Uganda v Byekwaso (Criminal Case 410 of 2019) [2022] UGHCCRD 92 (12 August 2022)

## THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA HOLDEN AT ENTEBBE

#### CRIMINAL SESSION NO. 410 OF 2019

UGANDA...................................

**VERSUS**

BYEKWASO ABDUL ALIAS ANDREW ....................................

#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK, JUDGE

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## Judgment

The accused was indicted with the offence of aggravated defilement contrary to 10 Section 129 (3), (4) (a) of the Penal Code Act.

It was alleged that the accused person on the 22<sup>nd</sup> day of September 2019 at Nansana West Zone II in Wakiso District, performed a sexual act with Namugenyi Angel, a girl aged 10 years.

It was the prosecution case that sometime back when the victim was in primary 15 one, the accused person sent the victim to a nearby shop to buy for him a cigarette and big G. The accused person followed the victim and he defiled her from the verandah of the disco hall, and after warned the victim not to revel to anybody about what had happened to her or else the accused would cut her into small pieces. The victim kept quiet in fear. 20

On the 22<sup>nd</sup> September 2019 the accused approached the victim's mother and requested to send the victim to a nearby shop. The accused and the victim left together from her mother's place. After sometime, the victim's mother got concerned as the victim was taking long. The victim then returned in a bad mood. The mother of the victim got concerned and asked what had happened to 25 her. The victim revealed that the accused had followed her and defiled her from the verandah behind the disco hall. That she revealed this after she was beaten by the mother.

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The victim's mother thereafter told the victim to remove her clothes and she discovered that she had had sexual intercourse with the man. The matter was reported to Police and the accused was arrested.

The accused denied committing the offence. He gave unsworn evidence and called one witness to aid him in his defence.

The prosecution in a bid to prove its case adduced evidence through five witnesses.

## Representation:

$5$

Ms/ Kitimbo Janet Chief State Attorney appeared for the prosecution while Ms. Nshemereirwe Peruth appeared for the accused on state brief. 10

#### Burden of proof:

The burden of proof in criminal matters lies on the prosecution to prove its case beyond reasonable doubt. This burden does not shift and the accused can only be convicted on the strength of the prosecution case and not on the weakness of his

case. (See: Sekitoleko v. Uganda (1967) E. A 53). The accused is therefore 15 presumed to be innocent until proven guilty or pleads guilty as enshrined in Article 28(3) (e) of the Constitution of the Republic of Uganda, 1995 as amended.

### Resolution:

- The prosecution in this case has to prove the following ingredients: 20 - a. That the victim was below 14 years of age at the time. - b. That a sexual act was performed on the victim. - c. That it is the accused who performed the sexual act.

# Age of the victim was below 14 years:

To prove this ingredient the prosecution relied on PEX1 which indicated that the 25 victim was examined on the 27<sup>th</sup> September 2019 and found to be of an apparent age of 10 years old at the time.

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This piece of evidence was corroborated by the evidence of PW3 the victim herself and PW4 the victim's mother who testified that the victim was currently 13 years old meaning she was 10 years at the time the offence was committed.

This court noted that indeed the victim is young and certainly below the age of $\overline{5}$ 14 years.

I accordingly find that the prosecution has proved this ingredient beyond reasonable doubt.

## Sexual act performed on the victim:

Section 129 (7) (a) and (b) of the Penal Code Act as amended defines a sexual act as; penetration of the vagina, mouth or anus however, slight of any person by a $10$ sexual organ; the unlawful use of an organ by a person or another person's organ where sexual organ means a vagina or penis.

It was the evidence of PW1, a medical officer who prepared PEX1 that he found the victim with a ruptured but not in the recent past.

- PW3 testified that the accused had sexual intercourse with her two times. This 15 evidence was corroborated by the evidence of PW4 and PW5. That PW3 stated that the first sexual act was behind the cinema hall. Although PW3 contradicted her evidence regarding the fact that the first occurrence was at the verandah, State implored court to ignore this inconsistency as minor. That the victim was - very young at the time and forgot a series of events. However, that the medical $20$ report confirms that the victim was found with a ruptured hymen which was not recent, and the vagina was reddish and swollen. That the sexual act was done at separate times and the witness was not specific on when the first act occurred. - The defense challenged the evidence of the Medical Official as the medical examination was done and recorded on 27th September 2019, and the alleged 25 defilement occurred on 22<sup>nd</sup> September 2019 which was a period of 5 days which is a very short time frame for it to be termed as being "not of the recent past." And thus, the prosecution could not have been proved this ingredient beyond reasonable doubt. - To prove this ingredient the prosecution relied on PF3A where the victim was 30 found with a ruptured hymen though not in the recent past but vagina was reddish and swollen at the opening. This was corroborated with the evidence of - $\overline{3}$

PW3 who was present when examination was being done. The prosecution evidence had minor contradictions as to when the sexual act actually happened and where, however, it is not in dispute that a sexual act did happen. I therefore, treat theses contradictions as minor and accordingly disregard them.

I therefore, find that the prosecution proved this ingredient to the satisfaction of the court.

## Participation of the accused:

It was submitted for the prosecution that PW3 stated that she had known the accused since 2018 as a neighbor who used to sit on the verandah next to her mother's home and that he used to send her to buy cigarettes and Big G. That the $10$ period was sufficient for her to know her assailant well. That she testified that the accused took her behind the hall and had sexual intercourse with her. That he also had sexual intercourse with her inside the house when the mother was not around. State noted that the contradictions as to when the sexual act came first is not grave as the victim was very young to recollect every detail. 15

It was submitted for the accused that the victim testified that the accused person defiled her twice, the first time being an evening when she was playing with her friends and her mother had gone somewhere. That the accused had sexual intercourse with her behind the cinema hall and threatened her not to tell

anyone which threat she obliged to. That the second time was in the house when 20 the accused was accommodated by the victim's mother PW4. That later PW4 went to buy something to cat for the baby and the accused then locked the door and had sexual intercourse with PW3 which incident she reported to her mother in the morning.

Counsel for the accused argued that the evidence of PW3 was that she was 25 defiled behind the movie hall first and not the house while PW5 and PW4 stated otherwise. That the facts disputed in this case are vital in nature under the category of Section 6 of the Evidence Act which states that; facts which are the occasion, the cause or the effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, 30 or which afforded an opportunity for their occurrence or transaction, are relevant. That the facts herein have a different narrative which casts a doubt in court's mind. That this evidence should therefore, be rejected. (See: Uganda v. Kavuma Ismail, Criminal Session Case No. 0819 of 2016).

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In this case the mother of the victim told court that the accused person asked for accommodation in her house and he was someone she had known as he used to sit on a verandah near her house.

The accused in his defence said he was arrested when he was found fighting with someone and the person he was fighting with was later released. That he also had misunderstandings with his employee that is why he was fighting.

DW2 on the other hand told court that the accused had misunderstandings with the victim's mother with whom he was having a relationship.

The victim also knew the accused as she had seen him before and he used to send her to buy for him cigarettes and Big G. The victim therefore, knew who defiled 10 her and in regard to when it happened first and where, these are contradictions I find as minor. The victim maintained that the accused had defiled her twice and this is probably why the medical report indicated that the ruptured hymen was not in the recent past as the accused had defiled the victim prior. It is not dispute that the victim was defiled and I find the accused's evidence not credible. 15

I find that the prosecution proved this ingredient to the satisfaction of this court.

I hereby disagree with the assessors' joint opinion and find the accused guilty and accordingly convict him as charged.

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20 OYUKO ANTHONY OJOK

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JUDGE 12/8/2022