Uganda v Mabike Athanasious (Criminal Session Case No. 065 of 2017) [2019] UGHCCRD 51 (21 March 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION CASE NO. 065 OF 2017 UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR                                                   VERSUS MABIKE ATHANASIOUS:::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED                         BEFORE: HON.JUSTICE EMMANUEL BAGUMA                                                   JUDGMENT Mabike Athanasious, the accused person was indicted with the offence of aggravated defilement contrary to Section 129 (3) and (4) (c) of the Penal Code Act. It was alleged that Mabike Athanansious between February 2016 and March 2016 at Bukibira village in Mpigi District being a teacher of Nakanwagi Catherine performed a sexual act with the said Nakanwagi Catherine a girl aged 14 years. The prosecution called four witnesses to prove its case while the accused gave sworn testimony and called no witnesses. 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 eighteen years; A sexual act was performed The offender is a parent or guardian of or a person in authority over, the person against whom the offence is committed The accused person was the one that participated in this performance of sexual intercourse. As far as the first ingredient of the offence is concerned, 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).  PW1 testified that she is 16 years old. The medical report indicated the approximate age of the victim to be 15 years on 25th August 2016. It is my conclusion therefore that the victim was below 18 years at the time the offence was committed. The first ingredient is therefore proved by prosecution beyond reasonable doubt. 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 who stated that the accused person got hold of her, touched her breast and pushed her down on the floor and had sexual intercourse with her. She stated that she was later found pregnant. The medical report, PX1 showed that the hymen was raptured but not of recent. I therefore find that ingredient two has also been proved by prosecution beyond reasonable doubt. The third ingredient to prove is whether the accused person was a parent or guardian of the victim or someone in authority over, the victim. It has been established above from the victim’s testimony that the accused person was her primary teacher. The accused person also admitted that he was a teacher to the victim in her primary school. This ingredient is also proved beyond reasonable doubt by the prosecution. Whether the accused person was responsible for the sexual intercourse? This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused 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 who testified that the accused person sent away other students in class and remained with her thereby forcing her to have sexual intercourse with him. She also stated that she got pregnant but the baby died at birth. PW2 the aunt testified that she noticed the victim was pregnant and when she asked her, she confirmed that it was true and the accused was responsible. PW3, also testified that she took the charge and caution statement of the accused person and that the accused admitted that he had sexual intercourse with the victim but denied the pregnancy. The accused on the other hand denied making that statement and stated that he was being forced to say things and he just signed. The charge and caution statement was tendered in court as Prosecution Exhibit, PX3. Note on the other hand that the accused person denied all allegations against him but admitted that the victim was his student. He also stated that he was forced to make the charge and caution statement. I do not find his evidence convincing and there is no way the victim could have spotted him out of the entire school for no reason. I find the victim’s testimony convincing and thus hold that prosecution has proved beyond reasonable doubt that the accused person performed the sexual act. In conclusion therefore, and contrary to the assessors’ opinion I find the accused person guilty and I convict him of the offence of aggravated defilement contrary to section 129 (3) and (4) (c). …………………………………….. Emmanuel Baguma   Judge. 19/03/19 Prosecutor: The aggravating factors: No previous criminal record.  However the victim was 15 years old and the accused was her teacher.  As a result of the intercourse she became pregnant but the child passed on.  The process of pregnancy was very traumatizing and later on losing the child this affected the student. The convict was her teacher.  This  affected the   that  she had  for  her teacher and the teacher with  his authority would have been a  role model  but  made  a victim a trap. The cases of aggravated defilement are rampant.  It is my submission that this court gives a tiff sentence to make accused reform and deter other intended defilers.  I so pray Defence: Mitigating factors The convict is a 1st offender as he has no previous record He is capable of reforming.  The convict has four children aged 3-12 years old.  He is the sole bread winner.  I pray that the court becomes lenient. The convict is a teacher.  I pray that given chance he will be remorseful to the society.  The victim was in court and she testified well without fear and she is now at school I pray for less sentence.  The victim looked happy. There was no violence during the act as the victim testified there was no violence used.  I pray for lenient sentence. I pray that the period spent on remand of two years and six months be deducted   and the convict be given 8 years. Prosecutor: I propose 10 years imprisonment. Court: Sentence for 21/3/2019 AFR. Emmanuel Baguma Judge 19/3/2019. 21/3/2019: Accused in Court m/s Nanziri holding brief for Kabahuma for state. Mr. Kumbuga on state brief. Mr. Tabula and Nakitto assessors. Sempijja court clerk. Prosecutor: For sentencing Defence: That is the position. Sentence and reasons: The accused is a first offender but still   showed no degree of remorse.  I have looked at aggravating and mitigating factors. The accused was a teacher to the victim. The accused is sentenced to 15 years and six months.  Since he has been on remand for two years and six months, I reduce the sentence to 13 years imprisonment. Emmanuel Baguma Judge 21/3/2019. Right of appeal within 14 days explained to the accused person. Emmanuel Baguma Judge 21/3/2019.

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