Uganda v Biryomimisho (HCT-01-CR-SC 44 of 2012) [2014] UGHC 107 (28 February 2014)

#### THE REPUBLIC OF UGANDA

a

o

## IIT THE HIGH COURT OF UGANDA AT FORT PORTAL HCT\_O I \_CR\_SC\_OO44\_20 12

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

#### VERSUS

BIRYOMUMISHO APOLLO : :: : :: : :: : : : : : : : : : :: : : : : : : : : : : : :: : : : :: : : : ACCUSED o

#### JUDGMENT

This is a case of Aggravated Defilement. Biryomumaisho Apollo is charged with two counts of aggravated defilement c/s 129(3) and (a)(a) of the penal code Act on each count. It is alleged tlral on the 3"i day of August, 2o r 1 at Kyakatabazi village in Kabarole district he performed a sexuar act with two stepdaughters Ninsiima Brendah and r\.rsiime Annet both of whom were below fourteen years of age.

The ingredients of the case are:

1). The girl victims must be below 14 years of age.

21. The performance of a sexual act upon the children.

3). The participation of the accused performance of the sexual act. person in the

1, 37

In the instant case prosecution relied on the medical examination of the children to ascertain their age. Police Form 3 in respect of Ninsiima Brendah. was admitted on record by consent as exhibit P. E. 1. Her age was put at 9 years. Police Form 3 in respect of Tusiime Annet was admitted on record too by consent. The exhibit P. E. 2 shows that Tusiime Annet was aged 11 years.

These two young girls testified in Court and we saw them. They are both clearly below 14 years of age. This ingredient is proved beyond reasonable doubt.

On the issue of performance of the sexual act prosecution relied upon the evidence of both children. Ninsiima Brendah told Court that on one occasion her stepfather grabbed her in bed and did "bad manners" to her. She tried to cry out for help but he blocked her mouth with his palm. After the sexual act she reported him to her mother. The mother quarreled with the accused stepfather. The accused beat her mother and sent them packing.

Ninsiima Brendah told Court that the accused had earlier on done "bad manners" on her in a banana plantation. made her sit on his laps and defiled her. He mother met him $_{\rm He}$ in the act and abused him. He beat her into silence.

$\overline{2}$

$46$

Ninsiima Brendah also told court that on another separate occasion the accused defiled her on her way to the well. He diverted her to the bush and pretended to pick avocado for her. He then forced her into doing "bad manners" with him. when she came back home from the well she reported this incident to her mother. The mother quarrered with the accused who threatened to beat her up. Ninsiima Brendah O told Court that her mother got fed rrp and annoyed when the stepfather amazed court when she revealed that the accusecl had played sex with her five times on different occasions. That the accused kept on promising to give her money and pay for their school fees and the mother would forgive him. He ended up fulfilling none of the promises.

a

o

on this last occasion when the father held her captive in the room, the mother reported the matter to police and he was arrested in the act.

The evidence of these two young girls was supported by that of their mother.

Pw3 Medius Alihihi aged 41 years testil-red on oath and confirmed that the accused is her husband and stepfather t the children Pw1 and Pw2. This witness came to Court smelling enguli alcohol and acted in an excited inebriated

4l

manner.

However, she was able to give evidence and withstand the vigorous cross-examination. She told Court how she had received several reports from Ninsiima Brendah indicating that accused had defiled her. On each occasion she would quarrel with him and the quarrel would end in a fight that on one occasion she reported him to the LC I chairperson. The chairperson advised her to take away the daughters and take them back to their biological father. Asked why she did not go out of the abusive relationship she explained that the accused had promised to pay school fees for the children. She wanted her children to complete school education. She was also interested in first harvesting her crops.

In respect of the defilement of Tusiime Annet, she testified that the accused came home drunk. She quarreled with him and he beat her up. He threw her out of the single room they were renting. He then dragged Tusiime Annet to their matrimonial bed and defiled her. That she saw him through a big crack in the wooden door. She called in the police which arrested the accused and charged him with defilement.

$\overline{4}$

In cross-examination this witness told Court that there was candle light in the room. This enabled her to see the accused in the shameful act.

This Court believes hat the two children and their mother were able to identify the accused at all material times. He was a stepfather to the children and a husband to their mother. They knew him.

In his defence the accused denied knowing the witnesses. He said that he is not a husband to Pw3 and does not know her daughters. He said he was a resident of Bushenyi and a total stranger in Rwimi. He said that he was on his way to Kyegegwa when the vehicle he was travelling in brake down around a place called Pidda, Rwimi. That police picked him at Pidda and detained him on allegations of defilement. The accused claimed that police stole shs. 2.3 million from him and this is a frame up by police to cover up for their theft.

It is trite law that once an accused person raised the defence of an alibi the prosecution has a burden to destroy it. The accused has no duty to prove the truthfulness of the defence he puts up. If he manages to raise any doubts in the hands of Court, the doubts must be resolved in favour of the accused.

$\mathsf{S}$

In the instant case where the accused raises an alibi we look at the evidence of the children $Pw1$ and $Pw2$ and their mother. The question is whether their identification of the defiler is credible enough to place him at the scene of crime. We must rule out the possibility of mistaken identity or indeed a grudge-laden fabrication of criminal proceedings or malicious prosecution to cover up theft of the accused's money as he wants us to believe.

The correct test for identification was outlined in Abdala Nabulere & Another -vs- Uganda, criminal Appeal No. 9 of 1978 as follows

"The Court must closely examine the circumstances in which the identification was made. These include the length of time the accused was under observation, the distance between the witness and the accused, the lighting and familiarity of the witness with the accused. All these factors go to the quality of identification evidence. If the quality is good then the danger of mistaken identity is reduced. The poorer the quality, the greater the danger".

In the present case both children knew their attacker as their stepfather. They clearly identified him as a husband to 6

their mother' They lived with him under his immediate care. The defilement of Ninsiima Brendah took place during day time at various places. At home, in the banana plantation and the well.

t

a

a

There was always sufficient light available to enable correct identification.

The defilement of rtrsiime Annet took prace at night. But there was a light candle in the single rented room. pw3 told court the wooden door had big cracks through which she cold clearly see what was going on inside.

The relationship between the accused and pw3 was that of a husband and wife.

we are talking of people living under the same roof for a long time. We are also talking of vaginal sexual intercourse between the accused and his victims and their mother. That relationship offers one with the opportunity to know and recognize the del-rler at close range. And with the accused repeatedly defiling the girls they could not fail to recognise him. They all recognized the accused as their defiler.

Pw3 recognized the accused who always subjected her to a beating wherever she quarreled with him wanting to stop the

l-{5

abuse. His alibi does not hold. It is completely destroyed by prosecution evidence.

Lastly exhibit P. E. 4, the sketch plan of the last scene of crime, shows the home where accused was arrested from. This exhibit was admitted on record by consent of both prosecution and defence. It clearly shows that he was arrested from a house and not along the road at Pidda. I have no doubt in my mind. The accused is the stepfather of both Pw1 and Pw2. He defiled both girls not only or the $3<sup>rd</sup>$ August, 2011 but on several other occasions. I find him guilty on each of the two counts as charged. I

agree with the opinion of the assessors and convict him of aggravated defilement $c/s$ 129(3) and (4)(a) of the Penal Code Act.

> Batema N. D. A. Judge $25/02/14$

> > 8

# Sentence: a

I have considered all the submissions on the criminal record of the accused and the prayers in mitigation. However the accused did beasily acts upon his step chirdren. I see nothing remorsefur in raw when he kept denying the charges. He even denied knowledge of the wife and his step children. He is not remorsefur. He is so stupid, There is no chance of rehabilitating such a goar and he deserves no mercy. I sentence him as follows:-

a

a

Count :I 35 years imprisonment.

court :2 30 years imprisonment. He shourd be kept away from society to protect our daughters from him.

#### Orders:

sentence to run concurrentry since he committed the defirement concurrently.

Batema N. D. A Judge 281O212014.

Right of Appeat explained,

Batema N. D. A. Judge 28lO2l2Ot4.

ta) +1,

### Obiter:

Parents taking Enguli and are living with step children are prone to defilement. The local authorities should come out strongly to limit consumption of enguli and take care of our children.

Batema N. D. A Judge $28/02/2014.$

$46(b)$