THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CRIMINAL SESSION CASE NO. 92 of 2017

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

                                                 VERSUS

ADONIYA MIKE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED

 BEFORE: HON. JUSTICE EMMANUEL BAGUMA

RULING

The accused person, Adoniya Mike was indicted with the offence of aggravated defilement Contrary to Section 129 (3) and (4) (a) of the Penal Code Act, Cap 120.

It was alleged that Adoniya Mike on the 3^rd day of January 2017, at Buyiwa village, Buwama Sub-County in Mpigi district performed a sexual act with Nalubega Melisa, a girl aged 6 years (under the age of 14 years).

For the offence of aggravated defilement to be established, the prosecution has to prove the following ingredients beyond reasonable doubt;

1. The victim was below the age of 14 years
2. There was unlawful sexual intercourse with the victim
3. That it is the accused person responsible for the unlawful sexual intercourse with the victim

 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 person 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.

The prosecution adduced evidence of two witnesses, namely Nalubega Melisa (PW1) and Nasimbwa Betty (PW2).

PW1gave sworn evidence andtestified that she had gone to fetch water at a well when the accused found her, took her to the bush and defiled her.She however stated that it was her first time to see the accused person and he had hair for a raster, which she narrated to her mother who told her the name of the accused person.

PW2 the mother to the victim testified that she found her daughter walking badly and she examined her private parts which looked defiled. She stated that they went to police where the victim revealed that she was defiled by one Mike the Raster.

Prosecution also adduced the medical evidence, Prosecution Exhibit, PEX1, which showed that the victim’s genitals were bruised and oozing pus and the probable cause was trauma to the vulva.

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 was well stated in the case of Rananlal .T. Bhatt vs. R [1957] E.A 332) that;

“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.”

There are mainly two considerations justifying a finding that there is no prima facie case made out as stated in the Practice Note of Lord Parker which was published and reported in [1962] ALL E.R 448 and also applied in Uganda v. Alfred Ateu [1974] HCB 179, as follows:-

1. When there has been no evidence to prove an essential ingredient in the alleged offence, or
2. When the evidence adduced by prosecution has been so discredited as a result of cross examination, or is manifestly unreliable that no reasonable court could safely convict on it.

From the evidence adduced above, I have noted that PW2, the mother to the victim while testifying stated that the victim revealed that she was defiled by one Mike the raster which is a contradiction to the victim’s testimony who stated that her mother told her the name of the accused person after she described him as a raster. The police based on this narration to arrest the accused person yet there is no other evidence to show that he is the only raster on that village. Further, the medical report is vague as it indicates that the victim had a bruised vulva oozing out pus but doesn’t show penetration. I therefore don’t find this evidence credible enough to conclude that the cause was sexual assault as it could also be an infection.

Basing on the above observation, I do not find prosecution evidence credible enough to warrant putting the accused person to his defence, hence prosecution has not made out a prima facie case against the accused person.

I accordingly find the accused person, Adoniya Mike not guilty of Aggravated defilement and therefore acquit him under S. 73 (1) of the Trial on Indictment Act.

………………………………………………….

Emmanuel Baguma

Judge

14/6/19