Uganda v Aguma (Criminal Session Case 129 of 2018) [2024] UGHC 665 (17 April 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT UGANDA AT JINJA **CRIMINAL SESSION NO.129 OF 2018**

UGANDA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

## AGUMA TOM:::::::::::::::::::::::::::::::::::: **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **JUDGMENT**

Aguma Tom herein referred to as the accused was indicted with the offence of Aggravated defilement contrary to section 129 $(3)$ , $(4)(a)$ and $(c)$ of the Penal Code Act (PCA). It is alleged that the accused on the 1<sup>st</sup> day of September 2017 at Karongo camp in Jinja District performed a sexual act on Drateru Sharifah a girl aged 13 years.

At plea taking, the accused pleaded not guilty to the Indictment.

The brief facts of the prosecution's case are that the accused and the victim were neighbors living in Karongo Camp in Kakira Town Council, Jinja District. That on 1<sup>st</sup> September 2017 the victim together with her sister Khasifah went to Karongo camp to sell ground nuts where there were Eid celebrations. That while planning to go back home, the accused approached the victim and gave her alcohol called Empire in a sachet which she drunk. That the accused then pulled her behind the toilet at the camp, undressed her and had sexual intercourse with her three times without a condom. That after the act, the accused took the victim to his mother's home. That the victim's mother found the accused who revealed to her that he had taken the victim to his mother's house and indeed the victim's mother found the victim coming out of the accused's home. That when asked where she had been the victim revealed to her mother that she had been with the accused person who had had sexual intercourse with her. The victim was taken for medical checkup and it was indicated on Police Form 3A that she had an ruptured hymen. Following the

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incident, the accused was arrested and examined on Police Form 24 and was found to be of 20 years and of normal mental state. He was interrogated and admitted having met the victim but denied having had sexual intercourse with her.

By way of a sworn testimony, the accused denied having had sexual intercourse with Drateru Sharifah aged 14. He denied having attended the disco on Eid day and informed court that on that day the incident allegedly happened, he stayed home and did not leave home the whole day. He denied the act of having pulled the victim behind the toilets and having had sexual intercourse with her since he was not at the scene. He informed court that he did not know the victim's mother and did not see her that night.

witnesses; The prosecution presented Drateru Sharifah three the victim/complainant (PW2), Rafa Chandiru mother to victim (PW3) and Kaziba Sirive (PW4) the investigating officer. Both the Prosecution and Defence in accordance with Section 66 of the Trial on Indictments Act agreed to Police Form 3A, the medical form in respect of the victim as an agreed fact which was tendered in as PEX1 thereby admitting Kanabiro Robert who conducted the medical examination on the victim as **PW1**.

In the Ruling on a no case to answer dated 5<sup>th</sup> October 2023, the offence of aggravated defilement was not made out against the accused and instead court ruled that the offence of defilement had been made out against the accused and hence he was put on his defence.

Court proceeded to hear the accused's defence. The Defence presented only one witness the accused, Aguma Tom and closed its case.

### **Burden of proof**

The burden of proof in criminal matters rests squarely on the prosecution and does not shift to the accused unless it is exempted by statute. (See: Woolmingtion Vs DPP (1935) AC 463, Andreya Obonyo & Others versus R (1962) EA, 550.) The burden does not shift to the accused person and the accused is only convicted on the strength of the prosecution's case and not because of the weaknesses in his defence, (See Ssekitoleko v. Uganda [1967] EA 531).

### **Standard of proof**

The standard of proof is high; the prosecution must prove all the essential ingredients of the offence beyond reasonable doubt. The prosecution has the burden of proving the case against the accused beyond reasonable doubt. The onus lies on the prosecution to prove the ingredients of the offence beyond reasonable doubt. However, proof beyond reasonable doubt does not necessarily mean proof beyond a shadow of doubt. (See: Section 101 of the Evidence Act and Miller v. Minister of Pensions [1947] 2 ALL ER 372).

### Section 129 (1) of the Penal Code Act Cap 120 as amended provides that: -

*Any person who performs a sexual act with another person who is below the age of* eighteen years, commits a felony known as defilement and is on conviction liable to life imprisonment.

For the accused to be convicted of Simple Defilement, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;

- 1. That the victim was below 18 years of age. - 2. That a sexual act was performed on the victim. - 3. That it is the accused who performed the sexual act on the victim.

### Determination

#### 1. That the victim was below 18 years of age.

In the case of **Uganda v Kagoro Godfrey** (High Court Criminal Session 141 of 2002) [2003] UGHC 67 (28 April 2003), Hon. Justice Augustus Kania stated that; "It is true the most conclusive way of proving the age of a child is by the production of his/her birth certificate and possibly followed by the testimony of the parents. It has however been held that other ways of proving the age of a child can be equally conclusive and of these is the observation of the child, by and the common sense assessment of the age of the child. See R vs Recorder of premisby Ex-parte Bursar [1957] 2 ALL ER. 889."

In the instant case, no birth certificate was produced before Court and when PW2 testified, she stated that she was 12 years old at the time the offence was committed and is currently 18 years old. However, during cross examination, Defence Counsel relied on the statement the victim had recorded at the Police Station which was admitted as DEX1 in which statement she had recorded her age as 14 years although she insisted that she was 12 years old.

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PW3 Rafa Chandiru, the victim's mother testified that the victim was born on 15<sup>th</sup> March, 2003. The Clinical Medical Officer recorded in the medical form which was admitted as PEX1 that although the victim chronologically looked 12 years, she was 13 years old by dentition.

With the guidance in **Uganda v Kagoro Godfrey (supra)** and the victim's mother having testified that she was born on the 15<sup>th</sup> March, 2003, this places the victim at the age of 14 years and 6 months at that time the offence was committed.

I therefore find that the victim was below 18 years at the time the alleged offence was committed and find that the prosecution satisfactorily proved this ingredient of the offence beyond reasonable doubt.

#### $2.$ That a sexual act was performed on the victim.

**Section 129 (7) (a)** of the Penal Code Act defines a sexual act to mean penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ. A sexual organ means a vagina or a penis.

The law with regard to proof of sexual intercourse has long been settled in the case of Bassita Hussein versus Uganda Criminal Appeal No. 35 0f 1995 in which case the Supreme Court of Uganda held as follows;

"The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim's evidence must always be adduced in every case of Defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond *reasonable doubt.*"

## In the case of **Uganda v Otim James (HCT-CR 9 of 2015) [2018] UGHCCRD** 217 (16 November 2018), Hon. Justice Alex Mackay Ajiji, stated that;

"Regarding the first ingredient, carnal knowledge means penetration of the vagina, however slight, of the victim by a sexual organ where a sexual organ means a penis. Proof of penetration is normally established by the victim's evidence, medical evidence and any other cogent evidence."

According to the medical form in respect of the victim dated 2/9/2017, PW1 stated that upon examination of the victim's genitals, he observed mild hyper lamia on the vulva, abrasion at the inferior vulva, laceration at the lateral vaginal orifice and old hymen rupture. He recorded that the probable cause of the above injuries was recent physical activity to the vagina by a smooth erect object possibly a male penis.

PW2, the victim testified that she went to the well and the accused grabbed her and pulled her to the bush where she slept with her. That he removed his clothes and lay on her. PW2 further clarified that the accused removed his penis and inserted it into her vagina and that as a result of this sexual activity, she felt a lot of pain. Despite the minor contradictions by PW2 as to the time when the incident occurred and its location which can be attributed to the lapse of time from when the offence was committed and when the trial commenced, the medical examination conducted on the victim clearly corroborates that there was an unlawful sexual act that was performed on her. I therefore find that the prosecution has proved this ingredient beyond reasonable doubt.

#### $3.$ That it is the accused who performed the sexual act on the victim.

Lastly, the prosecution had to prove that the accused participated in committing the unlawful sexual act. This ingredient is satisfied by adducing evidence, direct or circumstantial, placing the accused at the scene of crime not as a mere spectator but as the perpetrator of the offence. In Mugoya Vs. Uganda [1999] 1 E. A 202, the Supreme Court held that in cases involving sexual offences, there was need for corroboration of both the evidence proving that sexual penetration of the complainant took place and the complainant's evidence that implicating the accused in the commission of the offence.

The accused denied having participated in the commission of the offence. In his defence, the accused put up a defence of Alibi stating that he stayed home all day on the day the said offence was committed.

To disprove the defence, the prosecution relied entirely on the testimony of the victim who testified that the accused took her in the bush and defiled her. She also stated that she knew the accused prior to the commission of the offence who was her neighbor in Kakira.

The prosecution further relied on the testimony of PW3, the mother of the victim to place the accused at the scene of the crime. PW3 testified that on the day that the

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incident happened, PW2 went out to celebrate Eid with and her friend Khasifa but that at about 3.00 am, Khasifa returned to the victim's home in search for her. That out of concern as a mother, PW3 embarked on a search for the victim at about 4 am she saw the victim moving in the company of the accused from the direction of the place where the disco was taking place. She informed court that she was able to identify both the accused and the victim with the help of street lights in the camp. That when she asked PW2 where she had been, her response was that she had been with the accused who had taken off her clothes and slept with her.

This court is tasked with the duty of ensuring that the identification of the accused was appropriately made given that the offence occurred at night since the dark of the night poses identification challenges.

In Abdala Nabulere & Another versus Uganda Court which I will quote extensively, the Court observed that: -

"Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came to be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger.

In the case of John Katuramu versus Uganda Criminal Appeal No. 2 of 1998 it was held that;

"The legal position is that the court can convict on the basis of evidence of a single identifying witness alone. However, the court should warn itself of the danger of possibility of mistaken identity in such case. This is particularly important where there are factors which present difficulties for identification at the material time. The court must in every such case examine the testimony of the single witness with greatest care and where possible look for corroborating or other supportive evidence. If after warning itself and scrutinizing the evidence the court finds no

corroboration for the identification evidence, it can still convict if it is sure that *there is no mistaken identity.*"

I will delve into the evidence that was led by the prosecution regarding familiarity between the victim and the accused. It was the victim's testimony that she knew the accused who was her neighbor in Karongo camp prior to the incident. This evidence was corroborated with the testimony of the accused who informed court he used to see the victim at Karongo camp. This court is therefore convinced that the victim and the accused were familiar with each other prior to the incident.

In terms of proximity, this being a sexual offence that required physical intimacy, the accused was very close to the victim. The proximity between the accused and the victim while the offence was committed assisted the victim in identifying the accused as the perpetrator of the offence.

Lastly, PW3 the mother of the victim corroborated the victim's evidence as she stated that she was able to identify the accused with the help of street lights in the camp.

To rebut PW2's testimony in respect of the identification and participation of the accused in the commission of the offence, the defence relied on the statement that PW2 recorded at the Police wherein she stated that she had taken some alcohol on the day that the incident happened. Relying on the victim's statement, the defence argued that having taken alcohol that day, the victim was not capable of having identified the accused. The Defence in further rebuttal still relying on the victim's statement argued that the victim had recorded therein that she had previously had sex with Odama Stephen and therefore it was not the accused who had had sex with her.

From the evidence on record, it is true that the PW2 had had previous sexual encounters her medical record having indicated that she had an old hymen rupture. However, it was recorded in the victim's medical form that she had experienced **recent** sexual activity. The victim's previous sexual encounters do not exonerate the accused from having committed the offence.

I am in agreement with the assessors' opinion that the accused committed the offence as indicted. I therefore find that the prosecution has proved this element of participation of the accused beyond reasonable doubt.

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In conclusion, I find that the prosecution has proved all the essential ingredients of the offence beyond reasonable doubt. The finding of this court is that the accused is guilty of the offence of Defilement contrary to Section 129(1) of the Penal Code Act and is accordingly convicted.

I so order.

HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA $\frac{\text{JUDGE}}{17^{\text{th}}}$ April, 2024

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