Uganda v Mugoya (Criminal Sessions Case 169 of 2023) [2024] UGHC 358 (28 March 2024)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MUKONO

## CRIMINAL SESSION NO.169 OF 2023

UGANDA====================PROSECUTOR

### **VERSUS**

#### MUGOYA JONATHAN $==$

## BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA

#### **JUDGEMENT**

The indictment in this case against the Accused person is for the offence of Aggravated Defilement $c/s$ 129(3) and (4) (a) of the Penal Code Act, Cap 120 as amended. The Prosecution alleges that Mugoya Jonathan between the months of December 2017 and December, 2018 at Kira Village, Wakisi Division Njeru Municipality in Buikwe District, performed a sexual act with N. S. a girl aged 9 years.

The prosecution's case as seen in the Summary of the Case is that Mugova Jonathan is the father of the victim N. S who was aged 9 years at the time of the offence, they were residents of Kira Village Wakisi Division in Njeru Municipality in Buikwe District. The Accused and the victim were staying together and shared a bedroom between December, 2017 to December, 2018. That the accused had sexual intercourse with the victim during their stay and threatened to kill the victim if she disclosed the information to anybody.

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That Nabukonde Rebecca the complainant who is relative to the victim and the accused, started staying together and on $10^{th}$ February, 2019 the victim informed the complainant that the accused had been having sexual intercourse with her between December, 2017 and December, 2018. She then reported the matter to LC1 chairperson of Buloba Village Njeru Municipality who then forwarded the matter to Nieru Division Police Station and the victim was examined on Police Form 3A and found to be 9 years of age with partially raptured hymen.

To prove their case, the prosecution produced two witnesses while the accused exercised his right to remain silent as his defence.

The prosecution bears the burden to prove the case against the accused person beyond reasonable doubt. However, the burden does not shift to the accused person and the accused is only convicted on the strength of the prosecution case and not on the weaknesses in his or her defence as illustrated in the case of Sekitoleko v. Uganda [1967] EA 531).

During Plea taking, the Accused pleaded not guilty to the offence thus he automatically shifted the burden of proof of all the essential ingredients of the offence on the prosecution who has to prove the ingredients beyond reasonable doubt as was stated in the case of Miller v. Minister of 15 Pensions [1947] 2 ALL ER 372).

Proof beyond reasonable doubt does not infer proof beyond a shadow of doubt and any doubts in the case should be resolved KA OShean

in favour of the Accused person. This was the position in the Supreme Court case of Abdu Ngobi Vs Uganda; Criminal Appeal No. 10/1991). Therefore, for an Accused person to obtain a conviction of the offence of Aggravated Defilement, the prosecution must prove beyond reasonable doubt each of the following ingredients of the offence.

- **1.** That the victim was below 14 years of age. - **2.** That a sexual act was performed on the victim. - **3.** That it is the Accused who performed the sexual act on the victim.

The Prosecution was represented by Mr. George Bigira Senior State Attorney and Ms. Siratwa Bassajjabalaba, State Attorney while the Defence was represented by Mr. Mujjuni Januario on state brief.

The Prosecution presented two witnesses that is PW1 Robert Kanabiro, the medical officer who examined the victim, PW2 the investigating officer No. 19662 Detective Sergent Monica Nakibuka. Police Form 24A, Police Form 3A, the victim's statement, statement of the complainant, Plain statement of the suspect and statement of the investigating officer were as exhibited in evidence as PEX1, PEX2, PEX3, PEX4, PEX5, PEX6 respectively.

# Age of the victim:

The best evidence of age is a birth certificate. In this case no birth certificate was availed in evidence. However other evidence is considered by the Court where a Birth Certificate cannot be Leosbeau

produced. This will be such age as determined by a medical examination of the individual, evidence of a person acquainted with the age of the individual in issue such as a parent and observation of the individual. See Mwine Caleb versus Uganda HCT 05-CR-169-2002.

In this, PW1 Kanabiro Robert was questioned on PEX2 which was Police Form 3A in which the victim was medically examined and he testified that, he is a holder of Diploma in Chemical Medicine with 6 years' experience in examining sexual gender-based violence victims, he stated that the victim in this case was of an apparent age of 9 years by the time she was defiled. The defence did not refute this piece of evidence. The statements of the Accused and the investigating Officer, that is PEX5 and PEX6 point to the victim being 9 years old.

The age of the victim thus stands proved beyond reasonable doubt by the prosecution.

## That a sexual act was performed on the victim.

A sexual act is defined to mean (a) penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ; or (b) the unlawful use of any object or organ by a person on another person's sexual organ. Sexual organ means a vagina or a penis as detailed under Section 129 (7) of the Penal Code Act.

PW1 testified that the victim had linear bruise just above her umbilicus, scratch marks on her left proximal hand. The genitals had moderate reddening on the labia majora and minor; scratched vaginal opening and partial hymen rapture. But it was 15/03/2021

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**old.** PW1 went ahead to state that the victim had pain in the vagina that showed that she had just been assaulted.

Perusal of the medical report shows in paragraph " $7(e)$ Genitals:

P/V Moderate hyperemia on the labia majora and minora *vestibule, scratched Vaginal opening, partial hymen rapture with noted severe tenderness at the opening."*

The medical examination report of the victim shows that the probable cause of the injuries were consistent with recent physical activity in the vagina with partial penetration.

PW2 further testified that at the time of the offence, the victim was sleeping with her father on the same bed after the father refused her to sleep on the polythene bag, he used this opportunity to have sex with the victim.

I thus I find that, the ingredient of a sexual act being performed on the victim has been proved by the prosecution beyond reasonable doubt.

The last element to be proved by the prosecution is, that it is the accused who performed the sexual act on the victim. This is dispensed by adducing evidence, direct or circumstantial, placing the Accused at the scene of crime as the perpetrator of the offence.

**PW1** testified that the victim told him that whenever her mother was not around, her father would have sexual intercourse with the victim.

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**PEX3** the statement of the victim she states that she knows Mugoya John Son as her father. It was last year 2018 early when mother guardian (complainant) left me with father and went to work in Hoima from there father asked me to share a bed with him in the night. I asked him to be sleeping on a polythene sack (kaveera) on the floor and he refused. In between January 2018 up to December 2018 father forced me into sexual intercourse four times."

The defence argued that the statement of the victim was not signed and that PW2 did not interview the witness. The statement of the victim bears a mark being a thumbprint.

The statements were placed on record by the investigating Officer who had an overall view of the case. The prosecution also stated that the victim and her guardian (the complainant could not be found) and the Court admitted their statements under Section 31 of the Evidence Act, Cap.

PEX2 which was tendered by the Prosecution reveals in Part(b)(4) that "she reports to have been involved into sexual intercourse in house in Buloba yesterday by a man he could only identify by face". The victim also reveals that on 10<sup>th</sup> February, 2019 at around 13:00 Clock when she met a boy who got her by hand, took her to the house and forced her into sex.

It is upon that incident that the victim also made a report about her father's alleged defilement.

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The PF3A which is PEX2 also reveals that the injuries noted were consistent with recent physical activity in the vagina with partial penetration.

**PEX2** in paragraph 12 under other relevant observations; the victim revealed that even her father has ever involved her into sexual intercourse several times when her mother was away. They also stated in examination in chief that the hymen rapture was old.

It is only when the victim had been defiled on 10<sup>th</sup> February 2019 that she revealed to her guardian that the father had defiled her previously. The reasons given in the statement of the accused is that the father had threatened to kill her if she reported.

The defence submitted that since there is no victim, therefore there is no proof by the prosecution that it is the Accused person who performed the sexual act.

In the case of Byarugaba Lozio Vs Uganda Criminal Appeal **No.168 of 2009**, the Court of Appeal held that, there is no legal requirement that a victim of sexual crime or any other crime must testify before a Court.

The witness in this case did not come to testify and neither did the complainant. All we have in regard to the what transpired is purely hearsay without the evidence of any of the two vital witnesses.


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I therefore depart from the joint opinion of the Assessors that all the elements of the offence were proved beyond reasonable doubt.

In the premises I find that the prosecution has not proved that the accused is the one who defiled NS. I acquit the Accused person and set him free forthwith unless he is being held on other lawful charges.

Dated at Mukono this 28<sup>th</sup> day of March 2024.

**Christine Kaahwa JUDGE**