Uganda v Byakatonda (Criminal Session Case 251 of 1992) [1993] UGHC 49 (6 October 1993)

Full Case Text

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGARDA HOLDEN AT MASAKA

## CRIMINAL CASE SESSION NO. 251 OF 1992

UGANDA : : : : : : : : : : : : : : : : : : :

## VERSUS

EMMARUEL BYAKARONDA :::::::::::::::::::::::::: ACCUSED BEFORE: ME HONCURABLE MR. JUSTICE I. MUKANZA

## JUDGMENT

The accused in this case is called Emmanuel Byakatonda aged 31 a shoe Repairer and resident of Ssenyange village RC1 in Masaka Runicipality stands indicted with the offence of defilement of a girl under 18 years contrary to section 123(1) of the Penal Code Act.

The allegations being that on the 30th day of November, 1991 at Ssenyange village in Masaka District. The accused unlawfully and carnally knew one Nakate a girl under the age of eighteen years. The accused person denied the alle ation.

The prosecution in an endeavour to establish its case called in aid the evidence of six witnesses. The evidence of FW1 was admitted under S.64 of the trial on Indictment Decree 26 of 1971 whereas the accused gave evidence on his own behalf.

The admitted evidence of Richard Mugenza a police officer referred to as PW1 was to the effect that on 1st December, 1991 which on duty at Masaka Police Station one Francis Turyamabe with a group of villagers who were residents Ssenyange village within Masska Municipality brought in one Emanuel Byakatonda on allegation that he had defiled Nakate the daughter of one Marita.

Whereas PW2 who gave an unsworn statement. He testimony was to the effect that she was aged about 7 years and stayed at Ssenyange village in Masaka together with her grandwother called Marita. She knew the accused as a saved man a mulckole and his other name is Emmanuel.

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The accused is not their neighbour. He used to s^ay on the other side of the village but they all reside on the same village. She knew him therefore as her villagemaoe and also knew his house. On that day (day of the incident) she had gone to catch grasshoppers at around 7-00 p.m. While on the way the accused called for her. . She responded after which the accused took her to his house. While inside the house the accused gave her food called Katogo *zo* eact but she refused to eat. On refusing to eat, the accused who. ' • was putting on trousers,pantie, a jacket and goggles undressed himself and remained naked. After that he undressed her. She had some knickers on which he removed. She was made to sleep on he back facing the sky with her legs apart. Then the accused laid on her. He removed his penis placed it between her legs and entered the same in her vagina. That was her first time to be sexually intercoursed and felt much pain when the accused was playing sex (intercoursing her). She tried to make an alarm but the accused stopped her from doing so. He said that she was his wife'and threatened to beat the witness if she made the alarm.

The accused intercoursed he repeatedly during the whole night. When ho eventually removed his penis she saw blood coming from her vsgin. She spent the night with the .accused in his house.

On the following morning she --scaped from the accused who was insisting that she was his wife and went home where she reported the incident to her grandmother. Later she. was taken"'to'\* the police station together with the accused person. She was led to the Hospital afterwards where she was medically examined.

The witness was positive that there ^.-s a tadoba giving light while she was together with accused in his house. The witness informed the court chat the accused was dressed as she had already described his clothe?',-\_.earlier. She identified the

pyja'nas the accused, had put on that night as he undressed Ihinsolf- was red, blue with colr-urs. That she decribed to the policeman they way the accused had put on the day he defiled her.

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When she was taken before a doctor for medical examination •she explained uo the latter what the accused did co her and that it was tae light from the tadoba which enabled her to identify the pyjama-., the accused had put on.

^n cross examination PW2 replied those people with whee she was catching grass hoppers left her on the way. She left her friends going home taking the opposite direction when the accused • defiled h®--She }Iad already eaten the grasshoppers. That she knew what happened. She was not cold by her grandmother what to say in court. His house had only one room anJ when she went cut he left Emmanuel lying on his bed.

The third witness to testify for the prosecution was Marita Mbigyozo Kwandiko PWJ whose evidence was that PW2 is her granddaughter aged 10 years and suays together with her. She knew the accused as her villagemate. The latter's home is about 200 yards away from her house. The accused was just renting a room.

On JOth A^ovember, she went to attend funeral somewhere and she left PV/2 behind\* at hone. v/Hcn she\* returned home she could not find her. She was reliably informed that she had gone to catch grasshoppers. PW2 was the only child she had et home She reiterated that when she went for funeral it was around 12.00 noon. She started looking for her. Her search took her i to Fransisco s -e weere she normally used.-to go to play and also visited other diverse places. On failing to trace her she returned home and v.ent to bed.

On the following mcr>< ng she woke early in che morning to ,,go and look for her . On way she t/PW2. She enquired from her where she has spe^t the previous night. hakato informed her that she spent the light ac Emmanuel\* home

PV/J led co Emmanuel's home aud straight way the witness we\*-t a^-d knocked ;>.t Emmanuel's door. i'he la^er opened the door and inquired frim him whether PW2 h&t» spent che night with him (the accused). Jhe latter admitted that che girl spent there the night there. bhe complained to people around who came to the scene. She took the child around a-d examined her private parts. She had her knicker\* s on. 8he found that there were dry sperms in her thighs and a.t the same time she found that her vagina was swollen. She told people around about her findings and interviewed PW2 further and she narrated to her that the accused took her on his bed and had sexual intercourse with her. Consequently nakato and Byakatonda were taken to police scation by one Kintu PC III a«-d Pransisco Turyanabo (PW5).

Later on she was directed by che police to take the victim to Masaka Hospital. She explained ±e incidence to the Doctor who thereafter examined her. xhac was after one day of the incident.

The doctor inform- 'l- her after the medical examination that the girl was no longer virgin. That she had been ) defiled and she was riven some drugs. She concluded that hakato is not mentally stable and she was born in that state.

When cross-examined PWJ replied that when she examined the girl she saw the white sperms and that che child had not reached the state of discharge (okubundula in lu^'anda'. That when she left home in the morning it was not yet 7-00p.m. It was a bit dark and she found hakato just 100 yards away from Byakatonda's house. l'he house on which Emmanuel glepip belonged to one called Kasule and it was Falasiko Turyanabo (PW5) who used to collect rents frciii that house.

She calls PW5 her brother in law. The latter also stays on the same"house/block with the accused preon. y/hen Emmanuel was being questioned about the matter PW5 was also around. She knocked on Emmanel's door in order to confirm whether the girl was telling the truth because she could not rely Ou her intelligence. fhat before the incident pra^sico a^-d the accused were on friendly terms, when re-examined by the learned Senior State Attorney she replied that she too had no .grudge with vhe accused person and uhaG she called people around including furya^abo after confirming that she PW2 spe^t the night a^ Emmanuel's home.

And when cross-examined by the first assessor-ȣhe replied that'-apart from the dry sperms and''uhe swollen vagina she did not see any blood in the complainant's vagina.

The fourth witness to testify for the prosecution was Dr, Rukundo Tom Pv/4. His evidence was co the effect that in December, 1991 he used to work in. the Gynee and Obsteristics Department in Masaka a body which deals with problems connected with ladies.

On 2/12/91 a lady brought a youi^g girl for medical examination. She said the girl had been sexually assaulted by a man. He examined the girl and according to the dental formula. Ke estimated her age to be 13 years and according to what she was telling him he discovered that uhe girl had some mental defect. He carried out the examination, of her vagina and found that the hymen had been raptured a-d chat there was a wound on the posterial wall and .here was a whitish discharge. He did not take a swab for medical examination but found that the giT''. had been sexually assaulted or otherwise he classified the injury as grievious harm.

He advised the grandmother to tske the child for HIV screening. By che nature of the injuries he found oha , some blunt object like penis could have caused the injuries. He was emphatic.that he wrote a\*d signed cue medical form which was brought by a policeman whose names he could not recall, The medical form was tendered in court and marked as exhibit P1. •

Ii.. cross examination Pw4 replied chat when he examined the victim he found that her hycen \* had been ruptured by a blunt object like a penis or finger. PW4 then explained what he me^-nt when he testified ohac uhe victim had been ? sexually assaulted or otherwise. That it could have been sexual assault or othe.wise he meant that he did not take a swab. The fact that there was a discharge and then a swab to find out whether there was a sexual assault ic is possible tha she was possibly sexually inuercoursed. He thoughu .he injury had happened 5-7 days. That was just Jh es.image. dhen re-examined he confirmed that his finding was that there was sexual assault.

Francis furyamubona who was called as the fifth prosecution witness PW5 informed the court that Marita Pw'5 was her sister in law, and also knew Ruth i.akato PJ2. He knew the accused who used to rent a room on his house. On 1/12/91 at around 7->00a.m. he was asleep when he tr ~da noise around the house and some people were knocking on his door. He opened the door. It was Marica PW5 who was fc'ioching au his do or. -She narrated to him what had happened to kakato, He interviewed the girl who ciId nim thau she spenc the night au the accused's place. v/hen Byakatonda was asked whether ic was true that the ^irl spent a night with him, the latter replied that the girl spent the nigtLt there because ic was coo late for her co return home. Marita examined the girl ...//..

and later returned a-d reported co them (Pw'5 a-d other people gathered) that tho accused had sexually intercourse^ the gir^, i'he witness together with another teua-t plus Marita escorted the accused to the A(Cs. At the RCs >he accused defied the allegations a^d masters were reported to che police and the accused was also led there, lhe witness and other escorted the accused to Che police station at Masaka.

PW5 reiterated that the accused used go stay alone in -his room and had no wife. Jhen he was awakened ae found the accused awake and was standing on the g^ce way to his room (house;, fhat he had co grudge against the accused person and that they have been very friendly.

./hen cross-examined he replied that ae was the house agent for Mr. Kasule and before tae incident he had never at all cried ^o evicu Che accused persoi. who was a good tenant, i'hac booh the witness and the accused stay on the same house save in different rooms. Jhat he 5oo kt.ew . Ruth as an imbecile . 1'hat there were other people sleeping o- either side of Byakato^da's room. One was called Ktale. He is dead and the other was known as the ' ne was not there o that day.

fhe x-ext a-d last witness called by the prosecution was osemambo Vicenc (PVJ6) Det. .-.ssista^t Inspector of Police attached co Masaka ±Jolice nation. He testified that on 1/Z12/91 a case of defilement was reported to him. fhe accused and the victim appeared before him. He in ;erviewed the victim who narrated to him trie whole story, ohe inquired from her whether she might have observed the underwear the accused was putting on. che described the underwear as being blue, red a\*-d had white lining.

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as a result of che interview he went to che counter and ordered the accused who was still at rhe s acion co remove the trousers a-d look at the underwear the victim had told him about, fhe pyjams answered the description of i. akato s scory. It was read, blue and had white linings. He removed cue underwear from the accused and created the same as an exhibit, which he tendered ix. courc as Exhibit P2.

v/hen cross examined he replied chat he kx.ew che clothes the accused had put on. x.e had put\* on a shirt a^d grey trousers. He could not recall waether the accused had a jackec on.

According to him cimplainant had some men .al inbal.ince but narrated co him what she saw.

And when cross examined by the court PW6 replied that he incerviewed the --ceased person. At first the accused admitted the allegation but when he was taken uo the cells he denied having committed the offence.

In his sworn statement, the accused denied all che allegations by the prosecution witnesses. He testified that they were all lies, He was not arrested with anything\*. was found in ais bed sleeping. He only started hearing about these accusations on a Sunday and was by tnex. i^ ais . ) room- He knew Fransisco who gave evidence against him. ne had nothing co comment about him because he never saw him do anything. He was friendly to Fransi--co. rhe latter used to call him his son and he reciprocated by calling Pv/5 his father. For Huth he firsu k. ew her on chat very day in the morning.

In cross examination the accused replied that he had to grudges against the prosecution witnesses who testified against him except the police officer and the girl. He used to see one jirl in the village. "e did now know why those people masuf-coured evidence against him. It was Marita who knocked as her door inquiring for the where abouts of Much and crying to find out where the latter had spent the might there. His mai hour who was also a bachelor urged those people who were spitating that he (the accused) should be beaten not to do io. He wondered why Marita kwocked of her door alone and left all the rooms of other bachelors. We was alone in the room and left all the moo towes for home on that day at around 6.00p.m. He did mot know whether the firl knew him or not but Marita told her that he had got a wife and she led him to the police. He had wo kwowledge about the underwear and that policeman knows where he sou it. $\perp$ t was not his.

that was the evidence adduced for both the prosecution and the defence. I was addressed extensively by the learned counsels representing the state and the defence and I will comment of their submission what occassion arises. However, before I proceed to evaluate the evidence the assessors were warned as I warn myself now that the prosecution has the burden to prove this charge against the accused person beyond reasonable doubt and that burden does not shift except: in a few /exceptions the instant case not being one of them. Woolmington vs. DPP AC as p.462. See also Uganda vs. Joseph Lote 1928 HCB 262. Jerugo vs. Uganda 1978 HCB p.1. George William Kirya vs. Uganda 1976 HCB p.304, Joseph Kiiza & Amor. vs. Uganda 1978 HCB p. 279, Lubega and others vs. Uganda 1967 BA 440, Article 15 (2) of the 1967 Constitution. $.../10$

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As I warmed the geotlement assessors just as I warn myself low it cases of defilement the prosecution has to adduce evidence to prove the following ingredients of the offence hamely: .

- (a) That the victim was cartally known or that was sexucilly intercoursed; - (b) It the be proved that the act of careal knowledge was unlawful; - (b) That the victim was a firl under one age of 18 years; $\phi$ - (d) and finally that it was the accused person who had carnal knowledge of the victim.

while on the first ingredient that the victim was carnally known, there was the evidence of the complainant herself. That as she was coming from catching grasshoppers she met: the accused on the way. The accused took her to his room and spens a hight there where the accused repeatedly sexually intercoursed her. Bhe reported the incideo grandmother PW3) who examined her prive e parts only/find has PW2 had some sperms on her chichs and he vagina was swollen and reddish. The doctor PW4 who examined her soon afterwards found that he hymen was ruptured. There was a would on the posterial wall and there was a discharge. He did not take a swab but later of confirmed that the victim had been sexually assaulted. The accused denied all these allegations and said he was in room sleeping when Marita said he to sexually intercoursed, Nakato. All these testimoties do show that PW3 was sexually intercoursed. The camlainant testified that she felt pair and that the peals had entered her right inside. The law is that it is not necessary to prove the completion of sexual intercouse by the emission of seed, intercourse is deemed complete upon proof of penecration only.

$. . . / 11. .$ the slightest decree of pertetration is enough. A v Cox 18325 C v p. 297. UCR; Rv Allen 383919 ° and p 31, R V H All 178 11 East PC 439 m. R V Jordet and Cossmeedow 1839. 9 CR page 653, See also Constant Bala Mulinde vs. Usanda Criminal Appeal -o. 55 of 1974 reported 1974 HCB p 299 and Christopher Byamugisha v Uganda in 1976 HOB 318 both cases above the hymen was intact and was unable to say that there was any penetration. However for the purpose of this ingredient I find that the complainant was secually intercoursed. As to who was responsible for this act I will consider this in the last ingredieant of this offence.

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which is a service

As to the second ingredient as to whether the carmal knowldege was unlawful under section 123 (1) of the Penal Code theoffence is committed by one who carnally know a girl under the age of 18 years. What ther was the age of PW2.

Evidence of age could be proved by an extract from birth register which is proved to be a certified copy of au extract or which purporus to be signed and certified copy as a true copy of extract by the officer entrusted with custody of the original is sufficient evidence of the age of Complainant. If she is identified as the person hamed in the extract. Also the age of the complainant may be proved by any admissible evidence. See Halsbury Laws of England 4th Edition Volume 11 para 1235page 65

In the instant case although no evidence was adduced from the extract of the Register of birth as to the age of the complainant where was admissible evidence to prove that Ruth Nakato was under the age of 18 years. Her mother testified to the effect that Nuth was aged 10 years whereas the victim herself testified that she was aged 7. While PW4 the doccor who examined her scientifically according to her denual formula estimated her age to be 13years. It the regard I subscribe to the submissions of the learned counsels that the doctor

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was the most qualified person" to estimate she age of che complainant. pty findings therefore is that nakoto riuth w as aged 15 ai-d uherefore under •\_> lie of 18 years a'ndaauy sexual intercourse with her was to.say the least unlawful.

The third ingredient.which the prosecution has to prove is whether the complainant was a girl ui\*der the of 18 years. with -my explanation above I -am of the view 'that this ingredient .of the offence has beer- established by the prosecution when considering the second ingredient.

And the fourth a- d last ingredient the prosecution has to prove is whether it. was the accused who committed this offence. '

o begin with the complainant gave an unsworn statement after conducting a voire-dire. 1 was of the opinion that she was possessed of sufficient intelligence .0 justify the reception of he evidence in thac she understood the duty of telling the truth. She testified ohau when she had gone to catch grasshoppers she met uhe accused person on the way who took or abducted her to his .room where she sexually intercoursed her repeatedly for the whole sight because • she spent a night there. There was also the testimony of PWJ that she went to attend 1 funeral and oh her returnhome she could not see PW2. She looked for her buu failed to see her and on the following day in the morning•when she left to go and look for Pt/2 she foui^d her 01- the way. And on interrogation PW2 narrated to her thac shespent the night with the accused person. PW2 led her to the accused's house whereby she knocked at the accused's door ad she inquired from the former whether it was true that the complainant spent the wight with him. PWJ was Consistent that she led Pv/2 to the accused's house in order to confirm whether.what PW2 , 'truth told her was the /because PW2 had- cone mental 'iiibalunce

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PW3 informed the court that she took PW2 behind the house, examined her and found that PW2 had some dry sperms on her chigh: and her vagina was swollen and reddish. The accused as stated earlier on demied the allegation. He resuffied that nobody saw him do anything. He knew Ruth on that very day in the morning, lake o was the sole identifying witness to this act of sexual intercourse and her unsworn testimony requires some killd of corrolloration. This is an audependent evidence which tend to cinnect the accused person with the commission of the offence with which the accusedis charged. I am of the opinion that the Doctor's evidence who examined PW2 and found that her hymen had been ruptured was sufficient corroboration that the complainant was sexually intercoursed. Also the testimony of PW3 Marita that she found PW2 with sperms on her thighs with swollen reddish vagina as sufficient corroboration that PW2 was defiled.

Besides that PW2 testified that when the accused took her into his room the accused undressed himself. He removed all the clothes he was putting on including pyjamas. He also undressed her. When both the accused and the complainant appeared before DAIP Semambo Vicent at the police station, /latter Masaka theinterviewed both the accused and PW2. The accused denied the allegation whereas PW2 described to PW6 how the accused was dressed in the night he sexually intercoursed her, Through her description of the clothes and pyjamas accused had put on, PW6 undressed the accused and the pyjamas he was putting on answered the decription as given to him by PW2. It was red blue and whitish. PW2 identified the pyjamas in court as the one worn by the accused in the sexually hight heaccused of intercoursed her and the same was exhibited it court by PW6 and identified by the latter as the pyjamas he removed from the accused at the police station at Masaka.

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In his testimony the accused denied any knowledge of the pyjamas exhibited in court. ne testified that it was not his ahd that tae police knows where he got it. fhis evidence of pyjamas point irresistably to the Jjiilt of the accused person. See Paper vs R 1952 ac 486. Hamisi Dhatemwa Eaibi vs. Uganda Or, App. i-o. 26 of 1977- Tumuheirwe vs. Uganda 1967.^4 p 528. Simon Nusoke vs R 1958 EA p.715. Circumstantially the pyjamas corroborates Ixakato's testimony that she was defiled by the accused. Besides .that PW2 was the sole eye witness to this rtt of sexual intercourse. I warned myself and the gentlement assessors of convicting the accused person on the evidence of a single eye witness as per the guide lines in Rorias case 1967 FA p 585. To ensure that PU2's identification of the accused was free from the possibility of error there are the following factors: vJheR the accused took PW2 to his place it was around 7.00p.m. It was not yet dark, Also PJ2 testified that the accused had a tadoba burning in his house so the possibility of mistaken identity was not there, hakato must have recongnised the accused. Besides that the accused-;\^Q^ki.own to the complainant before as members of the same village. PW5 testified that from her home to that of the accused was distance of about 200 metres. PW2 could not have to know the accused person. In addition PW2 stayed with the accused person for a very long time for a whole ..ight. She could not have failed to identify the accused with whom she spent such a long time. I believe the testimony of PV/2 as being the truth that the accused sexually intercoursed her and I reject the accused's version as being nothing but a pack of lies.

J2he learned counsel represting the accused submitted that the complainant had some mental defect a^d therefore that she might have been defined before she came to the v accused's place more so where she had gone to catch

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grasshoppers. Throughout the prosecution case the complainant was referred to as having some mental defect. The mothe r PWJ said the girl was born like that. The Doctor PW4 who examined her testified that she had sime mental defect ai-d so did Semambo Vicent PW6. hone however of the prosecution witnesses testified that they could not communicate to PW2. On my part I conducted avoire-dire on the girl. She answered very well all the questions put to her. The only sign that she had same mental instability was the way. she stood in the dock. She was from cine to time told to stand facing the court. She kept on swinging her lugs in the dock and took sometime to answer some questions but whatever question that was put across to her was answered by her satisfactorily. ., Therefore, I agree with the gentlemen assessors that uhe girl told this court the truth. She could not have been defiled elsewhere before she went to the accused person as Mr. Mugerwa suggested. Moreover immediately she met her mother she took\*: her to the accused's place where she had spent the night. There was therefore in considered opinion no time for her to manufacture evidence against the accused person. And to fortify ny findings there rwerebhree bachelors on the block where the accused lived but only picked up Ghe accused person as the person who defiled her. I believed therefore when' she testified that it was the accused who defile d her. Abv-ut the prosecution witnesses PWJ impressed me as truthful witness. Shu was concerned about the disappearance of her grand daughter from her house and as a responsible person she made every effort to find out her whereabout. She was led to the only house where her grand daughter hod spent the night. She had no grudge against the accused persons and the accused person was also of the same view. Whereas PW5 shared the same house with the accused person but living in differrent rooms. He saud he had no grudge against the accused person. Even the accused in his evidence testified that -heL referred.,;to PWJ as his father and the latter called

him his son. W5 referred to the accused in his as good tenant a-d had no intention of evicting the accused from the house in question. Also there was no grudges between the two. I am of the firm view that PW2, PWJ, and Pv/5 told this court the truth so did PW4 and PW6. The accused on the other hand told a pack of lies with a view to exonerate himself from the mess iu which he f^und himself. He thought that the complainant being

mentally unstable he would convenveniently defile her a^d get way withitt Unfortunately he \i2deresta:natedathe intelligence of the complainant.

As regards inconsistencies and discrepancies in the prosecution case the learned counsel appearing for the accused submitted that Prasico PW6 testified thaG the accused chased the girl away in the morning whereas the victim-. PW2 told court that she escaped on her own from the accused's house. The counsel submitted that reflected on their credibility and that one of them was telling lies. The learned counsel further submitted that PW2 testified that before she was defiled she had gone before go her grandmother's home'and fried the gasshoppers ate them before she was defiled. Mr. Mugerwa concluded that the victim had not properly placed herself on the scene of crime a^d chat the doctor was not asked to identify the victim a\*-d that nit was difficult to say whether he examined the victim in the dock.

All I can say is that there was no need for uhe doctor to have identified the victim in court I am of the view that there was cognent evidence to show that PW4 examined the correct victim who happened tvj be PW2. as to conuradictions and inconsistencies in the prosecution's case the rule is that in assessing the evidence of a witness his consistency or inconsistency is a relevant consideration. It has been held that only grave inconsistencies if not explained satisfactirily will usually result in the evidence of a witness being

rejected. Minor inconsistences will not usually have that effect unless they point to deliberate untruthfoluss. See Uganda vs Sowedi Ndosire 1988 - HCB p.46. Isaya Bukumu vs Uganda SCu................ Magidu Boona vs. Uganda CA in Cr. App. No. 19 of 1984 unreported, Alfred Pajir vs. Uganda EACA Cr App Ro. 167 of 1969. Leorned Aniseth vs. R 1963 p 206.

I am of the opinion that wherever these inconsistences/ contradictions occurred in the prosecution case shey should be ignored as being minor since they did not amount to deliberate untruthfulness. The evidence for the prosecution witnesses should therefore be accepted as the only truth.

In the end in agreement with the unanimous opinion of the gentlemen assessors I find that the prosecution has proved its case against the accused person beyond reasonable doubt. I find the accused person guilty of the offence of Defilement. of a girl under 18 years and I convict him accordingly.

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Accused before Court present.

Mrs Damali Lwanga Senior State Attorney for the state. Mugerwa on state brief appearing for the accused Mr. person.

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Assessors Mr. Sekayiba and Tom Waswa present. Court clerk Kaketo.

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Judgment is read and signed. Court:

Mrs. D. Lwanga SSA:

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The convict has no previous court record and should be treated as a first offender but the offence committed by the accused is a very serious offelce because it farries the maximum sentence of death and because the offence of defilement is

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the increase today with the mids scourge around us this scare therefore cannot be taken lightly. The firl the accused defiled was aged 13 years at the time of the offence was committed and was also an imbecile. That mental defect was enough unishement to this young mirl. The accused person instead of being symbothetic took advantage of her rental defect and defiled this firl thereby exposing her to imporal problems in life like aids. The larger of contracting aids cannot be overlooked. I aray that the accused person be given a very heavy sentence to teach him a lesson and to putish him for that act! This should also be a leterread to other men who could think of commissions a similar not against such paralle because we have usry many imbeciles rould. I Huraf re may for a soucre sendence: Mr. Mujerwa: By way of mitigation I wish to shead with your Lordship as follows. The accused perspose swill a yaming man and 31 years the which can still be a neeful person to the. society despite the mishap. As you have heard the accused was a joid citizen before this happened. Him and Frasika were treating each other as father and son. In addition and nord relevantly you heard from the counsel for the state that the accused is a first offender. I do invite you to consider that this was is abachelor. I insite you to consider that he was tempted by the state of his bachelorship to fall into that swate. As to the fact that the victim the victim in an imperial when you consider that that fact the accused /knew the imbecility. All in all I ask you so give a semtence which will stable the accused to reform. I talked to the accused person, he gave me the impression of being repentant.

## Reasons for the Sentence:

I have taken into account the submission by the learned counsels appearing both for the same and the accused person frequentively and noted that /the accused person is a first offender aged 31 years only.

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Perhaps has been on remand since 1991, he was indicted about 2 years a-jo. His family background is not known but there was evidence that he was a bachelor., However the accused committed a serious offence which carries the maximum of death sbeutenca .. • fhe accused defiled somehow mentally disturbed person and perhaps Jais extended to her moral disability when one consider this setter of the lif.,ht of the aids probleu in t.':is country a^d the.fact that offence of this nature are on the increase through .it Uganda that no single newspaper cones out without stories of defilement of youn^ children this in ~y opinion calls for deterrent punishment. fha accused mi&ht have been an aids victim. fhe doctor advised chat Che ^irl be taken for ,.rxv scr^eiu Jho k^ows -this asirl ni^ht have. been infected with aids.

## Sentence:

i'he death sentence in case of this tiatiuro io rnxtnmandatory I will j^ive Che accused person time to reform.

I will sentence him to 54 years imprisonments Ri^t of appeal explained.

ilA-I MUkZ-. ZA JtJDGIi

6.10.95.

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