Uganda v Kakooza Ronald (Criminal Session Case No. 33 of 2017) [2019] UGHCCRD 48 (21 March 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION CASE NO 33 OF 2017 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR                                                     VERSUS KAKOOZA RONALD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED                     BEFORE: HON. JUSTICE EMMANUEL BAGUMA                                                     JUDGMENT Kakooza Ronald, the accused person was indicted with the offence of aggravated defilement contrary to Section 129 (3) and (4) (a) and (c) of the Penal Code Act. It was alleged that Kakooza Ronald at an unknown date in the month of July 2016 at Makungu village in Mpigi district performed a sexual act with Nabuuma Sharifah a girl aged 12 years (under the age of 14 years and being her guardian. Prosecution called four witnesses while the defence called one witness the accused person. It is trite law that the accused person 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:- the person against whom the offence is committed is below the age of fourteen years; Sexual intercourse took place. The accused person was the one that participated in this performance of the sexual intercourse. The accused person was a parent, guardian or person in authority to the victim. First, the prosecution is required to prove beyond reasonable doubt that the victim was below 14 years of age. The most reliable way of proving the age of a child is by the production of her birth certificate, followed by the testimony of the parents. It has however been held that other ways of proving the age of a child can be equally conclusive such as the court’s own observation and common sense assessment of the age of the child.(See Uganda v. Kagoro Godfrey H.C. Crim. Session Case No. 141 of 2002).  In the instant case, the victim testified that she is 15 years old, meaning she was 12 years old at the time the offence was committed. Counsel for the defence did not also contest this ingredient during cross-examination of any of the witnesses. I find that it has been proved beyond reasonable doubt that the victim, was below 14 years by the time the incident took place. The second 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, Cap 120 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, Nabuuma Sharifah who testified that in the month of July 2016, while she was sleeping at around 9:00 pm, she found the accused on top of her having sex with her. That when she tried to resist the accused person threatened to kill her and also warned her not to inform her mother. That she saw blood coming from her private parts and was feeling pain that she could not close her legs. 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). PW2, Nakanabi Bridget, a friend to the victim testified that when they removed their knickers in the dormitory, she sensed a bad smell from the victim’s private parts. The medical report, Prosecution Exhibit, PX1 shows that the victim’s genitals were oozing with pus, a foul smell and no hymen, she also had some small wounds on the labia and groin. The probable cause was sexual assault. Basing on the above evidence, I find that prosecution has proved the second ingredient beyond reasonable doubt. Whether the accused person was responsible for the sexual intercourse? This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused person at the scene of crime.  In view of the authorities of Badru Mwidu vs Uganda (l994 – l995) HCB 11 and Bassitta Hussein vs Uganda S.C.C.A No. 35 of l999, 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. Prosecution relied on the direct evidence of the victim, PW1 who testified that the accused person was her stepfather and that they were staying together in one room but different beds. PW4, testified that she visited the scene of crime and discovered that the accused had one small room where they used to stay with the victim with the beds separated by a curtain. The accused person on the other hand denied staying with the victim and stated that she used to live in a separate room, with her sister in law. However, the victim was consistent and I find no doubt in her testimony. I therefore hold that prosecution has proved the third ingredient beyond reasonable doubt. Whether the accused person was a parent, guardian or someone in authority over the victim? I shall refer to the victim’s testimony that the accused person was her step-father. The accused person did not deny this fact as he testified that the victim was a daughter to his wife. I therefore find that this ingredient has also been proved by prosecution beyond reasonable doubt. In conclusion, I find that prosecution has proved all the essential ingredients of the offence of aggravated defilement against Kakooza Ronald, beyond reasonable doubt and in agreement with the assessors, I hereby convict the accused person, for the offence of Aggravated defilement contrary to section 129 (3) and 4 (a) and (c) of the Penal code Act.   …………………………………….. Emmanuel Baguma   Judge. 19/03/19   Prosecutor: The aggravating factors: The accused has no previous criminal record.  The victim was 12 years of age at the time. The medical report shows that her sexual organs were injured; there was pus and bad smell.  The accused was a step-father to the victim.  I pray   for stiff sentence.  He should have acted as a father but acted contrary.  In the view of the above I pray for 10 years imprisonment. Defence:  Mitigating factors The accused has no previous record; he is a first offender with a family with one wife and two children.  I pray that the accused who is 26 years old will reform and be useful in society. I pray that court be lenient.  The accused has been on remand for two years and  seven months.  I pray for seven (7) years imprisonment.  I so pray. Court: Sentence on 21/3/2019. AFR. Emmanuel Baguma Judge. 19/3/2019.   21/3/2019: Accused in court M/s Nanziri Charlotte holding brief for   Kabahuma Lucy  for state Mr. Kumbuga on state brief M. Tabula and Nakitto assessors. Sempijja court clerk. Prosecutor: For sentencing Defence: That is the position Sentence and reasons: The accused is the first offender but still hardened no degree of remorse.  I have looked at the aggravating and mitigating factors.  The accused was a guardian to the victim.  The accused is sentenced to 15 years and seven months imprisonment.   Since the accused has been on remand for 2 (Two) years and seven (7) months, I reduce the sentence to 13 years imprisonment. Emmanuel Baguma Judge 21/3/2019 Right  of Appeal  within 14 days explained. Emmanuel Baguma Judge 21/3/2019.

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