IN THE SUPREME COURT OF UGANDA
HOLDEN AT MENGO
CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KATO, JJ.S.C.
CRIMINAL APPEAL NO. 21 OF 2001
BETWEEN
WEPUKHULU
NYUNGULI::::::::::::::::::::::::::::::::::::::::.APPELLANT
AND
UGANDA
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from the decision of the Court of Appeal (Okello, Berko, Engwau
JJ.A.) at Kampala in Criminal Appeal No. 110 of 1999, given
on 1st
June 2001).
DISSENTING JUDGMENT OF MULENGA JSC.
I regret that I am unable to sign the judgment of the Court. I respectfully
disagree with my learned brothers' decision on the first
ground of appeal,
specifically on the finding that the ingredient of "penetration", in the
charge of defilement, was proved "without doubt". Let me briefly state my
reasons.
It is trite law that in arriving at its decision, a court is under duty to
take into consideration the evidence as a whole; and to
evaluate all the
material evidence, on issues that have to be determined. It is an error to
selectively consider evidence favouring
one side, without any regard for that
which is unfavourable. The first appellate court also has a legal obligation to
re-evaluate
the evidence on record and come to its own conclusion. Failure, on
the part of either court, to discharge that obligation, constitutes
an error of
law. Where the Court of Appeal commits that error, this Court will re-evaluate
the evidence and draw the appropriate
conclusion. See Bogere Moses vs Uganda,
Criminal Appeal No. 1 of 1997 (S.C.) (unreported).
My considered
opinion is that the two counts below failed to discharge their obligations. Upon
re-evaluating the evidence, I find
reasonable doubt on the issue whether
penetration occurred. In her testimony, PW1, the girl victim in the instant
case, described
the sexual assault on her, but did not directly state that
penetration did or did not occur. The prosecution contention, and the
lower
courts' holding that it did occur, is a deduction from her other evidence,
coupled with circumstantial evidence from PW2, the
victim's mother, and a report
of a medical doctor, produced in evidence as Exh. P2. The testimony of PW2 is
that soon after the incident,
she noticed that the girl had difficulty keeping
her legs together, and upon examining her, she observed bruises on her private
parts
in addition to whitish smear on the thighs, and wet knickers. Secondly,
according to Exh. P2, the doctor examined the girl two days
after the incident,
and observed that her hymen was raptured, her vaginal meatus (vaginal entrance)
was inflamed and she had pus
discharge indicating medium infection. Even
standing alone, that circumstantial evidence together with PWl's evidence of the
assault
does not lead to irresistible inference, that penetration, however
slight, occurred. But what is more, there is uncontradicted material
evidence
that the courts below did not take into consideration, which tends to negative
the occurrence of penetration during the
assault in issue. The substance of the
negative evidence is to the effect that throughout the assault-
• the girl was wearing her knickers, which were neither removed nor
torn;
• she did not feel any pain during the assault, but felt pain after
she got up;
• the appellant "poured his water" (ejaculated) in her
thighs;
• (PW2) who examined the girl soon after the assault observed dried
whitish
• smear on the thighs and wet but not torn knickers no
blood.
On considering the evidence as a whole,
two very serious questions stand out unanswered. First, is it probable or indeed
possible
for a girl of 9 years to be penetrated by an adult man even slightly
without feeling pain? She did not feel anything. Secondly, is
it probable or
even possible for such girl's hymen to rapture without a trace of blood? Pw2 who
examined the girl after the assault
did not observe any blood. When it is
recalled that the burden of proof remains on the prosecution throughout, these
questions raise
reasonable doubt on the issue of penetration. On that basis, I
am of the view that an essential ingredient of the offence was not
proved beyond
reasonable doubt.
The facts that were proved beyond reasonable doubt,
however, constitute the offence of indecent assault. The appellant ought to have
been convicted of the latter offence.
DATED at Mengo this 5th day of March 2003.
J. N. Mulenga,
JUSTICE OF THE SUPREME COURT
