The test given in Archibold’s can safely be applied in cases of defilement as well. I therefore find that the evidence adduced
by PW1, PW2 and PW3 was sufficient to prove that there was penetration. The prosecution has therefore proved the second ingredient
beyond reasonable doubt.
I now turn to the issue whether it was the accused that defiled the complainant and I will address it in view of the accused’s alibi that he was all along at his place of work and that he did not know the complainant. I will also address Ms. Birungi’s proposition that PW2 framed up the facts in order to avoid paying the accused his dues.
Further that the semen found on the accused’s trousers was not proved to have been his by medical evidence.
The complainant testified that the accused found her alone at home on the evening in question. She testified that she knew the accused because he had been to their home before, she was sure the accused lived nearby. The witness also testified
that when the accused approached her it was still daylight; there was therefore sufficient light to identify him. The above facts
put the accused at the scene of the crime. The evidence discussed above regarding the fact that he had sexual intercourse with her
leaves no doubt that PW1 saw and was able to identify her assailant.
Counsel for the accused submitted that the complainant’s evidence required corroboration as is provided for by s.40 of the TIA. In this case, PW2 testified that he found the accused at his home crying. When he approached the home, the accused
run away from where he had been lying on top of the complainant and retreated behind the house. PW2 summoned him and he returned.
When asked what he had done to the child, the accused’s response was that he had done. Further confrontation led to the accused
unzipping his trousers to prove his innocence. Fortunately, this act provided PW2 with corroboration of PW1’s story that the
accused had sexual intercourse with her. He found fresh semen on his trousers. PW2 had also found semen on the thighs of the complainant
when he examined her. He thus called for help and the accused was arrested and together with the complainant taken to the home of
PW4, Cosmas Wako the LC1 Chairman.
The fact that the semen on the accused’s trousers was not examined to establish whether it matched that on the child’s
thighs is not fatal to the prosecution case. The circumstances in which the accused was found, his behaviour after he was discovered,
put together with the report of the complainant to PW2 corroborated each other. They could lead to no other logical conclusion than that the accused had sexual intercourse with the complainant. I therefore find that the lack of medical tests did
not in any way detract from the cogency of the prosecution evidence.
In addition to the above, PW4 testified that when PW2 related what had happened to the child, there were some women at his home who
examined the child. The women reported that they found semen around her private parts and confirmed that it was true that the child
had been defiled. PW4 then interrogated the accused. The accused told him that it was true that he had lain with the child and that
he did not know what had come over him. The accused asked for forgiveness.
Ms Birungi for the accused submitted that his confession to PW4 cannot be admitted as such by this court because it was not made
to a police officer of the rank of AIP or a magistrate. This shall be taken together with the fact that the accused denied that he
made the confession. In reply, Mr. Niyonzima cited the case of Festo Adroa Asenua & Kakooza Joseph Denis v. Uganda, Supreme Court Criminal Appeal No. 1 of 1998, in which the Supreme Court held that a confession made before a native doctor could be admitted in evidence as admission of an offence.
The law relating to retracted/repudiated confessions was reviewed by the Supreme Court in Matovu Musa Kassim v. Uganda, SC Criminal Appeal No, 27 of 2002 where the accused had retracted a confession that he made immediately after arrest because he alleged it was not made voluntarily.
It was held, affirming the decision in Tuwamoi v. Uganda  EA 84 that:
"A trial court should accept any confession which has been retracted or repudiated with caution and must, before founding a conviction on such a confession, be fully satisfied in all circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the confession if corroborated in some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true."
I have reviewed all the evidence as given by PW1, PW2 and PW4. I have no doubt that the events as related by the four witnesses can
lead to no other conclusion than that the confession cannot but be true.
The accused gave evidence on his behalf in defence. He stated that on that day at about 9.00 p.m. he was asleep in his house at his
Aunt Rose’s place when he was arrested. The accused testified that on the fateful day, he attended to Isakwa’s cattle
from 7.00 a.m. till late. That on the same day Magino (PW2) gave him work to do but he did not go to PW2’s home; accused denied ever having gone to PW2’s on any other occasion. Though he testified that he knew Magino well because he was his friend and Magino’s brother was married
to his aunt, he also wanted court to believe that he did not see Magino when he testified in court. He also denied that he had seen
the complainant when she testified in court.
In effect, his defence was a blanket denial in which he tried as much as possible to distance himself from Magino, his home and the complainant. The accused also told lies when he stated that he had not seen Magino in court and that he had never gone to his home, ever. Given
the evidence of PW1 and PW2, there is no doubt that the accused was at PW2’s home on the night that the complainant was defiled. He also saw PW1 and PW2 in court and his denial of that fact means he told lies to court. It has been held that deliberate lies told to court discredit the accused. They can also be used
to infer guilt. In the end result, I find that the prosecution has proved the third ingredient beyond reasonable doubt.
The assessors in this case gave a joint opinion in which they advised me to convict the accused and I am in agreement with them.
I accordingly convict the accused of defilement as indicted.
Irene Mulyagonja Kakooza