Uganda v Niwe amwesiga (Criminal Session Case 205 of 1995) [1996] UGHC 26 (26 March 1996)

Full Case Text

THE REPUBLIC OF UGANDA

IN THE LIGH COURT OF UGANDA AT MBARATA OFFICIAL CAROLINE CARD NO.205/05

le Hon mu Justice Egonda-Nitende

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$...$ $/2$

UCANDAGOOOOCO

ALEX RUEL, WILL, COMMAND $\cdots$ BEFORE: THE HON. MR. JUSTICE E. S. LUGAYIZI

## RULING:

$\sqrt{1}$

The accused Alex Niwenyesiga was on the 19th day of February, 1996, indicted for the offence of defilement contrary to Section 123(1) of the Penal Code Act, the particulars of which were that the said accused,

"on or about the 18th day of October, 1993, at Kazo Trading Centre in the Mbarara district, unlawfully had sexual intercourse with one NASSANGA ALIMA, a girl under the age of 12 years "

When the accused denied the above indictment, the prosecution proceeded to call witnesses in a bid to prove its case against the accused.

The first prosecution witness was Dr. Margaret Kasande, a medical practitioner of Ibanda Central Clinic. In brief, she told court that the complainant in this case was referred to her for medical examination on 21st October, 1993. She examined her whole body and found that she had a torn hymen which had redened, and was pouring pus. She classified the said injury as "harm".

The said doctor could not tell exactly when the above injury could have occurred, for she could not remember the dates since she did not have her Medical Form/5 on which she had recorded those details.

Exhibit "Pl" the police form/3 which she filled in, almost a month later after the girl was referred to her by the police contained simply the summary of her findings,

not the details which could be found in Medical Form/5.

$\overline{2}$

After the above witness' evidence, the court carried out a voire dire in respect of the complainant who was a little girl, probably aged 9 years. The girl admitted that she did not know whether there was God and did not know where God resided if He was there.

She further admitted that she would not know what would happen to little children who told lies either at home or at school.

. After the above, I decided that the complaimant neither understood the nature of the oath nor was she intelligent enough to understand the duty to tell the truth.

As a result therefore, the prosecution could not put her up as a witness. They thus closed their case since the rest of their other witnesses had died or were not traceable.

The defence submitted a no case to answer.

It is now the duty of this Honourable Court to decide whether on the evidence available the accused herein has a case to answer. (See Hofni Topacho Ongiertho and 2 others v Uganda (Criminal Appeal No. $1/93$ ).

Apart from the fact that the doctor's evidence above is suspect; (for example, she did not have the Medical for/5 on which she had recorded the details of the complainant's examination; she could not remember when she actually examined the complainant, nor could she tell the likely date of the complainant's sexual assault; she filled Exhibit "Pl" almost a month after examining the complainant) there is absolutely no evidence on record connecting the accused to the offence herein.

$... / 3$

$\lambda = 25$

In the circumstances, it would be gravely- ur.ong.for court to call the accused to make his defence, for obviously no prima facie case has been made out against him. (See R. T. Bhatt v R (1957) E. A. at P.332).

I would accordingly acquit the accused of the offence of defilement contrary to section 123(1) of the Penal Code Act5 and I so order.

The accused is hereby immediately released, unless he is being held on some other lawful charges.

> E. S. Lugayizi JUDGE 26/3/96

**/ . &gt; • \***

26/3/96: 2,43\_pj»m. Accused present Mr. Zehurikize for accused Mr. Wagona for the State The 2 assessors. Mr. Baguma Court clerk. Court

Ruling read. z

E. So Lugayizi JUDGE 26/3/96