Uganda v Ainomugisha Matson (Criminal Session Case No.28 of 2018) [2019] UGHCCRD 456 (21 June 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION CASE NO.28 OF 2018 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR                                                VERSUS AINOMUGISHA MASTON   ::::::::::::::::::::::::::::::::::::::::: ACCUSED/OFFENDER (A juvenile)               BEFORE: HON. JUSTICE EMMANUEL BAGUMA                                                JUDGMENT Ainomugisha Maston, the juvenile offender was indicted with the offence of aggravated defilement contrary to Section 129 (3) and (4) (a) of the Penal Code Act. It was alleged that Ainomugisha Maston at an unknown date in the month of December 2016 at Watoto Nakirebe village in Mpigi district performed a sexual act with Namutebi Gift a girl aged 10 years (below the age of 14 years). The prosecution called four witnesses who gave sworn testimonies while the juvenile offender called no witness and decided to keep quiet. The prosecution has the burden of proving the case against the juvenile offender beyond reasonable doubt. The burden does not shift and the juvenile offender can only be convicted on the strength of the prosecution case and not because of any weaknesses in his defence, (See Ssekitoleko v. Uganda [1967] EA 531). Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372). For the juvenile offender to be convicted of Aggravated Defilement, the prosecution must prove each of the following essential ingredients beyond reasonable doubt; The victim was below 14 years of age A sexual act was performed on the victim That it is the accused person who performed the sexual act on the victim. First, the prosecution is required to prove beyond reasonable doubt that the victim was below 14 years of age. In the instant case, the victim and her mother testified that the victim was born on 12th February 2006. PW2 presented the victim’s birth certificate which proved that the victim was born on that date. The defence did not contest this ingredient during cross-examination of the witnesses. I have considered the evidence and find that prosecution has proved beyond reasonable doubt that the victim, Namutebi Gift was below 14 years by the time the incident took place in 2016. The next ingredient requires proof that a sexual act was performed on the victim. One of the definitions of a sexual act under Section 197 of the Penal Code Act is penetration of the vagina, however slight, of any person by a sexual organ. This ingredient is ordinarily proved by the direct evidence of the victim, but may also be proved by circumstantial and medical evidence. (See Remigious Kiwanuka v. Uganda; S. C. Crim. Appeal No. 41 of 1995 (Unreported). In the instant case, the prosecution relied on the testimony of P.W.1, the victim who testified that the juvenile offender found her sleeping alone in the bedroom while other children had left and he forced her to have sex with him. PW4 the medical practitioner testified that he examined the victim and found that her hymen was raptured and the cause was penetration of sexual intercourse. In the admitted evidence of the medical form, Prosecution Exhibit 1, (PEX1), dated 20th December 2016, it was indicated that the victim had no hymen and had lacerations in the vulva caused by penetrative sexual intercourse. I therefore find that prosecution has proved beyond reasonable doubt that a sexual act was performed on the victim. Finally, prosecution has to prove that it was the juvenile offender who performed the sexual act on the victim. This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the juvenile offender at the scene of crime.  The law on proof of sexual intercourse was stated by the Supreme Court in Basita Hussein Vs Uganda S.C. CRIM.APPEAL No. 35 of 1995 as follows; - “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. Though desirable it is not a hard and first rule that the victim’s evidence and medical evidence must always be addressed in every case of defilement of proof of sexual intercourse or penetration.  Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt” Prosecution relied on the direct evidence of the victim, Namutebi Gift who testified that the juvenile offender found her sleeping alone in the room in the morning and forced her to have sex with him. PW2 testified that they were 8 children living in that house including the victim and the juvenile offender.  She stated that the victim told her that the juvenile offender had defiled her. PW3 the mother to the victim also testified that she was living with 8 children in her watoto house including the juvenile offender and the victim. I find that the factors favouring identification were proper given that it was in the morning, the victim, PW1 knew the juvenile offender and they were staying together thus there couldn’t be any mistaken identity. The evidence of PW2 and PW3 who also knew the juvenile offender and were staying with him also sufficed in this case. I am alive to the fact that the juvenile offender has no burden to prove anything, and in this case, the juvenile offender chose to keep quiet thereby denying court the opportunity to hear his side of the story. That notwithstanding, I find that prosecution has put up a strong case by being consistent and I am therefore inclined to hold that prosecution has also proved the third ingredient beyond reasonable doubt. In conclusion, I find that prosecution has proved all the essential ingredients of the offence of aggravated defilement beyond reasonable doubt contrary to the assessors’ opinion. I hereby convict the juvenile offender of Aggravated Defilement C/S 129 (3) and (4) (a) of the Penal Code Act. …………………………………………. Emmanuel Baguma Judge 14/06/19 Prosecutor: Aggravating factors: The offender has no previous criminal record.  However, the convict defiled the victim whom they were staying together as brothers and sisters.  I pray for stiff sentence.  The juvenile offender abusing that relationship.  I pray for a stiff sentence, the maximum sentence is thee years imprisonment.  I pray for one year imprisonment.   Defence  Mitigating factors: The Juvenile is still young 18 years and likely to reform the juvenile  had  been on remand  for one month i.e.  for 30/12/2016 to 31/01/2017. The juvenile has been reporting since the time he was given bond.  I pray that the juvenile offender be given community service.  The juvenile is a student at Watoto in S.I h is now 18 years I so pray   Court: Sentence for 18/6/2019 let the accused who is now 18 years be remanded at Mpigi Prison.   Emmanuel Baguma Judge 14/6/2019.   21/6/2019: Accused /offender in court M/s Twesiime for state Mr. Namazzi   holding brief for Advocate for offender Najjemba and Nakitto Assessors Sempijja Court clerk Prosecutor: For sentence. Defence: That is the position   Assessors: True for sentence.   Court: Sentence is ready Reasons and sentence: I have considered both the Aggravating and mitigating factors for both sides. I have also considered the nature of the offence and circumstances under which the offence was committed.  I considered the age of the juvenile offender at the time the offence was committed and the age of the victim.  It is my considered view that the Juvenile offender will reform given a chance.  He is a student as per the mitigating factors.   Sentence: Juvenile offender is hereby sentenced to a caution under section 94 (1) (b) of the Children’s Act   Emmanuel Baguma Judge 21/6/2019.

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