Uganda v Ntege (Criminal Case 680 of 2020) [2022] UGHCCRD 91 (29 July 2022)

#### THE REPUBLIC OF UGANDA

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

#### **CRIMINAL CASE NO. 0680-2020**

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

# **VERSUS**

NTEGE TOM :::::::::::::::::::::::::::::::::::

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 Nsubuga Muhammed, between the years 2016 and 2019, at Bukasa Village in Wakiso District, performed sexual intercourse with Nakiboneka Elizabeth alias Liz, a girl aged ten (10) years.

The brief facts of the Prosecution case are that:

- 1. The victim, Nakiboneka Li is a girl aged ten (10) years, a pupil at UMEA Primary School in Namusera, Wakiso District, in Primary Four. The victim is a daughter to Mukiibi William and Nabawanuka Rose. - 2. The accused person, Ntege Tom, is a male adult aged twenty (20) years, a casual worker and resident of Bukasa-Mabobwe Village in Wakiso District. He is an in-law to the victim's father. - 3. The victim grew up seeing the accused at their home since he was an in-law to her father. The accused therefore had free access to the victim without the parents suspecting anything. - 4. On the 8<sup>th</sup> day of October, 2019, a Good Samaritan was in a vehicle parked nearby saw the accused calling the victim to follow him into a sugarcane plantation and the victim refused. The Good Samaritan then became suspicious of the accused's actions and she called and started interrogating the victim, aged ten (10) years. - 5. The victim then revealed that the accused person had defiled her on a number of occasions since 2016 and that she had become tired of the accused. - 6. The victim further stated that on numerous times, the accused person used to have sexual intercourse with her and then after urinate some white substance into her that would then drop on the carpet whenever the victim was left home alone.

- 7. After some time, the victim got tired of the accused havin sexual intercourse with her and would dodge him sometimes until he was arrested. - 8. The victim was examined on Police Form 3A (PF3A) and was found with a raptured hymen that was not recent, consistent with her testimony. - 9. The accused was examined on Police Form 24A (PF24A) and found to be twenty-four (24) years of age and with normal mental status.

The accused denied committing the offence. Prosecution produced four (4) witnesses in a bid to prove its case and the accused gave unsworn evidence and called no witness.

Kiconco Agnes, State Attorney, appeared for the State and Counsel Robinah Kyamuhangire 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.

Section 129(7)(a)and(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 Criminal session case No 0168 of 2020, it states that the ingredients of aggravated defilement are:

- a) The victim was below fourteen (14) years of age; - 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

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.

PW4. Oligo Michael, clinical officer, who examined the victim stated that she was of an apparent age of ten (10) years, consistent with developmental milestones including prepubertal breasts and pubic hair hypopigmentation (brown) and dentition (24 teeth). PF3A was admitted as prosecution exhibit 1 (PEx1). The testimony of PW4 was further corroborated by the testimony of the biological mother of the victim (PW3) who confirmed that the victim was born on the seventh (7<sup>th</sup>) day January 2009. 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. In any case, it was not disputed by the defence.

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

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 and medical evidence must always be addressed in every case of defilement. However, the medical report, PF3A, was admitted as exhibit PE1. PW4 stated that the hymen was partially ruptured, which condition was not recent. This means that there was a sexual act or acts committed on the victim as per the said PF3A.

All the above was farther corroborated by PW1, the victim, who stated that the accused defiled her first and put the handkerchief in her mouth. She stated how he made her lie on a carpet, removed her knickers, unzipped his trousers and removed his penis and inserted it into her vagina. Furthermore, the victim stated that the accused released some semen and proceeded to the garden. She then stated that she left for home. It was her testimony that the accused defiled from 2016 up to 2019 when he was arrested. The accused, according to the victim, defiled her twice in a garden and at home. This ingredient was proved by Prosecution beyond reasonable doubt.

### Participation by the accused

The accused person in this case raised the defence of alibi and the law regarding alibi is that when an accused person raises it, he does not have the burden of proving it but the State assumes the burden of disproving it (the alibi) by placing the accused at the scene of crime.

In this instant case, there was no direct evidence but prosecution relied on circumstantial evidence. Where the State relies on circumstantial evidence, it must be corroborated. In fact, in the Court of Appeal, in the case of Hon. Akbar Hussein Godi vs Uganda, No. 0062/2011 (Unreproted), made a restatement of the principle that when properly handled, circumstantial evidence can be the best evidence to prove a preposition. This Court stated as follows in Godi's case:

Thus the appellant is convicted on circumstantial evidence. We appreciate this evidence to be in the nature of a series of circumstances leading to the inference or conclusion of guilt when direct evidence is not available. It is evidence which, although not deirectly

establishing the existence of the facts required to be proved, is admissible as making the facts in the issue probable by reason of its connection with or in relation to them. It is evidence, at times regarded to be of higher probative value than direct evidence, which may be perjured or mistaken.

A Kenyan court has noted: "Circumstantial evidence is very often the best evidence. It is evidence surrounding circumstances which, intensidird (sic) examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial: See High Court of Kenya at Nairobi, Criminal Case No. 55 of 2006, Repulic Vs Thomas Gilbert Chocmo Ndeley.

In this case, PW1, the victim, said that she was defiled between 2016 and 2019 but could not remember the years when put to cross examination. She also could not remember how many times she was allegedly defiled. Moreso, that during the defilement, she felt a lot of pain but throughout it all, never reported the incident to her mother. At first, she stated that she told her mother but while PW3 testified, she told court that the victim never told her about the defilement, but that she had told their neighbour, PW2. This alone is a serious contradiction.

Secondly, when PW2 put the accused in the vehicle and drove to the victim's mother, and asked whether she (PW3) was aware that the accused had been defiling her daughter, she was reportedly not bothered and continued cooking her food and told PW2 to take both the accused and victim to the police. In fact, her daughter being a girl of only nine (9) years of age, she would have been very scared and left whatever she was doing and gone with PW2 and the accused to the police. This also creates a lot of doubt(s). Worse still, PF3A stated that the victim had "no recent injury and [an old] partial rupture of the hymen, superficial trauma of vaginal introitus but not in the recent past." The examination was done on the 10<sup>th</sup> day of October 2019 and tendered as PEx1 and implies that the accused might have partially inserted his penis in the vagina or it was another person.

The fact that the victim, PW1, never told anyone up to 2019, yet she felt a lot of pain, leaves a lot of doubt(s). If she had not been asked by PW2, what would she have done? Would have simply kept quiet? No exhibits recovered and tendered in court or explained by Prosecution witnesses.

The accused, when put to his defence, denied committing the offence and explained that he knew both the victim and her mother. That, when PW2 called him and asked about the alleged defilement, he denied it and when told to sit in the car, he accepted and was taken to the police and eventually detained.

I find that the testimonies of the victim and her mother was full of lies and raises a lot of doubts. I therefore disagree with the assessors' opinion and find the accused innocent and as such discharge him. Unless there are other pending charges against the accused and I order for his release.

Right of appeal explained.

Dated at Entebbe, this 29<sup>th</sup> day of July, 2022,

2 $\overline{a}$ Oyuko Anthony Ojok, **Judge**

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