I agree with both learned counsel that PW.1 was the only eye witness of what
happened at the material time. She told court that she was sexually assaulted by
the accused. The accused and another had forcible sexual intercourse with her.
The offence took place before dark. PW.1 was on her way when she met the
accused, Yobu and Eseuna. The accused asked her for sex. She refused thereafter
both accused and Yobu wrestled her and had forceful sex with her one by one.
While the accused had sex with PW.1, Yobu held the complainant to prevent
resistance. He closed her mouth so that she could not raise an alarm. Yobu also
had sex with the complainant after the accused. The two ran away on hearing an
oncoming motorcycle. PW.1 narrated the ordeal to PW.2 and PW.3 at the
roadside.
I was satisfied with the consistent evidence of the complainant. She told the truth.
Just as I cautioned assessors on the need to find other evidence to support evidence
of a single identifying witness, I caution myself as well. PW.1 was familiar with
the assailants. The accused was an acquaintance. She usually saw him in the
village. She was travelling during day. The accused and others at large helped her
lift a sack of maize she was carrying. Thereafter they moved together and talked to
each other. The accused demanded for sex. PW.1 refused. Force ensued. In my
view this was sufficient time for PW.1 to have confirmed the identity of the
accused.
Although the other prosecution witnesses said the victim did not tell them the
names, I was convicted by her testimony that she revealed the names of her
assailant. The time lag between when the accused met the victim and the time the
offence took place was long enough for her to have identified the accused. In the
case of Abdulla Bin Wendo & Anor. V. R (1953) 20 EACA 186 it was held that:
“the testimony of a single witness regarding identification
must be tested with the greatest care. The need for caution
is even greater where it is known that conditions favouring
correct identification were difficult. What is needed before
convicting is other evidence pointing to the guilt of the
accused.”
The evidence of PW.1 was sufficiently corroborated by that of PW.2 who found
her narrating what befell her to PW.4 Opolot Stephen. The complainant was in a
distressful condition. She was crying.In sexual offences, the distressful condition
of the victim amounts to sufficient corroboration. The admitted charge and caution
statement (Exhibit P.2) corroborates the prosecution evidence by PW.1, PW.2 and
PW.4. I have weighed the veracity of Exhibit P.2 with the entire prosecution
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