THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
AT THE SESSION HOLDEN AT MUBENDE
CRIMINAL SESSION CASE NO. 25 OF 2000
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
SEMIYINGO PAUL : : : : : : : : ::::::::::::::: :: : : : : : : : : : : : : : : : : : : : : : ACCUSED
BEFORE: THE HON. MR. AG. JUSTICE PAUL K. MUGAMBA
Semiyingo Paul the accused herein was indicted for the offence of defilement contrary to section 123 (1) of the Penal Code Act.
A total of five witnesses were called by the support of the case for the state. The witnesses were Kyaterekera Namuyiga Fatuma (the complainant – PW1), Haruna Bukenya (father to complainant - PW2), Zoromina Nakate (grandmother to complainant - PW3), Nalongo Betty (sister to accused - PW4) and Detective Constable Ndundu (arresting officer- PW5). Medical evidence was admitted under Indictments Decree.
The accused had no witness and for his defence decided to keep quiet.
The prosecution case is briefly as follows:
At about 4.00 p.m. on 6th December, 1998, the complainant was at the home of her grandmother, PW3, with two other women, one Nabyesero who has since died and a female visitor who had come with a child. It was then that the accused who lived in the neighbourhood and is related to the father of the complainant appeared and asked the complainant to accompany him in order that he might give the complainant some Irish potatoes to carry back to the complainant’s grandmother, PW3. Without hesitation, the complainant did as she was told and later arrived together with accused at the garden of the accused where accused proceeded to harvest some Irish potatoes and deposit them in a polythene bag. No sooner had he deposited the potatoes in the polythene bag than he suggested he and the complainant proceed to accused’s banana plantation nearby where he could harvest a bunch of banana, also to be taken to complainant’s grandmother. Meanwhile the polythene bag together with its contents were left in the garden. On arrival in the banana plantation accused got hold of the complainant and lay her upon her back on the grass and proceeded to tear complainant’s knickers. Accused pulled his trousers down to his feet, lay upon the complainant and inserted his penis in her vagina. The complainant cried out in pain and her cries were later heard by her father, PW2. When PW2, together with a Matovu Sunday, who had been searching for complainant heard her cries they went to the source of the noise and found accused lying on top of the complainant with his penis inside the complainant’s vagina. They pulled the accused from the complainant and took both accused and complainant to the village authorities and later to Police. Accused begged for forgiveness from PW2 saying the act was not intended but that it resulted from his drinking of alcohol. PW2 did not oblige him but instead took the case to the Chairman L.C.1. The Chairman L.C.1 forwarded them to Kyenda Police Post. As it was late in the evening Police advised that they could not get medical assistance at the hour but that the complainant should not wash those parts of her body relevant to the case, her private parts. The accused was re-arrested and detained at Kyenda Police Post. Next morning the complainant was examined and treated at Mubende Hospital. PW1, PW2 and PW3 all state that after the act of sexual intercourse there was blood in the private parts of the complainant.
The accused offered no evidence in his defence, one of the options the law allows him.
In order for the prosecution to succeed in a case of defilement it has to prove the following ingredients of the offence:
(i) that the complainant was under the age of 18 years at the time of the alleged offence;
(ii) that the complainant had sexual intercourse on the day in question, to wit 6th December 1998; and
(iii) that it was the accused who committed that offence. (Refer to section 123(1) of the Penal Code Act and Uganda vs. Donozio Yiga, Criminal Session Case No. 38 of 1995).
It is vital that the evidence adduced by the prosecution bears out the above ingredients.
With regard to the first ingredient, PW1, the complainant testified before this court. She was clearly of tender age. Court administered a voire dire and found her equipped with sufficient intelligence to testify and knew the duty of telling the truth. She did not testify under oath because of her age which she said was 8 years. Her father PW2 also stated the age of PW1 to be 8 years. This evidence of age is unchallenged and I find that the prosecution proved the first ingredient of the offence in this case to the effect that the complainant was below the age of 18 years on 6th December 1998.
Concerning the second ingredient, in law sexual intercourse is complete when a female’s sexual organ is penetrated by a male sexual organ (see Archibold, Criminal Pleading Evidence and Practice, 38th edition at page 2873 para 2872)
The prosecution in this case introduced the evidence of PW1 who stated that she had had sexual intercourse. As a witness PW1 impressed me as one telling the truth and appeared confident. But she is of tender age. Court has to warn itself of the danger of relying on her evidence alone. It can nevertheless proceed and convict given certain conditions (see Chila and Anor vs. Rep.  EA 772). However her evidence is corroborated by the evidence of PW2 who arrived at the scene and pulled the accused from the complainant. There is also the evidence of PW3 who stated that she examined the complainant soon after she was found with the accused. PW3 found blood in