THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MPIGI
CRIMINAL SESSION CASE NO 006 OF 2017
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
VERSUS
WASSWA CHARLES::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED
BEFORE: HON. JUSTICE EMMANUEL BAGUMA
JUDGMENT
Wasswa Charles, the accused person was indicted with the offence of aggravated defilement contrary to Section 129 (3) and (4) (a) of the Penal Code Act. It was alleged that Wasswa Charles at an unknown date in the month of July 2016 at Nateete village, Luwunga Parish Kituntu Sub-County in Mpigi district performed a sexual act with Nakayima Sandra aged 5 years, (under the age of 14 years).
Prosecution called four witnesses while the defence called one witness the accused himself.
It is trite law that the accused does not bear the burden to prove his innocence. The burden is upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. It is also the law that an accused person should not be convicted on the weakness of his defence but should only be convicted on the strength of the case as proved by the prosecution. (See Uganda vs Dick Ojok l992 – l993) HCB 54.
In a case of aggravated defilement such as this one where the accused denies the charge, the burden is upon the prosecution to prove all the ingredients of the indictment. The ingredients are:-
- the person against whom the offence is committed is below the age of fourteen years;
- Sexual intercourse took place.
- The accused person was the one that participated in this performance of the sexual intercourse.
First, the prosecution is required to prove beyond reasonable doubt that the victim was below 14 years of age. In the instant case, the victim testified that she is 8 years old. The medical report PX1 also showed that she was 5 years and 9 months at the time of the incident. Counsel for the defence did not contest this ingredient during cross-examination of any of the witnesses. I have considered the evidence and find that it has been proved beyond reasonable doubt that the victim, was below 14 years by the time the incident took place.
The second ingredient requires proof that a sexual act was performed on the victim. One of the definitions of a sexual act under Section 197 of the Penal Code Act, Cap 120 is penetration of the vagina, however slight, of any person by a sexual organ. This ingredient is ordinarily proved by the direct evidence of the victim, but may also be proved by circumstantial and medical evidence. (See Remigious Kiwanuka v. Uganda; S. C. Crim. Appeal No. 41 of 1995 (Unreported).
In the instant case, the prosecution relied on the testimony of P.W.1 Nakayima Sandra who testified that on that fateful day, the accused person took her to the banana plantation, removed her knickers and did bad things to her. She also added that she did not feel pain while the accused was doing bad things to her. However as this is a sexual offence, the victim’s sworn evidence requires corroboration as a matter of practice. (see Lwanga Yusuf vs Uganda (l977) HCB280), and this is more so when considering that this was evidence of a child of tender years, being of the age or apparent age, of less than 14 years. That, position was equally emphasized in Kabangeny Arap Kolil v Republic (l959) E.A. 92. I therefore analyzed the victim’s evidence together with other witnesses.
PW2, stated that she followed PW1and saw the accused holding her on his laps. PW3 the mother testified that the victim came home crying and told her what had happened. That upon examination, she saw white things in the victim’s private parts. I also looked at the medical report under which the victim was examined, Prosecution Exhibit,PX1 which indicates that the victim was examined on the 20th July 2016 at Buwama Health Centre and it was observed that there was soft tissue injury at the opening of the vagina (redness) whose cause was stated to be force being applied on it. Section 197 above requires penetration however slight of the vagina by a sexual organ.
There are a number of authorities which have held that non-rapture of the hymen of a defilement victim was no proof that there was no penetration. (SEE Uganda Vs. Apollo George Anywar Cr. Session Case No. 381 of 1995, Uganda Vs Odwong Devis and Another [1992 — 93] HCB 70] and Christopher Gerald Gwayamadde Vs Uganda [1970] HCB 156.)
Archibald Criminal Pleadings, Evidence and Practice 36th Edition at page 2880 paragraph 2879 also states that proof of rapture of the victim’s hymen is unnecessary.
What matters is that the slightest penetration possible suffices to constitute the offence of defilement. In Habyarimana Ronald Vs Uganda Cr. Appeal No. 68 of 1998 it was held that the finding of semen all over the victim’s vagina was sufficient.
In the instant case therefore, since the mother, PW3 examined the victim and saw some white staff suffices. I therefore find that even if the victim testified that she did not feel pain, the medical evidence clearly shows that she had soft tissue at opening of the vagina which I hold as slight penetration. I therefore find that prosecution has proved the second ingredient beyond reasonable doubt.
Whether the accused person was responsible for the sexual intercourse? This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused at the scene of crime. In view of the authorities of Badru Mwidu vs Uganda (l994 – l995) HCB 11 and Bassitta Hussein vs Uganda S.C.C.A No. 35 of l999, it is now trite law that the victim’s evidence is very vital in proving the act of sexual intercourse and the identification of the Assailant.
Prosecution relied on the direct evidence of the victim, PW1 who testified that she knew the accused who was their neighbor and that on that fateful day, he took her to the banana plantation and did bad things to her. PW2 also testified that on that day, she followed PW1 and saw the accused holding her on his laps. She also stated that she knew the accused before the incident. The accused person did not deny knowing the victim as he confirmed that she is a granddaughter to his wife’s sister. I therefore find that the victim was not mistaken and she properly identified the accused person. Prosecution has also proved this ingredient beyond reasonable doubt.
In conclusion, I find that prosecution has proved all the essential ingredients of the offence of aggravated defilement against Wasswa Charles, beyond reasonable doubt and in agreement with the assessors, I hereby convict the accused person, for the offence of Aggravated defilement contrary to section 129 (3) and 4 (a) of the Penal code Act.
……………………………………..
Emmanuel Baguma
Judge.
19/03/19
Prosecutor:
The aggravating factors. No previous criminal record. However the victim was seven years old. The accused who was supposed to be a father defiled the victim of tender age. I pray that the convincing who was 45 years old be given a stiff sentence he was old enough to give guidance to the victim. Considering all those reasons I pray for 12 years imprisonment.
Defence-Mitigating factors:
Accused is the first offender I pray for last sentence. The accused has children and he is the bread winner. The accused is a person of disability and 50 years.
The victim will recover very quickly and has stabilized. The accused is remorseful and very sorry of what happened. The accused has been on remand for two years and seven months and 19 days.
I pray for 8 years imprisonment.
Court:
Sentence for 21/3/2019 AFR.
Emmanuel Baguma
Judge
19/3/2019.
21/3/2019
Accused in Court
M/s Kabahuma Lucy for state
Mr. Kumbuga on state brief.
Mr. Tabula and Nakitto Assessors
Sempijja court clerk.
Prosecutor:
For sentence.
Defence:
That is the position.
Sentence and Reasons:
The accused is the first offender but still moved no degree of remorse .Performed sexual act with a victim aged 5 years old. I have looked at the aggravating factors and mitigating factors.
The accused is sentenced to 15 years and 8 months imprisonment. Since the accused has been on remand for two years and eight months, I reduce the sentence to 13 years imprisonment.
Emmanuel Baguma
Judge
21/3/2019
Right of appeal within 14 days explained to the accused person.
Emmanuel Baguma
Judge
2/3/2019
