THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT ARUA
CASE NO: HCT-00-CR-SC-0025 OF 2003
BEFORE: HON. MR JUSTICE AUGUSTUS KANIA
Omach Patrick, who shall hereinafter in this judgment be referred to as the accused, is indicted for defilement contrary to section 132 (1) of the Penal Code Act. The particulars of the offence are that the accused on the 7th day of October 2001 at Jupangira village in Nebbi District had unlawful sexual intercourse with Giramia Concy a girl under the age of 18 years. The accused denied the offence and pleaded not guilty.
There is a presumption at law that an accused person is innocent until proved guilty. The burden is always on the prosecution to prove the guilt of the accused in criminal cases except in a few statutory offences of which defilement is not one. This burden never shifts onto the accused who has no burden of proving his innocence for the prosecution to secure the conviction of the accused person it must prove the guilt of the accused beyond reasonable doubt. Any doubt as to whether the accused committed the offence or not must be resolved in favour of the accused leading to his acquittal.See Woolmington Vs DPP  A.C. 462.
2. That there was unlawful carnal knowledge of the complainant.
3. That the accused was responsible for the unlawful carnal knowledge of the complainant.
With regard to the 1st ingredient which is that the complainant was at the time of the offence below the age of 18 years the prosecution relied on the evidence of PW6 Ocan Alex Claudius who tendered the medical report of his fellow Clinical Officer Okello Nicholas comprised in Police Form 3 and tendered in as an exhibit and marked P1. in this exhibit duly completed by the said Nicholas Okello the age of the complainant is stated to have been 14 years when she was examined on the 8th October 2001. The prosecution also relied on the evidence of the complainant herself PW1 Giramia Concy who testified on the 19/3/2003 that she was then aged 14 years.
The other prosecution evidence on this point was that of PW3 Isabella Okello Furarwenyo the mother of the complainant, which was to the effect that her daughter was at the time of her testimony, aged 14 years. The defence did not dispute the above evidence that the complainant was under the age of 18 years at the time of the offence. Mr Oyarmoi learned counsel for the accused in fact conceded that this ingredient has been proved beyond reasonable doubt. I also had the opportunity to observe the complainant when testifying in court and by my common sense assessment I found that the complainant was indeed below the age of 18 years. With the undisputed evidence of the prosecution on record and my common sense assessment of the age of the complainant I find that the prosecution has proved beyond reasonable doubt that the complainant in this case was below the age of 18 years at the time of this offence.
This now takes me to the second ingredient that there was sexual intercourse with the complainant. In its endeavor to prove this ingredient the prosecution adduced the evidence of PW1 Giramia Concy which was that as she was on her way to church on that fateful day at 10.00a.m., her assailant lured her to enter into the house of Dr Owonda. Once inside her assailant demanded for sexual favours but when she refused he threatened her, laid down cushions on the floor and then pulled her onto the cushions, removed her clothes and then had sexual intercourse with her. It was also her evidence that as her assailant had sexual intercourse PW2 Opio Charles and one Jacwic Bright came to the window and were peeping. She then protested to her assailant that they wee being watched by the above children who would likely report her. At this her assailant got up and chased away the said children.
The prosecution also relied on the evidence of PW2 Opio Charles who testified not on oath. His evidence was that on Sunday 7/10/2001 when the complainant was going to church, she was called to the house of Dr Owonda by her assailant who was sitting at the verandah of the said house. After some time Jacwic Bright called the witness from where the witness was washing and told him that something was happening in Dr