Uganda v Kakooza Mathias (Criminal Session Case No 140 of 2016) [2019] UGHCCRD 56 (19 March 2019)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION CASE NO 140 OF 2016 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR                                                 VERSUS KAKOOZA MATHIAS::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED                  BEFORE: HON. JUSTICE EMMANUEL BAGUMA                                                     JUDGMENT Kakooza Mathias, 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 Kakooza Mathias on the 15th day of April 2016 at Kyerima village in Butambala district performed a sexual act with Nanseera Madina aged 10 years (a girl under the age of 14 years). Prosecution called four witnesses while the defence had 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. Whether the victim was below 14 years? 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, PW1, the victim testified that she is 13 years, and was born on 4th January 2006. The medical report, Prosecution Exhibit, PX1 showed that the victim was between 9-12 years at the time she was examined on 18th April 2016. Counsel for the defence did not also contest this ingredient during cross-examination 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. Whether a sexual intercourse took place? 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 Nanseera Madinah who testified that on the 15th day of April 2016 at 2:00 pm she had gone to pick jackfruits with Nalunkuma Jazila and the accused found them in the garden. That the accused person sent Jazila for a panga, and when she went, he removed the victim’s clothes and had sex with her. 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, stated that she went with the victim to pick jackfruit when the accused sent her for a panga and she went leaving them behind. The medical report, Prosecution Exhibit, PX1 dated 18th April 2016 shows that there was no abnormality seen on the victim’s genitals and the hymen and perineum were intact. Drawing from the medical report’s evidence, I conclude that prosecution has failed to prove ingredient two 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 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. I observed that the prosecution witnesses were contradictory in their evidence and not consistent. PW1, the victim in cross examination testified that she had never seen the accused person before this case and that Nakibuule showed him to her at court. She also stated that when the accused person defiled her, she saw him properly but later on stated that may be if he had been put among many people, she would not be able to identify him. Such inconsistencies coupled with the fact that the medical report, Prosecution Exhibit, PX1 showed that the victim’s hymen and perineum were intact, draws my conclusion that prosecution has failed to prove the case of aggravated defilement beyond reasonable doubt. Therefore, contrary to the assessors’ opinion, I find the accused person not guilty and therefore acquit him of the offence of Aggravated defilement contrary to section 129 (3) and (4) (a) of the Penal Code Act. …………………………………….. Emmanuel Baguma   Judge. 19/03/19

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