Uganda v Ntirubabarira Silver alias Hami (Criminal Session No. 0008 of 2023) [2025] UGHC 345 (7 January 2025)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KISORO CRIMINAL SESSION NO. 0008 OF 2023 (Arising from KIS No. oo20 of 2022) (Arising from CRB No. 436 of 2022)** 10 **UGANDA** :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTOR VERSUS NTIRUBABARIRA SILVER ALIAS HAMI**::::::::::::::::::::::::::::::::::**ACCUSED** 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR JUDGMENT**

Ntirubabarira Sliver alias Hami who for the rest of my Judgment I shall refer to 20 as the Accused is indicted for Aggravated Defilement Contrary to **Section 129(3)** and **4(a)** of the **Penal Act**. The facts giving rise to this indictment are that Ntirubabarira Silver alias Hami on the 04/07/2022 at Kabaya village, Busengo Parish, Nyarubuye Sub County in Kisoro District performed a sexual act with SU a girl aged four (04) years.

25 The Accused pleaded not guilty.

I will refer to the Victim in this case as SU

**Representation:**

Ms. Noeline Nagayi (State Attorney) and later Ms. Nambi Erone (State Attorney) appeared for the prosecution while Mr. Bakanyebonera Felix represented the 30 Accused on state brief.

The Assessors for this trial were Ms. Idah Mugenga and Mr. Rwangeyo Joseph.

5 During the preliminary hearing pursuant to **Section 67** of the **Trial** on **Indictment Ac**t (TIA) medical evidence in Police Form 24 was admitted as uncontested. The same revealed that the Accused was an adult male of 32 years with a normal mental status.

It was received as Exhibit P1.

10 **The Burden and standard of proof.**

This being a criminal case it is one whose proof lies squarely on the Prosecution and the Accused has no duty to prove his innocence. It is also proof beyond reasonable doubt. Any doubts must be resolved in favour of the Accused unlessfully explained and the Accused must only be convicted on the strength of

15 the Prosecution case and not on the weakness of the defence case.

**See Ssekitoleko versus Uganda (1961) EA 531.**

**Ingredients of the offence**.

The Prosecution must prove each of the following essential ingredients beyond reasonable doubt for the Accused to be convicted of Aggravated Defilement.

- 20 **1) That the Victim was below 14 years of age at the time of commission of the offence.** - **2) That a sexual act was performed on the Victim.** - **3) That it was the Accused who performed the sexual act on the Victim.**

5 **a) Age.**

The most reliable way of proving the age of a child is by production of a birth certificate followed by the testimony of parents or guardians and medical evidence where available. It has however been held that other ways of proving the age of a child can be equally conclusive such as the Court's own observation 10 and common sense assessment of the age of the child.

**See 1) Uganda versus Kagoro Geoffrey HCCR Session No. 0141 of 2002.**

**2) Uganda versus Mawadri Joel HCCR Session No. 0001 of 2018**.

The Victim in this case SU who after a voire dire was conducted gave her evidence not on oath stated that she was six years old. Dr. Kyambadde Robert (PW5) who 15 examined the Victim on Police Form 3A and whose report was received as Exhibit P2 testified that on the 11/07/2022 he examined the Victim SU and found her to be of the apparent age of 4 years based on her physical appearance, milestones and dentition. That she still had milk teeth that last until 5 – 6 years.

The defence did not contest the fact that the Victim SU (PW1) was a girl below the 20 age of 14 years. This Court had the opportunity of observing the Victim as she testified before it. I considered her general appearance, demenour and responses to the questions that were put to her. I accept the medical findings in Exhibit P2 that SU (PW1) on 11/07/2022 was aged 4 years old.

It is my finding that the Prosecution has proved the 1st ingredient beyond 25 reasonable doubt.

**b) Sexual act and participation of the Accused.**

5 **Section 116** of the **Penal Code Act** defines *"a sexual act"* to mean penetration of the vagina, mouth or anus, however slight of any person by a sexual organ or the unlawful use of any object or organ by a person on another person's sexual organ. The same provision defines *"sexual organ" to mean a vagina or a penis"*

The Prosecution to prove these two ingredients presented the Victim SU (PW1) a 10 girl now aged 6 years who testified that she was going to her grandmother's home to drink Bushera with her friend Generous Uwayezu with whom they share the same mother but different fathers. It is her evidence that on the way they met Fridah (PW5) and Silver the Accused found them with the Basirikale of Kabostha. That the Basirikale were inside the house and the Accused did not tell them 15 anything. According to SU (PW1) the Accused took her into the Pit Latrine. The witness when questioned by the Prosecution on what happened inside the Pit Latrine remained silent and would not answer.

Under cross examination by the defence the witness stated that on the way they met Mukeshimana Frida (PW 7) and Silver the Accused found them at the Police 20 Station and he took her to the Pit Latrine. In re-examination she stated that the Pit Latrine is for the Police and that Silver the Accused took her inside.

It is also imperative to note that at the commencement of her testimony SU(PW1) testified that she knows the Accused because he used to work at her grandmother's place and that he is called Silver and he did something to her.

25 **Section 41(3)** of the **Trial** on **Indictment Act** provides that where in any proceedings any child of tender years gives evidence that is received not on oath on the basis that the child does not understand the nature of an oath the Accused

5 shall not be liable to be convicted unless the evidence is corroborated by some other material evidence in support thereof implicating the Accused.

While **Section 10** of the **Oaths Act** provides;

*"No person shall be convicted or Judgment given upon the uncorroborated evidence of a person who shall have given his or her evidence without oath or affirmation"*

10 The onus is therefore on the Prosecution to provide corroborative evidence to the testimony of the Victim SU (PW1) that the Accused did something to her.

To discharge this burden, the Prosecution relied on the evidence of Generous Uwayezu (PW2) an 8-year-old girl who after a voire dire was conducted gave her evidence on oath and testified that she knows the Accused and he used to work

15 for her grandmother by making bricks.

She also gave the name of the Accused as Silver. It is her evidence that she and SU (PW1) are related and that their grandmother had called them to take Bushera. That on their way they met Mugisha Trevor who stays with their grandmother and that Trevor told them to wait for him at the Police and while they were 20 waiting Silver the Accused came and carried SU (PW1) into a Pit Latrine.

According to Generous Uwayezu (PW2) she heard SU(PW1) crying from the Pit Latrine and that the Accused ran after seeing Mukeshimana Frida (PW7). The witness Generous Uwayezu (PW2) testified that SU (PW1) came out of the Pit Latrine holding her knickers in her hands. That when she asked her what had 25 happened to her she kept quiet and later said that Silver the Accused had done something bad to her (PW1) and urinated inside her. Further corroboration can be obtained from the evidence of Mukeshimana Frida (PW7) who testified that on

5 the 04/07/2022 at around 6:00PM she was from collecting firewood on her way home when she reached Kawosta where there is a Police Post and Hospital.

It is her evidence that she heard a child crying from the Pit Latrine and went to see what was happening. According to Mekeshimana Frida (PW7) she was wearing gumboots that made noise as she was walking and that when she got 10 close to the Pit Latrine that was only 4 metres from the footpath on which she

had been walking she saw the Accused come out of the Pit Latrine and that the Accused ran through the sorghum garden while she tried to throw compacted soil at him.

The child in the Pit Latrine Mukeshimana Frida (PW7) states was SU (PW1) and 15 that she was crying and saying that Silver has urinated on me. Mukeshimana Frida (PW7) believes that the Accused heard her boots that were making noise as she approached the Pit Latrine and that was why he was able to run away. She (PW7) also states that the Accused is her village mate who she has known for over

20 The Accused in his sworn defence raised the defence of alibi testifying that he spent the entire day of the 04/07/2022 at home sleeping because he was suffering from malaria and that he spent the day with his mother Nyiraguhirwa Ansira (DW2) and that he was arrested on that day at 5:00PM from his parents' home. His evidence is corroborated by that of Nyiraguhirwa Ansira (DW2) who testified

30 years.

25 that the Accused on that date in issue was sick and spent the day at home until 5:00PM when he was arrested.

I do not believe that there is any truth in this defence raised by the Accused. 5 The Accused was a well-known person to SU (PW1), Generous Uwayezu (PW2) and Mukeshimana Frida (PW7). Indeed, the Accused himself admitted that there was no possibility that SU (PW1) could have been mistaken about his identity because she knows him. Indeed, the Accused did causual work for the family of SU (PW1) as testified to by SU (PW1), Generous Uwayezu (PW2), Mukeshimana 10 Frida (PW7) and the mother of SU (PW1) Brenda Nyirankunda (PW4). The

incident also took place in broad day light at or about 6:00PM.

The factors in place therefore favoured proper identification. I therefore reject the defence of alibi raised by the Accused. The evidence of SU (PW1) that the Accused took her into a Pit Latrine has been well corroborated.

- 15 The central issue that now arises is what exactly did the Accused do to SU (PW1) while he was in the Pit Latrine with her. According to the Victim before this Court the Accused did something to her while in the Pit Latrine but she could not bring herself to explain what this was despite the best attempts of the Prosecution. This is understandable given her tender years at the time of 4 years and present age - 20 of 6 years. This fact not withstanding both Generous Uwayezu (PW2) and Mukeshimana Frida (PW7) testified to hearing SU (PW1) crying in the Pit Latrine. According to Generous Uwayezu (PW2) SU (PW1) came out of the Pit Latrine after the Accused hard run out of the same and that she was holding her knickers in her hands and when she asked her what had happened she said that the Accused - 25 had done something bad to her and urinated inside her. This evidence is corroborated by Mukeshimana Frida (PW7) who testified that when she questioned SU (PW1) she told her that the Accused susued inside her. The

5 evidence of Generous Uwayezu (PW2) and Mukeshimana Frida (PW7) were given in a candid and forth right manner.

I did not detect any deceit in their body language. Generous Uwayezu despite her tender age of 8 years was able to recall with clarity the events of the 04/07/2022. The allegations of grudges that the Accused raised against Mukeshimana Freda

- 10 (PW7) that have their origins in a loan taken by his deceased father from a SACCO to which Mukeshimana Frida (PW7) belongs does not appear to be a credible story. This is because the same was never put to Mukeshimana Frida (PW7). Besides Mukeshimana Frida (PW7) according to Accused is a mere member of the SACCO and it inconceivable that she can take on the burden for the entire SACCO - 15 against the Accused.

The reference to grudges is a mere afterthought that I reject.

The defence sought to discredit the Prosecution cases by presenting Rev Erasmus Nzambandora (DW3) a medical clinical officer attached to Kisoro Hospital who testified that on 05/07/2022 he received SU (PW1) over claims of Aggravated 20 Defilement and that she had been accompanied by her mother, grandmother and a CID officer one Gahutu George attached to Kisoro Police Station. The allegations according to DW3 was that SU (PW1) had been defiled and that he was requested to examine her to assess if this was true. It is the evidence of the witness that his medical examination revealed that there was nothing to suggest that SU (PW1)

25 had been defiled. Her hymen was not raptured, that he checked her genitals for tenderness and found nothing significant, no bruises or reddening of the vaginal orifice. Rev. Erasmus (DW3) therefore concludes that SU (PW1) had not been defiled. He testified that he made clinical notes of his findings in an exercise book

5 that he handed over to the Police Officer Gahutu and the same was returned to him that day by a one Diana and was tendered to Court by the defence as Exhibit D1.

This evidence is at odds with that presented by the Prosecution in the testimony of Dr. Kyambadde Robert (PW5) who examined the Victim SU (PW1) on the 10 11/07/2022 on Police Form 3A that was received as Exhibit P2.

According to Dr. Kyambadde (PW5) his examinations revealed that SU (PW1) had lost her hymen and had an open vaginal orifice and the possible cause of this was penile penetration/attempt to penetrate the vagina that caused the hymen to rapture. According to PW5 the absence of bruises on the vagina could be explained

15 by the difference of days between when the offence was allegedly committed on 04/07/2022 and his examination on the 11/07/2022. It is also his evidence that the vagina heals completely because it has a layer that aids in this process and does not leave scars unless it is by a surgical procedure.

The genesis of the two medical examinations that appear to conflict was given by 20 DC Musinguzi Alex (PW6) who testifies that the case file was re-allocated to him as an independent investigator basing on a complaint made by Milton (PW3) the father to SU (PW1) that she had been examined at Nyaruguye Health Centre III on Police Form 3A after the matter was reported at Rubugano Police Post and found to have been defiled but when the matter was reported at Kisoro Police 25 Station and the Victim (PW1) was re-examined the report revealed that she had

not been defiled and that this examination was conducted at Kisoro Hospital but it was not on record because no Police Form had been issued for examination. According to Musinguzi together with the complainant Milton he took the Victim

- 5 SU (PW1) to Kisoro Hospital where Dr. Kyambadde Robert (PW5) examined the Victim and informed him that her hymen was missing and the possible cause was an attempt at penetration. That he received the report and when he handed it over to the OCCID he was informed that these medical findings were similar to that of Nyaruguye Health Centre III. - 10 I find the involvement of Rev Erasmus (DW3) in the examination of SU (PW1) a bit suspicious. This is because the CID officer who presented SU (PW1) to Rev Erasmus (DW3) said to have been Gahutu George did not at all participate in these proceedings.

The fact that Rev. Erasmus (DW3) used an exercise book to note his findings as 15 opposed to using the formal Police Forms on which Victims of sexual offences are examined further cast doubt as to what capacity detective Gahutu George and the medical examiner (DW3) were acting. The fact that one Diana on the day of hearing produced the exercise book that was given to Detective Gahutu George adds another spin to this story. The whole affair seems to have been shrouded in 20 mystery. There is no explanation advanced by the defence as to why due process

- was not followed when SU (PW1) was presented to Rev. Erasmus (DW3) the presentation of SU (PW1) to Rev Erasmus was a backdoor affair. The appointment of an independent investigator in DC Musinguzi Alex (PW6) appears to have been justified. - 25 I find the medical report of Dr. Kyambadde (PW5) on Police Form 3A received as Exhibit P2 to be more acceptable and believable.

5 This is because it corroborates the evidence of the Prosecution witnesses. Both Generous Uwayezu (PW2) and Mukeshimana Frida (PW7) were drawn to the crying of SU (PW1) in the Pit Latrine and thereafter SU (PW1) emerged from the Pit Latrine holding her knickers in her hands.

Both Generous Uwayezu (PW2) and Mukeshimana Frida (PW7) testify that SU 10 (PW1) told them that the Accused had urinated inside her. This is a simple innocent explanation that comes from a 4 year old when exposed to an assault that is sexual in nature. There is no other way to look at this scenario. I do not accept the evidence of Rev. Erasmus (DW3) that SU's (PW1) hymen was not raptured. The evidence on record supports the finding of Dr. Kyambadde (PW5)

15 that SU (PW1) had lost her hymen as a result of penile penetration or an attempt to penetrate because both can obtain the same result as per his expert opinion.

In effect the rapture of the hymen in itself is penetrative.

The law as already highlighted requires even the slightest penetration to suffice.

It is my finding that the evidence of SU (PW1) has been sufficiently corroborated 20 by the Prosecution evidence and the Prosecution has proved beyond reasonable doubt the 2nd and 3rd ingredients.

After considering the evidence presented by the Prosecution and the defence together and in full agreement with the Assessors it is my finding that the Prosecution has proved its case beyond reasonable doubt and I find the Accused 25 guilty of the offence of Aggravated Defilement Contrary to **Section 129(3)** and 4(a) of the Penal Code Act and convict him of the same.

## 5 Before me,

……………………………………

**Samuel Emokor Judge 07/01/2025**