Court name
High Court of Uganda
Case number
Criminal High Court Session-2003/37
Judgment date
27 January 2004

Uganda v Asiimwe Edison (Criminal High Court Session-2003/37) [2004] UGHC 3 (27 January 2004);

Cite this case
[2004] UGHC 3

 

 
THE REPUBLIC OF UGANDA
 
IN THE HIGH COURT OF UGANDA
FORT PORTAL HOLDEN AT MASINDI
CRIMINAL HIGH COURT SESSION NO. 37 OF 2003

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

 
 
VERSUS

ASIIMWE EDISON ::::::::::::::::::::::::::::::::::: ACCUSED

BEFORE: HON. MR. JUSTICE LAMECK MUKASA:

JUDGMENT:

The accused Asiimwe Edison is charged with defilement contrary to section 129 (1) of the Penal Code Act (Cap 120 Laws of Uganda 2000). The particulars of the offence are that the accused on 24th February 2001 at Kiguhya village Masindi District unlawfully had sexual intercourse with the Nsekanabo Harriet a girl under the age of 18 years.

 
The accused pleaded not guilty to the charge. He was represented by Mr. Willy Lubega. The prosecution was conducted by the Resident State Attorney Masindi Mr. Angozosi Serwadda.

In all criminal cases an accused person is presumed innocent until proved or pleads guilty. See Article 28 (3) (a) of the Constitution. The burden of proof rests upon the prosecution, throughout the trial, to prove both the charge and the ingredients thereof beyond reasonable doubt. This burden does not shift to the accused. See Woolmington v/s DPP (1935) AC462, Oketcho Richard vs. Uganda Supreme Court Criminal Appeal No. 26 of 1995 (Supreme Court of Uganda Certified Criminal Judgments 1996 – 2000 page 148).

In an offence of defilement contrary to section 129 (1) of the Penal Code Act the prosecution must prove beyond reasonable doubt each and every one of the following ingredients:-

1.       That there was unlawful sexual intercourse with the victim.

2.       That the victim was at the time of the alleged sexual intercourse a girl under the age of 18 years.

3.       That the accused person was the male who had the unlawful sexual intercourse with the victim.

The defence did not contest the age of the victim Nsekanabo Harriet. The evidence of PW1 (the victim), PW2 (The medical Doctor who examined the victim), PW3 (the mother of the victim) and PW4 (the victims father) left no doubt that the victim was under the age of 18 years at the commission of the alleged offence. The sexual intercourse complained of is alleged to have taken place on 24th February 2001. At the time of trial PW1, PW3 and PW4 stated that the victim was 12 years old, born on 6th May 1992 according to PW3. Dr. Abiriga Jino (PW2) who examined the victim on 25th February 2001 put her age at 9 years. Both counsels, the assessors and myself are agreed that the victim was visibly below the age of 18 years. See Rev Recorder of Grimsby Exparte v/s Pulser (1951) 2 All ER 889. Due to her tender age I conducted a voire dire before receiving her testimony. I therefore find that the prosecution has proved the ingredient of age beyond reasonable doubt.

The defence contested the ingredient of unlawful sexual intercourse and the participation of the accused. The law with regard to sexual intercourse as stated in the Supreme Court case of
Basita Hussein v/s Uganda Supreme Court Criminal Appeal No. 35 of 1995 is as follows:-

 
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Sexual intercourse is proved by the victims own evidence and corroborated by medical or other evidence. Though desirable it is not a hand and first rule that the victims evidence and medical evidence must always be adduced in every case of defilement to prove 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.”

 
To prove sexual intercourse the prosecution relied on the testimony of PW1 (the victim) PW2, PW3, PW4 and PW5. The victim testified that on the material day while at her grand fathers house the assailant came and asked her to carry for him a bunch of banana. That the bunch was too heavy for her and she refused to carry it. The assailant then asked her to go with him so that he buys her biscuits. The victim accepted to go with him and on the way the assailant led her into Joseph