Uganda v Kivanvali Jamalu (Criminal Session No. 008 of 2017) [2019] UGHCCRD 47 (4 March 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION NO. 008 OF 2017 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION                                                       VERSUS KIVANVALI JAMALU::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED            BEFORE: HON.JUSTICE EMMANUEL BAGUMA                                                           JUDGMENT Kivanvali Jamalu, the accused person 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 Kivanvali Jamalu on an unknown date in the month of May 2016 at Ntanda Junior school, Kyerima village, Bulo sub-county in Butambala district performed a sexual act with Namaganda Racheal Blessing aged 7 years(below the age of 14 years). The prosecution called three witnesses to prove its case while the accused gave sworn testimony and called no witnesses. The prosecution evidence was that sometime in May 2016, the accused found the victim at school playing, took her to his house and defiled her. The accused on the other hand denied committing the offence and claimed that he used to see the victim at school where he was a security guard and only knew the victim by one name, Racheal. It is trite law that the accused does not bear the burden to prove his innocence.  The burden is upon the prosecution to prove the guilt of an accused person beyond reasonable doubt.  It is also the law that an accused person should not be convicted on the weakness of his defence but should only be convicted on the strength of the case as proved by the prosecution.  (See Uganda vs Dick Ojok l992 – l993) HCB 54. In a case of aggravated defilement such as this one where the accused denies the charge, the burden is upon the prosecution to prove all the ingredients of the indictment.  The ingredients are:- That the victim was below 14 years of age. That the victim was subjected to sexual intercourse. That it was the accused who was responsible for the sexual intercourse. As far as the first ingredient of the offence was concerned, the prosecution relied on the testimony of the victim where she stated that she was 9 years old, the mother, PW2 also confirmed that the victim is 9 years old which means in 2016 she was 7 years old, which was also confirmed by the medical report, PX1.This age was not contested by defence counsel. It is in the circumstances, the finding and holding of this court that the prosecution has proved the first ingredient of the offence beyond reasonable doubt.  The victim Namaganda Racheal was below 14 years of age.  I now turn to the ingredient as to whether the victim, Namaganda Racheal was subjected to unlawful sexual intercourse. The prosecution relied on the evidence of the victim who testified as PW1. She testified that the accused was a guard at her former school and that he found the victim at school playing and took her to his house, asked her to lie down on his bed and showed her pictures on his phone with white people naked. He asked the victim to open her legs and never to reveal what had happened. He slept on her and that she then saw blood and pus coming out of her.  The law on proof of sexual offences has been discussed in leading criminal cases, such as In Bassitta Hussein v Uganda Supreme Court Criminal Appeal No. 35 of l999,   where it was held as follows:-  “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…” In this regard, I will also consider the medical evidence on record, Px1, the medical examination of Namaganda Racheal on 26th July 2016 which states that there were no injuries nor infections found, the hymen and introitus were intact. In the circumstances, I do not think that this medical evidence corroborated the evidence of PW1 as discussed above, everything appeared normal. The other evidence is that of the mother, PW2 but it cannot be fully relied on since it is hearsay and in my opinion, is rather weak. PW2 the mother stated that her daughter narrated to her what had happened during holidays in May 2016. She also testified that in March she visited the victim with her father and noticed that she was not walking well and not eating well. However, the mother did not bother to find out why her daughter was not walking well and being a mother, this would be expected of her. Further in cross examination, her evidence was discredited by the defence where she stated that she did not tell police during her statement that the accused urinated in the victim, that the victim was shown a video of white people naked on the accused’s phone and that she took the victim to her grandmother. I shall also consider the fact that the victim stated that she was playing at school when the accused took her to his house. Evidence of other children she was playing with would suffice in this case to corroborate her story but none was called. Further when she testified in court that she informed some of her friends about the incident, at least prosecution should have presented some or one of these friends that she informed. I will also consider the evidence of PW3 where he stated that he never took down the statement of the victim and that he signed the sketch plan and put his signature and date but in cross examination, he stated that the sketch plan has no signature and date. In the circumstances, I find that the second ingredient has not been proved by the prosecution beyond reasonable doubt. The last ingredient is whether it was the accused who was responsible for the unlawful sexual intercourse? In view of the authorities of Bassitta Hussein vs Uganda (Supreme Court), quoted herein above, I can authoritatively state that it is now trite law that the victim’s evidence is very vital in proving the act of sexual intercourse and the identification of the Assailant. However as this is a sexual offence, the victim’s sworn evidence requires corroboration as a matter of practice. (see Lwanga Yusuf vs Uganda (l977) HCB280), and this is more so when considering that this was evidence of a child of tender years, being of the age or apparent age, of less than 14 years.  That, position was equally emphasized in Kibangeny Arap Kolil v Republic (l959) E.A. 92 In the present case, and in view of what I have discussed above, I find that the corroborative evidence does not suffice as the medical report stated that the hymen was intact and evidence of other witnesses, that is; PW2 and PW3 were not so substantial to the case. Although the accused did not give a much convincing story to his innocence, basing on the fact that he stated that he had ever seen the victim at school where he was a security guard and that he was last at the school in May 2016 and was arrested in July 2016, he cannot be convicted upon the weakness of his defence, but the strength of the prosecution case. I do not find in this case that the prosecution case was strong enough to pin the accused to the committal of the offence of aggravated defilement. I also find that the prosecution has not proved ingredient three beyond reasonable doubt. Having found and held that the prosecution has not proved the two ingredients beyond reasonable doubt, I find the accused, Kivanjalu Jamalu not guilty contrary to the assessor’s opinion, who had advised court to convict the accused. Accused is accordingly acquitted. ……………………………………………. Emmanuel Baguma Judge 4/3/19

▲ To the top