Uganda v Komakech (Criminal Session Case 438 of 1995) [1996] UGHC 42 (8 November 1996)

Full Case Text

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT SESSION

## HOLDEN AT GULU

CRIMINAL SESSION CASE NO. 438 OF 1995

**UGANDA** ......... PROSECUTOR **VERSIIS**

the bon on Justice Egonda - Wende

KOMAKECH PATRICK ........... ACCUSED

BEFORE: HONOURABLE MR. JUSTICE G. M. OKELLO

## RULING

Komakech Patrick, the accused in this case was indicted on a charge of Defilement contrary to section 123 (1) of the Renal Code Act. The particulars of the offence alleged that on or about the Komakech Patrick 11th day of February 1995, at Kirombe, Gulu Municipality/had sexual intercourse with Acayo Milly Grace, a girl under the age of 18 years.

On arraignment, the accused pleaded not guilty thus setting in issues all the essential elements in the offence charged. The essential elements in the offence of Defilement are:-

- $\overline{1}$ ) that the victim was at the time of the alleged commission of the offence under the age of 18 years. - $2)$ that there was unlawful sexual intercourse with the victim.

$\overline{3}$ that none other than the accused was the assailant.

To secure a conviction all the above elements had to be proved beyond reasonable doubt. The law places the burden of proving those elements on the prosecution.

In the instant case, the prosecution called the evidence of four witnesses to discharge the burden of proof cast on it by law. At the close of the case of the prosecution Mr. Oyarmoi, Counsel for the accused submitted on a no case to answer. He contended that the prosecution had failed to establish a prima facie case against the accused. He pointed out that in Bhatt -vs- R (1957) EA 332 it was held that a submission of no case to answer would be upheld where an essential element of the offence charged had not been proved.

Th Counsel's view the evidence adduced by the prosecution failed to prove an essential element of the offence of Defilement. He stated that there was no evidence to establish that there was sexual intercourse with the victim though that is an essential element\* Counsel pointed out that the victim never told court that the accused had sexual intercourse with her. He further pointed out that there was even no medical evidence to prove or confirm the act of sexual intercourse with tie victim if any. Eor those reasons he invited court to find that no prima facie case had been made out against the accused and so to acquit him forthwith.

Mr. Kabali Resident Senior State Attorney who appeared for the state conceded that the state had failed to make out a prima facie case against the accused. That the element of sexual intercourse with the victim had not been proved. He conceded that the victim merely stated that she lived with the accused for three days as his wife without stating whether she had sexual intercourse with him in those three days.

Tt is educative to bear in mind that prima facie case was defined in the famous case of Bhatt -vs- R ( 1957). EA 332 to mean such evidence upon which a reasonable tribunal properly directing its mind to the law and evidence could convict if no explanation was given by the defence.

Though at this stage court was not to consider finally the credibility of witnesses as that must wait until when the defence case was heard, the above defination rules out, any scintilla of evidence or any amount of worthless discredited evidence to constitute prima facie case. To constitute a prima facie case -therefore, the evidence

must be one upon which a reasonable tribunal properly directing its mind to the law and evidence could convict if the defence offers no explanation •

Case authorities show that a submission of . case to answer would be upheld where an essential element of the offence charged and not been proved, ( see Bhatt -vs- R above). In a charge of Defilement, the essential elements were stated above. The evidence adduced by the prosecution witnesses particularly the victim (PW 1) indicated that at the time of the alleged commission of the offence, the victim was under the age of 18 years. The victim told court that she was bom in July 1979 • That put her at 16 years when the offence was allegedly committed last year. Other witnesses like Okello Justine (PW 2) and Omony John (PW 3) however merely opined that the victim was under age without stating her age. They confessed that they did not know when she was bom. But using my common sense,. judging from her appearance there was no doubt that the victim was and still is under the age of 18 years.

The mischief in the offence of Defilement is having unlawful sexual intercourse with a girl who is under the age of 18 years old. All the prosecution witnesses including the victim testified to tie fact of elopement of the victim with the accused.. Ke took away the victim from her grand father's home where she was living and ran away with her to liis home. That was said to have happened on 7/2/95\* But there was no evidence at all of any act of sexual intercourse with the victim which in law is signified by proof of penetration of the assailant's penis into the victim's vagina. Without proof of such an essential element of the offence charged, in term of the principle laid down in Bhatt., -vs- R above, I am of the view that the prosecution have failed to make out a primafacie case against the accused to justify calling upon him to his defence. He is therefore found not guilty and acquitted. He is ordered to be set free forthwith unless being hold on some x?their1 lawful ground.

> G OKELLO JUDGE 8/11/1996

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