Court of Appeal has reduced a 50-year jail term previously handed to three men who raped a nursing student in Ngora district to 30 years.
Justices; Catherine Bamugemereire, Christopher Gashirabake, and Oscar Kihika found that the 50-year jail term that was handed to Ben Omollo, Patrick Ecudo, and Gabriel Elomunait was excessive.
The three were on February 4, 2011, found guilty by the then High court judge Margaret Oumo Oguli and jailed for 50 years for raping a student of Jinja School of Nursing and Midwifery in 2010. Court heard that on the night of March 14, 2010, the student [A.S] was at a traditional marriage ceremony at Kaler village, Mukura sub-county in Ngora district.
She left her friends to ease herself and as she was in the process of answering nature's call, Omollo and Elomunait appeared from the shadows and stood over her. Records show that the student asked them to leave but they declined and watched her as she answered nature's call.
“She attempted to negotiate herself out of their trap, by offering them money but they declined the offer for money and insisted they had to have sex with her, even if it was against her will. She recalls that the appellants acted in concert with each other. One held her back while two pulled her down her pants. They raped her in turns with one saying he was eager to have sex with a girl from town," reads the evidence.
The documents add that “they also momentarily prevented her from returning to join the other guests at the ceremony and held her hostage, forcing her to join their 'malwa' or 'ajon', drinking joint. The victim was able to escape after over twenty minutes. She found her way back to the ceremony where she narrated the ordeal to her friends.”
Court heard that afterwards, the victim reported the matter to the police, and the accused persons were arrested, and charged. They denied the charges and were tried, and found guilty before being sentenced. Dissatisfied with the conviction and sentence, they appealed on grounds that the trial judge erred in law and fact when she relied on the improperly conducted identification parade leading to a miscarriage of justice.
They also faulted justice Oumo for having erred in law and fact when she relied on hearsay evidence and went ahead to sentence them to 50 years which they said was excessive and irregular. In their judgement, the Court of Appeal ruled that the convicts were properly identified at the police parade.
“Be that as it may, there is still overwhelming evidence to prove that the appellants raped PW1/A.S. The testimony of PW1, the medical report, the testimony of PW2 that PW1 informed her immediately after the rape about who and where the rape was done and her being visibly distressed is still sufficient to prove that the appellants raped PW1," reads the judgment.
The justices also ruled that the High court judge did not take into consideration the fact that the appellants were first-time offenders who were young and had a chance to reform and return to society.
"A3. (Gabriel) is already condemned to living with HIV given the conditions in prison. All three are first offenders. The trial judge remarked that the appellants had condemned the victim AS and themselves to death when they had exposed her and other persons to HIV/Aids. The prosecution did not, however, adduce evidence to show that AG had indeed contracted HIV/Aids'. We find the punishment meted out on the appellants excessive and harsh," reads the judgement.
They also deducted the duration of 11 months and two weeks they had spent on remand prior to the conviction and sentencing twelve years ago.