Uganda v Kamukama (Criminal Session Case 275 of 1994) [1994] UGHC 82 (15 June 1994)

Full Case Text

$13. -JUNCG - 14Tende$

THE REPUBLIC OF UGLNDA

IN THE HIGH COURT OF UGANDA AT KLAPALA

HOLDER AT FILIR RA

GREILLI SE SION NO. 275 OF 1994

PROSECUTOR UGIND.

VERSUS

ASAFK KAMUKAMA: ......... TOCARD 1 DEFORE: The Horound is Mr. Mg. Justice E. S. Lugarizi

## $R$ U L I N G:-

The accused herein (ASAPH KANUKAMA) was on the 1st day July, 1994, indicted for the offence of defilement contrary to section $123(1)$ of the Penal Code.

The particulars of the indictment read as follows,

## "PARTICULARS OF OFFENCE

ASAPH KAMUKAMA on or about the 27th day of August, 1991, at Ryensibo village, Kyangyenyi Gombolola, in the Bushenyi district, unlaufully had social intercourse with Jolly Naturands a girl under the se of 10 years".

The accused denied the official and the prosecution called five vitnesses in a bid to prove its case against himply

The first prosecution witness was a Protestant girl aged twenty years. She testified that her name was Natukunda Jolly and that she was presently married and came from Kyangyerri in Bushenyi district.

She further revealed that she was born in 1974, but did not know the month or date of her birth.

She remembered what on 27th of August, 1991, in the evening at around 7.00p.m., while she was at her father's home, with a number of joung children, the accused when she know before as a relative and noighbour care.

At that point, this witness was having a bath. This was in her father's house. The accused opened the door of the bat

1 than the distance the blue process second

The witness cried out? and the children who were at this point in the kitchen? outside uhc niuin house? camo to find out what was happening? but could not get in? since the .-•ccused had ; |locked the door,

After the above? the accused ran out of the house through the 'window and vent away.

! The witness made an elr--; and >co .la camo to her help. Subsequently? the matter was reported to the Muluka chief? and the accused /was arrested. Eventually? he escaped, HV1 later had medical treatment from a clinic and a hospital.

In cross-examination, ?W1 tolc court that she hud ,forgotten when she told court that she was born in 1974? the truth ' was that ;sfie was born on 30th December? 1973» She also revealed '""i / not ^that she once saw her baptismal certificate? but could remember ; the date on it. She denied bL./.t the one counsel for the 0-ceased (Mr. Mwobesa) was referring to? which was dated 12/3/1973? in the name of "Lovelec Agross rhv^jhanda5' v.o.s hers. She explained p J that the name :'Lovclocr: xvas a mistake; and as far as she was concerned? she is called ; '■ ? Jolly Natukunda.

The second prosecution witnegs was a Protestant boy? aged . 19 years of age? called Asiimwe Daniel. He testified that he came from Kakindo village, Kyangyenyi/Bushenyi district and was \* 'a student. He knew the accused who came from-their village.

Fitfl was her sister. On 27th August, 1991? when he was returning from a visit at his uncle's home? he heard an alarm. On arrival at home? he saw PW1 and then reused's father. They Jrere in a state of surprise. P?/l related to the witness that the accused had defiled her. However? they decided not to , | follow up the matter then? but wailed until morning when they reported it to the Muluka chici and uQll cliairman. Subsequently, the accused was arrested.

On 29th of August? 1991? this witness wont to Kasese and told their father (PW"3) about tl'ie above happening. The two returned home together on 30th August? 3.991\*

She remembered that on 2?' : tugust. 1>91; in the evening, she was at heme with, her bigger sister FW1 and some other little children, PW1 was in the main house alone and the witness and the rest, were in the kitchen outside the main house. The accused whom she knew, came and abked her about Pv/1 and PW2.

The accused went into the main house and in a short time, ttie witness heard PW1 crying and saying that the accused was defiling herv The witness then van to the door ci the main house and found it closed.

They cried and made alarm and went to the ceased\*s home. On the way, they met the accused's father and sister^ They then returned home and met othe./s wno had. coms to uolp.

Tn .,rc>s--oxamination; this witness agro -that the accused spent about minutes in the r.oime before PW1 cried out.

After the above witness\* evidence, the prosecution closed its case, whereupon Mr. Mwebcsa counsel for the accused submitted a no case to answer. His main argument was that the prosecution lead failed to wove the two major in?;refionns of the offence herei

(a) the complainant (PW1) was jirl under the age

*r;i* IC years at '-he time of the offence; and (b) th< accused had unlawful. sexual intercourse with hue complainant at ch? time. (Counsel argued here that tne complainant consented)

Mr\* Mwebesa finally urged court co acquit the accused.

Counsel for the.state did not agree with the above submission He was of the view that the evidence on record sho.ed that the complainant was below the age of io years a'c the time of the pffence; and indeed ev^n from lur Ieohs, court could see that. L'| I Ssccndly; he pein tec-, out w/c • "\*o lj typo. ?. of~ •. ncc, consort is immaterial.

i I He rucu s',e; curt v, a <fc.de>

The third prosecution witness was a 40 year old Protestant businessman called Tunwesiave Eridadi who revealed that he came from Kyangyenyi village in Bushenyi district. He was the father of the complainant (RM). PMI was born at the end of 1973, but he could not remember the month or the day of his birth. She was like baylised one day after her birth, but he could not remember the said day and month. He had neither PWL birth certificate nor her baptismal certificate.

On 29th of luguat, 1991. PW2 went to Kasese and told this witness that FW1 had been defiled.

On 30th August, 1991, he and PWZ returned home and took nke her to PWI to the police where she was given a letter to the doctor. Subsequently, the accused was arrested.

In proce-elamination this witness appeal that after the alove of tage there were suggestions and discussions between high and the accused's side to have this matter sorted out on a down bucin. Nowever, this and not to far.

The fourth prosecution witness was a Protestant Police officer, Mo. 21043 P/J Phonds Wilson. He disclosed that on December, 1991, he went to Kakindo, with two armed policemen Their mission was wo arrest the accused on allegations of defilement.

They eventually arrested him, but did not find it easy because the Ads in thit lare and the local people hid initially reffised to co-operate in the matter. They took the accused to Suchery i and handed him to to 1. I. D.

In cross-examination the witness agreed that at one point there was some talk of partne downy between the accused and the other side as for as falls ense was concerned.

The fifth prosecution with as the a Protestant girl aged 14 years whose wand was Tukoviano Seevaa. Whe testified that she came from Kyengyanya in Jushuryi disorict.

Lastly, counsel for the state proyed, that should court not be satisfied that the complainant was under the age of 10 years at the time of the offence, it should order an amendment of the Indictment Morain. He relied on section $48(2)$ of the T. I. D for his proposition.

Having heard the submissions of both counsel, and taken time to consider them together with the available evidence. I am of the view that no prima facie case has been made out against the accused requiring him to come to his defence.

This is so, because I believe that the prosecution has miserably failed to prove a major ingredient of the offence in issue, that is to say, that the complainant (FW1) was at the meterial time of the alleged office a under the age of 10 years.

The prospection's or dence available in the above respect. was act redictors and monatorial At first, PI told this court that are wis with an iff. In but on, in cross-examination, chinged to 30th December, 1993. To make matters worse, no documentary evidence was produced in the attempt to prove FMI's ager and which her father who ought to know better concerning that aspect testified, all he said was that FWI was born at the end of 1973. He could not remember the day or month of her himin.

With such confusion and uncertainity in that area, it is obvious what the prosecution did not prove that the complainant was below the statutory age of 10 years at the time the offende in is at was aftered; committed. 11 作业

The law requires however, that in a defilement case, the age of the complainant must be proved. (Please see Uganda v Joseph Mulindwa Cr. Rev. No. 158 of 1975).

With the 4 roading or cases such as R v. Shabudin Merali MB 38/63; Uganda v. Katabazi Nummual Oriminal Session Case No. 35 of 1977 and wany others, would confirm that a defence submission of to case to there it was to succeed if one or more if the case. I will at the offence have not

There is no doubt that the above is the case here. In circumstances therefore, I have no choice but to hold that the submission of no case to answer made by Mr. Mwebesa succeeds.

I accordingly acquit the Accused of the offence of defilement. I also order that he be released instantly, unless he is being held on some other lawful charges.

Before I take leave of this case however, I would like to point out that I was unable to consider the state's request for an order in respect of amonding the Indictment. This was simply because at the time the said request was made, the only issue at hand which court had to resolve, was whether there was a case to answer herein or not. (Please see Uganda v. Katabazi Threat (rapped) whose recognity is achieved agree with $\chi_{\rm H}$ respect of a problem sinifar in the two concelled the state was facing or the time court why requesting submissions of no case to ensuer herein).

Geodoriant 8

E. S. Lugoyizi $\mathbb{A}^{\bullet} = \mathbb{I} \cup \mathbb{I} \cup \mathbb{I} \cup \mathbb{I}$ 20/1/1994

Read before: ... Accused present. Mr. Mwebesa for the Accusod. Mr. Wegone for the Stabe.

The Assessors present.

Mr. Katundo C/clerk.

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white

为Xux的了 E. S. Lügeyizi

$\mathcal{H}_{\bullet} \cup U \cup G \subseteq$ 20/7/1994