Court name
Supreme Court of Uganda
Judgment date
4 March 2002

NO0875 Pte Wepukhulu Nyuguli v Uganda (Criminal Appeal-2001/21) [2002] UGSC 14 (04 March 2002);

Cite this case
[2002] UGSC 14

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO
CRIMINAL APPEAL NO. 21 OF
2001

(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, AND KATO,
JJSC.)


NO.0875 PTE. WEPUKHULU NYUGULI ::::::::
APPELLANT

VERSUS

UGANDA :::::::::::::::::::::::::::::::
RESPONDENT.

(Appeal from the judgment of the Court of Appeal of Uganda
at Kampala. (Okello, Berko, and Engwau JJ.A) in Criminal Appeal No. 110
of 1999
dated 1/6/2001).

JUDGMENT OF THE COURT

This appeal is against the decision of the Court of Appeal which upheld the
conviction and sentence imposed by the High Court against
the appellant for
defilement Contrary to Section 123(1) of the Penal Code Act.


The
facts of the case as presented to and accepted by the trial court and confirmed
by the Court of Appeal are as follows:
Wepukhulu Nyuguli, the appellant, was
a soldier before his arrest. He lived near the hut where the complainant's
parents were living
at Ngoriom Army Detach. On the evening of 24/9/97, before
the defilement complained of, the

appellant, who had recently wedded, went to the mother of the complainant and
asked her to allow the complainant, Jaquiline Nandudu,
to go to his home and
keep his wife company as he was away on night duty. The mother, Jeniffer Nalyaka
(P.W.2), permitted the daughter
to go and stay with the appellant's wife over
night. The appellant returned from duty early in the morning and found the
complainant
still sleeping. She was alone as the appellant's wife had gone to
fetch water. He defiled her. When the complainant reached home
her mother
observed that she was not walking properly and kept her legs apart when sitting.
The mother asked her what was wrong.
The complainant replied that the appellant
had persuaded her to sleep with him as his wife and that he "had poured his
liquid into
her." The girl's thighs had dried whitish smear on them. The mother
then proceeded to examine the girl's private parts and observed
whitish
substance and some bruises on the opening of her vagina.

The matter was reported to the officer in charge who caused the arrest of the
appellant. Both the appellant and the girl were sent
to Kapchorwa where the
appellant was detained and the girl was examined by Dr. Yeko on 27/9/97. The
medical examination revealed
that the girl was about 8 years old, her hymen had
been ruptured, and the vaginal opening was inflamed. The injuries appeared to
be
about 5 days old.


At the trial the appellant denied having committed
the offence. He stated that on the day he could not remember, he was summoned to
the office of the O.C. where he was informed that he had defiled the
complainant, an allegation which he denied. He was arrested
and later sent to
Kapchorwa Police Station.

The trial judge rejected the appellant's denial and accepted the facts as
established by the prosecution. He convicted the appellant
and sentenced him to
12 years' imprisonment. His appeal to the Court of Appeal was dismissed, hence
this appeal based on two grounds,
namely:-

1. The Learned Justices of Appeal erred in fact and in law when they found
the prosecution had established all the ingredients of
the offence by confirming
the conviction.


2. The Learned Justices of Appeal erred in fact and in law when they failed
to find that the Appellant's conviction could not rest
on the contradictions and
inconsistencies in the prosecution case.



Mr.
Atuhaire, learned counsel for the appellant, argued these grounds together. He
started with the second ground. Counsel submitted
that there were material
contradictions in the prosecution evidence regarding the date when the offence
was committed. He pointed
out that while the complainant stated that she was
defiled on 25/9/97 her mother testified that the offence was committed on
26/9/97
and the doctor who examined her on 27/9/97 stated in his report that the
injuries on the girl were inflicted about 5 days before
the examination. It was
learned counsel's contention that if the trial court had considered these
inconsistencies, a doubt would
have been cast on truthfulness of the evidence of
the prosecution witnesses. He further submitted that because of those
contradictions
the medical report did not corroborate the evidence concerning
the ingredient of penetration.


On his part, Mr. Okwanga, Principal
State Attorney for the Respondent, submitted that the contradictions complained
of were minor
and should be ignored and that the Court of Appeal rightly ignored
them. On the issue of penetration, he contended that the prosecution
had proved
that ingredient through the evidence of the complainant, that of her mother and
of the doctor who examined her.


We shall discuss the issue of
inconsistencies first. This same issue was raised before the Court of Appeal
which held that the inconsistencies
were minor. It is trite law that minor
inconsistencies, unless they point to deliberate untruthfulness on the part of
prosecution
witnesses, should be ignored and that major ones which go to the
root of the case, should be resolved in favour of the accused (See Alfred
Tajar
-V- Uganda Cr. Appeal No. 167 of 1969 EACA)
(unreported).
But each case must be decided on its facts. In the case now before us the
inconsistencies or discrepancies relate to
the dates when the girl was defiled.
The girl testified that she was defiled on the morning of 25/9/97 , but the
mother mentions
26/9/97 as the date when the defilement took place. In our
opinion a difference of a day is not so crucial so as to go to the root
of the
case. The two witnesses, it would seem, were testifying from their own memory
without the aid of any written record of their
own about an event which took
place nearly a year earlier, it was therefore natural for them to make such a
slight mistake. There
is nothing on record suggesting that the contradictions
were deliberately intended to mislead the court. We would also like to point
out
that a date on which defilement is committed is not one of the ingredients of
the offence of defilement. As for the doctor's
statement that the defilement had
taken place about 5 days previous to the examination, we agree with Mr.
Okwanga's contention that
this was mere estimate. The doctor was not definite
about the date so his statement about the age of the injuries cannot be treated
as a contradiction with regard to what the complainant and Nalyaka (P.W.2)
stated. We find no merit in the second ground of appeal.
It must
fail.


We now turn to the first ground which concerned the question of
penetration which is one of the ingredients that must be proved by
the
prosecution in a case of defilement. Learned counsel for the appellant
complained that due to the contradictions in the prosecution
case it could not
be conclusively said that sexual intercourse had taken place. As indicated
earlier, Mr, Okwanga counsel for the
respondent, was of a contrary
view.


The issue as to whether or not sexual intercourse took place in
a particular case is a matter of fact to be established by evidence.
In the
instant case the evidence relied upon by prosecution to prove that there was
penetration is contained in the testimonies of
the complainant, Nandudu (P.W.I),
her mother, Jenniffer Nalyaka (P.W.2) and the medical report. The evidence of
Jaquiline Nandudu
(P.W.I) was to the effect that while she was sleeping in the
appellant's house at about 6.00 a.m., the appellant went to her and
lay on her
and used his 'Kasolo' (penis) to "pour into her his water" (meaning he
ejaculated into her). This happened when she was
wearing her knickers and the
appellant was wearing his trousers which he unzipped. She did not feel pain at
the time of the alleged
intercourse but she felt pain when she rose and she
could not walk normally. She further stated that the liquid was poured on her
thighs. The story as told by her mother (P.W.2) is that when the complainant
returned home, she (the mother) observed that she was
walking and sitting with
considerable difficulty. On examination of her private parts, she saw some
whitish substance there and some
bruises. The doctor's report (Ex.P2), which was
admitted in evidence with the consent of the defence counsel, shows that the
victim's
vaginal opening had inflamation and the hymen had been ruptured about
five days prior to 27/9/97. The doctor estimated the period
which, in the
circumstances of this case, puts the occurrence of the defilement closer to
25/9/97.


When this evidence is considered together as a whole, it
leaves no doubt that the prosecution sufficiently proved that there was
penetration.
We are satisfied that both the trial court and the Court of Appeal
correctly held that the appellant had sexual intercourse with
the complainant.
It is the law that however slight the penetration may be it will suffice to
sustain a conviction for the offence
of defilement. (See: Adamu Mubiru - V
- Uganda (Cr. Appeal No. 47/97 Court of Anneal)
(unreported). We have
anxiously considered the evidence of the complainant that she had her knickers
on when the appellant slept with
her. However, in view of her own description of
what happened and taken together with the medical evidence there can be no doubt
that there was penetration. This first ground of appeal also fails.

In the result, we uphold the decision of the courts below and do dismiss the
appeal.

Dated at Mengo this 5th day of March
2002.



A.H.O. Oder
Justice of the Supreme Court

J.W.N Tsekooko

Justice of the Supreme Court




A.N. Karokora
Justice of the Supreme
Court





J.N. Mulenga
Justice of the Supreme
Court




C.M. Kato

Justice of the Supreme Court