THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT ADJUMANI
HCT-01-CO-CR-0315 OF 2001
UGANDA ::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
BOJO EMMANUEL ::::::::::::::::::::::::::::::::::: ACCUSED
BEFORE: HON. MR JUSTICE AUGUSTUS KANIA
Bojo Emmanuel, hereinafter simply referred to as the accused, is indicted for defilement contrary to section 123 (1) of the Penal Code Act. The particulars of the indictment are that the accused in the month of August 2001 at Maaji Refugee Settlement Camp in Adjumani district did unlawful and carnally know Kevin Vudrio, a girl under the age of 18 years. The accused denied the offence and pleaded not guilty.
The case for the prosecution briefly stated is as follows:-
The accused is the husband of PW3 Eimani Olga who is the mother of the victim PW2 Vudrio Kevin by another man. The accused and PW3 Eimani Olga have one issue who was about 2 years old in 2001 August. All the above persons lived together in the home of the accused at Maaji Refugee Settlement Camp in 2001. During the month of August 2001, PW3 Eimani Olga went to Ciforo to attend a funeral where she was away for about two weeks. She left the victim and their 2years old child in the custody of the accused. One Monday night when the victim had gone to sleep in the kitchen, the accused followed her there. He woke her up and ordered her to go and sleep in the main house where he and PW3 Eimani Olga ordinarily slept. The victim resisted but because the accused threatened to cut her with a panga if she did not comply, she yielded and went into the main house. Once in the house she was threatened with death if she refused to have sexual intercourse with the accused. The accused got his way and had sexual intercourse with her that night after which he ordered her to go back to the kitchen. Three days later the accused had sexual intercourse with the victim during the day and again that day at night. When PW3 Eimani Olga came back, the victim narrated her ordeal to her and the matter was reported to the local authorities who forwarded it to the police leading to the arrest of the accused.
The accused denied ever having sexual intercourse with the victim as alleged. He stated in his sworn statement that PW3 Eimani Olga and the victim who testified against him had a grudge against him.
As a general rule in our criminal justice system the burden is on the prosecution to prove the guilt of the accused person. The accused shoulders no burden to prove his innocence. The accused can only be convicted if the prosecution proves his guilt beyond reasonable doubt. If a doubt arises as to the guilt of the accused, that doubt must be resolved in favour of the accused leading to his acquittal. See Woolmington Vs DPP  AC 463, Lubogo & Others Vs Uganda  EA 440 and Seruwo Vs Uganda  HCB 1.
It is also trite that the accused is to be convicted on the strength of the prosecution case but not on the weakness of the case for the defence. See Israel Epuku s/o Achutu  1 EACA 166. This is so because there is no burden on the accused to put up a formidable case. After all he may even keep guilt if he chooses.
In proving its case beyond reasonable doubt the prosecution must also prove beyond reasonable doubt each and every essential ingredient of the offence with which the accused is charged. Failure to prove any one of the ingredients will automatically lead to the acquittal of the accused person.
There are three ingredients of the offence of defilement namely:
That the complainant was under the age of 18 years at the time of the offence.
2. That there was unlawful sexual intercourse with the complainant.
3. That the accused participated in having the unlawful sexual intercourse with the complainant.
To prove that the complainant was under the age of 18 years, the evidence of PW1 Dr. Tobias Kinyera, PW2 Vudrio Kevin and PW3 Eimani Olga. PW1 Dr. Tobias