Uganda v Alifunsi (Criminal Session 66 of 2022) [2024] UGHC 482 (28 March 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

HCT-01-CR-SC-0066 OF 2022

UGANDA================================================PROSECUTOR

VERSUS

ALIFUNSI JERRY=============================================ACCUSED

BEFORE: JUSTICE DAVID S.L. MAKUMBI

JUDGMENT

INDICTMENT AND CASE BACKGROUND:

The Accused Alifunsi Jerry was indicted for Aggravated Defilement contrary to Section 129(3) and 129(4)(a) of the Penal Code Act.

It was alleged that on the 22^nd day of April 2021 at Rwengoma Cell in Fort Portal Tourism City, Alifunsi Jerry alias Bidco performed an unlawful sexual act with Nakitende Teopista, a girl below the age of 14 years, that is, 13 years.

The Prosecution case in brief is that on 22^nd day of April 2021, the Accused asked the Victim to accompany him to his residence at 7.30PM where she spent the whole night. The Victim subsequently returned to her home on 23^rd April 2021 and upon her mother learning what had transpired the matter was reported to the police and was arrested. The Victim was medically examined and it was determined that her hymen had been ruptured.

BURDEN AND STANDARD OF PROOF:

According to the time-honoured case of Woolmington v DPP (1935) AC 462, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

The Standard of Proof in criminal trials is proof beyond reasonable doubt and is met when all the essential ingredients of the offence are proved beyond reasonable doubt. The locus classicus in this regard is the case of Miller v Minister of Pensions (1947) 2 All ER 372 wherein Lord Denning stated at Pages 373-374 that,

“The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice.”

The legal standard in the determination of whether or not the burden and standard of proof has been properly met will be done in accordance with the Supreme Court decision in Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991 where it was held that,

“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”

ISSUES ARISING:

The issues in this matter are based upon the ingredients of the offence of Aggravated Defilement contrary to Section 129(3) and 129(4)(a) of the Penal Code Act.

The ingredients of the offence specified in the Indictment are as follows:

1. A Victim below the age of 14 years of age.

2. A sexual act performed on the Victim.

3. The participation of the Accused in the sexual act.

DETERMINATION OF ISSUES:

1. Whether the victim was below the age of 14 years old:

The Prosecution tendered in evidence of a Medical Examination Form PF3A which Court marked as PE 2. The age of the Victim indicated therein was 13 years old.

The Prosecution further tendered in evidence of a Baptism Certificate No. 3716 from St Charles Lwanga Church dated 28^th December 2008 stating the date of birth of the Victim as 22^nd December 2007. The Certificate was entered in evidence as PE 3.

The combination of the two documents placed the age of the victim at the time of the alleged offence as just below 14 years.

This issue is therefore resolved in the affirmative.

2. Whether a sexual act was performed on the victim:

Section 129(7) of the Penal Code Act defines a sexual act as penetration of the vagina, mouth or anus however slight, of any person by a sexual organ which organ means a vagina or penis.

In terms of proving a sexual act the Supreme Court held in the case of Hussein Bassita v Uganda – Criminal Appeal No 35 of 1995 that,

“The act of sexual intercourse of penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence.”

The Prosecution placed reliance upon PW1 the Victim and PW3 Komuhendo Teopista the mother to the Victim and the Medical Examination Report PE 2.

PW1 testified that she had spent the night of 22^nd April 2021 at the Accused’s home and that she had had sexual intercourse with him once and that it had been her first time to go to his house. Upon cross-examination, she repeated that she had had sex with the Accused once and that she had had intercourse with two other persons before the Accused.

PW3 stated that her daughter had been away the whole night of 22^nd April 2021 and had returned at 8AM the following day. She further testified that her daughter had informed Kagote Police that she had been to the Accused’s home and had sex with him.

PW2 Jackson Mugarura, a retired Medical Clinical Officer testified that he had examined the Victim and found that the rupture of her hymen took place about five to seven days earlier. He documented his findings in Police Form 3A entered in evidence as PE 2.

The combined evidence from the Victim alongside the medical evidence proves beyond reasonable doubt that a sexual act was performed on the victim.

This issue is therefore resolved in the affirmative.

3. Whether the Accused participated in the Sexual Act on the Victim:

With regard to the participation of the Accused, the evidence here can be either circumstantial or direct.

The Prosecution argued that both the Victim and her mother PW3 knew the Accused. The Prosecution further argued that the fact that the Victim had two other sexual encounters prior to the Accused did not remove his responsibility.

Counsel for the Defence argued that Court should not rely on the direct evidence of the Victim because whereas she claimed that she had been defiled around Kisenyi in Fort Portal City she could not recollect where exactly the incident had taken place.

Counsel for the Defence further argued that the Accused’s residence was never visited for investigative purposes and that the Victim had never actually told the police where she was allegedly defiled.

When PW1 testified before Court, she testified under cross-examination that she could not recall exactly where the Accused’s house was in Kisenyi. For his part, the Accused testified that he was resident in Kitumba and denied ever taking her to his residence. He testified that he knew her from having seen her at Kabundeire Market where she would vend fruits with her mother. He further stated on cross-examination that he found a prepared statement at police indicating that he was resident in Rwengoma.

PW4 D/IP Murungi Elizabeth testified that she was the investigating officer in the matter. She testified that she had not visited the scene with the Accused as she was fearful for his safety and that she had only recorded his statement and received the Victim’s Baptism Card. She testified that she had received the file from Kagote Police who had arrested the Accused.

Upon cross-examination, PW4 admitted that it was an error not to have visited the scene of the crime. PW4 further stated under cross-examination that the Victim had told her that the Accused was resident in Rwengoma. She also testified that he was arrested at his place of work at a garage at Kabundeire Market.

The Accused testified in his own defence and stated under oath that he did not reside in Kisenyi or Rwengoma and denied having spent the night with her.

The evidence of the participation of the Accused in the sexual act against the Victim is also dependent on the same standard as cited in the Bassita case as cited above and requires the evidence of the Victim. However, it has also long been held by the defunct East African Court of Appeal with regard to sexual offences that,

“The judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the complainant, but having done so, he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no warning is given, then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.” (Chila v R [1967] EA 722)

In this matter, the following is clearly apparent from the evidence.

1. There is the evidence of the Victim PW1 who testified that she had sex with the Accused. She also testified to being sexually involved with two other persons prior to the Accused. Furthermore, she could not recall exactly where the Accused resided and testified that it was in Kisenyi.

2. There is the evidence of PW2 the Medical Clinical Officer who testified that he had examined the victim on 24^th April 2021 and documented his findings in Police Form 3A. PF 3A was entered into evidence as PE 2 and according to the report it was found that “Hymen was ruptured long ago (above 5-7 days)”.

3. PW4 the investigating officer admitted to not having been to the Accused’s residence and had recorded his residence as Rwengoma.

From the above, it becomes clear that the medical evidence only established that the Victim is sexually active. The evidence that the rupture of the Victim’s hymen took place about a week earlier than the time of the offence does not rule out the Accused but for the same reason it is impossible to rely upon it to determine the Accused’s responsibility. This is because the only thing the medical report can reliably establish is that the rupturing of the Victim’s hymen happened earlier than the time of the alleged defilement. The medical evidence does not point to the Accused in terms of timeframe.

This therefore leaves only the word of the Victim as the direct evidence linking the Accused to the offence. However, this evidence is also unreliable, as the Victim appeared not to know where the Accused resided exactly. She testified that he stayed in Kisenyi but did not know exactly where.

PW4 the investigating officer then testified that the Victim had said he stayed in Rwengoma and that she had not been to the Accused’s home. Finally, the Accused himself testified that he did not stay in Kisenyi but rather in Kitumba.

The inconsistency evident in the testimony of the Victim with what she told police concerning where the Accused resided is a major inconsistency that calls into question the rest of her testimony.

In the case of No. 0875 Pte Wepukhulu Nyuguli v Uganda (2002) UGSC 14 the Supreme Court in reference to the defunct EACA case Alfred Tajar v Uganda – Criminal Appeal No. 167 of 1969 held that,

“It is trite law that minor inconsistencies, unless they point to deliberate untruthfulness of the part of the prosecution witness, should be ignored and that major ones which go to the root of the case, should be resolved in favour of the accused.”

Furthermore, in the case of Sarapio Tinkamalirwe v Uganda – Criminal Appeal No. 27 of 1989 the Supreme Court held that,

“It is not every inconsistency that will result in a witness testimony being rejected. It is only a grave inconsistency, unless satisfactorily explained, which will usually, but not necessarily result in the evidence of a witness being rejected. Minor inconsistencies will not usually have the effect unless the Court thinks they point to deliberate untruthfulness.”

The inconsistencies concerning where the Accused resided at the time of the offence are major in as much as they go to the root of establishing the participation of the Accused in the crime. Indeed as PW4 the Investigating Officer admitted, this was not just an error on her part, it was a grave error because without reliable confirmation of where the offence took place, there is no way to draw a conclusion about the participation of the Accused.

By PW1’s own testimony, she had been sexually involved with at least two other persons prior to the Accused. The medical evidence shows that her hymen had been ruptured almost a week before the alleged offence. When these two aspects are considered side by side they cast considerable doubt about the Accused’s participation in the offence. The only way this doubt could have been resolved beyond reasonable doubt would have been to establish the location of the scene of the crime and place the Accused at the scene whether by the Victim’s own testimony, other witnesses or other forensic evidence secured from the scene.

PW4’s excuse about being concerned about the safety of the suspect is not sufficient reason for failing to visit the scene of crime. She ought to have arranged for sufficient reinforcements to enable her to visit and secure the scene in order to confirm whether the location was consistent with the Victim’s statement to police.

This case is in my view an example of how not to investigate a criminal case because the casual approach taken in the investigation left far too much room for doubt which doubt obviously has to be resolved in favour of the Accused.

Apart from the inconsistency going to the root of the case, it is also evident that the Victim’s testimony bears an element of untruthfulness. This is because whereas she stated in Court that the Accused resided in Kisenyi in Fort Portal City, PW4 testified that she had told police that he stayed in Rwengoma. The Prosecution never reconciled this inconsistency most likely because there was deliberate untruthfulness on the part of PW1.

It is therefore my finding that the inconsistencies in the testimony of PW1 and that of PW4 concerning the location of the scene of crime are grave inconsistencies and point toward untruthfulness of the Victim. Considering that the burden of proving the Accused’s guilt always rests on the Prosecution this Court is of the view that the available evidence does not resolve the participation of the Accused beyond reasonable doubt.

This issue is accordingly resolved in the negative.

CONCLUSION:

In light of all the evidence brought before this Court I agree with the Assessors and I do hereby acquit the Accused Alifunsi Jerry of the offence of Aggravated Defilement contrary to Section 129(3) and 129(4)(a) of the Penal Code Act and accordingly release him unless he has other pending charges.

David S.L. Makumbi

JUDGE

28/03/24