Uganda v Mugisha (Criminal Session Case 340 of 1994) [1996] UGHC 25 (17 April 1996)

Full Case Text

THE R. LUBILIC OF UG. ND. IN THE HIGH COURT OF UC ND. MCLDEN IT FOR RA CRIMINAL SESSION CASE NO.340/94 UGANDA, . . . . . . . . . . . . . . . . . . .

the Hou. Mr. Justice Egonda-Mende

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GERALD NUGISH.................................... REFORE: THE NOW: NR. JUSTICE B. S. LUGANIZI JUDGMENT:

The actused in this cause (one Garald Lugisha) was indicted for the offence of defilement contrary to Section 123(1) of the Ranal Code Lot.

The particulars of the indictment were that the said Ger.1d Mugisha on or about the 22nd day of September, 1993. at Buzenga Primary School, in the Ruchenvi districty unlaw -fully had sexual intercourse with one TEREZA MURUNGINDLANE a girl under 12 years of age;

The accused denied the above allence, and the posecution proceeded to call the following witnesses, Dr. Runkishiya Enthan (DUI); Ochidi Vonancin (DU2); Tanada Murunginouwe (TVB); Goodchance Jane Scovia (TVA) and John Kambugana (PWS) in a bid to autoblish the case against the accused.

The defence relied on the evidence of the accused which was a denial of the prosecution case!

The proceeding case as can be gathered from the avidence of all its witnesses above w.s very briefly as follows:

"Towards the end of September, 1993, Fu3 (a young girl aged 12 years then) who was attending Primary two, at Buzenga Primary School, reported at school one morning at around 7.30 a.m.

That same morning, the accused who was the headmuster of that school sent home many budents on account of non-

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payment of school fees. However, PWB who had mid her school fees was, at the time, advised by the accused to go to P5 classroom after the pay de.

Eventually, FWB went to T.5 class-room. Shortly afterwards, the accused followed her there. He got hold of her, removed her knickers, and had sexual intercourse with her. He then told her to return to P2 class-room to study.

PW3 who had experienced pain in the act of sexual intercourse, and also bled, returned to P2 class-room and remained at school until 1.00 p.m. that day.

The following day, FWB visited her sister in law (i.e. $PW_1$ ). The latter noticed, during the said visit, that PWB was not walking properly. FWB revealed to PW4 what had befallen her at school the previous day. She then requested her to inform her parents about it because she could not do it herself since she fored.

A day later, RW4 informed RWB's father (i.e. RW5) of the above happening. PW5 reported the matter to PW2 (who was the RC 1 Chairman of the area and also PTA Chairman for Busenga Trimary School).

In turn, TWZ arranged a meeting consisting of some members of the TTA, the School Munagement Committee, the accused, PWB and TW5.

During the said meeting (which was ch ired by PWz) the participants disked the accused to react to the allegation that he had had sexual intercourse with IVB. The accused responded by asking for forgiveness and premising never to do such a thing again.

An agreement in which the accused pledged to pay UGS.200,000/- to FW5 was drawn and signed by all parties

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concerned, including the accused, after which he day accused) was handed to the police and detained.

Later on, TW3 was referred to a doctor (i.e. TW1) for medical examination. This was done by the police under PF/3 which is now Exh. "12".

On 4th October, 1993, PMI carried out a medical examination on TWB and, among other things, found that she was at that time aged 12 years and had the following, - evidence of use of force on her.

- her vulva was sole and the Labia majore (vaginal lips) were bruised.

- her hymen was restured.

- pain in the vagina.

In PWI's opinion, although it looked like PWB had been sexually assaulted $5 - 7$ days before the said medical examination, it was possible that the said assault could have happened earlier than the period stated above since PW3 was not a clean girl. In that case the process of healing would have been slowed down.

On its part, the defence denied the whole case for the prosecution. DM (i.e. the accused himself) contended that he was framed by FM3 and FW5 because they had a grudge against him.

According to the accused, IB (the complainant) used to go late to school. As a result, the accused often punished her. He also made that known to TWB's father $(i.e. FW5).$

The accused pointed out to Court that the above problem was the root of the untrue allegations herein.

The accused also dismissed the alleged admission of the offence of his part, which he said was extracted under a show

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s ;mmed up the case to the assessors, I, among o' nor things, emphasised to them that the buret-. r. of proof in criminal cases lay squarely upon the prosecution and never shifted to the defence (See DPI v Wo^l.min^^ ?.4( and PTe^ Digirwy\ udurdjs Uganda (Cr. Appeal iJq.2,7 qj? 1992) j

I also pointed out to them that the standard of proof required under the said burden was ^beyond reasonable doubt;' Woolmimat on (See *J'L;-.'*.\_v^^Dn"^(Su/r?^)# and killer y Kania■:■<.? '• tnp;Lon ^9471 2\_A114iR,372).

In order for the prosecution to succeed in a case like the one at hand, it has to prove each of the following ingredients of the offence in issue beyond reason .ble doubt--

- (a) th t the complainant (i.e. PW3) was at the time of the alleged offence under the age of 18 years; - (b) that the complainant experienced sexual intercourse at the time in issue; - (c) that the accused person •;;-a in fact the one who committed the offence in issue.

I will now proceed to deal with each one of the above ingredients in the light of the evidence which the prosecution .adduced. And I will do so in the order in which they occur abovee

As far as the first ingredient is concerned, the prosecution relied on the evidence of rW3, (the complainant) PW1 (the doctor) .nd FW5 (the j. .thor of ?W3 ) o All these witnesses pointed out to Court th-..t PV/3 wvs 12 year.s of age in 1993 when the alleged offence took pl.ee.

The above evidence was not contradicted or shaken in cross-examination. I am therefore willing to find th. t at the time of the alleged offence, IV/3 w .s under 1C ye»ars of

?.'n any case, ever, by her a, /.carnnce alone um-j.ng hearing^ it could not be disputed that she still /.'.eked less thcin years of ago. (Dei/nee counsel ale c ...coeded this),

zls far sexrul intercourse is concerned, (i.c\* tr '■■ heart of the second ingredient above) the lav; is that the act of sexual intercourse is complete, once .ama/c sexual organ is penetrated by a male s xu.al ■.< (See Archibold Criminal Holding Evidence & Fraction -• 3dth Edition Page, ,2g73^ £££&\_mA )

In respect of the above, the prosecution . fail mainly upon the evidence of I--/73 which was to the effect that on or about the '-:2nd of September, 1993, at around 9.00 .#m, at Buzenga Primary School, •-/•.o experienced sexual intercourse She had a.in in the st cm.: .ch ..nd bled at the time of the said act,

rjhe above being the evidence of a complainant in a sexual o.-. fence, I vnrned the assessors (and I do hereby warn myself) that it x/./s d/nyerous to act upon it without corroboration (See Chila v Republic (1967) E.-x 71-)•

Ho-.- ever, h/.ving done the . .bove, I pointed cut to the assessors (and I do hereby point out to myself) bh t I c/n now arocced to act upon the /aid evidence without corrobor/.ti if satisfied that it va;s the truth\* (See Chi.la v Republic 3W//)).

I have found the corroboration referred to .hove in the following pieces of evidence.

First of all, in the evident^ of lull (the doctor) oho examined on 2pth October, 1993.

According to TV, PS had a repound hymon. was some and her Jebia anjore was bruised. If we will he view that she had been sexually assaulted. And detail of the fact that the above injuries were of the the with would ordinarily heal in about 7 days, they could have easily permissed beyond that permod since TWB was not a hyginnic girl.

Secondly, the evidence of TWA and THB wind, we to the effect that when the accused was confronted by them (and others) with the allegation of having had a will intercourse with TWB, he admitted it and apologised.

That piece of evidence was, in my view, not chaken, or contradicted, and would furnish corroboration for MB's story above.

Thirdly, PWA's evidence to the effect that a day after the incident in issue, and, saw FWB and noticed that the was walking in a rather owlay rd manner, is yet another area of the presecution case which correborates TWB's story of sexual intercourse.

In the face of the above, therefore I am satisfied that the prosecution proved beyond reasonable doubt that the complainant experienced segual intercourse on the day in issue.

As for as the third ingredient above is concerned, the prosecution relied on the evidence of FWB who testified that it was the accused who had sexual intercourse with her on the day in issue.

1W3 knew the accused before, as her headmaster; and the whole episode took place in broad-day light at around $9.00$ a.m. in the morning. I in therefore satisfied th $\epsilon$ FWB correctly identified the locused in this case as her attacker.

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Again the evidence of TWM and TW5 which two of the effect that the reused admitted the offence in issue then they controlted him with it, also continus PND's oridence of identification of the accused at her anacker on the day in incus.

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The accused's defence was a make up which was designed simply to save his skin. I accordingly reject it.

The inconsistancies (such us, the details to how many people were at PWB's school or were not, at the time in issue; who drew up the agreement which the access and others signed after the conned hid admitted the effence in issue; whether PWB attended the meeting in which the accused ministed the offience in issue, etc.) do not, in my view, go to the root of the offence horein or shake the identification of the accused and would therefore be ignored (See P. C. Pen Mulwani & Francio I kida v Uganda Urano). No.3 of 1992).

All in all (in compete a present with the assessors) I am of the view that the projecution has proved its case against the accused beyond reasonable doubt.

I accordingly find him guilty of the offence of defilement contrary to Section 123(1) of the lenal Code Lot and I do hereby convict him of that offence.

XXXugans C. S. Lugavizi

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JUDGI $17/4/96$

Read before: At 10.40 a.m. Accused present Mr. Ketembelo holding brief for ir. Maizera for accused. Mr. Wagona for the State

a wife. The children . ^e very .. oun^ .ria tm 1 •\_-.. itunily depends on caused fo-'&gt; livelihood\* . .•on-ed s beer, on remand for 2-£ years. Ho is 14 years old./ 1 man^ He still has some years ho live, Tae"'"'vK\* ace-used leaves •'.•i-ison the better foi- society, as he ' j ihe.ly to render valuable service to his family ana society.

Court should take a lenient view theraTure in rssio.\ sentence•

There is no ; revious record oi conviction ci ...ccual He is therefore regarded ns first o.-. fender o

I invite court. however, to cuke a serious view oi the lollowing:

- (a) parents place a lot cl tru^t in te<,chcrs \*nd et>'\*eci/.]l head teachers v/hen cy-d their children to choir schools. - bro; .clod (b) The accused 'chiis trust md c<a.b .acted hibisclf in the uo >t ii-iincr ..1 way when he involved this . oorir, airl in interc >ursc, - (c) The conduct of sccly, ha orc..a cd a lei- ci ccncerno V - (d) The oiience itse.li is serious anc. attr. .ate .... de. . Lh sentence I pr-./ court would to.ke into -account all tliG above ..nd impose a curst-, di..1 sentence : h. ch •. ij 1 curve

with other the civilar offences.

In the control case involving a marron, dustice $\therefore$ 2a jmpored a entered of $14$ years imprisonment. Court.

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This case is adjourned for a short whiles.

But to s. S. Inta . $\overline{c} \cup \overline{c} \cap \Omega \subseteq$ $17/4/5$

## SENTENCE:

I have taken note of the fact that the accused is a first offender and has stayed on remand a long time.

However, the offence he committed is a very serious one whose meximum punishment under the law is de in.

By his conduct, in this case, the accused elearly betrayed the parents who embrusted him with the responsibility of looking after their children well, and ensuring their safety while they were at school.

Ii, this kind of wholed behaviour is left to take root in our schools then, it is obvious that the parents would soon be died in a dilemma in which they would not know what to do in the face of two evils. The first one, of choosing to leave their children at home thereby denying them them opportunity of education in the process, but ensuring their relative safety from this kind of texual abuse or, the second option of sending them to school under the great risk of being rivided by sexual maniacs.

I am of the view that the situation needs to be arrested becare it gets ont of hand.

which is included in this typed of behavior in this to he aren't manied in order to discompage as at with and we termed by with non-examplary behaviour.

In the discussionces, I would selve no the allowed t a turna of thirteen veirs imprisonment; and I so ruer.

The partial which he has sent on remand will however, be considered in computing the contracted of his overall stay in prison after this ever

Starent B. S. Lugajizi

J U D G D $17/1/96$

$R/A$ fully explained.

Before: At 12.40 p.m.

Accused present

Mr. Mwene K hima holding brief for Mr. Kwizera

Mr. Wagona for the State

Mr. Beguma c/clerk.

Ashug Misi

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M. S. Lugeyizi JUDGE $17/4/96$