Uganda v Angecha (Criminal Session 310 of 2019) [2024] UGHC 413 (5 March 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

## **CRIMINAL SESSION CASE No. 310/2019.**

# **(ARISING FROM CRIMINAL CASE – CRB No. 663/2018: PATONGO).**

## 5 **UGANDA PROSECUTOR**

**Versus**

## **ANGECHA ATANASIO ACCUSED**

# **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA. RULING.**

## 10 **Background.**

[1]. The Accused, **Angecha Atanasio**, was indicted on a count of Aggravated Defilement contrary to **Section 129(3)(4)(a)(c) of the Penal Code Act, Cap. 120**. The particulars of the offence are that on the 21st day of December, 2018 at their home in Kweyo North Village, Olung Parish, Lukole Sub County in Agago 15 District the Accused, being the father of the alleged victim **"AS"** a girl then aged Ten (10) years old, performed a sexual act with her. The indictment is dated 17th July, 2019 and he was committed to the High Court for Trial on 26th July, 2019. [2]. The Accused was arraigned before the Court on the 19th December, 2023 and pleaded not guilty to the charge of aggravated defilement read and explained to 20 him by the Court whereupon the Trial commenced. During the Trial the entire proceedings were interpreted into the Acholi language, his preferred language. Ms. Lamunu Esther and Mr. Okumu Raymond were appointed Assessors without objection of the Accused and Counsel and upon declaration of no conflict of interests they took oath and assumed duties.

## **The Prosecution Evidence and Case Presented.**

- [3]. The Prosecution commenced its case on the 9th January, 2024 and concluded its evidence on the 25th January, 2024 during which they called Three (3) Witnesses. PW1 – Lakot Alice, the complainant who is the mother of the alleged victim and 5 spouse of the Accused; PW2 – AS, the alleged victim; and, PW3 – Achan Hellen, a Nursing Officer who examined PW2. - [4]. The first Prosecution witness, Lakot Alice, (PW1), Thirty-Three (33) years old, testified that the Accused is her husband - through traditional wife inheritance following the demise of his late brother Otira David - and PW2 who was born on the 20th 10 July, 2007 and is presently Sixteen (16) years old is her biological daughter and the biological daughter of the late Otira David, though she calls the Accused (her Uncle) her father. - [5]. She testified to the sequence of events that led to the Accused being charged stating that - Together with the Accused and other relatives she had been visiting their in-laws at the home of one Odoch and at about 2 am on the 21 15 st December, 2018 the Accused asked her for the key to their house (hut) in which they sleep. She told him she did not have it and returned to join the others but later left and could not find the Accused at the venue. She then followed him while running thinking that he would break down the door of the house since he had no key 20 and intended to assist him open the door. Upon reaching their home she found the door of their house open – the very house for which he had asked for the key – and when she entered and checked the bed did not find him. After laying their biological child, who was crying, on the bed she went to the kitchen to find food. On reaching the kitchen, in which about Ten (10) girls sleep, she opened 25 the door intending to pass them by moving along the wall to pick food since she knew the positions in which they slept and found the Accused inside leaning against the wall.

- [6]. Initially, she did not recognize him but upon picking up courage she moved towards him touching him and finding a phone in his pocket which she removed and shone on him. She demanded to know why he was in the kitchen to which he did respond but thereafter while at their house he explained that he was 5 hungry and had gone to look for food in the kitchen. She had observed before leaving the kitchen that PW2 had no bedsheet covering herself and did not respond when called. She also flashed the torch on her observing that she was wearing three (3) different items of clothing including pants inside, shorts and a skirt on which skirt was a watery substance. - 10 [7]. Immediately, that night she reported to PW2's uncle Obina Paul who asked the Accused why he had gone to the room in which the girls slept. The Accused admitted entering the room stating that he was looking for food because he was hungry. The following morning, she reported the case to Police as the mother of the victim. In her view, she reported to Police because it was not proper for a 15 male parent to open the house where the girls slept at night. She did not interact with PW2 after, apart from asking why she had not covered herself. She is not sure about the charge against the Accused. In her view, it is the Police to investigate and come up with findings. - [8]. In cross examination, she testified that she did not find out from PW2 later what 20 had happened and has not discussed the incident with her since. PW2 did not tell her anything. Apart from the watery substance she did not see any other substance. PW2 was taken to Dr. Ambrosoli Hospital for examination. PW1 did not understand what the watery substance was. She confirmed that PW2 was wearing three (3) items of clothing pants, shorts and a skirt. The pants and shorts 25 were intact while the skirt was open under – as skirts by their nature are. The private parts were not open. The undergarments were not tampered with. There was no re-examination.

- [9]. The second witness presented by the Prosecution was AS, PW2, the alleged victim of the aggravated defilement. She is Anglican, 16 years old, a Primary Five (5) student and resides with her mother Lakot Alice, PW1. - [10]. Upon the Court observing that she looked very young and her stating that she 5 had forgotten her date of birth, the Court conducted a *Voir Dire* out of an abundance of caution. She was intelligible and logical, knew her surroundings as being Kitgum Court and the reason for her attending Court being as a result of the arrest of the Accused whom she described as her father – though he was not her biological father. She said that she was willing to testify before the Court on 10 the matter between herself and the Accused. She stated that she was Fifteen (15) years old but had forgotten her date of birth. She confirmed that she prays and attends Church and she can answer the questions put to her truthfully. The Court was satisfied that the alleged victim understood the nature of oath and requirement for truthful testimony and was capable and competent to testify 15 before the Court. Both Counsel concurred. - [11]. She testified that on 21st December, 2018 in the early hours her father and mother were at a function while she remained at home together with her brothers and sisters and they were all asleep in their respective houses. She slept in the kitchen house with the girls. Sometime in the early hours the Accused returned home 20 and asked her brother Wokorach Charles for the key to his house which he was given and he used it to open the door of his bedroom. He then entered the kitchen house which was where she and the girls slept and went to the fireplace where cooking was done. She asked whom it was entering the house at that time and the Accused responded saying that it was him. - 25 [12]. Her mother returned home soon after, first entering their house and then the kitchen where she saw the Accused and asked him what he was doing there at that time. The Accused responded that he was looking for food.

- [13]. PW2 testified that before her mother entered the kitchen house where the girls sleep nothing else had happened. The Accused had said he was looking for food. PW1 called other people to ask him in front of them why he had gone to the kitchen at that time. The persons who responded to her mother's call included 5 Adong Christine and Adong Agilita. Her mother then started fighting the Accused and they were separated. - [14]. PW2 testified that she did not know why her father was in Court. The Police arrested her father and he was taken to Patongo Police Station. - [15]. Defence Counsel did not cross examine PW2. - 10 [16]. Consequently, there was no re examination. - [17]. The third witness presented by the Prosecution was Achan Hellen, PW3, 48 years old, resident of Lango Village, Pece Parish, Patongo Town Council, Agago District. - [18]. She is a Nursing Officer/Midwife at Patongo Health Centre IV in Agago 15 District. She has a diploma in nursing and midwifery from St. Kizito School of Nursing, Napak (1997-1999) and midwifery training at St. Mary's Kalongo in 2004 with supposedly Thirty (30) years of experience. - [19]. Her duties include treating patients and sometimes examines persons brought from the Police in matters of rape, defilement, assault and other allegations. The 20 persons she examines present her with a Police Form following which she examines them, fills the form and refers them back to Police endorsing the form by writing her name, signing and then placing the stamp of the facility. - [20]. PW3 identified **Police Form PF3A** for medical examination of a victim of sexual assault which was admitted on the Record of the Court as **Exhibit "PE1"**, 25 without objection from the Defence, which she had completed and endorsed. She had examined PW2 on 21st December, 2018.

[21]. In her professional opinion, her findings were that PW2 was a very young girl from appearance and upon examining her dental formula which had twenty-four (24) she observed that the milk teeth had recently raptured. Her secondary characteristics like her breasts were not developed. She estimated her age at Nine 5 (9) years old.

[22]. She did a vaginal examination and tried to insert the tip of her smallest finger into the vagina but it could not go through. She concluded that the victim could not be penetrated with the fingertip. There were no signs of injury. The hymen had raptured sometime earlier. It was not a recent rapture. The rapture of the 10 hymen had not occurred in the previous Two (2) weeks. PW2 could not move due to pain in her pelvis. Otherwise she looked alert, well oriented and

[23]. PW3 concluded that there was probably non penetrative sex.

emotionally stable.

- [24]. In cross examination, PW3 testified that she examined PW2 at about 4 pm on the 21 15 st December, 2018 and claims PW2 told her that the Accused was her father and he had slept on her and had sexual intercourse. She further claimed that PW2 told her mother PW1 that the Accused had been putting his private parts on her and it had happened Three (3) times since 2nd term with the last time being the previous night. - 20 [25]. PW3 admitted that she was not there when PW2 allegedly told her mother and could not verify. - [26]. She had examined the victim's clothes which included a skirt and blouse. She did not have knickers and she did not wear shorts. PW3 could not remember the colour of the skirt or blouse. - 25 [27]. In reference to PF3A **Exhibit "PE1"** she testified that there was a whitish substance on the inner part of PW2's skirt. She did not investigate what the whitish substance was.

- [28]. The genitals were normal and normal genitalia is consistent with no sexual intercourse. Had a penis been inserted in the vagina it would have enlarged the vagina - and she testified that her fingertip is smaller than a penis – the insertion would have caused the victim injuries but there were no injuries. She found the 5 victim seated supported by a female who could have been her mother. - [29]. On re-examination, she testified that she did not investigate the whitish substance because she did not have the apparatus. - [30]. There were no signs of intercourse such as bruises or whitish substance on the genitalia. - 10 [31]. In questions from the Court, she testified that she examined PW2's pelvis and found that there was pain all over and she was unable to walk normally. In her view, the source of the pain was pressure on the pelvis. There was however no mention of the pelvis in the report.

## **The Defence Submissions on No Case to Answer.**

- 15 [32]. The Defence submitted a no case to answer under **Section 73 of the Trial on Indictments Act, Cap. 23** emphasizing that the burden of prove all the ingredients of the offence lay on the Prosecution beyond reasonable doubt and does not shift with the Accused presumed innocent until proven guilty. - [33]. The Defence referred to the definition of a sexual act under **Section 129(7) of** - 20 **the Penal Code** and argued that the Prosecution had not established a *prima facie* case against the Accused - [34]. Specifically, the evidence did not prove that there was any sexual intercourse which had occurred between the Accused and PW2 with this being the key ingredient of the offence of aggravated defilement. - 25 [35]. The age of PW2 is not contested and neither is the fact that the accused is her paternal uncle now considered her stepfather.

- [36]. In as far as the evidence presented, the Defence argued that PW1 did not witness any sexual act between the Accused and PW2 nor did she physically examine or interrogate PW2 as the first responder – and much as she was the complainant. Neither did she examine the Accused. - 5 [37]. PW2 did not mention to her any sexual contact between the Accused and herself and in fact explained that the Accused was looking for food in the kitchen. - [38]. The medical evidence of PW3 was that upon examination of PW2 using her smallest fingertip to attempt to insert it into her vagina she observed that her smallest finger could not penetrate it. Her professional conclusion was that there 10 was no indication or evidence of penetrative sex. - [39]. However, the Defence refuted PW3's other evidence in regard to what she was allegedly told by PW2 about alleged previous sexual encounters with the Accused and contended that it was riddled with inconsistencies and contradictions. - [40]. Regarding allegations of a whitish substance on the clothes of the alleged victim, 15 this was neither investigated by PW1 nor studied or tested by PW3. - [41]. The Defence concluded by contending that there was no direct or circumstantial evidence establishing the essential ingredients of the offence, specifically the occurrence of a sexual act, and since the Prosecution has not established a *prima facie* case the Accused must therefore be acquitted.

## **The Prosecution Submissions on No Case to Answer.**

[42]. The Prosecution contested the No Case to Answer submission and outlined the requirements for establishment of a *prima facie* case. The Prosecution relied on PW1's and PW3's testimony to establish that PW2 was Nine (9) years old at the 25 time therefore confirming that she was below Fourteen (14) years of age being the age stipulated in the offence of Aggravated Defilement.

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- [43]. In respect of whether a sexual act was performed, the Prosecution cited the complainant testimony of PW1 to the effect that there was a watery substance on PW2's Skirt and while referring to the testimony of PW3's professional testimony submitted that: - - 5 **"the victim was in pain and that although the victim could not have been penetrated she had a raptured hymen and she stated that the genitalia of the victim is consistent with no sexual intercourse"**. - [44]. In regards to the Accused having authority over the victim, the Prosecution cited that PW2 is the stepdaughter of the Accused whom she is taken care of by and 10 calls him her father thereby putting her under his authority. - [45]. Regarding the responsibility of the Accused, the Prosecution relied on the testimony of PW3 to the effect that the victim informed her when she interviewed her on the 21st December, 2018 that: -

# **"the Accused had sex and she was in pain, and she had raptured hymen** 15 **though was not recent(ly)."**

- [46]. The Prosecution also relies on the testimony of PW1 regarding the Accused having been found in the kitchen and failing to explain himself with the later - explanation that he had gone to look for food being an afterthought. - [47]. The Prosecution prays that the Court find that a *prima facie* case has been 20 establishing against the Accused.

## **Representation.**

- [48]. Counsel, Mr. Ojara Patrick, Resident Senior State Attorney, represented the Prosecution. - [49]. Counsel, Mr. Oyet Silver Okeny, represented the Accused. The Accused was 25 present in Court throughout the Proceedings. #### **Proceedings before this Court.**

- [50]. The Prosecution concluded its evidence and closed it case on the 25th January, 2024 whereupon the Defence prayed for timelines to file Written Submissions to submit a No Case to Answer. - 5 [51]. The timelines were given by the Court with the Defence filing on or before the 29th January, 2024 and the Prosecution filing on or before the 1st February, 2024 and the Ruling fixed for the 15th February, 2024. - [52]. The Defence filed on the 29th January, 2024 and the Prosecution filed on the 2nd February, 2024. - [53]. At the proceedings on the 15th 10 February, 2024 the Defence informed Court that they had not been served with the Prosecution's Written Submissions but nonetheless urged Court to proceed and consider the Written Submissions already filed on the Record of the Court.

#### 15 **Considerations and Determination of the Court.**

- [54]. Aggravated Defilement is provided for by **Section 129(3)(4)(a) and (c) of the Penal Code Act, Cap. 120**. The burden of proof lies on the Prosecution and does not shift. The standard of proof is beyond reasonable doubt. **See: Sections 101 - 106 of the Evidence Act, Cap. 6; Woolmington Vs. DPP** 20 **[1935] AC 462; Ssekitoleko Vs. Uganda [1967] EA 531; and, Miller Vs. Minister of Pensions [1947] 2 ALL ER 372.** - [55]. In pleading not guilty to the offence, the Accused put all the essential ingredients of the offence of aggravated defilement into issue. The Accused is presumed innocent under **Article 28(3)(a) of the Constitution**. The prosecution is 25 therefore required to prove all the essential ingredients of the offence of aggravated defilement. - Page | 10

- [56]. At the end of the Prosecution case, the Court is required to determine whether the Prosecution has made a *prima facie* case against the Accused before the Accused is put to his or her Defence. **Section 73 of the Trial on Indictments Act (TIA), Cap. 23** requires that this Court determines whether or not the 5 evidence adduced has established a *prima facie* case against the Accused. Only if a *prima facie* case is made out against the Accused is he put to his defence. - [57]. **Section 73(2) of the Trial on Indictments Act** provides: **"… where at the close of the prosecution case a prima facie case has not been made out, the Accused would be entitled to an acquittal."**

10 **See: Wabiro Alias Musa Vs. Republic [1960] EA 184; …**

[58]. A *prima facie* case is defined as: -

**"One where a reasonable tribunal properly directing its mind on the Law and evidence would convict the Accused if no evidence or explanation was set up by the Defence."**

- 15 **"A prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless discredited prosecution evidence. The prosecution though, at this stage is not required to have proved the case beyond reasonable doubt since such a determination can only be made after hearing both the prosecution and defence."** - 20 **See: Rananlal T Bhatt Vs. Republic [1957] EA 332.** - [59]. The considerations that justify a finding of no *prima facie* case established against the Accused are: - **i. "When there has been no evidence to prove an essential ingredient in the alleged offence.** - 25 **ii. When the evidence adduced by the prosecution has been so discredited as a result of cross examination, or is so manifestly unreliable that no reasonable Court could rely on it.**

**It is important to note, that for the Accused to be out on defence, Court must be ready to convict if he offers no explanation on the credible, admissible and high quality evidence in support of each ingredient of the offence but not to shift the burden of proof to the Accused as any** 5 **conviction must be based on the strength of the prosecution."**

**See: Uganda Vs. Alfred Ateu [1974] HCB 179.**

[60]. The Court would have to determine whether sufficient and reliable evidence has been adduced in proof of each of the essential ingredients and the evidential value depends on the accuracy, consistency, competence, credibility, reliability 10 and authenticity of the witnesses and evidence presented.

# **See: Rananlal T. Bhatt Vs. R [1957] EA 332, Criminal Session - SC No. 125/2015 (High Court, Gulu – Justice Mutonyi): Uganda Vs. Akena Nixon Gasfero & 2 Others.**

- [61]. The ingredients to prove beyond reasonable doubt on a charge of aggravated 15 defilement are as follows: - i. The victim was below Fourteen (14) years of age. - ii. There was a sexual act performed on the victim. - iii. The offender was a person in authority over the person against whom the offence was committed. - 20 iv. The accused did commit the offence. - [62]. The Court has duly considered the testimony of PW1, PW2 and PW3 reproduced *In Extenso* together with the Exhibits admitted on the Record of the Court Exhibit "PE1" and the submissions of both the Defence and the Prosecution filed on Court Record in reaching its determination on whether or not there is a 25 case for the Accused to answer in respect of the offence of aggravated defilement contrary to **Section 129(3)(4)(a) and (c) of the Penal Code, Cap. 120**.

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- [63]. The first ingredient in regards to the age of the alleged victim at the time on the 21st December, 2018 is not contentious. The testimony of PW1 the mother of PW2 established that she was born on the 20th July, 2007. She was therefore at her Tenth birthday and Five (5) months. - 5 [64]. This was corroborated by the professional testimony of PW3 who upon examining PW2 concluded based on her dental formula and bodily development estimated that she was Nine (9) years old. - [65]. The Court therefore finds that PW2 was below the age of Fourteen (14) years on the 21st December, 2018. - 10 [66]. The second ingredient whether there was a sexual act performed on the victim – is the core of the offence of aggravated defilement and must be considered in the context of the definition of a "sexual act". - [67]. **Section 129(7)(a) and (b) of the Penal Code Act, Cap. 120** defines a "sexual act" and to mean – - 15 **"penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ." "the unlawful use of any object or organ by a person on another person's sexual organ."**

A "sexual organ" means – **"a vagina or penis"**.

20 [68]. It has been held that however slight the penetration may be, it will suffice to sustain a conviction.

## **See: SC Cr Appeal No. 21/2001: No. 0875 Pte Wepukhulu Nyuguli Vs. Uganda; and, Adamu Mubiru Vs. Uganda CA Cr. Appeal No. 47/1997.**

- [69]. The act of sexual intercourse may be proved by direct or circumstantial evidence. 25 Usually the victim's own evidence corroborated by medical evidence or any other - cogent evidence.

## **See: Hussein Bassita Vs. Uganda: Supreme Court Criminal Appeal No. 35/1995**.

- [70]. Upon consideration of the testimony of PW1, it is apparent that she did not observe any sexual act between PW2 and the Accused. - 5 [71]. Moreover, curiously, she did not examine PW2 immediately upon her suspicions being raised when she found the Accused in the kitchen and testified that she did not follow up by asking PW2 nor raise the matter again after that night. - [72]. It is strange that PW1 did not do more to identify the alleged watery substance said to be on PW2's skirt which seems to have formed the basis of her suspicions. - 10 The fate of the skirt with the watery substance is unknown and it was not produced in evidence before the Court. - [73]. PW1 explained to the Court that she reported the Accused to the Police because in her view men should not enter the rooms where girls sleep. She did not say that she had reported to the Police because she had witnessed or suspected a 15 sexual act. The Court notes from her testimony that as far as she was concerned it was the responsibility of Police to investigate her report and come up with findings. - [74]. In considering the testimony of PW2, she denied that there was sexual intercourse between her and the Accused. She explained that the Accused had 20 simply gone to the kitchen to find some food. Nothing else happened. It is noteworthy that PW2 slept in the kitchen with about Ten (10) other girls, none of whom seems to have observed any untoward acts or behaviour and none of their testimony has been presented to the Court.

#### **See: Bukenya & Others Vs. Uganda [1972] EA 549.**

25 [75]. Once the Prosecution omits summoning an essential witness, the presumption is that his or her evidence would be adverse to the Prosecution.

#### **See: SCCrA No. 030/2014: John Kyambadde & Anor Vs. Uganda.**

- [76]. The Court finds that PW 2's testimony was competent, credible and truthful. - [77]. In considering the professional testimony of PW3, she confirmed that upon examination of PW2 on the 21st December, 2018 she concluded that there was no penetrative sexual intercourse between PW2 and the Accused. - 5 [78]. Her testimony that there was non-penetrative sex between PW2 and the Accused is unsubstantiated moreso because she failed to investigate or test the alleged white substance she did not identify on PW2's skirt to determine what it was. - [79]. The Court considers the testimony of the PW3 about sexual activity between PW2 and the Accused allegedly obtained from interviewing PW2 is inconsistent 10 with and collapses against the weight of the testimony and evidence of PW1 and PW2 – much as the Court is conscious that reports by victims to third parties may constitute an exception to the hearsay rule.

## **See: Badru Mwindu Vs. Uganda – Supreme Court Criminal Appeal No. 15/1997; and, CA Cr Appeal No.0370/2015 (Lira): Moro Alex Vs. Uganda.**

- 15 [80]. The Court therefore finds that the Prosecution has not proved that a sexual act occurred between PW2 and the Accused. - [81]. While it is not contested that the Accused had authority over PW2 as her uncle (stepfather) whom she called "Father", the finding that there was no sexual intercourse between PW2 and the Accused establishes that the Prosecution has 20 failed to prove the core ingredient of aggravated defilement. - [82]. In the considered opinion of the Court, the Court finds that sexual intercourse on the **21st December, 2018** was not proved and in fact the allegation was disproved by the alleged victim PW2. - [83]. It is trite Law that once an essential element of the offence is not proved, it 25 cannot be said that a *prima facie* case has been established. The proof of a sexual act is the most essential element in the charge of aggravated defilement.

- [84]. This Court therefore finds that a *prima facie* case has not been established against the Accused to put him on his Defence. - [85]. The Accused is therefore acquitted of the offence of aggravated defilement contrary to **Section 129(3)(4)(a) and (c) of the Penal Code, Cap. 120** and 5 hereby discharged unless held on any other Lawful charge. - [86]. It is so ordered.

### **Orders of the Court.**

- [87]. Accordingly, the Court makes the following Orders: - - 10 1. The Prosecution has not established a *Prima Face* case against the Accused. - 2. The Accused therefore has No Case to Answer. - 3. The Accused is thereby acquitted and discharged by the Court.

It is so Ordered.

**Signed and Dated on the 5th day of March, 2024 at the High Court, Kitgum Circuit.**


5 **Philip W. Mwaka**

### **Acting Judge of the High Court.**

### **Delivery and Attendance.**

This signed and dated Ruling, has been delivered in open Court at the High Court, Kitgum Circuit on **Tuesday, the 5th day of March, 2024 at 09:00am** and the parties 10 present are recorded hereunder.

| | 1.<br>Prosecution Counsel | - | Mr. Ojara Patrick, RSSA. | |----|-------------------------------|---|----------------------------------------------| | | 2.<br>Counsel, State Brief | - | Ms. Anena Lagoro Clare holding brief for Mr. | | | | | Oyet<br>Silver Okeny. | | | 3.<br>Accused | - | Angecha Atanasio. | | 15 | 4.<br>Court Clerk/Interpreter | - | Mr. Atube Michael. | | | 5.<br>Assessor | - | Ms. Lamunu Esther & Mr. Okumu Raymond. | | | | | |

**Philip W. Mwaka**

**Acting Judge of the High Court.**

**5 th** 20 **day of March, 2024.**