness and threw her down. It was at around 4.00pm. When he finished playing sex with the victim they both entered into the boat. They moved together across the river. They were only two in the boat. When the boat was about to reach the shore on the other side the victim saw people. There were William Katete (PW2), Badiidi and Kiiza who were drinking local beer at the shoe. She shouted at them that she was dying. William Katete pulled her out of the boat. She pronounced that she had been raped. It was at about 6.00pm. The people tried to arrest the accused but he ran away.
William Katete (PW2) testified as follows:-
He resides at Kijjumba village, Ngoma Sub County. He knows Kasalina Kekikogye (PW1). On 23/5/2001 he was at Kyenkwanzi Market with Kekikogye, (PW1), Edisa, Siriri, Katurebe and Mulefu. He left the market at about 2.00pm. Kekikogye remained behind. He, together with others, reached the landing site, got into a boat, and crossed the lake to the other side. The witness then heard Kekikogye shouting. He recognized her voice. She wanted assistance to cross the lake. Siriri instructed the accused to go and assist Kekikogye. [The witness identified the accused in the dock]. Siriri was the owner of the boat. Kyakabale (the accused) took a boat and rowed across the lake to the opposite side. After about one hour the witness heard Kekikogye crying and shouting. He waited for Kekikogye and the accused until 6.00pm. He saw them coming in a boat. Kekikogye was crying in the boat. The boat was about five metres from the shore. Kekikogye said:
“Kyakabale has raped me”. When Kyakabale (the accused) came out of the boat the witness tried to arrest him but he ran away to the bushes. In response to Cross examination the witness clarified that he arrived at the opposite shore at about 4.00pm. The accused was sent at about 4.05pm to take a boat and assist the person who was calling out. It takes 30 minutes to cross the lake. The accused and Kekikogye arrived at about 6.00pm.
In his unsworn statement the accused admitted that he took a boat to go and collect some one who had called out for assistance. It was Kekikogye. (PW1). He testified that when he and Kekikogye (PW1) reached the shore and Kekikogye (PW1) reached the shore on the opposite side there was a scuffle over the victim’s handbag. Kekikogye (PW1) shouted and Katete (PW2) and the victim’s husband came. He testified that Katete (PW2) is a brother- in- law of Kekokogye (PW1). Katete (PW2) started beating the accused with a stick. The accused saw the victim’s husband preparing to attack him. He (the accused) sensed danger and ran away.
The accused alleged that Kekikogye (PW1), her husband and Katete (PW2) looted everything in his bar. He went back to his home at Kiwoko and waited for police to come and arrest him. He was arrested by Kiiza (PW3) from his home.
The accused alleged that he had worked for Nsekerairwe Roving, the victim’s husband, cutting grass to roof a house. The agreed charges were shs.30,000/=. The accused completed the work but Nsekerairwe paid only shs.19,000/=. He never paid the balance of shs.11,000/-.
The accused told court that he started a bar business. Kekikogye (PW1) also had a bar. The accused’s bar attracted customers from the victim’s bar. Hence, a grudge developed.
The accused testified that in 2001 Nsekereirwe consumed waragi in his bar worth shs. 4000/=. Nsekerairwe failed to pay the money. As he rose up to go with a bottle the accused tried to stop him. Nsekerairwe hit the accused on the head with the a bottle. The case was entertained by the LC1 Court which ordered Nsekereirwe to pay shs.70,000/= to the accused as compensation, and shs.20,000/= to the LC1 committee. Nsekereirwe sold a cow to raise the money and he said. Hence a grudge developed between Nsekerairwe and the accused.
Learned counsel Mr.Twinomuhwezi for the state submitted that Kekikogye testified that she was raped by the accused. It was during day, after 4.00pm. The accused was well known to the victim. The sex act took almost an hour, and the victim had sufficient time to see the accused. After the sexual act kekikogye (PW1) was in the boat with the accused. When they reached the shore the victim immediately reported the incident to Katete William (PW2). The accused immediately ran away. Counsel invited court to make an inference that the accused ran away because of guilt. Learned counsel for the state pointed out that Katete William (PW2) corroborated the evidence of the victim.
The true test is whether the evidence of identification can be accepted as free from the possibility of error.
See: Uganda V. Kaweke Musoke (1981) HCB 12;
Uganda V.Petero Kikomeko (1975) HCB 180.
Even where there is more than one witness who claims to have stringent test applies.
See: G.W. Kalyesubula V. Uganda Criminal Appeal No. 16 of 1977 (CA).
In the instant case the defence does not appear to dispute the evidence of identification. The accused admitted that he took a boat and collected Kekikogye (PW1) and helped her to cross the lake. He admitted that when he and Kekikogye (PW1) reached the shore he ran away. He gave the reason that he had sensed danger that the victim’s husband was going to attack him. In my view the evidence of Kekikogye (PW1) and Katete William (PW2) placed the accused at the scene of crime at the material time. This was not denied by the accused.
In my view the accused’s stories of grudges between him and Nsekerairwe, the victim’s husband, do not in any way affect his identification by Kekikogye (PW1) and Katete (PW2).
I do not believe the accused’s story that he ran away at the landing site following a scuffle for a handbag with Kekikogye (PW1). In my view the accused ran away in response to the victim’s pronouncement that he had raped her. Apparently, from that time the accused kept away from the landing site at Buhanku.
The courts have held that corroboration for the Complainant’s evidence may be found in the conduct of the conduct of the accused immediately after the alleged offence, where that conduct is capable of implicating the accused.
See: Rumanial Ish werlal Purolit (1942) 9 EACA 58.
In my view evidence of the conduct of the accused person is incapable of explanation upon any other reasonable hypothesis than that of guilt of the accused person.
I find the evidence of Kekikogye (PW1) and Katete William (PW2) consistent and credible. In the circumstances I find that there could be no mistake in the identification of the accused by those prosecution witnesses. I therefore, find, as did the assessor, that the prosecution proved beyond reasonable doubt that it was the accused who, on 23rd May, 2001 at Buwanku landing site, did have unlawful Carnal knowledge of Kekikogye Kasalina (PW1), without her consent. I agree with the advice of the assessor to find the accused guilty of rape Contrary to Sections 117 and 118 of the Penal Code Act, and I do convict him accordingly.
MOSES MUKIIBI
JUDGE
12/2/2003.
12/2/2003 at 4.00pm.
Mr. Bakora Brian SA for State.
Mr. Innocent Ngobi on SB for accused.
Accused person is in Court.
Ngobi: Court Clerk/Interpreter.
Court: Judgment is delivered in open Court.
MOSES MUKIIBI
JUDGE
12/2/2003.
SENTENCE
Mr. Bakoora Brian SA:-
According to police records the accused is a first offender. However, the offence of Rape is serious. It carries a maximum sentence of death. The convict abused the trust which was bestowed in him by his village mates to go and assist the victim cross river. Instead of being a helper he became an attacker. He abused the modesty of an innocent woman. She will suffer a lifetime trauma. I invite court to give the convict a very severe punitive sentence as per the circumstances of the case.
Mr. Innocent Ngobi - on SB for the accused:- My mumble prayer is that this court be lenient while sentencing the accused. He is a first offender; he has been remorseful; he is a young man who is needed in society. I pray that he is given a custodial sentence so that he has a chance to reform. I pray that court considers the time the accused has spent on remand while sentencing him.
Accused’s Allocutus:-
I kindly beg Court to be sympathetic to me. I have nothing to do. In 1979 my brother was killed in liberation war. My farther has to look after the orphans. I had come to look for money to assist them. From the time I was arrested the people I was responsible for are now suffering. I only beg Court to do me a favour and give me a short sentence and consider my period on remand (599 days). I wish to go back and look after my people. I have never committed any other offence at my age. That is my request.
COURT:- SENTENCE AND REASONS FOR SENTENCE.
The accused/Convict is a first offender. He is becoming a middle aged man of 40 years. He has been on remand since 13/6/2001, for 1 year and nearly eight months. His Counsel has told court that he has been remorseful. She asked for leniency from court. The accused/convict himself told court that he has family responsibilities; he has relatives to look after. He asked for a short sentence. He confirmed that he is a first offender.
However, the offence of rape is a very serious one for which death is the maximum penalty. The circumstances under which the crime was committed must be considered in order to tailor sentence to the merits of the offender and offence. This kind of offence is abhorrent. The essence of the crime of rape is the injury and out rape to the modesty and feelings of the woman by means of sexual intercourse feloniously and forcefully effected.
In this case the accused and the victim were working at the same landing site. The accused very well knew the husband of the victim. He knew that he would continue to live and interact with the victim and her husband in the future. He did not care how traumatizing it would be to the victim. I consider the accused’s conduct a beastly display of his manhood. It was a very selfish way of satisfying his greed for sex. The accused/convict was real danger to the women and girls at the landing site who had to use a boat to cross the river. At the hands of the accused/convict the victim suffered a real threat of being tipped off into the river. She endured her misery silently until she had safely crossed the river. She suffered a lot of indignity. It is people like the accused/convict who should be kept away from society for some time.
The fore going not withstanding this court must make allowance for all the mitigating factors which have been shown to exist. The punishment in this case has been reduced in light of all the mitigating factors mentioned here in above. I have particularly taken into account the period which the accused/convict has spent on remand.
I, therefore, find a sentence of eight (8) years imprisonment commensurate with the offence which the accused/convict committed against Kekikogye Kasalina. I accordingly sentence him to eight (8) years imprisonment.
MOSES MUKIIBI
JUDGE
12/2/2003.
Right of Appeal within 14 days from today explained to the accused/convict.
MOSES MUKIIBI
JUDGE
12/2/2003
Sentence passed on 12/2/2003 at 5.10pm instantly in open Court.
MOSES MUKIIBI
JUDGE
12/2/2003.
12