Uganda v Ngambe alias Omoja (Criminal Session Case 221 of 2024) [2024] UGHC 893 (9 August 2024)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT HOIMA HOLDEN AT KYANGWALI CRIMINAL SESSION CASE NO. 0221/2024; KYANG CRB NO. 009/2024

# UGANDA::::::::::::::::::::::::::::::::::: VERSUS

NGAMBE FRANCIS alias OMOJA::::::::::::::::::::::::::::::::::: Before: Hon. Justice Byaruhanga Jesse Rugyema JUDGMENT

- The accused Ngambe Francis alias Omoja stand indicted $[1]$ of the offence of Aggravated Defilement $c/s$ 129 (3) (4) (a) **PCA.** It is alleged on the $6<sup>th</sup>$ day of January 2024 at Mukunyu Village in Kikuube District, the accused performed unlawful sexual act with **Angel Everlyn** a girl aged 7 years. - The prosecution case is that on the $6/1/2024$ , the victim $[2]$ Angel Everlyn together with her younger sister a one Shantale were sent by their mother, Marien Vivee to go and fetch water. On their way to the water well, the victim, her sister with other children who included Scovia, Doreen and Mugisa, caught the attention of the accused who called for the victim to go to him for a mango. The victim went to the accused who grabbed her and took her inside his house where he performed forceful sexual intercourse with her. When the accused finished, he let her got but the victim walked home limping for she had sustained pain during the forceful sexual intercourse with the accused. - The victim's mother noticed her daughter limping while $[3]$ walking. In the presence of her younger sister, Shantale

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whom she had gone with to the well to collect water, her mother questioned her about what could have been a problem with her. When she hesitated to answer, her sister revealed that the accused **Omoja** must have done something to her because he is the one who called her for a mango. It is then that the victim opened up and revealed to her mother how the accused called her for a mango and when she came close to him, the accused grabbed her, took her inside his house and forcefully had sexual intercourse with her.

- Upon receipt of this information, the victim's mother $[4]$ reported the matter to the local authorities who organised with police and had the accused arrested and taken to police. - The victim was taken for medical attention at Rwenyawawa $[5]$ Health Centre II where she was examined and found to be of an apparent age of 7 years with hyperaemia (an excess of blood flow in the vessels) and mild bleeding from her sexual organs. The hymen was partially perforated. - $[6]$ As a result of the above, the accused was charged with the instant charge of aggravated defilement. - In his defence, the accused in exercise of his rights under $[7]$ $S.73$ (2) TIA opted to keep silent.

## The burden and standard of proof

- The prosecution has the burden of proving the case against $[8]$ the accused beyond reasonable doubt. The burden does not shift to the accused person and the accused is only convicted on the strength of the prosecution case and not the weakness in his defence, Ssekitoleko vs Uganda [1967] EA 531. - $[9]$ In the instant case, the accused pleaded not guilty to the offence. By his plea of not guilty, the accused put in issue each and every essential ingredient of the offence with which he is charged and the prosecution has the onus to prove each of the ingredients beyond reasonable doubt.

### Ingredients of the offence

- $[10]$ For the accused to be convicted of the offence of Aggravated Defilement, the prosecution must prove each of the following ingredients beyond reasonable doubt: - $1.$ That the victim was below 14 years of age. - That a sexual act was performed on the victim. $2.$ - $3.$ That it is the accused who performed the sexual act on the victim.

$1^{st}$ & $2^{nd}$ ingredients of the offence i.e. that the victim was below the age of 14 years and a sexual act was performed on her.

- $[11]$ In its bid to prove that the victim was below the age of 14 years and that a sexual act was performed on the victim. prosecution led by Ms. Becky Seera of the Office of Public **Prosecutions, Hoima** adduced evidence of the victim's medical examination report (P. F.3A) which was admitted by Counsel under **S.66 TIA** and was marked as **P. Exh.1**. - As per **P. Exh.1**, the victim was a pupil of the apparent age $[12]$ of 7 years whose genitals had hyperaemia (a medical condition describing genitals filled with excess blood), mild bleeding and the hymen was partially perforated. The victim's mother **Marien Vivee** (PW1) stated in evidence that at the time of testifying, i.e. on $31/7/2024$ , the victim was aged **8 years** implying that at the time of the offence, the victim was aged **7 years** and therefore below the age of 14 years. - $[13]$ When the victim and her sister returned from the well where they had gone to fetch water, the mother of the victim (PW1) noticed the victim not walking well. On interrogation, the victim and her sister told her that the accused had defiled her. The hyperaemia of the genitals and the mild bleeding thereof is in my view proof of penetration of the victim's sexual organs by the offender.

his house where he had forceful sexual intercourse with her. The victim knew the accused as a neighbour, so is the evidence of the mother of the victim (PW1). There is therefore, in the circumstances of this case, no any possibility of mistaken identity by the victim in seeing and knowing who defiled her, especially, under the fact that the offence was committed during broad day light at around 4:00-6:00pm.

$[18]$

The victim and her younger sister were consistent in their report to their mother (PW1) and what the victim reported to the medical officer who examined her (P. Exh.1) that it is the accused who defiled her. The above coupled with the findings of the medical officer, to wit; hyperaemia and mild bleeding from the victim's sexual organs all corroborated her evidence that it is the accused who she reported, that performed a sexual act on her. Further corroboration is the accused's silence in his defence thus rendering the evidence of the prosecution unchallenged. The victim appeared such a truthful honest child and therefore, in agreement with the lady and gentleman assessors, I find that the prosecution has proved the case against the accused person beyond reasonable doubt. The accused is found guilty as charged and convicted of the offence of Aggravated Defilement.

Dated at Kyangwali this 9<sup>th</sup> day of August, 2024.

**Byaruhanga Jesse Rugyema Tudge**

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