Uganda v Guloba (Criminal Session Case 386 of 1994) [1997] UGHC 4 (20 June 1997)

Full Case Text

### THE REPUBLIC OF UGANDA

# in the high court of Uganda at

### HOLDEM AT TORORO

### CRIMINAL SESSION CASE NO. 386/94

UGANDA PROSECUTION

## versus

JOHN GULOBA ACCUSED

### BEFORE THE HON, JUSTICE A. KANIA

### JUDGEMENT

The accused, John Guloba, hereinafter referred to in this judgment, stands indicted for defilement contrary to section 123(1) of the penal Code Act. It is alleged in the particulars of the indictment that, on the Sth day of January 1994 at Atiri village in Tororo District, the accused had unlawful sexual intercourse with Betty Anna Nagwanja, a girl under the age of 18 years. The accused denied the offence.

The prosecution, in an endeavour to prove its case, called **a** total of six xvitnesses. The accused made an unsworn statement and called no other witnesses.

The ca.se for the prosecution is briefly as follows. In the morning of the 8th of January 1994, the victim Betty Nagwanja PW2 vjas asked by the mother of the accused to go and fetch for her water from the village borehole. On coming back from the borehole. she found the accused by his house. The accused grabbed her, dragged her into his house, removed her pants, threw her down and had sexual intercourse with her\* Around this time PW5 Alice Musirikali came to the accused's house with the aim of borrowing a panga from him. She met her stepmother one Rose who had also come to borrow a panga. Rose told PW5 that she could hear people talking in the house and told PW5 to go in. On entering the house PW5 found the accused and the victim lying on the bed of the accused naked and

and having sexual intercourse. The two on seeing PW5 got up and PW5 walked out. The mother of the victim PW4 Jane Awino was informed about the incident. She carried out an examination of the private parts of the victim and found her vagina had been torn and it ivas bleeding, PW4 immediately reported the matter **to** PWJ Othieno Peter who was the Vice-Chairman RCI of the village. He in the company of PW4 proceeded to a place where people were playing chess and found the accused. He informed the gathering about the allegation against the accused, whereupon the RCI chairman arrested the accused and handed him over to the defence Secretary, That same evening PW4 learned that the accused had disappeared and gone to Merikit which was a distance of 10 miles where the chairman arrested and took him to Merikit Police Post, After a week the victim was taken to Tororo Hospital, examined by PW4 Dr, Wabomba Fred whose findings were that the victim's labia maJora and hymen were torn and made the conclusion that a possible cause could have been sexual intercourse. PW6 compiled a report which was tendered in evidence and marked PI,

The case for the accused was an outright denial. In his unsworn statement the accused stated that at around 10.00 a^n when the offence is supposed to have been committed the victim and his uncle's vdfe one Rose came to his house to add yeast in Malwa (local drink) which was being brewed in his house. After the two had entered his house heleft and went to play chess with his friends. His friends were very surprised as he himself was when at about 5,00 p,m, an allegation was made that he had defiled the victim. The above in short was the case for both the prosecution and the accused.

In our criminal justice system it is a guiding principle that an accused person is presumed innocent until proved guilty. The onus of proving the guilt of the accused is always on the prosecution and this burden never shifts on to the accused person. It is also the law that the standard of this proof is beyond reasonable doubt. See Woolmington vs DPP (1935) AC 463

Joseph Kiiza & another vrs Uganda (197#) HCB

Another cardinal principle of our Criminal law is that the conviction of an accused person should not be based on the weakness of the case for the defence but rather on the strength of the case for the prosecution. See Qkalex vrs R (1965) EA *5£0.*

The essential ingredients that are required to be proved in an offence of defilement are the following:-

- I. That the victim of the defilement was under the age of 13 years at the time of the offence - 2. That there was unlawful carnal knowledge of the victim - 3. That the accused was the one responsible for such carnal knowledge.

With regard to the first ingredient, there is the evidence of the victim PW2, the medical evidence of PW6, the testimony of PW5 end that of the mother of the victim PW4. PW2 stated her age to be 13 years and the medical evidence of PW6 found her to be 10 years at the time of the offence. PW5 who stated her own age to be 14 years said she is older than PW2 and PW4 who is the victim's mother put her birth in I9#I. The evidence of PW6 is particularly strong in that ho found out that PW2 had not reached the state of puberty at the time he examined her because she exhibited no signs of having attained it. According to him puberty is attained at the age of 12 years. The sum total effect of this evidence is that the victim was under the age of I# years at the time of the incident. The best way to prove age is normally by production of a birth certificate. But it is also possible to determine the age of a child by observation and common sense. See R vs Recorder of Grisby Ex-parte Bursar (1951) 2 All E. R 389 The victim PW2 testified in court, the court and the Assessor's had an opportunity to **observe** she was a little tiny child. Very far below the age of IB. years. In view of all the above I have no hesitation in finding that the victim was below the age of IS years In view of all the above I have no hesitation in finding that the victim was below the age of IS years at the time of the commission

\_\_\_\_knvAnH rsnsonable

In proof of the second ingredient of the offence there was the evidence of PW2 to the effect that she was grabbed by the accused, dragged into the house, her pants removed and then the accused had carnal knowledge of her. PW5 testified that on entering the house she found the accused and PW2 naked in bed having sexual intercourse. PW4 after receiving the information that PW2 had been defiled, examined her and found her vagina torn and bleeding. PW6 who carried out a medical examination of PW2 found her labia majora and hymen torn and drew the conclusion that a possible cause of these injuries could have been sexual intercourse. It is the law that to establish that sexual intercourse took place the very slightest penetration- of the vagina by the penis is sufficient. It does not even need to be proved that the hymen has been raptured. See Halsbury Lav; of Ihigland 4th Edi/tion vol II at page 653 paragraph 1228. In the instant case there was not only mere slight penetration but the hymen was raptured. The defence did not seem to contest that sexual intercourse took place. I am convinced and find that it has been established beyond reasonable doubt there was unlawful carnal knowledge of the victim.

I now turn to the all important ingredient of the offence whether the accused vra.s responsible for the unlawful carnal knowledge of the victim. In an attempt to prove this ingredient the prosecution relied on the evidence of PW2 and PW5. PW2's evidence was that it was the accused, who is her cousin, who grabbed her and dragged her into his house, removed her knickers, threw her down and had sexual intercourse with her, PW5 on oxtering the house found the accused and the PW2 naked with the accused on top of her having sexual intercourse. When they saw PW5 they got up. Considering that PW2 and PW5 are cousins of the accused living more or less in the same courtyard and that the episode took place during broad day light I find that favourable conditions for the two witnesses to positively identify the accused were abundantly available. The conditions fitted the guidelines set down in

Rovia vs R—(19^7) EA 5\$3 •

In summing up to the Assessors I warned them as I warned myself of the dangers of convicting on the uncorroborated evidence of a complainant in sexual offence. It is trite that the courts will inevitably look for corroboration in sexual offences and the Judge has a duty to warn the assessors and himself of the dangers of acting on the uncorroborated evidence of the complainant. It is only when such warning has been administered and the Judge is satisfied that her evidence is truthful that he may all the same convict in the absence of corroboration. See Chila and Another VS Republic (1967) EA 722, R VS Kirumunyo (1943) 10 EACA 64

It is also the lav/ of this land that an accused person should not be convicted on the unsworn evidence of a child of tender years unless such is corroborated by some other material evidence in support thereof implicating him. See Section 3^(3) of T,I,D. The unsworn evidence of a child of tender years can not corroborate the unsvzom evidence of another child. See R VS Campbell (1966)2 All ER 272.

Whereas PW2\*s evidence on the age and the occurance of secual intercourse was corroborated by evidence of PW2 on the identity of the accused is not capable of being corroborated by that of PW5 because both their testimonies were unsworn. PW2's evidence can only find corrobroration elsewhere.

The accused in his unsworn statements admits PW2 came to his house at 10.00 a.m and he then left. PW4 got information PW2 had been defiled by the accused and proceeded to examine her only to discover her vagina tom and bleeding. The examination of PW6 confirmed that these injuries could have been the result of sexual intercourse. From the above I draw the inference, that the victim must have been defiled in the house of the accused. I reject the story that *P\i2* went to the accused's house with one Rose to add yeast to malxua (local drink). When the accused was accosted by the RCI chairman and handed over to the RCI Defence Secretary, he fled to Merekit ten miles away• This

and can only associate it with a guilty mind. This evidence connecting the accused is of course circumstantial. Circumstantial evidence is as good as direct evidence if the incriminating facts point to no other conclusion but the guilt of the accused and are incompatible with his innocence.

See Charles Benon Ritwire VS Uganda Court of Appeal.

Criminal App. NO. 23/85. Uganda VS Evaristo Kamugisha (1991) HCB 24 The above circumstantial evidence is so cogent and incompatible with the innocence of the accused that it is incapable of any other explanation upon any other hypethesis other than that of the guilt of the accused. It therefore corroborates the evidence of PW2 and PW5. I find that the accused defiled PW2 Betty Anna Nagwanya on the 8th January 1994.

Mr. Okuku, learned counsel for the accused contended that the prosecution evidence was so full of contraditions and inconsistences that the contradiction ought to be resolved in favour of the accused. He cited the evidence of PW2 where she testified that she made an alarm when this was not supported at all. He pointed out that whereas PW2 claims that the accused threw her down PW5 gave evidence that she found the accused and PW2 in a bed. He also pointed at the inconsistency between PW2's evidence that it was her knickers which were removed and that of PW5 where she stated she found PW2 naked.

The law on contraditions and inconsistencies in the prosecution case is that if they are major going to the root of the case, they have to be resolved in favour of the accused, But if they are minor they are to be disregarded except if they result from deliberate falsehood. See Alfred Tajar VS Uganda EnCA Criminal Appeal NO. 167/ $167/1969.$

The essence of the case is that the accused had sexual intercourse with the accused. It is inconsequential whether the victim of the sexual intercourse made an alarm or not or if her dress was removed or not. All in all the inconsistencies pointed out by

$\mathbf{6}$

Mr. Okuku can safely be disregarded.

In the result from the above I am of the firm view the prosecution has proved the case against the accused person beyond reasonable doubt that the accused committed the offence of defilement contrary to Section 123(1) of the Penal Code Act. In full agrement with the unanimous opinion of the gentlemen Assessors, I find the accused guilty as charged and convict him accordingly.

> Signed: A. KANIA JUDGE 20/6/97

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