Uganda v Kamukama (Criminal Session Case 275 of 1994) [1994] UGHC 96 (20 July 1994)

Full Case Text

## ush Ce F. M. S. Egonda - Ntende

THE REPUBLIC OF UG. NDA IN THE HIGH COURT OF UGANDA AT KLIPPALA HOLDEN AT IDAR RA GREHIM/L SECSION NO. 275 OF 1994

UGANDA: .. Research of Control PhOSECUTOR

## VERSUS

ASAFH KAMUKAMA: ................................... BEFORE: The Honourable Mr. Ag. Justice E. S. Lugarizi

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

The accused herein (ASAPH NAMUKAMA) was on the 1st day of 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, Kyangyen Ni Gombolola, in the Bushenyi district, unlawfully had sexual intercourse with Jolly Natukunda a girl under the age of 18 years".

The accused denied the offence; and the prosecution called five witnesses in a bid to prove its case against him.

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 Kyangyonri 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 that 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 young children, the accused when she knew before as a relative and noighbour cano.

At that point, this witness was having a bath. This was in her father's house. The a caused opened the door of the bathroom and grabbed her, took her to the next room, held her mouth. and forceably had secual intercourse with her.

The witness cried out, and the children who were at this point in the kitchen, outside the main house, came to find out what was happening, but could not get in, since the .-.ccused had V s' locked the door,

After the above, the accused ran out of the house through the 'window and wont away.

\* The witness made an alarm and people camo to her help. Subsequently, the matter was reported to the Muluka chief, and the accused .was arrested. Eventually, he escaped. PW1 later had medical treatment from a clinic and a hospital.

In cross-examination, PW1 told court that she had .forgotten w'hen she told court that she was born in 1974, the truth 'was that/she was born on 30th December, 1973 • She also revealed^?.. . r-1 , / not, 'that she once sow her baptismal ccrtixicate, out could remember the date on it. She denied that the one counsel for the Qccused (Mr. Mwebesa) was referring to, which 'was dated 12/5/1973, in the name of "Lovelec Agress Natukunda'1 was hers. She explained that the name f9Lovelocsc was *a* mistake; and as far as she was concerned, she is called ?• 4. Jolly Katukunda.

The second prosecution witness was a Protestant boy, aged j 19 years of age, called Asiirawe 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.

PW1 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 the a ccused's father. They were in a state of surprise. P?/l related to the witness that \* i the accused had defiled her. However, they decided not to follow up the matter then, but waited until morning when they reported it to the Muluka chief and RCII chairman. Subsequently, the accused x-zo.s arrested.

On 29th of August, 1991, this witness vzent to Kasese and told their father (PW"3) about the above happening. The two returned home together on 30th August, 1991•

The third prosecution witness was a 40 year old Protestant businessman called Tuwesigye Eridadi who revealed that ho came from Kyangyenyi village in Bushenyi district He was the father of the complainant (H71). PW1 was born at the end of 1973? but he could not remember the month or the day of his birth She ivas also baptised one day after her birth, but he could not remember the said day and month\* He had neither PWl's birth certificate nor her baptismal certificate,

On 29th of August, 1991, PW2 want to Kascso and told this witness that PW1 had been defiled.

On 30th August, 1991 ? he and P?/2 returned homo and took *r~* take her to PW1 to the police where she was given a letter to'the doctor\* Subsequently the accused was arrest >d

In arc os-enamina-m'ju this witness agreed t?u>. G after the above c.;uwe there worn suggestions a.:a discussions between him and the nccasedSs side to have this matter sorted out on a dowry basis\* However, this did not go far\*

The fourth prosecut5 on witness 'was a Protestant Police officer, No.. 21043 P/d Nadide filson. He disclosed that on Ath D-\_ comber, L9?l, he w-anu to Knkindo, with two armed policemen\* Their miss?on was go arrest two accused on allegations of d?f11oment ,

The.. eventually arrested him, but did not find iu easy because th? PCs in that place and the local people Ir.d initially refused to co-operate in the mutter, They took the accused to bUshenyi and handed him to the ^-. LD.

In cross'-e^camlnatlon the witness agreed that at one point, there was some talk of paying dowry between the accused and u.ho other side as far as this case was concerned\*

The fifth prosecution witi . ss .■uis u Prot^stc.nt girl agod 14 year's whose wes Takorc.-no a- the testified that she cane from Kyangyeny^i in z:usn-jryt aisuriGt-

She remembered that on 27th Augusty 1991; in the evening, she was at home with her bigger sister PW1 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 a^ked her about PVZ1 and PW2.

The accused went into the main house and in a short time, the witness heard PW1 crying and saying that the accused was defiling her. The witness then ran to the door c.' the main house and found it closed.

They cried and made alarm and went to the censed\*s home. On the way, they met the accused's father and sister. They then returned home and met others who had come to nelp.

in urcss--examination- this witness agro- ? that the accused spent a.i./Qj.t *l^c)* minutes in. trie house before PW1 cried out.

Aftor the above witness' evidence, the prosecution closed its case, whereupon Mr. . Mwebesa counsel for the accused submitted a no case to answer. His main argument was that the prosecution hau failed to prove the two major ingredients of the offence herei that, is to say, that,

- (a) the complainant (PW1) was a girl under the age of Id years at the time of the offence; and - (b) th< accused had unlawful sexual intercourse with the complainant at the time. (Counsel argued here that tno complainant consented) ?'Irw Mwebesa firefly urged court *cq* acquit the accused.

Counsel for the state did not agree with the above submission He was of the view that the evidence on record showed th\$t the complainant was below the age of 16 years at- the time of the offence; and indeed even from her looks, court could sec that. Secondly. he- pointed out that i.: this type o.t offence, consent is immaterial.

Lastly, counsel for the state proyed, that should court not be satisfied that the complainant was under the age of 16 years at the time of the offence, it should order an amendment of the Indictment herein. He relied on section $4\&(2)$ 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 offence under the age of 13 years.

It, prespection's evidence available in the above respect; was contradictory and incertain. At first, Pil told this court that she was born in 1974. Later on, in cross-examination, she changed to 30th December, 1993. To make matters worse, no documentary evidence was produced in the attempt to prove PWI's age; and when 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 hirth.

With such confusion and uncertainity in that area, it is obvious that the prosecution did not prove that the complainant was below the statutory age of 16 years at the time the offence in issue was allegedly committed.

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 of cases such as R v. Shabudin Merali. MB 38/63; Uganda v. Katabazi Mumuel Orimiral Session Case No. 35 of 1977 and wany others, would confirm that a defence submission of no case to answer to burned to succeed if one or more of the wecessary inquaries to the offence have not caes colomis od. $48.$

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$\cdot$ :

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 enswer made by Mr. Mwebesa succeeds.

$\mathbf{a} = \mathbf{c} \mathbf{c} = \mathbf{c}$

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 Normal (curve) whose reasoning I entirely agree with $t_n$ respect of a problem similar to the one counsel for the state was facing at the time court was recording submissions of no case to ensuer herein).

Gadusgay &

E. S. Lugayizi As. JUDGE 20/7/1994

Read before: Accused present. Mr. Myebesa for the Accused. Mr. Wegons for the State. The Assessors present. Mr. Katunda C/clerk.

Extragy of

E. S. Lugeyizi $M_{\mathbb{G}}\cdot \mathcal{A} \cup \mathcal{D} \subseteq E$ $20/7/1994$