Uganda v Akera Lwanga (HCT-02-CR-SC 148 of 2019) [2023] UGHCCRD 45 (14 August 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM

CRIMINAL SESSION CASE NO. HCT-02-CR-SC-0148 OF 2019

UGANDA...................................

**VERSUS**

AKERA CHARLES LWANGA...................................

$\mathsf{S}$

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**BEFORE:** HON. MR. JUSTICE GEORGE OKELLO

#### JUDGMENT

# **Introduction**

The accused person stands indicted with three counts of aggravated defilement, contrary to section 129 (3) (4) (a) of the Penal Code Act Cap 120. In the first count, it is alleged that, in the month of January, 2017 at about 12:00 noon, at Lologo village (sic) (Lulojo), Central Division, Kitgum District, the accused person performed a sexual act with Amito R, a girl below the age of 13 years (sic). In count two, it is alleged that, in the month of January, 2017, at about 12:00 noon, at Lologo (Lulojo) village, Central Division, Kitgum District, the accused performed a sexual act with Ayeerwot P, a girl under the age of 13 years (*sic*). In count three, it is alleged that, in the month of January, 2017, at about 12:00 noon, at Lologo

Haro Den.

(Lulojo) village, Central Division, Kitgum District, the accused performed a $\mathsf{S}$ sexual act with Ageno Rwot G, a girl under the age of 13 years(sic).

In other words, the allegations in the indictment relate to a series of offences of the same kind, alleged to have been committed on the victims in the course of the same criminal transaction at the same place, same time, but on an unknown date.

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#### **Legal representation**

At the start of the session hearing before Mubiru, J., on 1st November, 2019, the accused was represented by Mr. Boris Geoffrey Anyuru, on State 15 Brief. However when I took over the matter during the session hearing on 26th July, 2023, the accused was represented on State Brief by Mr. Jude Ogik, while the State was represented by Mr. Patrick Ojara, a Senior State Attorney. Before then, the State had been represented by Mr. Muzige 20 Hamza, a State Attorney.

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# Plea of not guilty

At plea taking, the accused person denied the offence, and a plea of not guilty was entered. No facts were agreed upon at the preliminary hearing that followed plea taking, under section 66 of the Trial on Indictments Act (hereafter, TIA). Two assessors were appointed and the State opened its case. However, at the resumed Defence hearing before me, I continued with

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only one assessor, pursuant to section 69 of the Trial on Indictments Act, $\mathsf{S}$ the court having completely failed to secure the attendance of the other assessor, with practicable dispatch.

#### **The Prosecution case**

The Prosecution called six witnesses, including the victims who were three. $10$ Court conducted the necessary voire dire in respect of the victims, under section 40 (3) of the TIA, as they were of tender years when they testified, that is, under the age or of the apparent age of under fourteen years. (See: Patrick Akol Vs. Uganda, SC Crim. Appeal No. 25 of 2000; Kibageny Arap Kolil Vs. R [1959] EA 92). The other prosecution witnesses were, $15$ the victims' aunt (who doubled as a mother to one of them); a medical officer; and a Police officer who investigated the matter. In summary, the

harmonized, is as follows:

During the month of January, 2017 or on 1st February, 2017, at 12:00 noon, or at 6:00pm, the victims were sent to the house of the accused person by their mother/aunt, to pick a phone which had been taken there in the morning (8:00am) for charging. From another version, the victims had gone to collect pawpaw from the accused's home. The victims found the accused person at home with his children, one of whom (a female) was slightly older than the victims. The accused took each of the victims into

prosecution case, which, with respect, is not in some respects quite

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his grass-thatched house, locked it, undressed the victims, and had sexual $\mathsf{S}$ intercourse with them, in turns. He did so in the presence of his children whom he instructed to stay behind the curtain, as he continued having sexual intercourse with the victims. The victims made alarms, while in the house, but no one came to their rescue. One of the girls who had accompanied the victims (Lamwaka P), and who had remained outside the $10$ accused's house, made alarm, but no one intervened, not even a neighbor who was home, some 15 metres away from the crime scene. The victims went back home. They did not tell their mother/ aunt what had happened. The accused had warned the victims against it, and had promised them pawpaw if they kept quiet. Lamwaka P, who had remained outside, did not 15 tell her aunt (the complainant) what happened. She, however, later told the Aunt after three days (about 4th February, 2017), who reported to Police on 7th February, 2017. The accused was then arrested on 7th February, 2017. The complainant's statement was recorded on 8th February, 2017. The accused was charged of aggravated defilement, and 20 later, indicted accordingly.

#### The Defence case

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Having found that a prima facie case was disclosed, pursuant to section 73 (2) of the TIA, the court put the accused to his defence and explained his rights. The accused choose to give evidence on oath, was cross examined, and called three other witnesses. In summary, the accused

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$\mathsf{S}$ person's defence was grounded on an alibi, and a grudge he said the victims' aunt/mother (complainant), had with him. He testified that, the complainant had pestered him for a sexual affair which the accused declined. The accused further stated that, there was influence peddling by relatives of the complainant who had served in the Police Force, and later 10 in the service of Kitgum District. The accused stated that, at the time of his arrest, he was working with ABSI, a Non-Governmental Organization in Kitgum. He said, in early January, 2017 (about $1^{st}$ January, 2017) he was involved in the burial arrangements of his neighbour's brother who had passed away. On 5th January, 2017, the accused's mother in law died 15 in Mucwini, about 14 kilometers away from Kitgum Municipality, and so, the accused person, his wife, and three children, travelled to attend the funeral of a loved one. The Accused and his family stayed in Mucwini till 9th January, 2017 when they returned home (Lulojo, Kitgum Municipality). The following day, 10th January, 2017, the accused's wife received a phone call that, the family village house in Palabek had been razed down by fire. 20 On 11th January, 2017, the accused and his family members travelled to Palabek where they spent about three weeks, constructing two grassthatched houses, with the help of local labourers. The accused returned with his three children to Lulojo on 9th February, 2017 at 9:00pm. He left $25$ his spouse in Palabek as she was trying to secure a teaching job, being a qualified primary school teacher. In the morning of 10th February, 2017, the accused woke up to sweep his compound which had gathered lots of

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$\mathsf{S}$ rubbish. Thereafter, as he was preparing to take his children to school, Police came and parked near the accused's home by the roadside. The Police driver beckoned the accused who responded by going where their vehicle had parked. The accused was told to board the Police vehicle, which he obliged. He was then taken to Kitgum Central Police Station where he $10$ was interrogated. Chronicling the basis of his woes, the Accused testified that, the complainant coached the victims to tell lies against him. He stated, the complainant conspired with the then Medical Superintendent of Kitgum Hospital, and the victims, to tell lies. In the accused's view, the complainant believed that, when the accused is locked up in Prison, the $15$ accused's wife would abandon the accused, and the complainant would take the place of the accused's wife (a new partner), given her earlier sexual overtures to the accused. The accused asserted that, the then Medical Superintendent influenced the medical officer to falsely find signs of defilement on the victims. The accused denied having a solar equipment 20 for phone charging at his grass-thatched house, asserting, he used to charge his phone at a commercial phone charging place within Lulojo Trading Centre.

### The burden and standard of proof

25 Given the accused person pleaded not guilty, and given that an accused person enjoys a constitutional presumption of innocence, under article 28 (3) (a) of Constitution of Uganda, 1995, the prosecution bears the burden

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$\mathsf{S}$ of proving the guilt of the accused person beyond reasonable doubt. Thus, apart from insanity and few statutory exceptions which are not applicable here, the burden of proof never shifts to the Defence. See: **Woolmington** Vs. Director of Public Prosecutions [1935] A. C 462; Chan Kau Vs. R [1955] A. C 206; Uganda Vs. Dick Ojok (1992-93) HCB 54.

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The Prosecution must, therefore, prove each and every ingredient of the offence against the accused person beyond reasonable doubt. The ingredients must be proved in respect of each victim of the offence. Proof beyond reasonable doubt, however, does not mean, proof beyond the shadow of doubt. The degree of proof need not reach certainty. This is 15 because court could end up considering fanciful possibilities which could deflect the course of justice. What, therefore, is required, is strong evidence against the accused person that leaves only a remote possibility in his/her favour. If court finds on the evidence that, what a person is accused of, is possible, and not in the least probable, then the standard of proof would 20 have been met. Nothing short of that would suffice. See: Miller Vs.

# Minister of Pensions [1947] All ER 272, at 373-374, Lord Denning.

Therefore, the accused person does not assume any burden of proof, a position supported by section 101 (2) and section 103 of the Evidence Act Cap 6. And where there is any doubt in the prosecution case, the accused takes the benefit of the doubt. Any defence, even if not raised by the

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- accused, if there is evidence of it, the court must avail the defence to the $\mathsf{S}$ accused person. See: Abdu Ngobi Vs. Uganda, SC. Crim. Appeal No. 10 of 1991; Obwalatum Francis Vs. Uganda, SC Crim. Appeal No. 030 of 2015; Mancini Vs. DPP (1942) AC 1; Didasi Kabengi Vs. Uganda (1978) **HCB 216.** An accused can, therefore, only be convicted on the strength of - the prosecution case, and not because of the weakness of the defence. See: **Ssekitoleko Vs. Uganda, [1967] EA 531.** Therefore, even if an accused person leads no evidence, the court must still, at the end of the case, ask itself: Is the legal burden discharged? Has the Prosecution proved the guilt of the accused beyond reasonable doubt? In a criminal case, all matters 15 must be strictly proved. The State cannot, for instance, solely rely on concessions made by the accused person. See: **FW Crowie Vs. R [1961] 1** EA 38 (CAN).

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All items of evidence on record must be considered and evaluated by court. That is, both the prosecution evidence and the defence evidence. Each count with which the accused person is indicted must be proved beyond reasonable doubt. A count is a separate criminal charge where more than one offence is charged in the indictment, especially where the offences are founded on the same facts or form or are part of a series of the same or $25$ similar character. See section 23 (2) of the TIA.

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- $\mathsf{S}$ In this case, the accused is indicted with the offence of aggravated defilement, alleged to have been committed in a series, against three victims. Court will, therefore, consider each allegation of commission of an offence in respect of each victim, as each constitute a separate count. - $10$ Having set out the criterion on which to proceed, court proceeds to consider the ingredients of the offence.

#### Ingredients of aggravated defilement

- 15 The offence being aggravated defilement contrary to section 129 $(3)$ $(4)$ $(a)$ of the Penal Code Act, the following ingredients must be proved by the prosecution; - The victim was below 14 years of age i) - A sexual act was performed on the victim ii) - iii) It is the accused person who performed the sexual act.

#### Evaluation of the evidence

#### 25 The age of the victims

Age of a child can be proved in any of the followings ways;

$i)$ Birth certificate, immunization card, school records, if any

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ii) Testimony of the parents of the child

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- iii) Child's testimony regarding her/his age - Medical evidence e.g. dentition $iv)$ - Observation of the child and common sense assessment by court. $v)$

## See: Uganda Vs. Kagoro Godfrey, H. C Crim. Session Case No. 141 of $10$ 2002; Uganda Vs. Fulawak, Crim. Session case No. 85 of 2018.

Section 88 (2) and (3) of the Children Act Cap 59 also offers a useful guide on how age of a child can be determined. Although the section is concerned $15$ with determination of age of a child for the purposes of criminal responsibility, this court is of the view that, the section should offer a useful guide where a child is also a victim of an alleged crime. Thus, section 88 (2) and (3) of the Children Act provides that, court can determine the age of a child by giving full assessment of all available information, giving due consideration to official documentation including $20$ birth certificate, school records, health records, statement certifying the age from the parent or child, or medical evidence.

In court's view, therefore, one or more of the methods outlined herein, could, depending on the circumstances of each case, could help in proving age of a child.

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## **Medical evidence**

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In the instant case, the prosecution adduced in evidence, Police Form 3A in respect of each of the victims. (PEX1) in respect of Amito, indicates that, the Senior Clinical Medical Officer, Mr. Okongo Simon Knox (PW5) determined the victim's age using her dentition on 7th February, 2017. According to PW5 and PEX1, Amito had 20 teeth. Her approximate age was said to be 10 years. When Amito testified two years later (2019) she said she was 12 years old. Her biological mother, Lamara M (PW4) also confirmed Amito's age. The Defence agreed that, Amito was below the age of 14 years at the time of the alleged offence.

In agreement with the single Lady assessor (Ms. Rosemary Oryang Wodomal) who, pursuant to section 69 (1) of the Trial on Indictments Act Cap 23, and by the force of the precedent in **Byaruhanga Fodori Vs.**

Uganda, CA Crim. Appeal No. 24 of 1999, acted as a sole assessor, the 20 other assessor having absented himself from the trial, this Court finds that, the age of Amito has been proved beyond reasonable doubt.

Regarding the age of Ayeerwot, PEX 2 which is PF 3A, indicates that, she was examined by PW5 on 7th February, 2017 and had 20 teeth. PW5 $25$ stated, Ayeerwot was 10 years old. Ayeerwot also testified in 2019 as to her age. She said she was 11 years, which albeit was a minor disparity,

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$\mathsf{S}$ still falls below the age of fourteen years as at the time of the alleged offence. PW4 (Lamara M) who said she was an auntie to Ayeerwot (mother's sister) spoke to Ayeerwot's age, saying, she was below fourteen years at the time of the alleged offence. The Defence did not dispute the age. In the circumstances, and in agreement with the Lady assessor, I find that the $10$ prosecution has proved beyond reasonable doubt that Ayeerwot was below the age of fourteen at the time of the alleged offence.

Regarding Agenorwot, PEX 3 and PW5's evidence show that, Agenorwot had 28 teeth as at 7th February, 2017. Her age was stated to be $15$ approximately 12 years. Agenorwot also testified two years later, in 2019, stating, she was 13 years old, having been born on 1st September, 2005. Although I note a minor disparity regarding the age at the time Agenorwot testified. It is minor, because, going by her date of birth, Agenorwot was clearly below the age of fourteen at the time of the alleged offence in January or February, 2017. The Defence counsel, again, conceded that 20 Agenorwot was under the age of fourteen years at the material time.

Therefore, on the evidence adduced by the prosecution regarding age, and in agreement with the assessor, I find that the prosecution has proved beyond reasonable doubt that Agenorwot was under the age of fourteen years at the time of the alleged offence.

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HAROQUE

## Sexual act

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The next ingredient for consideration is the allegation that sexual act was performed on each of the victims.

Sexual act is widely defined in section 129 (7) of the Penal Code Act. For $10$ the purposes of the present indictment, it is alleged in the summary of the case that, the accused had sexual intercourse with the victims. In the circumstances, other than the alleged sexual intercourse, the other aspects of the definition of sexual act, do not apply. The alleged act of sexual intercourse comes within the purview section 129 (7) of the Penal 15 Code Act. A sexual act, therefore, include, penetration of the vagina of any person, however slight, by a penis.

I should perhaps observe that, before the Penal Code Act Cap 120 was amended by Act No. 8 of 2007, to introduce the offence of aggravated defilement, to offer more protection to children, the view that, any slightest penetration of the vagina would do, for the purposes of satisfying the proof of penetration, was a principle of law developed by the courts. This principle was not rooted in statute, prior to the amendment of the Penal Code Act in 2007, but had a force of law because it was judge made law. 25 Thus in Wepukhulu Nyuguli Vs. Uganda, SC. Crim. Appeal No. 21 of 2001, the Supreme court underscored the principle of law that,

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- $\mathsf{S}$ penetration, however slight, suffices to prove sexual intercourse. See also: Adamu Mubiru Vs. Uganda; C. A Crim. Appeal No. 47 of 1997. The jurisprudence on the matter, thus, appears to have informed the legislative approach in 2007. - The question I proceed to ask is, how then is penetration proved? In my $10$ view, penetration can be proved either by the victim's evidence, medical evidence, or any other cogent evidence. See: Remigious Kiwanuka Vs. Uganda, SC Crim. Appeal No. 41 of 1995; Uganda Vs. Sunday Herbert, HCT-01-CR-SC-162/2021 (Justice Vincent Wagona). However, it is not 15 a hard and fast rule that, medical evidence be produced to prove a sexual act. See: Hussein Bassita Vs. Uganda, SC Crim. Appeal No. 35 of 1995. However, once medical evidence is adduced by the prosecution, court will consider it. Court may consider medical evidence alongside other cogent evidence adduced in court.

I now proceed to consider the evidence adduced.

## The Victim's evidence

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Amito R (PW1) testified that, on the material day, which she could not recall, she and the two other victims, accompanied by Lamwaka P, had gone to harvest pawpaw from the home of the accused person. They found the accused at home. The accused took PW1 onto his bed, undressed

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- $\mathsf{S}$ himself, remained in a pair of shorts, laid PW1 down, and had sexual intercourse with PW1. After finishing with PW1, the accused performed sexual intercourse on Aye P (I think, PW1 was referring to Ayeerwot-PW2). The accused person also had sexual intercourse with Ageno G (referring to Agenorwot-PW3). PW1 felt pain in her private part. The accused removed PW1's panty. The three victims are said to be sisters (cousins, as the $10$ evidence show). Amito (PW1) further testified that, all the victims were in the same room (of grass-thatched house) when the accused had sex with all of them, in turns. According to PW1, the accused performed sexual intercourse in the presence of his two children, but he told his children to $15$ stay behind the curtain. PW1 did not tell her mother (PW4) what happened when they went back home. PW1 stated, it is her sisters (the cousin sisters) who informed PW4, after three days when they were from collecting fire wood. PW4 (complainant) reported to Police. PW1 testified, she was examined at a facility operated by 'Meeting Point' on 7th February, 2017 and she still felt pain in her vagina at the time of the examination. PW1, $20$ however, did not know the date the offence was committed but it was in the afternoon. According to PW1, although they had gone to the accused's home to collect pawpaw, the accused never gave them pawpaw. - Ayeerwot (PW2) testified that, the offence was committed in the evening at 25 around 6:00pm when she and her three cousins (PW2 calls them sisters) had gone to the accused's home to collect their mother's (PW4) phone,

Hhrodin

- where it had been taken for charging in the morning hours. They found $\mathsf{S}$ the accused at home with his daughter (Apochi) and a son. The accused told the victims and Lamwaka P to enter his house to pick the phone. PW2 entered and picked the phone. The accused told his children to go behind the curtain. PW2 later went out of the house. Before she went out, the - accused told PW2 to remove her clothes and go to his bed. Agenorwot 10 (PW3) ran out. The accused put his penis inside PW2's vagina, who felt pain. The accused sent away Lamwaka P (the girl who had accompanied the victims). When the accused was having sexual intercourse with PW2, no one was around except his children who were behind the curtain. Amito - (PW1) had already gone home. PW2 was the only victim of sexual assault. 15 None of the sisters (cousins) saw what happened to PW2 as they had left her behind. PW2 went back home alone. PW2 did not tell her aunt what had happened. The accused told PW2 not to tell her aunt, promising to give PW2 pawpaw. The accused gave PW2 pawpaw and she took it home. According to PW2 she never saw the accused perform sexual intercourse 20 on PW1 and PW3. And neither PW1 nor PW3 saw sexual intercourse being performed on PW2.

PW3 (Agenorwot) testified that sometime back, their mother (aunt to PW3) sent PW3, PW1 and PW2 to the accused person's home to pick her phone 25 which had been charging. The accused was with his children inside the house. He told PW3 and her cousins (PW1, PW2 and a one Lamwaka P) to

HUADON

- sit down. The accused told his children to go behind the curtain. He told $\mathsf{S}$ his children not to open the curtain to see him. The accused closed the door and told PW3 to remove her dress. PW3 attempted to run out but found the door locked. The accused pulled PW3 back. The accused picked Ayeerwot (PW2) and took her to his bed. He then undressed PW3 and put his 'thing' into that of Ayeerwot (PW2) as PW3 looked on. When he was $10$ done with PW3, the accused called Amito (PW1) and had sexual intercourse with PW1, and also later had sexual intercourse with PW3. The accused promised to give the victims pawpaw but did not give them pawpaw. The accused then opened the door and the victims went back - home together. The victims asked Lamwaka P to tell PW4 what had 15 happened, and Lamwaka obliged. Lamwaka told PW4 what had happened, after four days. PW3 feared that PW4 would beat them, so they could not tell her on the day of the incident. According to PW3, the incident happened in the middle of January, 2017.

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From the victim's oral testimonies, there are material contradictions in their accounts. Whereas Ayeerwot (PW2) claims she was the only victim of the alleged sexual assault and that neither PW1 nor PW3 were sexually assaulted, PW1 and PW3 claim they were sexually assaulted in the presence of Ayeerwot. Ayeerwot (PW2) denies and says at the material time, she was alone in the house of the accused person, except the accused and his two children. Ayeerwot further stated that, both PW1 (Amito) and PW3

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- $\mathsf{S}$ (Agenorwot) had already gone back home. Ayeerwot thus insists she went back home alone, as the other cousins had already gone ahead of her, leaving her behind. However, PW3 (Agenorwot) claims all the victims went back home together. Further, PW1 (Amito) never testified that they had gone to collect a phone from the accused's home, but pawpaw. She said the accused person never gave them pawpaw. PW2 and PW3 however claim $10$ they had gone to collect their mother's (aunt's) phone from the accused person's house, but not pawpaw. PW2 (Ayeerwot) claimed she went back home and was given pawpaw by the accused person. - Given these material contradictions by the alleged victims of sexual 15 assault, and being children of tender years, this court has to treat their evidence with great caution, as their duty of speaking the truth which court had found during voire dire, appears to have diminished by the time they gave evidence. Court has to consider other pieces of evidence relating to the alleged sexual intercourse. See section 40 (3) of the Trial on 20 Indictments Act Cap. 23 which appears still to have legal force despite court's more relaxed approach to the need for corroboration in sexual offences. In the instant case, this court finds lack of certainty in what the three children told court. Perhaps, other pieces of evidence could help give certainty or lend support to the victims' allegations. See: Mukungu Vs. 25 Republic [2002] 2 EA 482 (CAK).

Hhrodin This court thus understands that, in sexual offences generally, $\mathsf{S}$ corroboration is necessary as a matter of practice, to support the testimony of the complainant. However, as hinted, there have been instances where courts have held that conviction on uncorroborated evidence may be had if the court is satisfied that the evidence is truthful, after duly warning itself and the assessors, of the dangers of convicting on the uncorroborated $10$ evidence of the complainant. See: Republic Vs. Cherop A Kinei & another [1936] 3 EACA 124; Chila Vs. Republic [1967] EA 722 at p. 723 (CA); Kibale Ishma Vs. Uganda, Crim. App. No. 21 of 1998 (SCU); Livingstone Sewanyana Vs. Uganda, Crim. Appeal No. 19 of 2006

15 $(SCU)$ .

Corroboration affects the accused by connecting him or tending to connect him with the crime; confirming in some material particular not only the evidence that the crime was committed but also that the accused committed it. See: Republic Vs. Ishwerlal Purolin [1942] 9 EACA 58, at 61; Mutonyi Vs. Republic [1982] KLR 203.

In this case, PEX1 was the medical examination vide PF3A in respect of Amito (PW1). The medical evidence shows that, Amito was examined on 7th February, 2017. Her hymen was torn (raptured) with a tear on the posterior edge. The probable cause was said to be a blunt penetrating body suspected to be erect penis. PW5 (Okongo Simon Knox), a Clinical Medical

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officer, who examined PW1, did not state the approximate age of the $\mathsf{S}$ rapture of PW1's hymen. He also stated that, there are other cues for hymen rapture, such as riding a bicycle, jumping, and any force on hymen. I find this medical evidence unsatisfactory and unsafe to rely on, in light of PW2's testimony that no sexual intercourse was performed on PW1 $10$ (Amito). In my view, the medical evidence did not link the alleged penetration to the criminal transaction at issue before this court. It is trite law that, rapture or non-rapture of the hymen per se, is not conclusive proof of sexual intercourse or absence of it. Medical evidence is merely advisory and goes to the fact, not law, and court has discretion to reject it. See: Rivel (1950) Cr. App R 871; Matheson 42 Cr. App. R 145. Court 15 can even convict in the absence of medical evidence provided there is

strong direct evidence, when the circumstances of the offence are so cogent and compelling as to leave no ground for reasonable doubt. See: **Anyolitho**

## Vs. Uganda, Crim. App. No.22 of 2012 (COA).

Given its inconclusive nature, and the contradictions surrounding the alleged sexual acts on PW1, I proceed to consider other pieces of evidence.

PW4 (Lamara M), who lodged a complaint at Police, reported on 7th February, 2017. She claims when the victims returned home from 25 collecting a phone from the home of the accused on 1st February, 2017, they looked sickly. Regarding PW1 (Amito), PW4 said she looked dizzy.

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$\mathsf{S}$ Crucially, PW4 did not ask the girls that very day (1st February, 2017) why they looked sickly or why PW1 looked dizzy. PW4 claims she was told the following day ( $2^{nd}$ February, 2017) that, the victims had been sexually assaulted. The girls, however, testified that, it is Lamwaka P, who told PW4, three days later, meaning, PW4 was told on 4th February, 2017. Be $10$ that as it may, PW6 (D ASP Lubega Andrew) who said he recorded the complainant's (PW4's) statement on 8th Feb 2017, testified that, he received information that, a man had been committing acts of defilement. In Court's view, PW6's evidence meant, there were earlier acts of defilement involving the victims being committed by a man. However, neither the $15$ victims nor PW4 (mother/guardian) spoke about the alleged earlier acts of defilement, in their testimony in court, yet they told PW6 (an investigating officer). PW6 stated, the victims told him they had been defiled repetitively. As to when the repeated alleged criminal acts happened, PW6 said, it was during the month of January, 2017. PW6, however, expressed his $20$ frustration that, neither the victim nor the complainant or anyone, could tell him a clear or specific date the alleged sexual acts took place.

This court notes that, according to the particulars of the offence in the indictment, the offence was committed in January, 2017. This allegation was not altered as the indictment was never amended. That was the accusation which the accused person had to defend himself against. PW4, however, testified that, the offence was committed on 1st February, 2017.

Hhaven.

This change in position naturally would be prejudicial to an accused $\mathsf{S}$ person, as he was not forewarned by the Prosecution amending the indicctment. Be that as it may, regarding how PW4 was able to come to the specific date of 1st February, 2017, yet she never told the Police Investigator, this court was not told. It is thus crucial that, PW1, PW2, and PW3 also did not tell court the date of the alleged sexual assault. $10$

Having considered the evidence in totality, I find no evidence to support the allegation that sexual intercourse was committed against PW1 (Amito) by anyone. The victim's evidence, having been discredited by PW2, needed other evidence, which is lacking. The age of the alleged rapture of the 15 hymen was not proved in evidence by PW5 (medical officer). The possibility of the rapture having been caused by any other non-sexual acts, as conceded by PW5, was not ruled out. If the rapture was caused by any sexual acts, as the State purports, then the possibility of it having been caused by earlier criminal sexual acts, totally unconnected to the present 20 allegation, is not ruled out. This is because, PW6 (Police Officer) testified that the victims and the complainant told him there were earlier acts of defilement committed against the victims. Crucially, neither the victims nor the complainant, testified about these independent sexual acts. In my view, it would be very dangerous for a court to quickly conclude that, any 25 rapture of the hymen of a victim of an alleged sexual assault, without more, is proof of penetration, especially when there is conflicting prosecution

Hurodin

evidence. This is the case instant. I also do not agree with the evidence of $\mathsf{S}$ PW4 about the alleged sickly or dizzy condition of PW1. This evidence is contradicted by the victim's own evidence, who, according to PW4, said all the victims were fine, when asked. In the circumstances, and in agreement with the Lady assessor, I find the ingredient of penetration in respect of PW1 not proved beyond reasonable doubt. $10$

Regarding PW2 (Ayeerwot), although her evidence is believable to the extent that, neither PW1 nor PW3 were sexually assaulted, the totality of PW2's evidence, however, leaves her claim that she was the only victim of sexual assault, unreliable. I have, however, considered other pieces of 15 evidence in this regard. The sum total thereof, leaves the claim of sexual assault on PW2 incredible. For instance, PW1 (Amito) claimed she, Agenorwot (PW3), and PW2 (Ayeerwot) were together when all the girls were defiled and she saw what happened. However PW2 testified that Ageno rwot G (PW3) ran out, so the alleged sexual act took place on PW2 in the absence of both PW1 and PW3. However, according to PW2, only the accused person and his children were in the house when PW2 was allegedly sexually assaulted. PW2 further claimed, neither PW1 nor PW3 saw the alleged sexual act happen on PW2, as these girls had already gone home, leaving PW2 behind at the house of the accused person. PW2 also claimed, she went back home alone. This court finds it strange that, the alleged victims who had returned home without PW2, were not questioned

Harodin

by their guardian/mother (PW4) on the whereabouts of PW2 yet they had $\mathsf{S}$ gone out together.

I have also considered the medical report in respect of PW2 (Ayeerwot) and found it not conclusive. It does not confirm any sexual act on PW2. PW5 who examined Ayeerwot, testified that, her hymen was intact, in its natural status. Whereas court appreciates that, by hymen staying intact may not mean sexual intercourse did not happen, as the slightest penetration suffices, what is intriguing in this case is that, PW2 claims her alleged sexual ordeal took place in the absence of the other alleged victims (PW1 and PW3). However, both PW1 and PW3 insist they were both present. Court wonders why persons who were allegedly together could speak two different versions of the same event. No explanation was proffered by the State. I believe the Defence that, these alleged victims were influenced by some adult, to give stories which looked real but not quite. The prosecution witnesses ended up contradicting one another. I, therefore, tend to believe the Defence that the sexual intercourse stories were all made up. PW5 who said he examined PW2 (Ayeerwot) claimed there were multiple bruises around the labia minora. He said he suspected the bruises to have been caused by a blunt object applied with pressure which he suspected to be penis. This Court notes with consternation that, PW5 mentions the 'penis' in his oral testimony yet he never wrote it in PEX2 (medical report in respect of PW2). Thus PW5's conclusion about the 'penis' as being the

$10$

$15$

Herolan

likely cause of the alleged pressure and bruises on the labia minora of $\mathsf{S}$ PW2, with respect, is baseless and at best, a malicious conclusion, to find sexual intercourse on PW2 where there was none. Court wonders how the labia minora could have been bruised when the hymen remained intact and in its natural state. Notwithstanding that the non-rapture of the hymen may not constitute disproof of sexual intercourse, the $10$ circumstances of this case, calls for a lot of caution, especially where the victims of the alleged sexual offences, were persons of tender years, and contradicted themselves so much that court thinks they failed to live by their duty to speak the truth. I think, with respect, the girls betrayed the court's finding at the voire dire stage- that they were possessed of sufficient 15 intelligence, and understood the duty of speaking the truth. One of them, court had found, understood the nature of an oath. PW2 also appears to have influenced the medical report, by claiming in her narrative to the Medical Clinical Officer, that, a man who operates phone charging area sexually assaulted her. As to when that happened, neither the Medical 20 Officer nor the Police, were told. Significantly, court was not told by PW2 that, she was sexually assaulted by a person who operates a phone charging area. I, therefore, find the act of penetration not proved in respect of PW2 (Ayeerwot). As I have expressed myself, the act of penetration must relate to the complaint before the court, not some earlier or independent $25$ sexual act which was never reported to Police or and never made the subject of the charge and indictment before court. Otherwise, and with

Harolm.

respect, court's temptation to find penetration so easily, simply because $\mathsf{S}$ the victim of an alleged sexual assault has, in the past, been exposed to sexual abuse by some unknown criminal, would be a recipe for gross injustice in our criminal justice. In my view, each act of penetration must be delinked in time and linked to the allegation the subject of the indictment before court. In conclusion on the ingredient of a sexual act, I $10$ find, in agreement with the assessor that, no penetration was proved beyond reasonable doubt in respect of PW2 (Ayeerwot).

Regarding PW3 (Agenorwot), PW2 (Ayeerwot) testified that, nothing happened to Agenorwot. PW2 claimed that, on the material day, Agenorwot $15$ and Amito had already gone back home, leaving PW2 behind at the house of the Accused person. PW4 (the complainant), however, testified that, the girls went back home together. However, in her testimony, Agenorwot (PW3) claimed that, while at the home of the accused, the accused picked Ayeerwot first and took her to his bed. He then undressed PW3 and $20$ Ayeerwot, and put his thing into that of Ayeerwot as PW3 looked on. When the accused was done, he called Amito and started kissing her. He then had sex with Amito. When the accused was done, the accused called PW3 but she refused to go. He then forcefully had sex with PW3. She felt pain.

The accused then opened the door and the victims went home. 25

Hentoom.

- According to PW3, the incident happened in the middle of January, 2017. $\mathsf{S}$ PW4 (the aunt of PW3) testified that, according to the victims, the incident happened on 1st February, 2017, and she was told about it on 2nd February, 2017. It was not the victims who told PW4, but Lamwaka P, who disclosed that the accused had defiled the victims, in turns. Court notes - that, Lamwaka P, did not testify. Be that as it may, according to PW4, after $10$ being told by Lamwaka on 2nd February, 2017, PW4 asked the victims as to whether they were lying or not. The victims confirmed they had been defiled and said they were telling the truth. PW4 also stated that, she had first asked the victims the very day of the alleged incident (1st February, - 2017) who all looked 'sickly' and they all said they were fine (not sick). This $15$ court notes that, the alleged asking of the victims by PW4 on 1st February, 2017, were not spoken about by any of the victims. PW6 who investigated the matter, stated that, in his investigations, no one told him the specific date of the alleged incident. According to PW6, the victims said they had been defiled by some man repetitively during January 2017. The victims 20 testified that they told their mother (meaning PW4 who was an aunt to two of them) about the incident three to four days after the alleged incident. In his medical report (PEX3), PW5 stated that, the hymen of Agenorwot was raptured with a tear on the posterior aspect of the vaginal orifice. This $25$ evidence, again, was largely influenced by what the victim told the medical officer. The medical evidence also contradicts what PW2 (Ayeerwot) told court, that, nothing happened to the rest of the victims, and that, it was

Hussdam only she who was defiled. Court, however, has already disbelieved PW2 in $\mathsf{S}$ respect of the claim that she is a victim of defilement. Court also does not believe that the victims were professionally examined by PW5. This court recalls what PW1 (Amito) told court that, the examination took place at a facility operated by 'Meeting Point', whatever that means! Court, therefore, $10$ highly doubts that the victims were examined at Kitgum Government Hospital, contrary to what PEX1, PEX2 PEX3, and PW5, purport. It appears, and with the greatest respect, the exhibits were merely filled and taken to Kitgum Government Hospital, and stamped, for court purpose. In conclusion, I find the allegation that, sexual act was performed on Agenorwot (PW3), not proved beyond reasonable doubt, just as the Lady 15 assessor advised this court to hold.

## Participation of the accused

PW1, PW2 and PW3 testified that, they were sexually assaulted by the accused, although they conceded, they did not know his name. They said $20$ the accused was the father of a girl called Apochi. The Accused accepted he has a daughter called Apochi, and that the victims and Apochi are friends, who used to play together. PW1, PW2 and PW3, however, conceded, they did not know when the alleged incident happened. According to PW4 (Lamara M), the incident happened on 1st February, 25 2017. PW4 claimed, the victims told her three days later, which court finds, was about 4th February, 2017. However, the victims claim, it was

HutoQu.

Lamwaka P, who told PW4 a day later, that is, on 2nd February, 2017. PW4 $\mathsf{S}$ said, she reported to Police on 7th February, 2017, so she delayed a bit because she had had malaria and was down. However, the victims testified, they had gone to fetch firewood with PW4, on 2nd February, 2017 and that is when they told her. So, the malaria story sounds incredible. Be that as it may, this court appreciates that, a criminal case can be reported 10 after a lapse of time, as there is no time limit on it. However, in court's view, delays to report a crime may water down the credibility of allegations, especially when the story is not well pieced together, as witnesses may exaggerate or even forget some crucial facts, if at all, as memory fade. In this case, the delay of a few days could not have had such an effect. The $15$ delay also cannot attract any adverse inference. The prosecution story, however, does not end here.

PW6 (D ASP Lubega Andrew) testified that, he recorded the complainant's statement on 8th Feb 2017. He stated that, the information from the 20 complainant (PW4) was that, a man had been committing acts of defilement on the victims. The perpetrator was not named. The victims told PW6 that, they had been defiled repetitively, and that, the incidents happened in January, 2017. The Prosecution alleged in the particulars of the offence, and the summary of the case that, the offence was committed 25 in the month of January, 2017. Thus, how PW4 came up with the date of 1st February, 2017, remains a mistery. According to PW6, the accused told

HUADOm.

him that he had been at his home village (in Palabek). PW6 conceded, he $\mathsf{S}$ did not investigate the accused's alibi. PW6 claimed, the Accused was arrested on 7th Feb 2017. PW6 who investigated the allegation, said, he went to the house of the accused and found nothing of evidential value. The house of the accused was locked, but PW6 and others, accessed it. How they did it, in the absence of the accused, court was not told. PW6 $10$ also stated that, according to the information he was given by the victims, the offence was committed about January, 2017. According to PW6, he and others did not discover the specific date when the offence was committed. PW6 expressed frustration that no one could give him a clear 15 date.

According to the accused person, and his witnesses, he was away in Palabek from 11th January, 2017, building two grass-thatched houses in his home village, since his other house had got burnt, and that, he only returned to Lulojo on 9th February 2017. The accused stated, he was arrested on 10th February, 2017, not 7th February, 2017, as claimed by PW6. DW2 (Hellen Okello), DW3 (Lalam Veronica) and DW4 (Okello John) all spoke about the absence of the accused person from Lulojo village, from about 8th or 10th January, 2017, as he was in Palabek, and that, the $25$ accused retuned to Lulojo on 9th February, 2017, only to be arrested on 10th February, 2017. In court's view, the defence is correct about the accused's absence from Lulojo village, as they were not contradicted. No

HhADen.

one placed the accused at the scene of the crime on 1st February, 2017 $\mathsf{S}$ when PW4 claims the accused committed the offence, or on 7th February, 2017, when PW6 claims the accused was arrested. I believe the accused person and his witnesses. PW6 was thus not correct when he claimed he arrested the accused on 7th February, 2017, yet by then, even the $10$ complainant (PW4) had not yet made a statement. PW6 and PW4 concede, PW4's statement was recorded on 8th February, 2017.

Although court notes a few contradictions in the defence evidence as to when the accused arrived in Palabek, court finds them minor. The accused $15$ said he arrived in Palabek on 10th January, 2017. His brother, DW4 (Okello John) said the accused arrived in Palabek on 8th January, 2017. However, all the Defence witnesses were consistent that, the accused was absent from the date of the alleged offence from Lulojo, that is, on $2^{nd}$ February, 2017 (a date only PW4 claims) and that, he only returned in Lulojo, Kitgum Municipality, on 9th February, 2017. The defence of alibi was not discredited or disproved by the State.

Courts have underscored the duty of an accused person to bring out his/her alibi as soon as he/she can, to erase any doubt as to whether he/she is not preparing it in the interval (after a pause/break). Thus, raising an alibi at the earliest, prepares the prosecution, and gives it an

Hubolu.

## opportunity of inquiring into it. See: R Vs. Sukha Singh S/O Wazir Singh $\mathsf{S}$ & ors (1939) 6 EACA 145,

In this case, the Investigating Officer (PW6) conceded that, the accused told him he had been in Palabek, constructing his village grass-thatched houses at the time the offence was allegedly committed in Lulojo village. Court thus finds no evidence to suggest that, the accused had fled to Palabek, running away from the long arm of the law, which would have constituted circumstantial evidence of conduct of a guilty person (See: Bogere Charles Vs. Uganda, S. C Crim. Appeal No. 10 of 1998; Nyondo Muhammed Vs. Uganda, C. A Crim. Appeal No. 198 of 2004).

Court further notes that, from the time of his arrest, the accused insisted on his alibi, and when put to his defence, he maintained it, and although he had no duty of proving it, he proved that he was away at the material time. The law is that, once an accused person raises an alibi, it is the duty of the Prosecution to destroy the alibi by placing the accused at the scene of the crime, and that, he was not merely at the scene as an observer but as the perpetrator of the crime indicted. The State destroys an alibi by adducing evidence which puts the accused at the scene of the crime. In court's view, the evidence of the Police Investigator should have come $25$ handy, but there was none. One of the ways of disproving an alibi is by

HhAodu.

$10$

$\mathsf{S}$ investigating its genuineness. See: Androa Asenua & anor Vs. Uganda, Crim. Appeal No. 1 of 1998.

In the instant case, therefore, there is no evidence, be it circumstantial or direct, placing the accused at the scene of the crime on $2^{nd}$ February, 2017, $10$ or in mid-January, 2017, whichever date the State would want this court to take. Sadly, it was not alleged that, the offences were committed on diverse dates spanning from January to 1st February, 2017, in a series. No specific date is mentioned in the indictment which could put the accused on notice. As noted, it was only PW4 who mentioned the date of 1st 15 February, 2017 in her testimony, as the date of the alleged offence, yet she was not at the scene of the alleged crime. The victims did not mention any date. As a matter of fact, the victims told the Police Investigator (PW6) that, they did not know the date of the alleged offence. The date claimed by PW4 is also contrary to the indictment, which was never amended. I think the $20$ accused must have been prejudiced by the change of the date in the prosecution evidence, contrary to the indictment and the summary of the case. Be that as it may, the totality of both the prosecution and the defence evidence, leaves the alibi of the accused intact. I, therefore, find the participation of the accused in the alleged offence of aggravated defilement, not proved. I, therefore, agree with the assessor in that regard.

Hersoln.

- In this case, whereas several witnesses testified for the Prosecution, I find $\mathsf{S}$ that, the witnesses failed to prove that, sexual intercourse was performed on any of the victims, and that, it is the accused who did it. In law, what matters is the quality of the evidence not the quantity of it. See: Sewanyana Livingstone Vs. Uganda, Supreme Court Criminal Appeal - $10$ No. 19 of 2006 (supra). The witnesses for the prosecution, as noted, materially contradicted themselves. The contradictions were major and grave. In law, grave inconsistencies and contradictions, unless satisfactorily explained, will usually, but not necessarily result in the evidence of a witness being rejected. However, minor inconsistency and $15$ contradiction may be ignored unless court thinks it points to be deliberate untruthfulness, in which case, it will result in the evidence of a witness being rejected. See: Alfred Tajar Vs. Uganda (1969) EACA Crim. Appeal **No.167 of 1969**). What constitutes a major contradiction will also depend on the facts and circumstances of each case. The test of whether a 20 contradiction is major is whether or not the contradictory elements are material, that is, essential to the case determination. Material aspects of

HUADOM.

evidence vary depending on the crime. Generally, in criminal trials,

materiality is determined on the basis of relative importance between the

point being offered by the contradictory evidence and its consequence to

the determination of any of the elements necessary to be proved.

Contradiction will be considered minor where it relates only to a factual

issue that is not central, or that which is only collateral to the outcome of

the case. The law, however, allows court to accept that part of a witness' $\mathsf{S}$ testimony which it finds truthful and reject those parts it finds untruthful. It is also open to the court to find that a witness has been substantially truthful even though the witness may have lied in some particular respect. See: Nasolo Vs. Uganda, SC Criminal Appeal No. 14 of 2000; Uganda Vs. Walugembe Shafik, HCT-09-CR-0055-2021 (Vincent Wagona, J.) $10$

In this case, there were major inconsistencies and contradictions regarding the allegation of sexual intercourse. I have already found that, the victims seem to have made up a case where there is none. There was 15 also no evidence whatsoever that the accused committed any acts of aggravated defilement. Therefore, in agreement with the Lady assessor, I find the accused not guilty of the offence of aggravated defilement, contrary to section 129 (3) (4) (a) of the Penal Code Act Cap 120. I accordingly acquit Akera Charles Lwanga, the accused person herein, of the offence indicted. He shall be released forthwith, unless held on other lawful charge.

$25$

Before I take leave of this matter, I further did not find any evidence of indecent assault, contrary to section 128 of the Penal Code Act, which is a minor and cognate offence of aggravated defilement, or evidence of attempt to commit aggravated defilement, contrary to section 386 and 388 of the Penal Code Act, against the accused person. I, therefore, found it not worthwhile to traverse that lane.

Harrodm.

$\mathsf{S}$ It is so ordered.

Dated, signed and delivered at Kitgum this 14th August, 2023

$10$

Howem. 14/8/2023 George Okello

**JUDGE HIGH COURT**

## Ruling read in Court

$15$ 3:30PM

14th August, 2023

20 **Attendance**

Accused person in Court

Mr. Jude Ogik, on State Brief, for the accused

Mr. Patrick Ojara, Senior State Attorney, for the Prosecution

Ms. Rosemary Oryang Wodomal, Assessor

$25$ Ms. Jennifer Lubik, Court Clerk/ Acholi Interpreter

HusQue 14/8/2023 George Okello

**JUDGE HIGH COURT**