Uganda v Ochen Simon Jonathan (HCT -09- CR-JA-009-2025) [2025] UGHC 327 (7 May 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI HCT -09- CR-JA-009-2025 UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR VERSUS OCHEN SIMON JONATHAN :::::::::::::::::::::::::::::::::: JUVENILE OFFENDER**

## **Before: Hon. Justice Boniface Wamala**

## **JUDGMENT**

## **Introduction**

[1] The juvenile offender in this case stands indicted of the offence of Aggravated Defilement c/s 116 (3) & (4)(a) of the PCA Cap 128. The particulars are that the offender on the 17th day of January 2025 at Asin A village, Kateta Sub County in Serere District performed an unlawful sexual act with Onoso Victor a girl aged two years. The offender denied the charge and the case proceeded for hearing.

## **Representation**

[2] At the hearing, the state was represented by **Mr. Bamwesigye Emmanuel** and **Ms. Rebecca Namitala** from the Office of the Director Public Prosecutions (ODPP) while the accused was represented by Mr. **Olobo James Felix** and **Mr. Justine Okwalinga**, counsel on state brief. The assessors in this case were Mr. **Erwaku Lawrence** and **Mr. Oriada David**. Neither the accused, his lawyers nor the state objected to the assessors' appointment.

## **The Burden and Standard of Proof**

[3] In all criminal cases, an accused person is presumed innocent until proven guilty or until he or she pleads guilty; as provided for under Article 28(3)(a) of the Constitution of the Republic of Uganda. As such, the burden of proving each and every ingredient of an offence is always on the prosecution and never shifts onto the accused. See: *Woolmimgton v DPP [1935] AC 462*. The accused person is only convicted on the strength of the prosecution case and not because of weaknesses in his defence. See: *Ssekitoleko v Uganda (1967) EA 531*. Each essential ingredient of the alleged offence must be proved beyond reasonable doubt. However, proof beyond reasonable does not mean proof beyond a shadow of doubt. The standard is satisfied once any evidence suggesting the innocence of the accused person, at its best, only creates a mere fanciful possibility but not any probability that the accused is innocent. See: *Miller v Minister for Pensions [ 1947] 2 ALLER 372*.

# **The evidence in this case**

## *Agreed facts*

[4] The state and defence signed a memorandum of agreed matters wherein it was agreed as a fact that the juvenile offender, Ochen Simon Jonathan, and the victim were neighbours in Asin A village, Kateta Parish, Kateta Sub-County in Serere District. The following documents were also agreed upon in the said memorandum, namely;

- a) The victim examination (PF3A); - b) The offender examination report (PF24A); and - c) The child health card of the victim.

[5] The memorandum of agreed matters was tendered and admitted in evidence in accordance with section 67 of the TIA. The agreed documents were admitted in evidence and marked as PE1, PE2 and PE3 respectively.

## *The witnesses*

[6] The prosecution led evidence of one witness and so did the defence. The prosecution witness was the victim's mother **Ikia Victor** who testified as **PW1.** She stated that she was a female adult aged 37 years, peasant farmer, resident of Asin A village, Kateta Parish, Kateta Sub County in Serere District. She

stated that she knew the offender who is a nephew to her husband, Onoso George, and they were neighbours. She testified that she gave birth to the victim on 6/10/2022 and she was 2 years and 7 months old at the time of testifying. On 17th January 2025 at about mid-day, while PW1 was at home peeling sweet potatoes, the offender came and took the victim to play at his home which is about 100 metres from hers. After about one and a half hours, the victim returned while calling PW1 and telling her that the offender had taken her to his bed and poured water on her private parts. PW1 removed the victim's pants but did not find her private parts wet. She asked her neighbor to assist and check the victim who did check but did not see any wetness. The neighbor advised her to take the victim to hospital. PW1 took the victim to a clinic and when a doctor checked her, he said that someone had tried to have sex with the victim but did not break the hymen. The matter was referred to police. The victim was examined at Kateta Health Centre IV. The offender was arrested and later charged. PW1 had no grudge with the offender and she used to leave the victim with him.

[7] In defence, the offender **Ochen Simon Jonathan** testified as **DW1**. He stated that he was a 13-year-old resident of Asin village, Kateta Sub County in Serere District. (The charge sheet before the lower court and the medical examination report, however, indicated his age as 16 years). He testified that before his arrest, he was schooling in primary four at Kateta Model Primary School. He knew the victim as a daughter to his uncle. He stated that he did not defile the victim. On the alleged day, he went to the garden up to 10:00 am. On his way back, he passed by his grandmother's place where he ate jackfruit and fetched water for her. He reached his home at about 1:00 pm and prepared his lunch. His mother was not home. He then went to his brother's place at 3:00 pm. His brother asked him to fetch water for his cows and he thereafter took the animals for grazing. He returned the cattle home at about 6:00 pm. He stated that on that day, he did not reach the home of the victim and neither did the victim go to his home.

# **Submissions by Counsel**

[8] The prosecution and the defence made and filed written submissions which have been adopted and relied upon by the Court.

# **The law and ingredients of the offence**

[9] The offence of aggravated defilement is provided for under Section 116(3) and (4) (a) of the Penal Code Act Cap 128 which states thus;

*"(3) Any person who performs a sexual act with another person who is below the age of 18 years in any of the circumstances specified in sub-section (4) commits a felony called aggravated defilement and is on conviction by the High Court, liable to suffer death.*

*(4) The circumstances referred to in sub-section (3) are as follows –*

*a) where the person against whom the offence is committed is below the age of fourteen years …"*

[10] Under section 139(1)(g) and (2) of the Children Act Cap 62, a child convicted of an offence punishable by death shall be liable to detention for a period not exceeding three years in a designated placement centre.

[11] In the instant case, for the accused person to be convicted of aggravated defilement, the prosecution must prove each of the following essential ingredients/ elements beyond reasonable doubt;

- a) That the victim was below 14 years of age; - b) That a sexual act was performed on the victim; and - c) That it is the accused who performed the sexual act on the victim.

#### **Resolution by the Court**

#### *That the victim was below 14 years of age*

[12] In law, the most reliable way of proving the age of a child is by the production of her birth certificate, any other documents speaking to her date of birth, followed by the testimony of the parents. It has however been held that other ways of proving the age of a child can be equally conclusive such as medical evidence, the court's own observation and common sense assessment of the age of the child. See: *Uganda v Oryem Bosco (Criminal Case No. 116 of 2019) [2020] UGHC 78 (10 July 2020)*.

[13] In this case, a copy of the victim's child health card was produced, tendered before court as an agreed document and marked PE3. It indicates that the victim was born on 6/10/2022; which made her 2 years and 03 months by 17/01/2025. The medical examination report of the victim (PF3A) was also agreed upon between the prosecution and the defence and admitted in evidence as PE1. In the report, the victim's age was stated as 2 years due to the physical appearance and dental formula of 16 milk teeth. In her oral testimony before court, the victim's mother stated that she gave birth to the victim on 6/10/2022 and she was 2 years and 7 months old at the time of her testimony. The above evidence by the prosecution is sufficient to prove beyond reasonable doubt that the victim was a girl aged below 14 years at the time of the alleged defilement.

#### *That a sexual act was performed on the victim*

[14] A sexual act is defined under section 116(7) of the PCA to mean; (a) penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ; or (b) the unlawful use of any object or organ by a person on another person's sexual organ. Sexual organ means a vagina or a penis. Note that a sexual act does not necessarily have to be sexual intercourse. On the case before me, the victim's mother (PW1) stated that the victim returned home while calling her and informed her that the offender had taken her to his bed and poured water on her private parts. When PW1 took the victim to a clinic to be checked, the doctor informed her that someone had tried to have sex with the victim but had not raptured her hymen. The medical examination report of the victim (PE1) shows that the victim's vaginal walls were bruised and the hymen was ruptured. The probable cause was forced penetration.

[15] As submitted by counsel for the defence and on scrutiny of the evidence on record, there appears to be a contradiction between the evidence of PW1 and the contents of the medical report (PE1). PW1 testified that when she checked the victim, she did not see anything wrong with her private parts. She took the victim to a clinic where a doctor checked the victim and stated that someone had tried to have sex with the victim but had not raptured her hymen. Upon examination by a medical doctor upon the PF3A (PE1 on record), the results revealed that that the victim's vaginal walls were bruised and the hymen was ruptured. This inconsistency appears to create a discrepancy in the prosecution evidence.

[16] The law is that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor contradictions or inconsistencies will normally be ignored unless they point to deliberate untruthfulness. What constitutes a major contradiction will vary from case to case. The question always is whether or not the contradictory elements are material, i.e. "essential" to the determination of the case. Material aspects of evidence vary from crime to crime but, generally in a criminal trial, materiality is determined on basis of the relative importance between the point being offered by the contradictory evidence and its consequence to the determination of any of the elements necessary to be proved. It will be considered minor where it relates

only to a factual issue that is not central, or that is only collateral to the outcome of the case. See: *Obwalatum v Uganda (Criminal Appeal 30 of 2015) 2017 UGSC 81 (20 December 2017)* and *Kayinamura v Uganda (Criminal Appeal 124 of 2022) 2024 UGCA 96 (26 April 2024)*.

[17] On the case before me, the evidence shows that the victim told her mother that the offender had poured what she referred to as water on her private parts. When the mother (PW1) could not establish anything wrong, she went to a nearby clinic where a doctor told her someone had tried to have sexual intercourse with the victim but had not raptured her hymen. When formal medical examination was conducted upon a PF3A, the medical officer found evidence of bruised vaginal walls and a raptured hymen. Since actual penetration is not an essential ingredient of the offence of defilement, the contradiction herein is immaterial, minor and inconsequential. Given that medical evidence disclosed signs of performance of a sexual act, the words of the victim to the mother that 'the offender had poured water on her' cannot be taken as a material contradiction. This is because a reasonable inference can be made that what the offender poured on the victim was not water but probably seminal fluids. Obviously, a child of 2 years could not tell the difference between water and seminal fluids. I am able to infer from the evidence that her reference to 'water' meant something giving a feeling of wetness on the body. There would be no point in the offender putting the victim on bed and pour water on her private parts. The evidence by the prosecution that a sexual act was performed upon the victim therefore remains intact and un affected by the above stated inconsistency. The prosecution evidence is therefore sufficient to prove beyond reasonable doubt that a sexual act was performed on the victim.

#### *That it is the accused who performed the sexual act on the victim*

[18] In order to prove the participation of an accused person in the commission of an alleged offence, the prosecution has to adduce evidence which places the accused person at the scene of the crime or that discloses him/her as the perpetrator of the alleged crime. The evidence may be direct or circumstantial. In the present case, the victim did not testify in court on account that she was very young; at the age of 2 years and 07 months. The position of the law is that failure by a victim in a defilement case to give evidence is not necessarily fatal to the prosecution case provided there is other cogent evidence to support the conviction. See: *Patrick Akol v Uganda, Criminal Appeal No. 23 of 1992 (SC)* (Unreported). The duty of the court, therefore, is to establish whether there was clear and cogent evidence to prove that the offender defiled the victim.

[19] In this case, it was agreed as a fact that the offender and the victim were known to each other as neighbours. The evidence by the victim's mother (PW1) is that the offender came and took the victim to play at his home which is about 100 metres from her home. After about one and a half hours, the victim returned while calling her and informed her that the offender had taken her to his bed and poured water on her private parts. The victim's medical examination report (PE1) shows that a sexual act was performed on the victim. The evidence of both PW1 and DW1 agree that they did not have any grudge between them and had close family ties. The prosecution evidence thus rules out any possibility of mistaken identification or a frame up of the offender. My conclusion, therefore, is that the offender was properly identified and effectively placed at the scene of crime. Once the offender is placed at the scene of crime, his defence of alibi fails or collapses. See: *Chemonges Fred v Uganda (Criminal Appeal No. 12 of 2001) [2003] UGSC 7 (19 February 2003)*. Prosecution has therefore proved beyond reasonable doubt that it was the offender that performed the sexual act on the victim.

[20] In all, therefore, I am satisfied that the prosecution has proved all the essential ingredients of the offence of aggravated defilement against the offender beyond reasonable doubt. Given the above findings, I respectfully disagree with the opinion of the gentlemen assessors that prosecution has failed to prove the ingredients of the offence beyond reasonable doubt. I do not agree that the highlighted inconsistencies in the prosecution evidence were so grave and material to the case before the Court. In my view, the inconsistencies were minor, not central but only collateral to the outcome of the case. I have therefore found the offender guilty as indicted and I convict him accordingly.

It is so ordered.

Dated at Soroti this **7th** day of **May, 2025.**

**Boniface Wamala JUDGE**