Uganda v Eyalu (Criminal Session Case 154 of 2020) [2025] UGHC 317 (9 May 2025)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI CRIMINAL SESSION CASE NO. 0154 OF 2020

UGANDA ::::::::::::::::::::::::::::::::::: **VERSUS**

EYALU ALEX ::::::::::::::::::::::::::::::::::::

## Before: Hon. Justice Boniface Wamala JUDGMENT

## **Introduction**

[1] The accused person in this case is indicted of the offence of Aggravated Defilement c/s 129 (3) and 4 (a) of the Penal Code Act [now Section 116 (3) & $(4)$ $(a)$ of the PCA Cap 128. It is alleged that the accused person during early June 2020 at Oderai village in Soroti District unlawfully performed a sexual act with Adeke Martha, a girl aged six (6) years. The accused person denied the offence and the case proceeded for hearing.

#### **Representation**

[2] At the hearing, the state was represented by **Ms. Irene Nambozo** from the Office of the Director of Public Prosecutions (ODPP) while the accused was represented by Mr. Olobo James Felix and Mr. Justine Okwalinga, counsel on state brief. The assessors were Mr. Erwaku Lawrence and Mr. Oriada **David**. Neither the accused, his lawyers nor the state objected to the assessors' appointment.

## The Burden and Standard of Proof

[3] In criminal cases, an accused person is presumed innocent until proven guilty or until he or she pleads guilty; as provided for under Article $28(3)(a)$ of the Constitution of the Republic of Uganda. As such, the burden of proving each and every ingredient of an offence is always on the prosecution and never shifts onto the accused. See: Woolmington v DPP [1935] AC 462. The accused person is only convicted on the strength of the prosecution case and not

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because of weaknesses in his defence. See: Ssekitoleko v Uganda (1967) EA 531. Each essential ingredient of the alleged offence must be proved beyond reasonable doubt. However, proof beyond reasonable does not mean proof beyond a shadow of doubt. The standard is satisfied once any evidence suggesting the innocence of the accused person, at its best, only creates a mere fanciful possibility but not any probability that the accused is innocent. See: *Miller v Minister for Pensions | 1947] 2 ALLER 372.*

### The evidence in this case

#### Agreed facts

[4] The state and the defence signed a memorandum of agreed matters wherein some facts were agreed upon, namely that;

(a) The victim was a girl aged 06 years and were neighbours with the accused at Oderai village in Soroti District;

(b) On 8th June 2020, while the mother (Adeke Joyce) was bathing the victim, she discovered that the victim had pain and pus in her private parts; and (c) Medical examination on PF3A found that it could have been caused by an attempt to have sexual intercourse.

[5] The following documents were agreed upon in the said memorandum, namely;

(a) The victim examination report (PF3A);

(b) The accused examination report (PF24A);

[6] The memorandum of agreed matters was tendered and admitted in evidence in accordance with section 67 of the Trial on Indictments Act (TIA) Cap 25. The agreed documents were admitted in evidence and marked as PE1, PE2, and PE3 respectively.

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#### The witnesses

[7] The prosecution led evidence of two witnesses while the defense led evidence of one witness, the accused person. For the prosecution, PW1 was the victim, Adeke Martha, a female juvenile aged 11 years at the time of testifying, a resident of Oderai village and a pupil in P.5 at Goshen Nursery & Primary School. She stated that she knew the accused as Alex who is their neighbor and usually rode her father's motorcycle. She stated that on the fateful day, in the morning, as she was getting out of the house to brush her teeth, the accused told her to go to his home after taking tea. When she went to his home, the accused closed the door and pushed her onto his bed, removed her clothes and his, closed her mouth with some hankie-like cloth, then pushed his penis into her vagina and started "doing that thing". The victim stated that in due course, she lied to him that she wanted water so that she could escape. She then got her clothes, ran out, closed the door from out and ran to their house. Later on, the accused came to their house asking for the keys of her father's motorcycle. She testified that it was the first time that the accused did the thing to her. She first kept quiet but later told her mother when the mother was bathing her at about 1:00pm. She stated that she had gone to the accused's house at about 10:00am in the morning. Her mother saw pus in her private parts and noticed that she was feeling pain.

[8] PW2 was Joyce Adeke, a female adult aged 45 years, an accountant with Kumi District Local Government, resident of Oderai at Opiyai B Cell, Opiyai Ward, Soroti City and mother to the victim. She testified that the victim was born on 7th December 2013 and was five and half years in June 2020. She stated that the accused was a very close neighbor from whom they bought their land and who freely rode her husband's motorcycle. She stated that on Monday 8th June 2020, around 10 – 11am, she prepared water to bathe the victim and when she removed her knickers, she saw pus-like fluids. On checking her vagina, it looked very dirty with pus like fluids. She took the victim to Teso

clinic for a checkup where she was told that the victim had been raped. Upon asking the victim, she first refused but eventually told her that it was the accused person who had done bad things to her. PW2 informed her husband and the accused was arrested and taken to Soroti CPS. The victim was taken for medical examination. The results revealed that the victim had been raped and she was put on treatment, which took 2-3 months before her recovery.

[9] For the defense, the accused, **Eyalu Alex** testified as **DW1**. He stated that he was 42 years, a resident of Oderai village, in Soroti District. He stated that he knew the victim and her parents having sold to them a plot of land. He denied having committed the alleged offence. He stated that after the earlier purchase of a plot from him, the victim's father wanted to grab the remaining plot. He further stated that after this case arose, the victim's father has put a wall fence passing through his (accused's) land. DW1 stated that if he had molested the victim, she would have bled and would not have been able to walk. He stated that the cause of the pus was because the victim had not been bathed properly. He also stated that he had a grudge with the victim's father five months prior to June 2020 and that he was framed because the victim's family wanted to take the entire land.

#### **Submissions by Counsel**

[10] It was agreed that counsel would make and file written submissions. Only counsel for the prosecution filed their submissions. I have considered the submissions in the determination of the matter before the Court.

## The law and ingredients of the offence

[11] The offence of aggravated defilement is provided for under Section 116(3) and (4) (a) of the Penal Code Act Cap 128 which states thus;

"(3) Any person who performs a sexual act with another person who is below the age of 18 years in any of the circumstances specified in sub-section (4) commits a

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*felony called aggravated defilement and is on conviction by the High Court, liable* to suffer death.

(4) The circumstances referred to in sub-section (3) are as follows $-$ .

a) where the person against whom the offence is committed is below the age of *fourteen years ...*"

[12] In the instant case, for the accused person to be convicted of aggravated defilement, the prosecution must prove each of the following essential ingredients/ elements beyond reasonable doubt;

- a) That the victim was below 14 years of age; - b) That a sexual act was performed on the victim; and - c) That it is the accused who performed the sexual act on the victim.

#### **Resolution by the Court**

#### *That the victim was below 14 years of age*

[13] In law, the most reliable way of proving the age of a child is by the production of her birth certificate, any other documents speaking to her date of birth, 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 such as medical evidence, the court's own observation and common sense assessment of the age of the child. See: *Uganda v Oryem Bosco (Criminal Case No. 116 of* 2019) [2020] UGHC 78 (10 July 2020).

[14] In this case, it was agreed as a fact between the prosecution and the defence that the victim was a child of six years at the time of the alleged incident. A copy of the victim's child health card was produced and tendered before the Court as an agreed document (PE3). It indicates that the victim's date of birth was 7th December 2013; which made her 5 and a half years by June 2020. The medical examination report of the victim (PF3A) was also admitted on record upon agreement between the prosecution and the defence.

In the report, the victim's age was stated to be between 5 - 7 years as she had 18 teeth. In the oral testimony before the Court, the victim (PW1) stated that she had been informed by her mother that she was born in December 2013. Her mother (PW2) stated that the victim was born on 7th December 2013 and was 5 and a half years by June 2013. From the above evidence, I am satisfied that the prosecution has proved this element of the offence beyond reasonable doubt.

#### *That a sexual act was performed on the victim*

[15] A sexual act is defined under section $116(7)$ of the PCA to mean; (a) penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ; or (b) the unlawful use of any object or organ by a person on another person's sexual organ. Sexual organ means a vagina or a penis. Note that a sexual act does not necessarily have to be sexual intercourse. On the case before me, (PW1) narrated that she was called by the accused person into his house, he put her on his bed, undressed her and inserted his penis into her vagina. She stated that she first kept quiet but later told her mother when the mother was bathing her. The victim's mother (PW2) stated that as she undressed the victim to bathe her, she noticed pus like fluids on her nicker. When she checked the victim's vagina, it was very dirty with pus-like fluids. The victim also expressed presence of pain in her vagina. When she took the victim to hospital, she was informed that the victim had been raped. The medical examination report of the victim (PE1) reveals that when the medical officer examined the victim, he found a pus discharge and noted that her hymen was painful, with an inflamed vulva red in colour. The report further indicated that the cause could have been an attempt to have sex or any other infection.

[16] The accused in his defence alluded to a possibility of another cause of the status of the victim's private parts other than performance of a sexual act. He

stated that it could have been caused by not bathing the victim properly. He also stated that if he had molested the victim, she would have bled and not have been able to walk. The medical report (PE1) indicated that the cause of the state of the victim's vagina could have been an attempt to have sex or any other infection; which left a possibility of an alternative cause. It was stated by counsel for the defence that the above stated inconsistency in the prosecution evidence points to deliberate untruthfulness and, as such, the evidence by the prosecution witnesses should be rejected by the Court.

[17] Counsel for the defence further pointed out that there was a discrepancy in the evidence of the victim (PW1) and her mother (PW2) regarding when the occurrence took place. Counsel stated that while PW1 stated that the day she was defiled was the same day her mother bathed her and found her private parts dirty, it was not possible that her mother could have found a pus discharge within the same day. Counsel stated that a sexual act does not cause pus in the vagina and argued that the same could have been caused by sickness or a particular infection. Counsel concluded that the evidence by the prosecution was incapable of proving that a sexual act was performed on the victim.

[18] In light of the above arguments, the duty of the prosecution, therefore, was to lead evidence that is strong, credible and capable of showing that any highlighted inconsistencies are minor and do not point to deliberate untruthfulness. The law is that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor contradictions or inconsistencies will normally be ignored unless they point to deliberate untruthfulness. What constitutes a major contradiction will vary from case to case. The question always is whether or not the contradictory elements are material, i.e. "essential" to the determination of the case. Material aspects of evidence vary

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from crime to crime but, generally in a criminal trial, materiality is determined on basis of the relative importance between the point being offered by the contradictory evidence and its consequence to the determination of any of the elements necessary to be proved. It will be considered minor where it relates only to a factual issue that is not central, or that is only collateral to the outcome of the case. See: Obwalatum v Uganda (Criminal Appeal 30 of 2015) 2017 UGSC 81 (20 December 2017) and Kayinamura v Uganda (Criminal Appeal 124 of 2022) 2024 UGCA 96 (26 April 2024).

[19] On the evidence before me, I have found the evidence of the victim (PW1) strong enough and corroborated. The victim being 11 years at the time she testified, I conducted a voire dire whereby I established that she knew the consequences of not telling the truth on oath. I observed her and found her intelligent and forthright. I found her testimony to be very innocent and truthful. Her evidence was well corroborated by the testimony of her mother (PW2) and the medical evidence. It ought to be appreciated that at the time the act of defilement is said to have taken place, the victim was only six years. She turned up to testify five years later when she was 11 years.

[20] It is clear to me that a child of that age cannot be expected to keep a perfect memory over an incident that took place five years ago. As such, I am able to draw an inference that the day the sexual act was performed on the victim was not the same day her mother bathed her. The victim clearly stated that she did not disclose to her mother until her mother found out when she undressed her to bathe her. My finding is that what appears as an inconsistency in the prosecution evidence was simply an understandable lapse of memory on the part of the minor victim witness. In my view, such an inconsistency is neither grave nor one that points to deliberate untruthfulness. It is duly explained based on the evidence and circumstances of the case. I am

therefore able to safely ignore the said inconsistency without causing any injustice.

[21] On the evidence before me, therefore, I am satisfied beyond reasonable doubt that the pus discharge, the painful hymen and the inflamed vulva, red in colour were occasioned by a sexual act performed on the victim and not any other cause. The prosecution has therefore proved this element of the offence beyond reasonable doubt.

# That it is the accused who performed the sexual act on the victim

[22] In order to prove the participation of an accused person in the commission of an alleged offence, the prosecution has to adduce evidence which places the accused person at the scene of the crime or that discloses him/her as the perpetrator of the alleged crime. The evidence may be direct or circumstantial. In this case, it was agreed as a fact that the accused and the victim were known to each other and were neighbours living at the same village. The victim (PW1) stated that she knew the accused as they were neighbors and he used to ride her father's motorcycle. She stated that the accused called her to his home, closed the door, pushed her onto his bed, removed her clothes and pushed his penis into her vagina. The victim's mother (PW2) stated that when she discovered that the victim had been violated, she asked the victim, who told her that it was the accused who had done bad things to her. PW2 stated that the accused was close to their family and she had no grudge with him.

[23] In defence, the accused denied having committed the offence and stated that he was framed up. He stated that having sold a plot of land to the victim's parents, the victim's father wanted to take the remaining part of the accused's land. The accused therefore attributed the offence to existence of a grudge and a possible frame up.

[24] I have already made a conclusion on the truthfulness and reliability of the oral testimony of the prosecution witnesses. By the nature of the evidence and circumstances of the present case, there is no possibility of erroneous or mistaken identification of the accused person by PW1 since it was fully agreed and proved that the two were known to each other as close neighbours. The accused person was, therefore, properly recognized by the victim (PW1). Based on the prosecution evidence, I am satisfied that there was no grudge between the accused person and the victim's family. There is evidence by PW1 and PW2 that the accused was a close family friend, who used to freely ride the motor cycle of the victim's father. I do not see the slightest possibility that the young victim (PW1) could have lied on such a particular fact or that she agreed with her mother to lie on such a minute detail. I am satisfied that there is no possibility that the case against the accused person was a result of a frame up. Prosecution has therefore proved beyond reasonable doubt that it was the accused person that performed the sexual act on the victim.

## Decision of the Court

[25] In light of the above, therefore, I respectfully disagree with the opinion of the gentlemen assessors that the prosecution failed to prove the ingredients of the offence. To the contrary, I find that the prosecution adduced sufficient evidence and has proved all the ingredients of the offence of aggravated defilement against the accused person beyond reasonable doubt. I therefore find the accused person guilty of the offence as indicted and convict him accordingly. It is so ordered.

Dated at Soroti this $9^{th}$ day of May, 2025.

**Boniface Wamala** JUDGE