Court name
HC: Criminal Division (Uganda)
Judgment date
28 February 2018

Uganda v Wetaka (Criminal Session Case-2016/) [2018] UGHCCRD 124 (28 February 2018);

Cite this case
[2018] UGHCCRD 124
Short summary:

Criminal law

Coram
Wolayo, J

IN THE HIGH COURT OF UGANDA AT KUMI

CRIMINAL SESSION CASE NO. 67 OF 2016

UGANDA V WETAKA JUMA

BEFORE HON. LADY JUSTICE H. WOLAYO

JUDGMENT

The accused person Wetaka Juma  is indicted with aggravated defilement c/s 129(3) and (4)  (a) of the Penal Code Act. It is alleged that the accused person on 25th July 2015 at Angopet cell, Bazaar ward, Kumi district, performed a sexual act on Aeenen  Esther  a girl aged  six years.

Prosecution was led by Angoli  Peter State Attorney while accused was represented by Erabu Timothy on state brief.

Assessors were Okwii Francis and Rose Asege.

The state has a duty to prove beyond reasonable  doubt. 

  1. Age of the victim
  2. Performance of a sexual act
  3. Participation of the accused person.

 

Age of the victim

It was not disputed that the victim was examined at Kumi Health Centre on 25.7.2015 and found to  be six years old. PF3A on which this finding was recorded was admitted by consent of both counsel.

The victim appeared in court to testify and she was obviously a child of very tender years and about   eight  years old.

I am therefore satisfied  the state proved beyond reasonable doubt  the victim was below statutory age of consent at the time of the alleged defilement.

 

Performance of a sexual act and participation by accused person.

The state relied on PF3A and oral testimonies to prove performance of a sexual act.

According to PW1 Erimu Robert, father of the victim, on 25.7.2015, at about 1 p.m, he returned home  at Bazaar  ward only to find the accused person had just  defiled  his daughter and was pulling up his trousers while the girl lay on the mattress  looking weak  with no pants while her dress was pulled up.  It was his evidence that the accused was his tenant  within the same premises so he knew him well. 

 He locked the house and went to call neighbours  and among those who responded are his father Kizito Akol and  Solanje  Nsale .

It was the testimony of Solanje Nsale PW2 that on 25.7.2015, she took the victim Aeneen to Kumi Health Centre for treatment and on their return home, she put her  in her father’s house.   It was evident  Solanje is an in law of  Erimu and they were neighbours.

According to Solanje, she observed accused was in his house when she returned from hospital.

It was after the return from hospital Erimu called her  and on reaching  Erimu’s house,  she found the child Aeenen lying on a mattress . She examined her and found semen on her thighs  . Meanwhile, accused was still in the house pulling up his trousers.

It was suggested by the defense in cross examination that the accused was framed by Erimu because he owed Erimu rent arrears .  Yet in his sworn statement,  the accused claimed he was framed because of a land dispute between Erimu’s family and some Nubians. I disbelieve the defence case  except for his admission he was at his house  on the date and time  the offence took place , an admission that places him at the scene of crime.

PF3A reveals the medical officer examined Aeenen on 25.7.2015 and found semen on her thighs although her hymen was intact.

PW4 Aeenen did not give evidence on oath and she was able to identify the accused whom she knew as a neighbour and that he gave her 100/ and defiled her .  This piece of evidence is relevant because her father testified Aeenen Esther told him the accused used to give her 100/. This evidence goes to  show the victim knew the accused person.

From the foregoing analysis, the accused was caught red handed by the Erimu PW1  when he was just done with defiling Aeenen from her father’s house , a fact corroborated by Solanje who confirmed she left the girl  in her father’s house after their return from hospital and who examined her and found semen on her thighs, a fact confirmed by PF3A.

Furthermore, Erimu found the girl on  a mattress with her dress up and with no pant while accused was pulling  up his trousers.

The evidence called by the state is direct evidence of  performance of a sexual act  and participation by the accused in this criminal activity.

I  agree with the assessors that the state proved beyond reasonable doubt  the offence indicted.

Accused person  is accordingly convicted of aggravated defilement as indicted.

DATED AT KUMI THIS 20TH DAY OF FEBRUARY 2018.

HON. LADY JUSTICE H. WOLAYO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Uganda v Wetaka Juma

28.2.2018

Accused present

Angoli State Attorney

Erabu Timothy  for accused

Court clerk : Bruno Opulot

Sentence

The accused defiled a girl who was barely six years old, a very tender age to be subjected to sexual violence. 

Aggravated defilement attracts a maximum penalty of death and therefore it is a very grave offence whose sentence should match its gravity.

The fact that defilement of young girls still persists in our community reflects a level of impunity  and an indifference  to  consequences of their acts.

That the accused is a young man of 31 years is a mitigating factor.

Appropriate sentence is 25 years. As he has been on remand since July 2015, he is sentenced to 23 years and five months imprisonment.

DATED AT KUMI THIS   28TH DAY OF  FEBRUARY 2018.

HON. LADY JUSTICE H. WOLAYO