THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION CASE NO.120 OF 2017 UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR VERSUS IRIMASO ALEX ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED BEFORE: HON. JUSTICE EMMANUEL BAGUMA JUDGMENT Irimaso Alex the accused person was indicted with two counts of aggravated defilement contrary to Section 129 (3) and (4) (a) of the Penal Code Act. In count one, it is alleged that Irimaso Alex at an unknown date in the month of December 2016 at Lusanja Bajjo Village Budde Sub-county in Butambala district performed a sexual act with Nalutaya Shamilah, a girl aged 9 years. In count two, it is alleged that Irimaso Alex at an unknown date in the month of December 2016 at Lusanja Bajjo Village Budde Sub-county in Butambala district performed a sexual act with Nalutaya Shamusah, a girl aged 8 years. On arraignment, the accused pleaded not guilty to both counts thereby requiring state to prove all the essential ingredients of the offence of aggravated defilement. It is trite law that the accused bears no burden to prove his innocence since he is presumed innocent until proved guilty. This principle of law was laid down in Woolmington Vs. DPP [1935] A.C 462. The same principle is enshrined in Article 28(3) (a) of the Constitution of Uganda. The prosecution has the burden of proving the case against the accused person beyond reasonable doubt and this burden does not shift. The accused can only be convicted on the strength of the prosecution case and not because of any weaknesses in his defence (See Ssekitoleko v. Uganda [1967] EA 531). In order to secure a conviction of an accused person of aggravated defilement in this case, prosecution must prove the following ingredients beyond reasonable doubt. The victims were below 14 years of age A sexual act was performed on the victims That it is the accused person who performed the sexual act on the victims. In order to discharge the burden of proving the case beyond reasonable doubt, the prosecution called four witnesses, namely Nalutaya Shamirah (PW1); Nalutaya Shamusa (PW2), Zaidi Lutaaya Bagumirabingi (PW3) and Nasaaka Hadijah (PW4). The accused person gave sworn evidence and called no witnesses. First, the prosecution is required to prove beyond reasonable doubt that the victims were below 14 years of age. In count I, the victim, PW1 testified that she is 12 years old. PW3 her father testified that the victim was 9 years old at the time she was defiled and that she was born in 2008. The victim’s immunization card was tendered in showing that the victim was born on 12/12/2006. In count II, the victim, PW2 testified that she is 11years old. Her father PW3 stated that she was born on 1/10/2007 and presented her immunization card to that effect. The defence did not contest this ingredient during cross-examination of the witnesses. I have considered the evidence and find that prosecution has proved beyond reasonable doubt that the victims, Nalutaya Shamilah and Nalutaya Shamusa in count I and II respectively were below 14 years by the time the incident took place in 2016. The next ingredient requires proof that a sexual act was performed on the victims. 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 Count I, the prosecution relied on the testimony of P.W.1, Shamilah who testified that the accused was their neighbor in the village and that he took her to the bush and defiled her. The medical report PEX1 indicated that the victim’s hymen was ruptured and not of recent. In count II, PW2, testified that the accused was their neighbor and that he took her to the bush and did bad things to her. In the admitted evidence of the medical form, PEX2 it was indicated that the victim’s hymen was ruptured but not of recent. I therefore find that prosecution has proved beyond reasonable doubt that a sexual act was performed on the victims in count I and II. Finally, prosecution has to prove that it was the accused person who performed the sexual act on the victims. This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused person at the scene of crime. The law on proof of sexual intercourse was stated by the Supreme Court in Basita Hussein Vs Uganda S.C. CRIM.APPEAL No. 35 of 1995 as follows; - “The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Sexual intercourse is proved by the victim’s own evidence and corroborated by medical or other evidence. Though desirable it is not a hard and first rule that the victim’s evidence and medical evidence must always be addressed in every case of defilement of proof of sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt” In count I, Prosecution relied on the direct evidence of the victim, Nalutaya Shamilah who testified that the accused person took her to the bush and defiled her. In count II, PW2 testified that the accused person took her to the bush and defiled her. She stated that he did it three times. The victims identified the accused person as their neighbor in the village. PW3 the victims’ father testified that her daughters told him that the accused had defiled them. PW4, their teacher also testified that PW1, the victim told her that the accused defiled her and her sister. I find that the accused was properly identified since he was a neighbor to the victims and they were consistent in their testimonies. I am alive to the fact that the accused person has no burden to prove anything, and in this case, he denied the allegations. That notwithstanding, I find that prosecution has put up a strong case by being consistent and I am therefore inclined to hold that prosecution has also proved the third ingredient in count I and II beyond reasonable doubt. In conclusion and in agreement with the assessors, I find that prosecution has proved all the essential ingredients of the offence of aggravated defilement in count I and II beyond reasonable doubt. I hereby convict the accused person of Aggravated Defilement C/S 129 (3) and (4) (a) of the Penal Code Act in count I and count II. …………………………………………. Emmanuel Baguma Judge 2/07/19 Prosecutor:-Aggravating factors: The accused as no record of previous criminal record. However I pray for a stiff sentence, the accused was 30 years old at the time of the offence. Both victims were 9 and 8 years old. The accused was a family friend and he took that advance of that friendship, the victims were traumatized . I pray for 20 years imprisonment. Allocutus-mitigation: Defence: The convict is the first offender he is now 32 years old he will reform. He has been on remand since 28/4/2017, hence he has been on remand for two years, two months and four days. I pray that the accused be sentenced to 8 years and period on remand be considered. Court: Accused also given chance to say something in mitigation since the lead counsel has sent counsel Okwalinga to hold brief. Accused/mitigation I have many dependents; my two brothers and my two children. I have also reformed since the time I have been on remand and I am a changed person. I am now Sabachristo in prison. I am a total changed person. That is all. Reasons and sentence: I have considered both aggravating and mitigating factors from the prosecution and defence. I will now sentence the accused as follows: Count I: Accused is sentenced to 12 years, 2 months and 4 days imprisonment. Emmanuel Baguma Judge Count 2 Accused is sentenced to 6 years imprisonment. The sentences to run consecutively. Emmanuel Baguma Judge Court: Since the accused has been on remand for a period of 2 years, 2 months and 4 days. I will subtract the 2 years, 2 months and 4 days from 12 years, two months and 4 days in Count 1 and the accused is sentenced to serve a period of 10 years imprisonment. Then six years in count 2. The sentence to run consecutively. Emmanuel Baguma Judge 2/7/2019.
