Uganda v Mulema (Criminal Case 71 of 2019) [2022] UGHCCRD 93 (12 August 2022)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ENTEBBE

## CRIMINAL CASE NO. 0071/2019

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UGANDA...................................

## **VERSUS**

GODFREY MULEMA....................................

## BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK, JUDGE

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#### Judgment

The accused was indicted with the offence of Aggravated Defilement contrary to 10 Section 129 (3) and 4(a) of the Penal Code Act.

It was alleged that the accused on the 19<sup>th</sup> of July 2019 at Nakinyola-Sentema Village, Kakiri Sub County, Wakiso District performed a sexual act with Nanyonga Hamidah Asa a girl aged 7 years.

It was the prosecution case that on the 19<sup>th</sup> July 2019 while the victim was at 15 home, she was approached by the accused who convinced her to escort him somewhere to carry some things and would pay her UGX $2,000/$ = in return.

The accused had ever come to the victim's home asking for casual work so she knew him well. The victim then agreed and went with the accused that took her

to the bush instead and ordered her to remove her knickers. The victim refused 20 and the accused instead slapped her and forcefully had sexual intercourse with her.

That the victim then made an alarm and the accused ran away. The victim was later rescued by a resident who took her to the Defence Secretary and was later

25 handed back to her relatives. The accused was later arrested after several months of hiding.

The accused denied committing the offence and raised a defence of alibi. He gave unsworn evidence. He did not call any witnesses save for himself.

The prosecution in a bid to prove its case adduced its evidence through eight witnesses.

# Representation:

Ms/ Kitimbo Janet Chief State Attorney appeared for the prosecution while Mr. Ndahura Edward Ateenyi appeared for the accused on state brief.

### Burden of proof:

The burden of proof in criminal matters lies on the prosecution to prove its case beyond reasonable doubt. This burden does not shift and the accused can only be convicted on the strength of the prosecution case and not on the weakness of his

case. (See: Sekitoleko v. Uganda (1967) E. A 53). The accused is therefore, 10 presumed to be innocent until proven guilty or pleads guilty as enshrined in Article 28(3) (e) of the Constitution of the Republic of Uganda, 1995 as amended.

## Resolution:

- The prosecution in this case has to prove the following ingredients: 15 - a. That the victim was below 14 years of age at the time. - b. That a sexual act was performed on the victim. - c. That it is the accused who performed the sexual act.

# Age of the victim was below 14 years:

- To prove this ingredient the prosecution relied on the evidence of PW3, the 20 victim's biological mother, who testified that she was 10 years old at the time she testified. This means that the victim was 7 years old in 2019. This was confirmed during medical examination where it was also observed that the victim was 7 years old. - PW7, who examined the victim on the 20th September, 2019 stated that the 25 victim was 7 years old based on the dentations at the time of defilement. PF3A was admitted as PEX2. This testimony was corroborated by the victim's testimony who stated that at the time of the commission of the offence she was 7 years. This was further corroborated by the testimony of the biological mother PW3 who - stated that at the time of the commission of the offence, the victim was 7 years 30 - $\mathsf{Z}$

old. I also had the benefit of observing the victim herself and saw that she was indeed below 14 years.

The defense did not contest this ingredient. I hereby find that this ingredient was proved beyond reasonable doubt.

#### Sexual act performed on the victim: $\mathsf{S}$

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It was submitted for the prosecution that the victim was examined on $21/9/2019$ and found with a broken hymen of over 4 weeks with a normal mental status but was sorrowful. That the medical report indicated that the medical examination was conducted 2 months after the sexual act. PW3 and PW5 explained that this report was conducted after the accused was arrested as he had gone into hiding.

That PW3 also testified that when she went to collect the victim upon receipt of a call from PW5, the defence secretary, she found the victim who looked scared and was dirty with grass and blackjack seeds. The victim while at home reported to PW3 that the man that had earlier asked for a job from PW3 had defiled her.

State went on to cite the case of Uganda v. Lolem, Criminal Session No. 123 of 2015, where Hon. Justice Stephen Mubiru referred to the case of Kabazo v. Uganda (1965) E. A 509, where it was stated that; the distressed condition of the victim is capable of corroborating evidence to the effect that the victim was defiled.

Further, that it was PW3's evidence that the victim looked scared and was dirty with grass and blackjack seeds indicating the distressed condition of the victim corroborating the victim's evidence that a sexual act was performed upon her.

The Clinical report PF3A was admitted as exhibit PEX3. PW7 stated that in the genitals he observed that there was a broke hymen which was broken more than 25 four weeks before the examination, that the injuries were caused by a blunt object possibly a penis. This examination was done 2 months after the incident, consistent with the report on PF3A indicating that there was a sexual act committed on the victim. This was corroborated by the evidence of PW1, who told court that the accused person took her to the bush, told her to remove her 30 knickers, when she refused; he slapped her, removed the knickers and defiled her. She felt pain and after the act the accused left. That she was rescued by a certain man who took her to some lady and eventually she was taken home. That

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later she revealed to her mother how the accused had defiled her. Much as there were some contradictions as to whether she made an alarm before the act or after in her testimony in court and Police statement, I find it minor.

This ingredient was not contested by the defense. I find that this ingredient was also proved beyond reasonable doubt by the prosecution. $\mathsf{S}$

## Participation of the accused:

It was submitted for the prosecution that the victim knew the accused who, had previously been to her home looking for casual work. During the second meeting the accused had asked the victim to help him carry his things and would in return pay her UGX 2,000/ $=$ . That the victim accepted and followed the accused

10 to Mutwe Village a distance of approximately 3 kilometers from Nakingola Village.

PW2 saw the victim and the accused moving together and she properly identified the accused as the conditions for identification were sufficient.

15 PW1 gave court a detailed narration of how she was defiled by the accused and that she looked at him during the commission of the offence. PW3 corroborated PW1's evidence.

State added that the accused was properly identified and even PW2 immediately identified him when he was taken to the school wearing even the same clothes as those he wore the day he committed the offence.

It was submitted for the accused that on the 15<sup>th</sup> July 2019 the day he allegedly committed the offence he was at home the whole time with his maternal auntie Namubiru Josephine. That on 19/09/2019 he was surprised when a motor vehicle with the Police officers and the complainant came and he was ordered to enter the car and was taken to the victim's school where the victim was asked if he was the one and the victim shook her head negatively.

In regard to his defence of alibi, counsel submitted that the accused person sets the alibi and it is the duty of the prosecution to put him at the scene of crime. (See: Uganda v. Dusman Sabuni, [1981] HCB 1).

It was the evidence of PW1 that she had known the accused before the 30 commission of the offence. She narrated how the accused came to her home until she was defiled. She identified the accused by face.

The evidence of PW1 was corroborated by the evidence of PW3 who testified that when she arrived with PW1, she revealed to her that the man who came looking for a job with a panga had taken her to the bush and defiled her.

PW2 saw both the victim and the accused that she even identified him when he was brought to the school. $\mathsf{S}$

The accused stated that he was a resident of Sentema Village the same place mentioned by PW1 and the mother and that he was identified by some girl in school.

PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 all did not have a grudge against the accused. $10$

DW1 in his unsworn testimony denied the offence and knowing the victim which I find is just a cover up. I find all his evidence was full of lies, unbelievable, untruthful, and unreliable. His act of disappearing from the village until he was arrested, shows the conduct of somebody who is guilty.

I am in total agreement with the assessors' opinion that all the ingredients were 15 proved by the prosecution to the satisfaction of this court.

I hereby find the accused guilty and he is convicted as indicted.

OYUKO ANTHONY OJOK 20

JUDGE

12/8/2022