Uganda v Kabugo (HCT-00-CR-SC 815 of 2019) [2022] UGHCCRD 154 (12 August 2022)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA HCT-00-CR-SC-0815-2019**

**UGANDA ………………… PROSECUTOR**

## **VERSUS**

**KABUGO JAMES ........…..………. ACCUSED**

## **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

## **JUDGMENT**

The accused herein, **KABUGO JAMES, 36,** (the accused) is charged with the offence of Aggravated Defilement contrary to sections 129 (3) & (4) (a) of **the Penal Code Act (PCA), Cap 120**.

It is alleged in the particulars of offence that during the month of August 2018, in the village of Majije Busukuuma in Wakiso District, the accused performed a sexual act on **Nanfuka Gloria**, a girl aged 11 years.

Kabugo pleaded not guilty putting all the elements of this offence into issue. The state subsequently called three witnesses while the accused was the only witness for the defence.

It is alleged for the prosecution that the accused is the step father of the victim, Nanfuka Gloria, 15. He is married to her mother called Namakula Rachel, who in June 2018 left the Country to go and work in Saudi Arabia. In October 2018 the victim and her younger siblings lived alone with the accused in Majije in Wakiso District. At the time the victim was 11 years old. She and her siblings were sleeping in the sitting room. At some point, the accused told the victim to move to his room as the other children were wetting the bed. He thereafter had sex with her on several occasions over a two week period. The victim started feeling a lot of pain in her private parts and had difficulty walking. A neighbour, Nalumansi Harriet – PW 3 – noticed the way victim was walking and took her first to a clinic and then to the Police where the matter was reported. The police officer, PW 2 Detective Sergeant Abo Eunice, noticed that the victim was walking with her legs apart. The Police officer visited the scene and drew a sketch plan. It shows a two roomed house showing the bed of the accused in one room.

The victim told the examining medical officer that her step father was having sexual intercourse with her. The medical report was tendered under Section 66 of **the Trial on Indictments Act.** The report showed that the victim's vulva and vagina were bruised, tender and swollen. The accused was also examined on PF 24 and found to be mentally normal.

The accused denied the commission of this offence. He stated that the victim, Nanfuka Gloria, is the daughter of his wife and is his step daughter. That one day in August 2018 he returned home and was told by the other children that Gloria was unwell. He inquired from Gloria what was wrong and she told him that she had warts in her private parts. He took her for treatment where she was given medication. He was surprised to be arrested by the Police the next Sunday. He stated that it was PW 3 who advised the victim not to take the medicine that he had bought for her. He stated that he lived alone with the children in his two roomed house. He added that he had no grudge against the victim or PW 3.

This Court reminds itself that the burden or onus of proof is on the prosecution, as it is always on the prosecution in all criminal cases, except in a few statutory offences, to prove the guilt of the accused beyond any reasonable doubt. [See **Ojepan Ignatius vs. Uganda Cr. App. No. 25 of 1995 (unreported)]**

The prosecution must prove the essential elements of the offence charged. In the case Aggravated Defilement the ingredients are:

- i. That the victim was below the age of 14 years - ii. That there was a sexual act performed on the victim - iii. That it was the accused responsible.

The first element is to prove that the victim was below the age of 14 years at the time the offence was committed.

The victim testified and informed the court that she was 15 years old on the day she testified. The accused, her step father, put her at about 9 years of age in 2018. The victim was interviewed by a police officer in October 2018. She was also examined by a medical officer at about the same time. Both put her at about 11 years of age at the time. This Courts estimation also puts her at about 15 years of age today. All the above pieces of evidence are uncontested and show that indeed the victim was certainly below 14 years of age in 2018. The assessors advised this Court to find that indeed the victim was below the age of 14 in 2018.

In the result this court finds the victim was below 14 years of age in 2018 and the first element is proved.

The second element is whether a sexual act was performed on the victim.

The victim stated that for a period of two weeks in October 2018 the accused had sexual intercourse with her continuously. He sometimes had actual sexual intercourse and on other occasions used his finger in her private parts. The victim developed a lot of pain in her private parts and started having difficulty walking. The victim also broke down and cried as she narrated her evidence to this Court.

When PW 3, a neighbour called Nalumansi noticed that the victim was walking with difficulty she inquired. The victim told Nalumansi that she had been defiled. PW 3 then took the victim to a clinic. The examining medical officer found that the victim's vulva and vagina were bruised, tender and swollen. The victim's hymen was newly ruptured but healing. His conclusion was that the in injuries were caused by an erect penis and finger penetration. When the matter was reported to Police PW 3 was also told by the victim that she had been defiled.

The accused in his evidence told the Court that the victim was not defiled but suffered from vaginal warts. That he himself took her to a clinic and at the time of his arrest she was on treatment.

A sexual act is the slightest penetration of the vagina, mouth or anus of any person by a sexual organ [see 129(7) of **The Penal Code Act**].

The victim stated that her injuries were the result of penetration of the vagina by use of both a finger and sexual intercourse. The version that it was warts is rebutted by the medical examination report which does not show any evidence of vaginal warts.

During her testimony, it was never put to the victim, who was now 15 years of age that she had vaginal warts and was not actually defiled. The victim also told both Nalumansi and Detective Sergeant Abo, as soon as she spoke to them, that she had been defiled and both noticed that she was walking with difficulty.

It is not always a legal requirement that evidence in sexual assaults be corroborated. However it is a practice that may test the truth of the allegations.

The corroboration required is independent evidence of some material particular showing not only that the offence was committed but also that the accused committed it. It is not necessary that every aspect of the evidence requiring corroboration must be corroborated. It is sufficient that a material particular is corroborated (**R. v. Baskerville, [1916] 2 K. B. 658**).

Here the medical evidence corroborated the victim's testimony. Additionally there are the immediate reports given by the victim as soon as she narrated the story to the police officer and to Nalumansi.

Such evidence is corroborative under Section 157 of **the Evidence Act** which states,

In order to corroborate the testimony of a witness, any former statement made by the witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

From the foregoing, I find that there was a sexual act performed on the victim and evidence of that fact was corroborated by the medical examination report and reports made to PW 2 and PW 3.

The 2nd element is proved beyond reasonable doubt.

Lastly, the prosecution must prove it was the accused who committed this offence.

**Kabugo James** denied the commission of this offence. He states that he is the victim's step father and lived with her. He was surprised when the police arrested him for the offence. He admitted that it was just him and the four children living in a two roomed house.

The victim on the other stated it was the accused who defiled her. That her younger sister heard her scream one night and asked her what was wrong. The victim told her the accused had sexual intercourse with her. The victim also told both PW 2 and PW 3 the day the matter was reported to them that the accused had sexual intercourse with her. She also narrated to this court that the accused used to defile her in the night. He started off touching her buttocks and ended up defiling her at night.

The victim told PW 2 that she was staying alone with the accused in his bedroom. The accused was also the only adult living with the 11 year old victim, who at the time was the oldest child in the house.

This court has considered this evidence in its entirety. I watched al the witnesses testify. It was my conclusion that the victim PW 2 and PW 3 were truthful witnesses.

Clearly, the accused person's denial cannot stand in the face of the prosecution case. This court therefore finds that it was the accused who committed this offence.

In the circumstances the 3rd element is proved.

The assessors advised this Court to find the accused guilty as charged.

In agreement with the assessors, it is the finding of this Court that **Kabugo James,** is guilty of the offence of Aggravated Defilement c/s 129 (3) and (4) (c) of the Penal Code and hereby convict him.

Dated at Kampala this ……… day of August 2022.

**……………………………………..**

**Michael Elubu**

**Judge**