Uganda v Nalumoso (Criminal Session 508 of 2019) [2022] UGHCCRD 121 (6 July 2022)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA HCT-00-CR-SC-0508-2019**

**UGANDA ……………………… PROSECUTOR**

## **VERSUS**

**NALUMOSO GEOFREY ........…..…… ACCUSED**

## **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

## **JUDGEMENT**

The accused herein, **NALUMOSO GEOFREY,** is charged with the offence of Aggravated Defilement, contrary to section 129 (3) and (4) (a) of **the Penal Code Act, Cap 120**.

It is alleged in the particulars of offence that the accused person, on the 11th day of May, 2018, at Kitebi zone Mutundwe parish in Rubaga division of Kampala district performed a sexual act on Nakanwagi Evelyn a girl aged 4 years old.

The accused pleaded not guilty at his arraignment.

The brief case for the prosecution is that one Namata Rehema – PW 1, is the mother of one Evelyn Nakanwagi – PW 2. PW 1 stated that PW 2 was born on 1st January 2014. In May 2018, PW 1 used to run a shop in Kitebi zone in Mutundwe Parish Rubaga division in Kampala district. At about 3.00 pm that day, PW 1 was squeezing passion fruit. That the victim told PW 1 that the accused had defiled her. The accused was a neighbour and had taken the victim to his room which was 15 to 20 meters from where PW 1 lived with her daughter. There he removed his shorts and 'slept on her'. PW 1 examined her daughter and found that her knickers had what looked like male sperm on them. The matter was reported to Kabowa community police station and the accused person arrested. The victim was medically examined on PF 3. The results were that there was no injury was seen. Her hymen and introitus were normal. The report was tendered as **PE 1.**

In his defence, the accused denied the charges. He stated in his sworn statement that he and PW 1 had a grudge. That he used to help out in her shop as an attendant. At the time she kept some money for him but shifted from that location before this incident. She trumped up these charges because he demanded back his money. That on the fateful day he returned home and found the children of PW 1 playing in his house. He went to have a bath. When he returned he asked for the money and that is when PW 1 accused him of this offence. That he was taken to Wankuluku Police Station and charged. After he was taken to Court he was taken back to the station and held for 8 months before he was granted bail by Mwanga II Court.

As this is a criminal case it is trite law that the burden of proof rests with the prosecution and never shifts (**Okethi Okale vs R 1965 E. A 555**). The standard of proof is beyond reasonable doubt (see **Kamesere Moses vs Uganda S. C. C. A 8/1997** (unreported)

The essential elements in a case of Aggravated Defilement are that:

- a) The victim was below 14 years of age. - b) That there was a sexual act performed on the victim. - c) The Accused person participated in the commission of this offence.

### **a) The victim was below 14 years of age.**

Age, just like any other issue in dispute, must be proved by cogent evidence. The onus is on the prosecution to establish that the victim was below the age of 14 years.

In this case PW 1 was the mother of Nakanwagi Evelyn. She stated that that her daughter was born on the 1st of January 2014. PE 1 was the medical examination report of the victim. At the time of examination on the 12th of May 2018, the doctor established the victim to be about 4 years old. The victim testified as PW 2. In the observation of this Court, she was no more than 10 years old.

There was no evidence to dispute the question of age. In the circumstances, I find that the element of age, that the victim should be below 14 years of age at time of commission of the offence, has been proved.

I will now handle the next two elements jointly.

- **b) That there was a sexual act performed on the victim.** - **c) The Accused person participated in the commission of this offence.**

The accused admitted knowing the victim and stated on the fateful day, when this offence was alleged to have been committed, she was playing with five other children in his house. The victim referred to the accused as Junior and the accused confirmed that he is sometimes referred to as Junior.

The accused stated that there was a grudge between him and the mother of the victim, PW 1, and that led her to concoct these allegations against him. The grudge stemmed from money that she owed him. In fact he was arrested the very day that he demanded she pay back the money.

The prosecution evidence is that the victim told her mother that when she was in the house of the accused, he removed her knickers and also took off his shorts before he slept on her. This court agreed with the assessors who advised that in this context, slept on her, meant have sexual intercourse.

The mother of the victim checked the victim immediately after and found what she thought was sperm on the thighs of her daughter. Being a mother and married woman, it is my view that her assessment of the what the substance was likely to be is acceptable. The matter was reported to the police and a statement extracted from the victim the next day.

No. 33243 Detective Corporal Nabakonya Esther stated that she took the statement of the victim on the 12th of May 2018. That the victim told her that the accused had put his penis on her vagina.

Section 129 (7) (b) of the **Penal Code Act** describes a sexual act to include the unlawful use of any object or organ by a person on another person's sexual organ. A sexual organ in the same section means a vagina or a penis.

The definition would mean that penetration is not necessary to prove defilement. Here the mother examined the victim and found sexual fluid on her thighs. The victim told PW 3 that the accused placed his penis on her vagina.

On the other hand however the medical evidence found no injury whatsoever on the victim.

The assessors had split opinions on this matter. The gentleman assessor advised this Court to acquit in view of the medical evidence and allegations of a grudge.

I studied the witnesses as they testified. I have looked at the evidence here. It is my view that these witnesses were truthful. All of them were steadfast and remained unshaken in cross examination.

A lack of evidence of medical evidence of penetration would be understandable in these circumstances. The victim stated to the police office that the accused put his penis on her vagina. It would also explain why the mother PW 1 found the male sexual fluid on the child's thighs.

There is the additional factor that the victim's evidence was corroborated by PW 1 and PW 3 by virtue of section 156 of **the Evidence Act** which stipulates,

In order to corroborate the testimony of a witness, any former statement made by the witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

The corroboration required is independent evidence of some material particular showing not only that the offence was committed but also that the accused committed it. It is not necessary that every aspect of the evidence requiring corroboration must be corroborated. It is sufficient that a material particular is corroborated (**R. v. Baskerville, [1916] 2 K. B. 658**).

The victim narrated to her mother what happened immediately after the incident. Then she also made a statement to PW 3 the next day in which statement she recounted what happened. That evidence corroborates the testimony of the victim within the meaning of Section 156 of **the Evidence Act**.

In the result the second and third elements of the offence are proved beyond reasonable doubt.

The 2nd assessors have advised this Court to find the accused guilty as charged. For the reasons I have given, agree with this assessor.

I therefore find, **Nalumoso Geoffrey, guilty** of the offence of Aggravated Defilement contrary to Sections **129 (3)** and **(4) (a)** of the **Penal Code Act** and **convict** him**.**

**.....................................................**

**Michael Elubu**

**Judge**

**6.7.2022**