Uganda v Bitasimwa (HCT-00-CR-SC 521 of 2019) [2022] UGHCCRD 157 (15 August 2022)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA HCT-00-CR-SC-0521-2019**

**UGANDA ………………… PROSECUTOR**

## **VERSUS**

**BITASIMWA FAIZO ........…..………. ACCUSED**

## **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

## **JUDGMENT**

The accused herein, **Bitasimwa Faizo, 32,** (the accused) is charged with the offence of Aggravated Defilement contrary to sections 129 (3) & (4) (a) of **the Penal Code Act (PCA), Cap 120**.

It is alleged in the particulars of offence that on the 23rd day of September 2018, in the village of Sitabali Busukuuma in Wakiso District, the accused performed a sexual act on **Nalweyiso Joyce**, a girl aged 6 years.

The accused pleaded not guilty.

The brief case for the prosecution is that the victim, **Nalweyiso Joyce,** was a 6 year old resident of a village called Sitabali on Gayaza road. The accused earned a living fetching water for the residents of the area. He lived in a one room residence in the area. It is alleged that on the 23rd of September 2018 the accused entered his house with the victim. There he had sexual intercourse with her. He was seen emerging from the house with the child and the matter was reported to the LC I chairman who immediately mobilised for his arrest. As the accused went to the borehole to fetch water, the LC I chairman arrested him. He was immediately charged with this offence. The victim was also medically examined by the police surgeon.

The medical report was tendered under Section 66 of **the Trial on Indictments Act.** It showed that the victim's hymen was newly ruptured. The accused was also examined on PF 24 and found to be mentally normal.

In his defence, the accused denied the commission of this offence. He stated that he knew the victim as a village mate but has never had sexual intercourse with her. That he was simply arrested from the borehole. That at about 8.00 am earlier that morning the victim had been sent by her mother to his house to ask him to fetch her water. That the victim found him eating a chapatti that he had just bought. He had loose change of 1,300 /-. The victim asked him for 300/- which he gave her. He left with the victim and asked her to go and bring the jerrycans as he continued to the borehole. That he was arrested at about 10.00 am from the borehole.

This Court reminds itself that the burden or onus of proof is on the prosecution, as it is always on the prosecution in all criminal cases, except in a few statutory offences, to prove the guilt of the accused beyond any reasonable doubt. [See **Ojepan Ignatius vs. Uganda Cr. App. No. 25 of 1995 (unreported)]**

The prosecution must prove the essential elements of the offence charged. In the case Aggravated Defilement the ingredients are:

- i. That the victim was below the age of 14 years - ii. That there was a sexual act performed on the victim

iii. That it was the accused responsible.

The first element is to prove that the victim was below the age of 14 years at the time the offence was committed.

The victim in this case testified and stated that she was 10 years old and was in P. 2 on the day she gave evidence. Her mother testified that she gave birth to the victim on the 27th of July 2012. The medical finding of the Police Surgeon was that the victim was of the apparent age of 8 years when he examined her. In this court's estimation, the victim was about 10 years of age on the day she was came to court.

In **Uganda vs Kagoro HCT 141 of 2002 (Mubende)**, the case of **R vs Recorder of premisby Ex-parte Bursar [1957] 2 ALL ER 889** was cited with approval. It was held there that it is true the most conclusive way of proving the age of a child is by the production of his/her birth certificate and possibly followed by the testimony of the parents. It has however been held that other ways of proving the age of a child can be equally conclusive and of these is the observation of the child, and by the common sense assessment of the age of the child.

Therefore by both the evidence adduced and the assessment of the child by observation of this Court, I have no doubt that the victim was indeed below age of 14 years in September 2018.

In the result this court finds the victim was below 14 years of age in 2018 and the first element is proved.

The second element is whether a sexual act was performed on the victim. The third is whether the accused participated in the commission of the offence. I will handle these jointly.

As stated earlier, the accused denied the commission of this offence. He admitted that the victim was at his home on the morning of the 23rd of September 2018 but he disputes she entered his house or that he defiled her. That he did indeed give her three hundred shillings but that was because she asked for it when she was sent by her mother to tell him to fetch water for her.

The victim told the court that she knew the accused as Faizo from Sitabali. She stated that the accused removed his big thing from his trousers and put it in her private parts. That the accused gave her three hundred shillings to buy popcorn.

One Nsubuga Musisi testified as PW 3. It was his evidence that the accused person lived on the same block of rooms as his mother in Sitabali. On the morning of the 23rd of September 2018 he went to visit his mother in Sitabali. As he sat outside, he was told that the accused had locked himself with a young girl in his room. PW 3 watched the door. After a while he saw the accused emerge with the victim. That the accused then picked jerrycans and left for the borehole. PW3 immediately reported the matter to the chairman LC I of the area. That PW 3 went with chairman down to the borehole to arrest the accused but he attempted to flee. That the accused was immediately chased down by youth who apprehended him.

It was the evidence of the mother of the victim that she examined her daughter that same day and found that she had a slightly bloody discharge. It was that same day that the matter was reported to the police who re-arrested the accused and issued the victim with a PF 3.

It was found that the victim had a newly ruptured hymen that was healing. That her labia minora were bruised and slightly tender with healing membranes. This report was exhibited as PE 1.

A sexual act is the slightest penetration of the vagina, mouth or anus of any person by a sexual organ [see 129 (7) of **The Penal Code Act**].

The victim stated that the accused got his big thing out of his trousers and put it in her private parts. In her testimony, she said it was the same type of big thing that her friend Abdu had. I understood this to mean the male organ.

The evidence of the accused is that the victim was examined by several people when the matter was first reported. They must have injured her which would explain the doctor's findings.

On the other hand, the victim narrated that the accused had sexual intercourse with her. It cannot be that it was the examination done by the LC officials that caused her bruising. The medical report shows her injuries were extensive and could only have been cause by the penetration of her genitals as stated by the victim.

That evidence of the victim is corroborated by the medical evidence in PE 1.

The victim was found to be a child of tender years. The court conducted a *voire dire* and found that she was possessed of sufficient intelligence and understood the duty to speak the truth. She however did not appreciate the nature of an oath. The court found she could testify but received her evidence unsworn.

S. 40 (3) of **The Trial on Indictments Act** applies here and it provides

*Where in any proceedings any child of tender years called as a witness does not, in the opinion of the court, understand the nature of an oath, his or her evidence may be received, though not given upon oath, if, in the opinion of the court, he or she is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth; but where evidence admitted by virtue of this subsection is given on behalf of the prosecution, the accused shall not be liable to be convicted unless the evidence is corroborated by some other material evidence in support thereof implicating him or her.*

The corroboration required is independent evidence of some material particular showing not only that the offence was committed but also that the accused committed it. It is not necessary that every aspect of the evidence requiring corroboration must be corroborated. It is sufficient that a material particular is corroborated (**R. v. Baskerville, [1916] 2 K. B. 658**).

From the foregoing, I find that there was a sexual act performed on the victim within the meaning of Section 127 (9) of **The Penal Code Act**. The medical evidence and the examination by the mother who found a bloody discharge in her daughter's private parts corroborated the victim's testimony that a sexual act was performed on her.

The victim stated that it was the accused who defiled her. Her testimony was corroborated by PW 3 who saw her emerge from the accused person's room with him. I also note that the accused attempted to flee when the chairman came to arrest him. That was conduct that suggested guilt rather than innocence.

The foregoing rebuts the denial put up by the accused. Therefore it was he who participated in committing this offence.

In the circumstances this court finds that the 2nd and 3 rd elements of the offence are proved.

The assessors advised this Court to find the accused guilty as charged.

In agreement with the assessors, **Bitasimwa Faizo,** is found guilty of the offence of Aggravated Defilement c/s 129 (3) and (4) (c) of the Penal Code and is hereby convicted.

Dated at Kampala this ……… day of August 2022.

**……………………………………..**

**Michael Elubu**

**Judge**