THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CRIMINAL SESSION CASE NO 203/2016

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

V E R S U S

SUUNA BADRU::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED

BEFORE: HON. JUSTICE EMANUEL BAGUMA

JUDGMENT

1. The Accused person SuunaBadru was Indicted with the Offence of Aggravated Defilement contrary to Sections 129 (3) and (4) of the Penal Code Act, Cap 120. It is alleged that the Accused person, SuunaBadru on the 28^th day of May 2016, at Bukesa “B” village, Ngando sub- county in Butambala District performed a sexual Act with Namugenyi Jamila a girl aged 4 years.
2. The Accused person denied having committed this Offence and as such, a plea of not guilty was entered.
3. The background of the case is that on the fateful day while the complainant was at her parent’s home, she received information from one NanyonjoGeradesi that the victim had been defiled. She did nottell her who had defiled her daughter. The complainant went home immediately where one Namatovu told her what had happened to her daughter.The victim was subjected to a medical examination on PF3A and the accused was arrested and charged with aggravated defilement.
4. When the Charge was read and explained to the Accused, hepleaded not guilty and a plea of not guilty was entered thereby setting in issue all the ingredients of the offence charged. Prosecution had to prove each and every element of the Offence charged in order to secure a conviction against the Accused person. See Ssekitoleko vs. Uganda [1967] EA 531.
5. SuunaBadru was represented by Mr. Kumbuga Richard and M/S Betty Agola Principle State Attorney represented the state.
6. In order to consider the culpability of the Accused person, certain several principles of the law are considered. The Accused person is presumed innocent until the contrary is proved. See Article 28 (3) (a) of the Constitution of the Republic of Uganda 1995 as amended. Therefore, the Prosecution bears the burden to prove not only the fact that the offence was committed but that it was committed by the Accused person or that the Accused person participated in the commission of the alleged Offence. It is therefore relevant to place the Accused person at the scene of crime.
7. Regarding the standard of proof, the Prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt. See: Woolmington vs. DPP [1935] AC 462. However, this does not mean proof beyond shadow of doubt. If there is a strong doubt as to the guilt of the Accused, it should be resolved in the favour of the Accused person. Therefore, the Accused person must not be convicted because he has put a weak defence but rather that Prosecution case strongly incriminates him and that there is no other reasonable hypothesis than the fact that the Accused person committed the alleged crime.
8. The standard of proof is beyond reasonable doubt as discussed in the case of Miller Vs. Minister of Pensions (1947) 2. All .ER 372 at 373;wherein Lord Denning stated as follows;

“That degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice”.

Similarly in Uganda vs. Dick Ojok (1992-93) HCB 54: it was held that in all criminal cases, the duty of proving the guilt of the Accused always lies on the Prosecution and that duty does not shift to the Accused except in a few statutory cases and the standard by which the Prosecution must prove the guilt of the Accused is beyond reasonable doubt.

1. With respect to the nature of evidence required, the Accused person can only be convicted on the basis of evidence adduced before Court, such evidence must be credible and not tainted by any lies or hearsay, and otherwise it will be rejected by the Court for being false.

1. Prosecution must prove all the ingredients of the Offence of Aggravated defilement in order to sustain a conviction thereof. In the case of Uganda Vs. Ozima Charles Criminal Session Case No. 015 of 2014,where it was held that Prosecution must prove the following ingredients beyond reasonable doubt:-

• That there was a sexual act performed.
• That the sexual act was performed on a child below the age of 14 years
• That it was the accused who performed the sexual act

1. The Prosecution called a total of Two (2) witnesses. Namely, Miss KiraboAidah(the mother of the victim PW1)and Namugenyi Jamil (the victim PW2) in an attempt to prove its case. Thereafter, Prosecution closed its case. Upon closure of the Prosecution’s case, both counselopted not to make submission of no case to answer and left it to court.
2. It is always the duty of the Prosecution to prove its case beyond reasonable doubt as discussed in the case of Woolmington vs. DPP, Supraexcept in certain instances where the burden shifts to the Accused.
3. In the preliminary hearing, Police Form 3A on which the victim was examined dated 28/5/2016 by Dr.Wandeya Joseph was tendered in court and marked exhibit PE.1
4. Police Form 24A in respect of the accused was also tendered as PE.2.
5. PW1 Kirabo Aida aged 28 years and a resident of kyengera in Wakiso District and a mother to the victim, told court that the victim is her daughter and the accused is her brother in law. She testified that the victim was born 2010.
6. She told court that on 28/5/16 she had gone for a function of the elder sister of the accused in Butambala District and while at her parent’s home near the function, the wife of the accused NanyonjoGeradesicalled her and told her that her daughter Namugenyi had been defiled. When she got the news, she tried to call the accused whom she had left withher children but he did not pick.
7. She said that when she went back home, she found her daughter with NamatovuFatuma whom she asked what had happened to the victim, and said the victim had been defiled
8. PW1 told court that thereafter she took the victim to police and reported the matter. The police then sent her to Nkozi Hospital where the victim was examined and after examination, she took the papers to police.
9. In cross-examination, PW1 told court that she did not examine the victim herself.
10. PW2 the victim told court that she went to the bush with the accused and when they reached the bush, the accused removed her clothes and knickers and touched her in her private parts using his fingers.

RESOLUTION

1. It is trite law that prior to placing an Accused person to his/her Defence, the Prosecution is required to have established a prima facie case against such Accused person. It is now a well-established law that a prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence would convict the Accused person, if no evidence or explanation was set up by the Defence. See Rananlal .T. Bhatt vs. R [1957]E.A 332, in the Bhattcase, the East African Court of Appeal held that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited Prosecution evidence.

1. Also, in the Ugandan case of Uganda vs. MulwoAramathan Criminal Case No. 103 of 2008, Court further clarified on proof of a prima facie case as follows:

“A prima facie case does not mean a case proved beyond any reasonable doubt since at this stage, Court has not heard the evidence for the Defence’.

1. I am in agreement with the above position.

1. I have carefully looked at the Prosecution evidence. I find that, in the absence of any explanation to the contrary from the Defence, the Prosecution evidence does not establish the two (2) ingredients of the Offence of Aggravated defilement. It is not in dispute that the victim was 4 years of age. It is alleged that the victim was defiled by the accused person on the 28^th day of May 2016 and on the same day as per Police Form 3A, the victim was examined by Dr.Wadeya Joseph and his findings were that I quote “no bruises on minura/ injury, found hymen intact and no injuries noted”.

1. The mother of the victim PW1 also told court that on receiving of the information concerning defiling her daughter, she never examined her to confirm whether the allegations were true or not.

1. Therefore, considering the evidence adduce in court by the prosecution, this court finds that, in the absence of any evidence to the contrary, the evidence of PW1, PW2 and Police Form 3A, does not establish participation of the Accused person in the commission of the offence.

1. In arriving at the above conclusion, I do recognize that at this stage, the standard of proof is not proof beyond reasonable doubt as required for a fully-fledged criminal trial. Rather, what is essential is such evidence which if taken literally or on the face of it would establish the essential ingredients of the offence of aggravated defilement, as well as the Accused’s participation therein.

1. For those reasons, I find that there is no evidence adduced against the Accused person to establish a prima facie case against him. Categorically, the Prosecution evidence is insufficient to require the Accused person to be put on his own defence for the Offence of Aggravated Defilement Contrary to Sections 129 (3) and (4) of the Penal Code Act Cap 120.

1. I accordingly acquit you Suuna Badruof the Offence of Aggravated Defilement that you are charged with and set you free unless there are other Charges against you.

..............................

EMMANUEL BAGUMA

JUDGE

3^RD/9/2018