THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBALE

 

CRIMINAL SESSION CASE NO. 0107 OF 2010

 

UGANDA -------------------------------------------------- PROSECUTOR

 

VERSUS

 

NABAYA PETER ---------------------------------------------- ACCUSED

 

BEFORE THE HON. LADY JUSTICE FLAVIA SENOGA ANGLIN

 

 

JUDGMENT

 

 

Nabaya Peter, the Accused before this Court was indicted for Aggravated Defilement c/s 129 (3), 4 (a) and (c) of the Penal Code Act.

 

The prosecution’s case was that the Accused on the 19^th day of May, 2010 at Bunasomi village in Sironko District performed a sexual act with Nambafu Loyce a girl aged 10 years.

 

The Accused pleaded not guilty to the charge.

 

To try and prove its case, the prosecution called 5 witnesses.

 

PW1 the Doctor Rubanza Barnabas who examined the victim, PW2 Dr. Nabende Peter who examined the Accused person, PW3 the sister to the Accused, PW4 cousin of the Accused and PW5 Chairman LC.1 of the village where the offence occurred.

 

The evidence of both PW1 and PW2 was put in without objection of the defence under provisions of section 66 of the Trial on Indictments’ Act - Exhibit P₁ and P₂ respectively.

 

At the time of examination, the victim was found to be 10 years of age.  There was evidence of sexual intercourse.  The hymen was ruptured and there were healed tears around the victim’s private parts.  The doctor was not certain when the act had occurred since the tears had healed.

 

In injuries were consistent with force having been used.  There were no bruises on the thighs or legs as the victim was not strong enough to put up any form of resistance.

 

It was noted by PWI that the child had been abused more than once.  The examination was done on 25/05/2010.

 

Police Form 29 on which the Accused was examined shows that he was of apparent age of 43 years at that time; and was of normal mental status.   The report is dated 01/06/10.

 

PW3 the sister of the accused and Auntie of the victim testified that at one time the Accused was married but his wife left him; leaving Nambafu Loyce behind and only taking her son.

 

On the 25/05/10 as she was passing by the home of PW4, she found the victim there.  She noticed that the victim looked ill and therefore asked her if she had malaria.  The victim then told her that her father the Accused person had been having sex with her.  PW3 reported the matter to the LC.1 chairman of the area PW5.

 

PW4 Bess Masika is a Cousin of the Accused person.  She told Court that the victim at one time stayed in her home sometime in 2010 for less than a month.  She stayed with her because the Accused used to be away from home all the time and yet her mother had also left.  However, the victim never told her that her father had defiled her.

 

On 25/05/10 PW4 was present when the victim told PW3 that “her father had been using her as his wife.”   Thereafter the matter was taken up with the clan and PW3 did not know what happened thereafter.

 

In cross-examination, she denied ever having had any disagreement with the Accused.  She was of the opinion that the victim may have gone to her home after being defiled.  She would tell PW3 that she was in pain and she looked unwell.  She denied ever telling the victim to frame her father and yet it was someone else who had defiled her.  The day the victim told PW3, the Accused was arrested.

 

PW5 Richard Wambede the LC.1 Chairman is an uncle to the Accused.  He told Court that on 18/05/10 he was informed by PW3 that the Accused had had sexual intercourse with his daughter.  PW5 then went and informed the brother of the Accused person.   The next day, the two of them went to the Accused’s home and took him to PW5’s home.  There they informed him that he had defiled his daughter.   The accused denied.  Later, he told the people who had gathered that he had only met the victim at the night basin where he had gone for a short call.  The Accused was told that that was against culture that is, to have a short call in the presence of his daughter.

 

Cleansing rituals were performed after which PW5 left with the victim and the Accused to go to his home, so as to write a letter forwarding the matter to Police.

 

On the way, the Accused saw police coming on a motor cycle and ran away but he was arrested.

 

The victim confirmed to PW5 that the accused had defiled her.

 

However, the victim never appeared at the hearing.  It was reported by her grandfather that she had disappeared.   The matter had been reported to Police but she had not yet been found.  There was a letter from LC.1 to the State Attorney to the effect that she had disappeared.

 

The State Attorney believed that the family of the Accused was hiding the victim to prevent her from testifying.

 

Counsel for the Accused vehemently protested the adjournment sought by the State on the ground that it was a violation of the Accused’s rights for the trial to delay further.  However, the Court overruled the objection of counsel and gave the State one more chance to try and trace the victim.

 

When the case was called again on 02/08/11 the victim was still not found.  The State was left with no option but to close its case.

 

Counsel for the Accused then submitted that since the complainant had not been brought to Court; there was no case for the Accused to answer.  He relied upon the case of Uganda vs. No. 9376 RA CPL. Opiko Owich and No. 90463 RA Godfrey Ochan [1992-93] HCB 67, which is to the effect that where the evidence of the complainant as to the information that formed the basis of the prosecution evidence is missing, all evidence by the prosecution remains hearsay.

 

Counsel argued that since the victim had not come to Court to testify, it could be concluded that the prosecution evidence was a concoction.

 

The State did not respond to the submissions.  They left it to Court to decide.

 

In its Ruling of 08/09/11 the Court overruled the submissions of no case to answer and the Accused was put on his defence.

 

In his sworn statement, the Accused DW1 denied the offence saying that the prosecution witnesses told lies to Court.  That when the LC.1 chairman first informed him of the offence on 19/05/10 he denied it and was beaten and almost killed.   However that, he and the victim use the same night basin to ease themselves and therefore the heat of his urine could have affected her.  But there had never been any sex.

 

In cross-examination he stated that the prosecution witnesses who were his relatives did not what him in the village because they wanted to grab his land.

 

The defence then closed its case abandoning the witnesses that they had wished to call.

 

Neither the State nor counsel for the Accused made any submissions, they left it to Court to decide.

 

In dealing with the merits of this case, I wish to bear in mind that in all criminal cases, the burden of proof is on the prosecution to prove all the ingredients of the offence beyond all reasonable doubt.   As set out in the case of Woolington vs. D.P.P. [1935] A.C 322 the burden never shifts except in some exceptional cases set down by law.

 

The Accused person is presumed innocent until he is proven guilty or otherwise pleads guilty.  It is not for the Accused to prove his innocence; he only needs to call evidence that may raise doubt in the mind of the Court. Any doubt in the prosecution case has to be resolved in favour of the Accused person.

 

It is the duty of the Court to evaluate both the evidence of the prosecution and that of the defence and determine whether the burden and standard of proof has been discharged by the prosecution.

 

In the case of Aggravated Defilement like the present one, the prosecution must prove the following ingredients of the offence if a conviction is to be returned:

1. There was an unlawful sexual act performed.
2. The victim of the alleged offence was below 14 years at the time of the act.
3.  It is the accused who performed the unlawful sexual act on the victim.

 

The prosecution called 5 witnesses to prove its case and their evidence is already set down in the Judgment.

 

The ingredients of the offence are to be determined in the order that they were set out:

 

As to whether there was an unlawful sexual act committed:  The evidence of PW1 the Doctor who examined the victim was unchallenged.  It showed that sexual intercourse had taken place.  The victim’s hymen was ruptured and there were healed tears on her private parts, consistent with the use of force.  The victim had been abused more than once.

This evidence is corroborated by that of PW3, PW4 and PW5 who were informed by the victim that she had been constantly sexually abused.

 

For those reasons, I find as a fact that the prosecution proved beyond all reasonable doubt that an unlawful sexual intercourse was performed on the victim.

 

The next issue to determine is whether the victim was below 14 years of age at the time of the sexual assault.

 

Again the evidence of PW1 the doctor was relied upon to prove this ingredient of the offence.  At the time of examination, the victim was found to be 10 years of age.

 

Without any evidence to the contrary, this Court finds that the victim was below 14 years at the time of the unlawful sexual act.  This ingredient was also proved to the required standard by the prosecution.

 

What is left for the Court to determine is whether it is the Accused person who performed the unlawful sexual act.

 

The Accused’s defence was a total denial of the offence.  He said that he was beaten and almost killed, and that PW3, PW4 and PW5 who are his relatives do not want him in the village because they what to take his land.

 

But apart from PW4 who was asked in cross-examination whether she was angry with the Accused because he refused her to use his land for cultivation, which she denied. PW3 and PW5’s evidence was not impeached in cross-examination.   The allegation that the Accused was beaten and that the witnesses wanted to take his land were therefore unsubstantiated.

 

The Accused also told the witnesses and the Court that he used the same night basin with the victim and probably the heat of his urine could have affected her!

 

On the other hand the prosecution evidence shows that the Accused who is a father of the victim lived with her in the same house, even after the victim’s mother left.

 

At one time the victim left home and stayed with PW4 although she did not say why.  However PW4 noticed that the victim did not look well and complained of being in pain.

 

PW3 on inquiring about the apparent ill health of the victim, was informed by the victim that her father the Accused “had turned her into a wife.” she reported to the LC. Chairman.

 

It is on record that cleansing rituals were performed, although the Accused claims it was because he used the same night basin with the victim.

 

As already pointed out in this Judgment I am aware that where an Accused raises a probable defence, he does not thereby assume the burden of proving it.

 

But the circumstances of his case as laid out above, I have found no reason to ignore the evidence of the prosecution.  Why would cleansing rituals be performed?  PW2’s who examined the Accused never found any signs of assault.   Therefore Accused’s claim that he was beaten cannot be believed.

 

Why should the Accused run away upon seeing the Policemen?  Running away is not conduct of an innocent person.

 

It is also on record that the victim could not be brought to testify as she was hidden by the Accused’s relatives.

 

While Counsel for the Accused argued that the absence of the testimony of the victim left the evidence of the prosecution as a mere hearsay.  I am not convinced by Counsel’s argument.

 

With proof that sexual intercourse occurred, the surrounding circumstances as already laid out lead to no other reasonable conclusion than that the Accused was the culprit.

The Accused’s defence is accordingly rejected and Court finds that the prosecution had proved beyond all reasonable doubt that it is the Accused person who performed the unlawful sexual act upon the victim.

 

Looking at the evidence as a whole, the gentlemen Assessors also agree that the prosecution proved the case against the Accused person beyond all reasonable doubt.  And for the reasons laid out in the Judgment, I have no reason to disagree with them.

 

The Accused person is hereby accordingly found guilty of the offence of Aggravated Defilement c/s 129 (3), (4) (a) and (c) of the Penal Code Act as indicted and he is hereby convicted of the offence.

 

Dated the 27^th day of February 2012

 

Flavia Senoga Anglin

JUDGE