THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL SESSION CASE NO. 22 OF 2017 UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR VERSUS LULE DAVID:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED BEFORE: HON.JUSTICE EMMANUEL BAGUMA JUDGMENT Lule David is indicted with the offence of aggravated defilement contrary to Section 129 (3) and (4) (a), (d) of the Penal Code Act. It is alleged that Lule David on the 9th day of December 2017 at Bulamu village, Muduma Sub-County in Mpigi district performed a sexual act with Nambooze Joyce a girl aged 6 years (under the age of 14) and a person with a disability. The prosecution called four witnesses to prove its case while the accused gave sworn evidence 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:- That the victim was below 14 years of age. That a sexual act was performed on the victim. The victim is a person with a disability That it is the accused person who performed the sexual act on the victim. 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 7 years old. PW3, the victim’s mother also testified that she is 7 years old. The medical report (PEX1) indicated the approximate age of the victim to be 6 years on 14th December 2017. It is my finding therefore that the victim was below 14 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 took her to his house and did stupid things to her. The medical report, PEX1 showed that the victim had a discharge and a foul smell in her genitals, with a septic wound inside the vagina. I analyzed the medical report and found that nothing is indicated as to whether there was penetration or not, the foul smell can be attributed to an infection as well. Further PW3 in her testimony stated that the nurse told her that the victim’s uterus was coming out and she pushed it back. This creates doubt in one’s mind as the medical report did not indicate anything to that effect. Basing on those doubts, I find that ingredient two has not been proved by prosecution beyond reasonable doubt. The third ingredient to prove is whether the victim is a person with a disability. PW3 the mother to the victim testified that the victim has some missing fingers and a heap on her back. The medical report (PEX1) also shows that the victim has some missing fingers and short hands. This ingredient has been proved beyond reasonable doubt by the prosecution. Lastly, 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 took her to his home and did stupid things to her. I noted in court that the victim, PW1 was not consistent while testifying. She first stated that she did not know the accused person in court but after stated that David Lule (accused) standing in court called her and took her to his home. PW1 also first stated that she does not know the father’s name then again stated that she was at home with Sebuliba Ronald her father. The law relating to contradictions and inconsistencies is well settled that when they are major and intended to mislead or tell deliberate untruthfulness, the evidence may be rejected. If, however, they are minor and capable of innocent explanation, they will normally not have that effect. Emphasis is mine. (See: Alfred Tajar V Uganda, EACA Cr. Appeal No.167 of 1969 and Sarapio Tinkamalirwe V Uganda, S.C. Criminal Appeal No. 27 of 1989). The accused person denied defiling the victim and stated that he had a land dispute with the victim’s parents hence the allegations to frame him up. PW3 did not deny the issue of the land dispute. Basing on the above analysis, I find that the contradictions of the victim coupled with the grudge raise doubt in the prosecution case and on that note, I find that prosecution has not 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 not guilty and thus acquit him of the offence of aggravated defilement contrary to Section 129 (3) and (4) (c) and (d) of the Penal Code Act. …………………………………….. Emmanuel Baguma Judge. 21/06/19
