Uganda v Epilu (HCCSC 133 of 2018) [2022] UGHCCRD 81 (4 August 2022)

# The Republic of Uganda

## High Court of Uganda Holden at Soroti

## High Court Criminal Session Case No. 133 of 2018

<table>

Uganda :::::::::::::::::::::::::::::::::::

#### Versus

<table>

Epilu Moses ::::::::::::::::::::::::::::::::::: 10

# Before Hon. Justice Dr Henry Peter Adonyo

## Judgment.

The accused was indicted with aggravated defilement contrary to section $129(3)$ and $(4)(a)$ of the Penal Code Act.

The facts of the case are that the accused on the $21^{st}$ day of October 2017 at Osudo Village, Kakure Parish, Kakure Sub-county in Kaberamaido district had sexual intercourse with Ajilo Patricia Mercy, a girl aged 12 years.

It is alleged that on the $21^{st}$ of October 2017 at about 1:00 pm, the accused 20 under the cover of having drank a local potent brew known as waragi, went to the victim's home. He had in his hands, still, a bottle of waragi.

$\mathsf{S}$

He found the victim, Ajilo Patricia Mercy, a child of 12 years, alone at $\mathsf{S}$ home preparing lunch. Ajilo Patricia Mercy welcomed him as her brother. (an uncle's son). She gave him a chair to sit on.

The accused after exchanging some niceties then asked the victim as to the whereabouts of her parents and siblings. The victim told him they were not at home. The accused then told the victim that he wanted to have sex with her. The victim told him of. The accused changed tactics. He then asked the victim to fetch for him some drinking water from the house saying that he was thirsty. The victim obliged and proceeded to go into the grass thatched house which was their house.

As she did so the accused left his seat and followed her stealthily from 15 behind. On reaching inside the house the accused grabbed the victim from behind, held her tight, chocked her and threw her down. The accused after confirming that he had restrained the victim went ahead to tear off her knickers and forcefully proceeded to insert his now erect penis into the vagina of this little girl. He ravished her for about four minutes. 20

The victim was only rescued by one Emaku Patrick, a brother to the accused who had passed by while going to their home who entered the house for he wanted also to quench his burning thirst with water.

On seeing his brother enter the house, the accused got hold of his trouser and ran away. 25

Emaku Patrick, the brother of the accused checked the victim and found $\mathsf{S}$ that she had been defiled and was in lots of pain.

He and the victim reported the sexual assault to the victim's father called Emesu Martin who in turn reported the matter to Kakure Police Post.

The police took the victim for a medical examination which revealed that she was a little girl of 12 years whose vagina had been forcefully penetrated by a blunt object.

- The police mounted a search for the accused and arrested the accused. On his arrest the accused was subjected to a medical examination which revealed that he was an adult of sound mind. The accused was then charged with the offence of aggravated defilement contrary to section 129 15 (3) and 4 (a) of the Penal Code Act. He made a charge and caution statement admitting the offence. He was subsequently charged in court, committed for trial in the High Court where he denied the committing the offence for he pleaded not guilty. - To prove its case against the accused, the prosecution three witnesses. 20 These are the victim herself Ajilo Patricia Mercy (PW1), Emaku Patrick, (PW2) and the victim's father Emesu Martin, (PW3).

In her testimony PW1 who is the victim of the accused uncontrolled sexual urge told court that she knew the accused very well for he was her brother and a son to her paternal uncle. She told court that she properly identified

the accused as it was on the Saturday of 21st October 2017 at around $\mathsf{S}$ midday during broad daylight when the accused came to their home while reeking of alcohol and still carrying a bottle of the same.

She told court that she was alone at home and was cooking lunch for her family. She welcomed the accused to their home and gave him a chair to sit on. The accused then engaged her into some small talk inquiring as to the whereabouts of her parents and siblings. Upon being told that the victim was at home alone, the accused proceeded to tell her that he was going to have sex with. She refused. The accused then changed tactics and asked her to bring for him drinking water from inside the house.

- As she went inside to get the drinking water and the accused stealthily 15 followed her, grabbed her, muffled her mouth and wrestled her down and after doing so, proceeded to tear of her knickers and forcefully inserted his penis into her vagina and had sexual intercourse with her which lasted for about four minutes. - That she was only saved from the accused by Emaku Patrick (PW2), a $-20$ younger brother to the accused who, upon the accused seeing took off while carrying off his trousers.

The victim was left in terrible pain and when her father called Emesu Martin, (PW3) came home she reported to him what had happened who also told the victim's mother to check her and the mother found that the

victim's vagina had bruises with some white slimy stuff. Her mother and $\mathsf{S}$ father then reported the matter to the LC1 Chairman of the area who referred the victim to police and the accused was subsequently arrested and charged.

During cross-examination the victim told court that she was taken by her mother first to a clinic and then later to a dispensary for medical checkup. She also told court that out of fear of her parents, she threw away the torn knickers in the latrine.

She further confirmed that she could not raise an alarm while the accused was ravishing her because he had strangled her. and she could not raise an alarm.

PW2 Emaku Patrick testified that the accused was his elder brother from the same mother and father. That the victim was her cousin sister.

That on 21.10.2017 he was at Osudo Town Council and on his way back home he passed by the victim's home to drink water at around 11:00am and he found the victim at home and she gave him water which he drunk water and left.

But that later he passed by the house again and the victim informed him that the accused had sexually molested her and had ran away.

PW3, the victim's father testified that when he returned home from the $\mathsf{S}$ market on 21.10.2017 he found the victim crying but she did not tell him reason as to why she was crying but that when the victim's mother came back home he asked her to find from the victim what was amiss and that the victim then opened up and told them that the accused had forcefully had sexual intercourse with her. 10

PW3 told court further that upon hearing the reason as to why the victim was crying he and his wife reported the matter to thee local area chairman and then to police. That the accused was later subsequently arrested.

That was the prosecution's case.

Upon the conclusion of the prosecution's case, on the 28<sup>th</sup> of July 2022 15 this Honourable Court made a ruling on the presented evidence that it disclosed a prima facie case as against the accused with the accused having a case to answer by virtue of Section 73(2) of the Trial on Indictment Act. The accused was thus put to his defence upon the accused being informed of his rights on how he was required to present 20 his defence.

The accused chose to remain silent and did not call any witnesses. The defence's case was thus closed with either party being given the opportunity to present any final submissions. Both sides decided against doing so and left the court to make its own decision.

[6]

Accordingly, the summing up of the case to the assessors was made with $\mathsf{S}$ the assessors, after retiring, advising this honourable court to convict the accused person based on the evidence of the victim who was the single identifying witness on the basis that offence was committed during broad daylight at midday with the accused being well known to the victim and the sexual act was committed at close proximity. 10

In this case, the accused is charged with the offence of aggravated defilement contrary to section 129 (3) and 4 (a) of the Penal Code **Act**. He pleaded not guilty.

For a charge of aggravated defilement, the prosecution has the burden to prove the following elements beyond reasonable doubt: -

a) The victim was a child under the age of 14 years.

b) That a sexual act was performed on the victim.

c) That it is the accused who performed the sexual act on the victim.

In criminal cases, the prosecution has the burden and duty to prove the charges brought against an accused person beyond any reasonable doubt. An accused person does not have to prove his innocence and can only be convicted on the strength of the prosecution case and not because of any weaknesses in his defence. ## See: Section 101, 102 of The Evidence Act, Cap 6, Woolmington $\mathsf{S}$ v. DPP [1935] A-C 462, Ssekitoleko v. Uganda [1967] EA 531

The standard of proof is satisfied once all evidence suggesting the innocence of the accused, at its best does, create a possibility but not any probability that the accused is innocent.

## See: Miller v. Minister of Pensions [1947] 2 ALL ER 372. 10

In respect of this instant case, there is no contention with regard to the first two ingredients of the offence, i.e., that the victim was below 14 years of age and there was a sexual act. These pieces of evidence were proven both by medical evidence which put the victim to be below 18 years and the evidence of PW3, the father of the victim.

What remained to be proved was participation of the accused. In respect of participation, the prosecution relied solely on the evidence of the victim who was the solitary identifying witness.

The general rule is that evidence of a single identifying witness has to be handled with caution and the court has to warn itself before relying on it 20 as was pointed out in the case of *Uganda vs Mohammed Ssebuwufu* and others.

The law relating to a single identifying witness is now well established by courts. In Abdalla bin Wendo and Another vs. R [1953] 20

E. A. C. A. at page 168 which was cited with approval in Roria v R $\mathsf{S}$ [1967] EA 583, it was held that;

> "Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single $\mathbf{a}$ witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness $\mathbf{v}$ respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error."

Additionally, in *Abdalla Nabulere & Anor Vs Uganda Criminal* Appeal No. 8 of 1978, the court pointed out that;

"... there is no particular magic in having two or more witnesses testifying to the identity of the accused in similar circumstances. What is important is the quality of the identification. If the quality of the identification in not good, a number of witnesses will not cure the danger

of mistaken identity, hence the requirement to look for 'other evidence'... In our judgment, when the quality of identification is good, as for example, when the *identification is made after a long period of observation* or in satisfactory conditions by a person who knew the accused well before, a court can safely convict even though there is no 'other evidence to support to *identification evidence; provided the court adequately* warns itself of the special need for caution. If a more stringent rule were to be imposed by the courts, for *example if corroboration were required in every case of identification, affronts to justice would frequently occur* and the maintenance of law and order greatly hampered."

The test of correct identification was outlined in *Abdallah Nabulere* (supra) thus;

then "The judge should examine closely the circumstances in which the identification came be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the

$\mathsf{S}$

$\sim$ 20

## quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger."

$\mathsf{S}$

$20 -$

In the instant case, the victim here not only knew the accused person as her cousin brother but had sufficient time to recognise him as he came to their home at around midday and she had time to talk to him at length. She even offered him a chair to sit on and went into the house to collect water for the accused to drink.

Furthermore, the act of the forced sexual intercourse was carried out at very close proximity which gave the victim sufficient time to recognise the accused and the forced sexual act itself took more than four minutes.

Form the evidence of the single identifying witness, I am satisfied that the victim not only knew the accused before the incident as a cousin brother, but she identified him in broad daylight as it was around midday. The accused also had at length a conversation with the victim who even gave him a seat to sit on. There is also no suggestion that victim was disabled in the eyes or ears. She saw, she heard him, she talked to him at length and knew him very well as a relative.

The rules that have evolved to guide courts in dealing with evidence a single identifying witness are briefly that the testimony of a single identifying witness must be taken with for caution especially when the

$[11]$

- conditions favouring the correct identification are difficult which would $\mathsf{S}$ require 'other evidence' pointing to the guilt. Otherwise, subject to wellknown exceptions, it is lawful to convict on the identification of a single witness so long as the judge adverts to the danger of basing a conviction on such evidence alone. See: **Roria** $v$ $R$ [1967] EA 583 - In this instant matter, after taking into account all the above, I can 10 conclude that the victim in respect of the instant offence had not only previously known the accused as a relative but had the added additional conditions to identify the accused as the accused defiled her during broad daylight wherein conditions for recognition were very suitable and the sexual, whose nature requires close range, lasted four minutes which is, 15 in my considered view, plenty of time for the victim to recognise and identify the accused.

As to whether the complainant was able to identify her assailant or not is further be deduced from the immediate circumstances in which she was defiled. The complainant knew the accused and was able to tell court how he defiled her.

$20 -$

She testified that the accused grabbed her, tore off her knickers and gagged her mouth and then raped her.

The complainant maintained this order of events even when she was $\mathsf{S}$ cross-examined. She did not break down or change the order in which the events unfolded.

The consistency of the complainant's testimony is indicative of a person who knew well her molester even before the criminal act itself was perpetuated.

Arising from the above, I am convinced that the evidence of the victim, who is the single identifying witness placed the accused squarely at the scene of the crime.

On the basis of that evidence, I would conclude and find that the prosecution proved the participation of the accused person in the defilement of the victim beyond reasonable doubt.

Like the assessors in this case advised me to do so, I would find the accused person guilty of the offence of aggravated defilement as per the indictment. Epilu Moses, the accused herein is thus accordingly convicted.

## Hon Justice Dr Henry Peter Adonyo

Judge

4<sup>th</sup> August 2022