THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

CRIMINAL CASE NO. 6 OF 2011

UGANDA V ERISA PAUL

JUDGMENT BEFORE HON. LADY JUSTICE HENRIETTA WOLAYO

The accused person is charged with rape c/s 123 of the penal code.  It is alleged that the accused person o the 9^th October 2010 at Keolu village in Kaberamaido district had carnal knowledge of Arego Harriet without her consent. Ingredients of the offence are the unlawful carnal knowledge of a woman without her consent or if the consent is procured by force, intimidation or false representation.

The burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt.

 Prosecution was led by Mr. Jonathan Okello State Attorney and accused was represented by Mr. Tiyo and Mr. Esauro on state brief.  The assessors were Mr. Operomo and Ms Amaso.

The issue to be determined is whether the accused person had carnal knowledge of  PW1 Arego without her consent.

With regard to the ingredient of carnal knowledge.  The evidence of the victim Arego PW1 shows that on the night of 9^th October 2010, at about 10 p.m, someone broke her door, entered the house while flashing a torch. She observed that the person had covered his face with a book and was wearing a red shirt. This person went for her neck which he squeezed. He then proceeded to have carnal knowledge of the witness then left.  This evidence coupled with medical evidence on PF3 that there was penetration is sufficient proof that sexual intercourse did take place.

The next issue is whether there was no consent to the sexual activity.  PW1 Arego reported to her father in law Abalo immediately after the sexual encounter. She suffered injuries on both elbows and tears on the vaginal walls as indicated in PF3.  The person went for her neck which he squeezed. I am satisfied that there was no consent for the sexual acts.

This brings me to determine whether it is the accused who raped the victim.  Although PW1 Arego did not recognize the accused at the time, she saw him in a red shirt.   On the day after the rape, the witness together with LCI Chairman and other people tracked the footsteps of the culprit that led them to the home of accused person. At the home of the accused, the witness saw the red t-shirt worn by the accused during the assault. It was moist when she saw it in the morning on the roof of accused person’s house.  In cross examination, the witness confirmed she only saw one set of footprints and the tracking started very early at 7 am. The foot prints were visible as it had rained the previous night according to the witness.  The accused person was not at home, neither was his wife but tracking group found his mother and brother Eromu Yusuf in the homestead in their own houses.  PW1 Arego was firm that she used to see accused in the red T-shirt, that was not exhibited in court.

PW1’s evidence on the tracking of foot prints was supported by PW2 Ewulu Charles LC1 defense secretary who said he participated in the tracking of footprints of the assailant in the morning of 9^th October 2010, that led the group to the home of accused person. He also saw a red t-shirt dripping from inside the hut of accused person.  The mix up in the date when the tracking took place is a minor inconsistency that does not detract from the evidence that footprints of assailant were tracked to the home of the accused person.

PW3 Epongu Julius, husband to PW1 Arego was not at home when the rape took place as he was at a drinking party. He saw accused at the party during the day of 9.10.2010 and he was wearing a red t-shirt. PW3 also participated in the tracking of foot prints of the assailant and he too said the same ended at the house of accused person.

There is also evidence of prosecution witnesses that accused person was arrested in December 2010. The accused person gave sworn evidence in which he testified that he was in hospital on the night of 9^th October 2010 attending to their sick child with his wife. DW2 Acen Jennifer supported her husband that the was in hospital at the time o of rape on PW1 Arego.

Having  reviewed the evidence, I am satisfied that  accused person was placed at the scene by circumstantial evidence of the foot prints that were tracked to his home, the  red t-shirt found dripping  in his house notwithstanding it was not exhibited.

With regard to the arrest of the accused person long after the sexual attack on PW1, I refrain to make a finding of being in hiding as the arresting officer did not testify to confirm date of arrest.  

I disbelieve the testimony of defense witnesses that accused was in hospital at the time of the offence and I reaffirm that the prosecution has proved its case beyond reasonable doubt. 

As the assessors also agree that accused is the assailant who raped PW1 Arego, the accused person is convicted as charged.

DATED AT SOROTI THIS 30^th DAY OF OCTOBER 2013.

HON. LADY JUSTICE H. WOLAYO