Uganda v Mutebi (Criminal Case 262 of 2019) [2022] UGHCCRD 86 (9 August 2022)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA SITTING AT ENTERBE CHIEF MAGISTRATE'S COURT.

## CRIMINAL CASE NO. 262/2019 CRB NO. 0102/19

**UGANDA**

$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ **PROSECUTION**

### **VERSUS**

MUTEBI BONNY :::::::::::::::::::::::::::::::::::

### BEFORE HON. JUSTICE OYUKO ANTHONY OJOK

#### **JUDGMENT**

#### $01.$ Introduction:

The accused Mutebi Bonny was indicted with the offence of **Aggravated** Defilement C/S 129 (3), (4) (a) and (b) of the Penal Code Act.

It is alleged that Mutebi Bonny on the 5th day of December 2019 at Mutumba Nakuwadde village in Wakiso District performed a sexual act with Nangobi Christine a girl aged 10 years old.

#### 02. **Brief facts**

The brief facts of the prosecution case are that;

- 1. The victim Nangobi Catherine is a ten (10) year old girl, a pupil at Bbira primary school staying with her maternal auntie Nakafeero teddy at Nakuwadde village Nakabugo parish, wakiso district. - 2. The accused Mutebi bonny is an adult aged 37 years, a porter and resident of Nakuwadde village Nakabugo parish in wakiso district.

- 3. That on the 5th day of December 2019 at around 6:00pm the victim was home watching TV when the accused called her and told her to follow him as he wanted to tell her something. - 4. The victim followed him and he eventually entered into an unfinished building with her after threatening to lie down and he inserted his penis into her vagina. - 5. During the incident, a one Kato Suleiman found them in the act and the accused was taken to Nakuwadde police post. - 6. In the charge and caution statement, he admitted having had sexual intercourse with the victim. - 7. He was also examined on PF27A dated 7th December 2019 and found to be of sound mind. - 8. The victim was also examined on PF3A and found to have been defiled with a ruptured hymen on the 6th December 2019.

The accused denied committing the offence and prosecution produced six witnesses in bid to prove its case and the accused gave unsworn evidence and called no witness.

M/S Kiconco Agnes state Attorney appeared for the state and Counsel Ndahura Edward Atenyi represented the accused on state brief.

It is a requirement of the law that prosecution must prove its case beyond reasonable doubt because the accused has no duty to prove his innocence (see the cases Woolminton Vs DPP 1935 AC, page 462 and Article 28 of our Constitution) any doubt must be resolved in favour of the Accused person. Court must convict on the strength of prosecution case but not on the weakness of the defence case (Ssekitoleko Vs Uganda 1967 EA, page 531). Therefore, prosecution must prove all the ingredients of aggravated defilement in order to sustain a conviction.

In the case of Miller Vs minister of pension (1947) 2 ALLER, page 373, it was held that proof beyond reasonable doubt does not mean proof beyond shadow of doubt.

Section 129 (7) (a) (b) of the Amendment of the Penal Code Act defines; A sexual act 'as penetration of Vagina, mouth or anus, however slight, of any person by a sexual organ or unlawful use of any object or organ on another person's sexual organ. Sexual organ means vagina or penis. In Uganda Vs Adinani Fahamu SCCN 0168 of 2020, it states that the ingredients of Aggravated Defilement are;

- 1. The victim was below fourteen $(14)$ years of age. - 2. The sexual act was performed on the same victim. - 3. Participation by the accused person

### The victim was below fourteen (14) years of age.

In the case Uganda Vs Kagoro Godfrey HCCS no 141 of 2012, it stated that the age of a child may be proved by production of a birth certificate or testimony of the parents. Other ways can be equally conclusive such as the court's own observation of the victim and common sense assessment of the age of the child.

PW3, Nakafeero teddy testified before court that she was the aunt to the victim and that the victim was born on 18th October 2008.

PW3's testimony was further collaborated by the testimony of PW4 who testified before court that she was the biological mother to the victim and that she was born on the 18th day of October 2008.

Furthermore, prosecution proved this ingredient. The testimonies of PW3 and PW4 which were collaborated by the testimony of PW5, Kayegi Joan who was the clinical officer that examined the victim and she informed court that she was 11 years of age as she had 27 set of teeth.

Therefore this ingredient was proved beyond reasonable doubt.

1. The sexual act was performed on the same victim.

Section 129 (7) (a) and (b) of the Amendment of the Penal Code Act defines a sexual act as 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 where sexual organ means a virgin or penis.

In the case of **Oyek Charles Vs Uganda criminal appeal no 126/199**. It was stated that the unlawful use of any object or organ by a person or another person's sexual organ, there need not be penetration injuries but mere touch of a male sexual organ to female sexual organ amounts to defilement.

PW1 (Nangobi Catherine) testified before court that she was aged 11 years by then. It was her testimony that she knew the accused as someone who defiled her.

She stated that she could not remember the date and month when it happened, she told court that in 2019 she was staying in Busega with her mother Nakafeeroo Teddy.

It was her testimony that while she was at home watching TV with Esther, Shafic came and told her that someone was calling her.

PW2 maintained that Esther told her to go and see whether there was indeed someone calling her, and that when she went she did not see the person.

PW2 maintained that she returned back home and that Shafic again came back and told her that there was somebody calling her. That Esther told her to go and that if she doesn't find that person, she should come and slap her. PW1 stated that when she went, she found the accused who told her that he was the one that helped her to get Jordan from the barbed wire at a time when PW1 and the brother were coming from fetching water.

PW1 informed court that the accused got hold of her hand and took her to an unfinished house from where he left her at the door (entrance) and for him he entered inside. That the accused returned back and carried the victim. PW1 told court that she wanted too make an alarm but the accused threatened to kill her if she made an alarm.

PW1 further stated that she had dressed up in red trousers, a blouse and rubber shoes that she referred to as Nigina.

It was her evidence that the accused put her down on the polythene sacks, he removed her clothes and he removed his trousers which were jeans trousers, made her face up and he slept on her and defiled her.

PW1 stated that PW2 Kato Sulaiman found when the accused was sleeping on her and that the accused was arrested and taken to police while victim was told by PW1 to go and sleep at mama Fina's place.

PW1's testimony was collaborated by the testimony of PW2, Kato Sulaiman who told court that he knew the victim as one whose parents were staying in the same area as him and that he knew the accused as one who used to hawk passion fruits and that he used to refer to himself as Mukaga.

It was his testimony that on the 5th day of November 2019 at around 07:00-07:30, he received a call from Kalyango informing him that there was a man who had entered unfinished house opposite where he stayed with a child.

That PW2 rushed to confirm the truth and that when he peeped through the hole which was in the unfinished house, he saw the accused sleeping with $PW1.$

PW2 maintained that the accused had removed all his clothes, and that he was having sexual intercourse with PW1.

PW2 further told court that when he entered the room he got the accused by the shoulder because he was naked and that when he turned, he noticed that he was the one because they were neighbours.

It was PW2's testimony that he found when accused and victim (PW1) had slept on the ground but accused had put polythene bags / sacks on ground. That the accused only requested him to forgive him while saying he knew him and that both knew each other.

PW2 maintained that he told him that he was not going to forgive him and told him to put on his clothes.

PW2 maintained that the accused put on the trouser and left the underpants which was a pair of shorts behind.

That the PW2 then got him and took him as people had gathered wanting to kill him. That PW2 got the accused while Kalyango went holding the victim and the duo were taken to Nakuwadde police.

PW1' testimony was further collaborated by the testimony of PW5 who testified as a clinical officer. It was her testimony that she examined the victim and found that the hymen was ruptured but had healed and that there was a small

abrasion around the vulva and that the virgin allowed 2 fingers to enter and that the vagina was characterised by a smell of sperms around vagina.

Therefore the prosecution also proved the second ingredient beyond reasonable doubt.

1. That the accused Participated in the commission of the offence. Accused was placed at the scene by PW1 who informed court that she was told by one Shafic that there was someone calling her and upon going there she found the accused that took her to an unfinished house and subsequently defiled her.

PW1's testimony was further collaborated by the testimony of PW2 Kato Sulaiman who told this honourable court that he held the accused by his collar/ Shoulder because he was naked and that when he turned, PW2 noticed that it was the accused because they were neighbours.

It was PW2' testimony that the accused and victim had slept on ground but he had put polythene bags on the ground and that accused requested PW2 to forgive him since he knew him.

That the accused told PW2 to forgive him to which PW2 said he was not going forgive him.

That accused put on the trouser only leaving the underpants/ shorts behind . PW2 maintained that he got accused and Kalyango held the victim and took him at Nakuwadde police where PW2 reported the matter.

PW2 maintained that he led police to the scene of crime at Nakuwadde zone mufuba led by PW2 and the late Kalyango and the victim.

The PW6 recovered a pair of shoes for the victim, a pair of short trousers that were alleged to be for the accused and two sacks that were laid on the ground in the unfinished structure and accordingly exhibited them.

That he marked the shoes of the victim as exhibit A1 and A2 while the pair of shorts of the accused was marked exhibit C, the sacks marked B1 and exhibited 2 for the victim's shoes, prosecution exhibited 3 in respect to sacks and prosecution exhibited 4 in respect to the black shorts and exhibit slip.

Prosecution called 6 witnesses and it closed its case and the accused was put his defence.

The accused gave unsworn testimony and in his defence, he informed court that on the 4th day of December 2019, he was at his work selling passion fruits with his wife and at the time of retiring he met the defence secretary who got hold of him and told him that he was charged with an offence of defiling a girl Catherine Nangobi. Accused denied knowing the victim as well as having defiled her despite the fact that PW1 placed him at the scene when she testified before this honourable court.

Accused further informed court that there was a grudge between himself and PW2 because he found PW2 standing with his wife by the wall and warned him to leave his wife. However PW2 informed court that there was no grudge between himself and accused.

Accused admitted that the polythene bags that were recovered at the scene were his although he denied owning the shorts claiming that he reached at police with his underpants.

Iam in total agreement with the assessors' opinion that all the ingredients of the offence have been proved beyond reasonable doubt. The accused is guilty and is therefore convicted of the offence Aggravated Defilement $C/S$ 129 (3), (4) (a) and (b) of the Penal Code Act.

HON. OYUKO ANTHONY OJOK **JUDGE** 9th August, 2022.

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