Uganda v Babyesiza (HCT-17-CR-SC-0357-2024) [2024] UGHC 1245 (11 September 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT NAKASEKE**

**HCT-17-CR-SC- 0357-2024**

**(Arising from NGM-AA-005-2023)**

**SMT/CRB/048/2023**

**UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTION**

**VERSUS**

**BABYESIZA YUDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ACCUSED**

**BEFORE LADY JUSTICE HENRIETTA WOLAYO**

**JUDGMENT**

Introduction

1. The accused person Babyesiza is indicted with aggravated defilement c/s 129 (3) (4) (a) of the Penal Code Act as amended. It is alleged that during the month of October 2022 at Kabogwe village, Kapeeka subcounty in Nakaseke district, he being a person in authority over Namusisi Rebecca (N. R) as her teacher performed a sexual act with the said Namusisi Rebecca a girl aged 12 years. 2. On 5.6.2024, the accused person appeared before me for plea taking and when the indictment was read to him, he pleaded not guilty. Thereafter, Kyalimpa Evelyne and Rev. Mwesigye Samuel were appointed assessors to whom the accused had no objection to their appointment. 3. Upon the assessors taking the assessors’ oath, the trial of the accused person commenced on 19.8.2024. Prosecution was represented by Patricia Gonza Kirya, State Attorney while the accused was represented by Irene Akol on state brief.

Burden of proof

1. The prosecution had a duty to prove beyond reasonable doubt the following ingredients of aggravated defilement: 2. The victim was below fourteen (14) years as prescribed by section 129(4)(a) of the Penal Code Amendment Act 2007. 3. Performance of a sexual act. 4. Participation by the accused person.

Age of the victim

1. Prosecution relied on medical evidence in PF3A which was admitted by consent of both counsel and marked Pexh.1. The medical report shows that on 24.2.2023, the victim N. R was examined by Semakula David, a medical clinical officer at Kapeeka Health Centre and found to be aged twelve (12) years. This finding was based on the dental formula of 28 teeth and a tanner staging of stage 2. The victim PW2, resident of Naluvule, Nakaseke district appeared before me in chambers and confirmed she was born on 1.6.2011 which means during the month of October 2022 when the sexual assault is alleged to have taken place, she was aged approx. twelve (12) years. The prosecution therefore proved beyond reasonable doubt that the victim was below 14 years at the time of the alleged incident.

Whether there was performance of a sexual act on the date alleged

1. To prove this ingredient, prosecution relied on both medical evidence and witness testimony. Semakula David, a medical clinical officer at Kapeeka Health Centre examined the victim and captured the findings on PF3A. Semakula determined that there was a healed broken hymen and the an inflamed clitoris, which injury was as result of a pointed object. The fact that the offence is alleged to have taken place during the month of October 2022 while the child was examined on 24.2.2023, over four months later makes the medical evidence of negligible evidential value in proving whether the accused performed a sexual act in the month of October 2022. In the circumstances, as to whether there was performance of a sexual act will be determined after evaluating all evidence adduced.

Whether the accused participated in the commission of the offence

1. According to Namusisi Agnes PW1, a cultivator and an aunt to the victim, she came to know the accused person at the police station when they opened a case against him. Namusisi informed court that N. R is a daughter to her brother Misachi Evarest and she started staying with her when she was three years old. She testified that on 23.2.2023, she got a call from jaja Nansamba Nowe at 5pm who lived a half a mile away. Jaja Nansamba summoned her to her place and upon reaching there, Jaja informed her that Namusisi her niece and Nansamba, jaja Nansamba’s granddaughter had been defiled. Namusisi testified that the victim informed her that master, the accused person, had defiled her in third term. In cross-examination, PW1 Namusisi testified that sometime back, the child returned while limping and she informed her that she had a wound on the leg. The child also showed her the wound. Neither this wound, nor a scar of it was ever mentioned in PF 3A. The child makes no mention of this wound either. Namusisi further testified that she called the OC of Kapeeka who referred her to open a case at the police and the accused person was arrested. Later, the two victims were examined by the doctor who confirmed they had been defiled. 2. The victim N. R PW2, aged 14 years, resident of Naluvule, Nakaseke district confirmed that Jaja Nansamba told senga Namusisi about the incident. According to her, it is Nansamba who had told her grandmother about it. N. R further testified that she stays with Brenda Nalubega who is not a relative but she calls her senga while her mother lives in Rwamugali, her father lives in Naluvule. According to her, senga Namusisi Agnes was her guardian and she stayed with her. It was further the victim’s testimony that she was in class at 10:00am with other children when teacher Yuda called her to go to the mosque, which is ten meters away from the class. At that time, other children were playing in the compound. While there, he told her to undress the knicker and when she refused, he touched her private parts and told her to go to class. 3. Later, the accused sent her to madam to buy airtime and then found her at the Centre, grabbed her hand, took her to a deserted bushy house, ordered her to remove her knickers, pushed her down, covered her eyes and told her he was going to use his finger. He then slept on top of her upon which she cried because of pain. According to the victim, when he heard someone passing by, he moved away from her upon which she saw blood coming from her private parts. He then ordered her not to report to anyone what had happened. 4. In his defence, Babyesiza DW1, a 26-year-old resident of Kabogwe village, Kalagala, Nakaseke district denied defiling the victim. According to him, he was a farmer and it is true that he was a teacher at Spring Care Nursery and Primary School at Kabogwe from third term of 2022 to 2023 first term and he also knows the victim, N. R who was his pupil in primary three or primary four. 5. It was the testimony of the accused that the allegations against him where sparked off as a result of a grudge he had in December 2022 with Nalubowa Jane who was his lover and also a friend to Namusisi Agnes, the victim’s senga. The accused testified that he dated Nalubowa end of 2022 and parted in January 2023. At the time, he was married to Aganyire Rosemary with whom he had got misunderstandings with and they separated but later reconciled in first term 2023 which made Nalubowa jealous. As a result, Nalubowa told Namusisi Agnes to frame him. In cross-examination, he revealed that he did not know the victim and it is his colleague teacher, Hellen Nandyose who told him about her. 6. Nandyose Hellen DW2, a 38-year-old teacher at Spring Care Nursery and primary school, Kabogwe Nakaseke district confirmed that the accused was a colleague at the school and she knew the victim, who was a primary two pupil at the school. It was her testimony that on 25.2.2023, when police came to take pictures of the scene of crime, herself, the LC1 secretary Margaret Nakabwero and Mrs Yuda Aganyire Rosemary sat the victim down and on questioning her, she informed them that she was on her way when Nalubowa, who is also mother to Nansamba, the second victim called her to frame Yuda at police. She corroborated the testimony of the accused that Nalubowa was his girlfriend and at the time of the incident, they had misunderstandings. She further testified that the genesis of the misunderstanding is that the two had rented land for cultivation but as they cleared the garden, Aganyire his fiancée learnt of the affair and she left, and when she later returned, Nalubowa got upset and at one time when Nalubowa and Aganyire had a fight in the presence of the accused person and herself, Nalubowa promised to do something he would not forget. In other words, the defense suggested that the accused was framed because of a grudge. 7. It is not so much that the defense is credible but rather it is the prosecution case that fell below the standard of proof in criminal cases. The medical evidence recorded after an examination carried out four months after the alleged defilement, the unbelievable story of how the accused moved with her from a mosque to an abandoned disused house, the fact that the victim disclosed the incident only when she was prompted by one Nalubowa through Namusisi, the paternal aunt of the victim all cast reasonable doubt on the credibility of the prosecution case. It is scanty and too weak to be the basis of a conviction for a capital offence. 8. In the premises, I am in agreement with the assessors that the state has failed to discharge its burden of proof and the accused person is acquitted of the offence indicted. As he has been convicted in another case, he will be released from custody only after serving the sentence Criminal Session Case No. HCT-17-CR-0347-2024.

**DATED AT NAKASEKE THIS 11TH DAY OF SEPTEMBER 2024.**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**LADY JUSTICE HENRIETTA WOLAYO**

**Legal representation**

Patricia Gonza Kirya, State Attorney for the prosecution

Irene Akol for the accused on state brief.