Uganda v Nshaija (Criminal Case 679 of 2020) [2022] UGHCCRD 87 (5 August 2022)

# IN THE HIGH COURT OF UGANDA AT KAMPALA SITTING AT ENTEBBE MAGISTRATE'S COURT.

## **CRIMINAL CASE NO. 0679-2020**

UGANDA :::::::::::::::::::::::::::::::::::

## **VERSUS**

NSHAIJA FRANCIS :::::::::::::::::::::::::::::::::::: $10$

Before Hon. Justice Oyuko Anthony Ojok

## **JUDGEMENT**

The accused person was indicted with the offence of Aggravated Defilement contrary to section $129(3)(4)(a)$ of the Penal Code Act, Cap 120.

It is alleged that Nshaija Francis, on the 31<sup>st</sup> day of May 2019 at Nakuwade Village, Wakiso Sub-15 county in Wakiso District, performed a sexual act on Nakasi Sumaya, a girl aged nine (9) years.

The brief facts of the Prosecution case are that:

- 1. The vicitim, Nakasi Sumaya, is a female aged nine (9) years, a student of Biira Care Church of Uganda School, attending Primary Five and a resident of Biira, Nakuwade in Wakiso District; - 2. The accused person, Nshaija Francis, is a male adult aged twenty-two (22) years, a casual labourer, a resident of Kitezi, Kawempe Division, in Kampala District; - 3. The victim's mother and the accused used to attend the same church at Agape Church located at Nakuwade, Wakiso District. The accused was called by the victim to come and stay with him since he had nowhere to stay; - 4. On 30<sup>th</sup> May 2019, the victim's mother went to hospital to look after her sister who was hospitalised, leaving the victim and her younger brother in the company of the accused person; - 5. On the night of 30<sup>th</sup> May 2019, the accused person left his bed where he was sleeping and came and had sexual intercourse with the victim; - 6. One 31<sup>st</sup> May 2019, the victim's mother returned from hospital and on that night, the victim was heard making noise that woke up the mother; - 7. The victim's mother found when the accused person had just finished defiling the victim and the victim still had water mixed with blood in her private parts;

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- 8. The victim's mother then took away the victim and locked the accused in one room. She went and reported at Nakuwade Police Post; - 9. On return from Police, the victim's mother found when the accused person had broken the door and run away to an unknown destination; - 10. The accused was later on 14<sup>th</sup> October 2019 arrested from Kitezi, Kawempe Division, Wakiso District from the residence of the person where he had been employed as a houseboy. - 11. The victim was medically examined on PF3(A) and was found with a ruptured hymen with multiple bruises consistent with recent sexual activity; - 12. The accused was medically examined and was found to be 22 years old, with sound mind.

The accused denied committing the offence. Prosecution produced 3 witnesses in a bid to prove its case and the accused gave sworn evidence and called one witness.

## **Representation:**

Kiconco Agnes, State Attorney, appeared for the State and Counsel Peruth Nshemereirwe 20 represented the accused on State Brief.

## **Burden of Proof**

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 case of Woolmington 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 the 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 Pensions [1947] 2 ALL ER, page 373, it was held that proof beyond reasonable doubt does not mean proof beyond shadow of doubt. 30

#### The law:

Section 129(7) (a)(b) of the amendment of the Penal Code Act defines 'sexual act' as penetration of the 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 was stated that the ingredients of aggravated 35 defilement are that: - a) The victim was below fourteen (14) years of age;

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#### b) The sexual act was performed on the same victim;

c) Participation by the accused person.

## 1. The victim was below 14 years of age

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In 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.

PW1, Bwanika Ahmed, the medical clinical officer who examined the victim on 31<sup>st</sup> May 2019, stated that she was nine (9) years old, basing on the physical make up of her body and dental formula, which he observed had mixed dentition. The testimony of PW1 was further corroborated by the evidence of PW2, the victim herself, who testified that she was nine (9) years old at the time of commission of the offence. The victim's age was also corroborated by the testimony of the biological mother who confirmed that the victim was nine (9) years old at the time of the commission of the offence. I also had the benefit of observing the victim herself and saw that she was below fourteen (14) years of age. This ingredient was proved beyond reasonable doubt.

#### 2. There was a sexual act performed 20

The law on proof of sexual intercourse was stated by the Supreme Court in the case of Basita Hussein vs Uganda SCCA no. 34 of 1995 (unreported) as follows: "The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Sexual intercourse is proved for instance by the victim's own evidence and corroborated by medical or other evidence. It is not a hand and first rule that the victim's evidence and medical evidence must always be addressed in every case of defilement. PW1 stated that there was an old ruptured hymen with bruises and painful tenderness around the vestibule and vagina entry, indicating recent intercourse within 24 hours. The report further documented that the probable cause of the injuries was an erect penis, fingers or stick. This was further corroborated by the evidence of PW2, who said that she was

30 defiled before and on the night of 30<sup>th</sup> May 2019. The ingredient of a sexual act performed on the victim is proved beyond reasonable doubt.

## 3. Participation by the accused

Where an accused person raises the defence of alibi, he does not assume the burden of proving it. The burden of disproving it remains on the Prosecution and the Prosecution discharges that burden by leading cogent evidence that places the accused at the scene of the crime at the time of 35 the offence (Ssekitoleko v. Uganda 1967, 2 E. A, at page 531). It is up to the prosecution to disprove the defence of the accused person by adducing the evidence that shows that, despite the defence, the offence was committed and by the accused person (Kato v. Uganda, 2002, 1 E. A at page 101). Prosecution must prove this through adducing direct or circumstantial evidence.

In this instant case, PW2's evidence contradicts that of PW3, in as far as: 40

a) During the second encounter with the accused person on the 30<sup>th</sup> of May 2019, when they returned from the burial of her mother's father, they all slept in the same room - mother, victim, accused and victim's brother. The accused defiled her on her bed that was on the floor. That she made an alarm and the mother got up from her bed and found the accused on top of her. However, PW3, the mother, stated that when she heard the alarm, she got up and found the accused on the second bed holding her son tight. This is not a minor inconsistency and goes to the root of this case. It can also not be said that the contradiction is due to lapse of time. That alone creates doubt.

b) Moreso, the accused denied ever being at PW3's home and there was no evidence whatsoever that he had indeed ever been at her home. Even the pastor who went with the accused for the burial never came to testify and neither did the State bring any other witness to prove that the accused had ever been at the scene of the crime.

c) In his defence, the accused person admitted knowing the victim and the mother because they attended the same church but denied committing the offence or knowing PW3's residence. This was corroborated by DW2 who testified that on the 31st of May 2019, the accused spent the night at his home after they had attended a baptism party together. Much as it is trite law that where an accused person raises a defence of alibi, it must be at the earliest stage, to enable the State to establish and confirm it. Nevertheless, it is the duty of the State to prove its case and thus cannot run away from its duty because court must convict on the strength of the prosecution case and not on the weakness of the defence case.

d) I am convinced that the sensational theatrics of PW3 (the victim's mother) when put in the dock, claiming that she had suffered a hypertensive attack was just a cover-up intended to confuse court. I believe that she was just putting on an act for the sake of her church colleagues and leaders.

I therefore find that this ingredient of participation by the accused person was not proved beyond 30 reasonable doubt or shadow of doubt and as such, I disagree with the assessors' opinion for the above reason. I therefore, acquit the accused person of the offence of Aggravated Defilement contrary to section 129 (3) (4) (a) of the Penal Code Act, Cap 120. He is hereby set free unless he is being held legally for any other reason.

#### **Observations:** 35

The accused might have committed the offence but the State failed to prove it. This is because:

- a. The accused never told any church leader about the alleged sexual harassment he supposedly suffered at the hands of PW3 and if so, no witness came to court. - b. There was no need for him to relocate to another location since he did not know the residence of the victim's mother, which I highly doubt.

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- c. His defence witness did not adduce the calendar in court and the alleged baptism was a concoction. - d. That he alleges that he only got to know two weeks before court about his friend's incarceration is not true. A true friend cannot take three years without knowing that his friend is under detention. - e. His act of disappearance was suspicious because PW3 had no control over where he lived. He could have simply stopped going to the church he shared with her. - f. The evidence of DW2 was a pack of lies intended to save his friend at all costs, which he even admitted in the dock. There was no baptism party and the accused person did not spend that night at his home nor did he communicate to the sister of the same accused person. - g. The act of the accused person denying his own police statement was a total lie.

Right of appeal explained.

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Oyuko Anthony Ojok, **Judge** $05^{th}/08/2022$ .

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$\mathsf{S}$

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