The learned Counsel submitted, therefore, that there is doubt about the age of the complainant which doubt should have been resolved
in favour of the appellant by the learned trial Judge. He submitted that this issue should have been properly resolved if the parents
of the victim testified about her age. Her uncle, PW4, was not sure about her age either; he simply said that the complainant was
under eighteen years old without evidence to that effect. In the premises, learned Counsel submitted that it couldn’t be said
with certainty, therefore, that the complainant was under the age of eighteen years when the offence was committed.
Mr. Vincent Okwanga, Senior State Attorney submitted that there is overwhelming evidence on record to show that the complainant was under the age of eighteen years at the time
when she was defiled. He argued that the complainant’s evidence on this point was not challenged and even that of the doctor
who examined her three days after the incident was admitted in evidence under section 64 of the Trial on Indictments Decree. The
uncle of the victim, PW4, testified to the effect that his daughter who was older than the complainant when the offence was committed,
was under eighteen years old at the time and his evidence in this regard was not controverted. The learned Counsel concluded on this
point by submitting that even at the trial, the learned trial Judge and assessors rightly observed and found that the victim was
still under eighteen years old. According to Counsel, ground 2 of appeal on this point must therefore fail.
Upon an indictment for defilement, the age of the girl must be strictly proved. In the instant case the complainant put her age to
be 16 years at the time she was defiled. Her evidence in this regard was not challenged. The doctor, PW5, who examined her three
days after the incident, found as a fact that the girl was 16 years old at the time. The medical report was admitted in evidence
under section 64 of the Trial on Indictments Decree. The uncle of the complainant, PW4, put her age below 18 years old. The trial
Judge and the assessors found as a fact that the complainant was below the age of 18 years. They were entitled to make that finding
of fact. The victim, in our view, was under 18 years old at the time she was defiled. Accordingly, ground 2 fails.
The complaint in the first ground relates to the identity of the person who had defiled the complainant. Mr. Oboth Owor submitted that according to the evidence on record it was not the appellant who defiled the girl. His reasons were that the complainant
never told anybody about the incident at the earliest opportunity. According to PW2, she never even told the mother of what had happened
to her. PW4, her uncle, also said that the complainant never told him anything regarding the incident. He only learnt about the matter
from other people. The learned counsel submitted therefore that the implication of the appellant later was an afterthought because
the complainant did not want to implicate the boys who answered the alarm who could have possibly done the act. He argued that the
conduct of the complainant in this regard cast a doubt concerning the identity of the person who might have defiled her. This doubt,
in his view, should have been resolved in favour of the appellant.
On the other hand Mr. Okwanga submitted that there is overwhelming evidence to show that it was the appellant and no one else who
defiled the complainant. He said that the evidence of the victim is that when she was in the house eating supper with her sister,
PW2, the appellant asked for food, but when he was refused food, he blew the tadoba light, grabbed and defiled her. Mr. Okwanga submitted
that the complainant was not challenged on this piece of evidence. He said that instead her evidence was corroborated by that of
the doctor who examined her three days after the incident. The doctor found her vaginal walls bruised, hymen ruptured and she was
bleeding as a result. The learned Counsel submitted further that the appellant had put himself at the scene of crime because he admitted
having assaulted the complainant allegedly for teasing him. Both PW2 and PW3 saw the appellant zip his trousers and this evidence,
according to Counsel, corroborates that of PW1 that he had unlawful sexual intercourse with her. That is why he had locked himself
and the complainant in the house.
The act that the complainant was actually defiled is not in dispute. The issue here concerns evidence of identification of whoever
defiled the girl on the day in question. PW1, PW2, PW3 and PW4 knew the appellant before the incident. He used to fetch water for
people in the village including the family of the victim. PW1 and PW2 saw the appellant enter the house with the help of a tadoba
light. He took sometime talking to them before grabbing the girls. PW2 escaped in the process but the appellant remained locked in
the house with the victim. He only opened the door on the orders of PW3 and her husband. Both PW2 and PW3 saw him zip his trousers
while going away. There was moonlight, which aided PW2 and PW3 in recognising the appellant. We think that in these circumstances,
conditions were favourable for correct identification. There was no mistaken identity of the appellant by PW1, PW2 and PW3. Like
the trial Judge we find that it was the appellant who defiled the girl. Ground 1 of appeal also fails.
The third ground of appeal relates to sentence. The learned Counsel for appellant submitted that a sentence of 12 years’ imprisonment,
though not illegal, is manifestly harsh and excessive in the circumstances of the case. He conceded though that the trial Judge had
considered all the mitigating factors but argued that he had imposed a harsh sentence. Counsel prayed that this court should exercise its discretion and reduce the sentence from 12 years
to 7 years as this court did in Adam Mubiru v Uganda, Criminal Appeal No. MM 47 of 1996; Twinamasiko Eric v. Uganda, Crim. App. No. 2/97 and Sembusi Badru v. Uganda, Crim. App. No. 12/96.
The learned Counsel for the State submitted that the sentence of 12 years’ imprisonment meted out by the trial Judge is lawful
and not harsh or excessive as stated by the Counsel for appellant. He said that the learned Judge had considered all the mitigating
factors before passing the sentence. The appellant who was working at the home of the complainant had abused the trust placed on
him; namely, protecting his employer’s children against danger.
We agree with both Counsel that the sentence of 12 years’ imprisonment is legal bearing in mind that the maximum sentence for
defilement is death. We think that the learned trial Judge rightly considered the mitigating factors before passing the sentence.
Each case must be considered on its own merit and upon the circumstances under which an offence was committed. The authorities cited
by Counsel for the appellant are not helpful, in our view, to the appellant’s case. Cases of defilement call for deterrent
sentences. We see no merit in this ground of appeal.
In the result, the appeal is dismissed.
Dated at Kampala this.....5th ....day of ......June........2000.