Uganda v Ocira (Criminal Session Case 496 of 2022) [2024] UGHC 773 (26 August 2024)

Full Case Text

# THE REPUBLIC OF UGAANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU CRIMINAL SESSION CASE NO. 0496 OF 2022

## UGANDA ::::::::::::::::::::::::::::::::::: **VERSUS**

OCIRA JOEL ::::::::::::::::::::::::::::::::::::

## BEFORE: HON. MR. JUSTICE ACELLAM COLLINS

### **JUDGEMENT**

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The accused person, Ocira Joel alias Oliba, aged 22 years, is charged with the offence of aggravated defilement contrary to section 129(3)(4)(a) of the Penal Code Act. It is alleged that the accused person on the 1st day of June, 2022 at Pageya Village in Gulu District performed a sexual act with Achen Daphine, a girl aged 13 years.

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On the 22nd January, when the indictment was read to the accused at his arraignment, he pleaded not guilty to the same. The prosecution then called the evidence of 7 witnesses. The father of the victim Opira David testified as PW1, her mother Achan Margaret testified as PW2, Atimango Christine was PW3, the alleged victim Achen Daphine testified as PW4, Detective AIP Odongo James, the investigating officer testified as PW5, Masaba Ali being the Medical Clinical Officer who examined the accused person on Police Form 24 testified as PW6 and Okello Labedo, the Clinical Officer who examined the victim on Police Form 3A testified as PW7.

It is alleged by the victim that the accused person who is known to her as a son of her uncle came to 30 their home during the night of 1st June, 2022 when her parents had gone for a meeting. At about 3:00am he came to the house where she slept with her sisters Angeyo Gift and Agenorwot Cynthia and asked her to open the door. When she refused to open the door and threatened to report him to her parents, he pushed the door and flashed the torch and found her hiding behind the door. He then dragged her to the bed and pointed a knife at her neck threatening to kill her if she made an

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5 alarm. He then undressed her and had sexual intercourse with her after which he left threatening to kill her if she told anyone. The next day at about midday she reported to her sister-in-law Atimango Christine who reported the same to her parents when they returned. The matter was then reported to the police. The accused was arrested, and the victim was examined and found to have a slight bruise on the vaginal canal. The Medical Examination Report comprised in Police Form 3A was admitted and marked as PEX2.

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The accused person on his part denied committing the offence. Whereas he admitted knowing the victim and that they lived 2 kilometers apart, he testified that he was surprised that he was arrested on the 1st day of June 2022 during day time when he had just opened the grinding mill which he used to operate. He testified that he spent the night in question in a disco dance till morning and

only returned home at midday when he opened the grinding mill. He then saw one Ojok David and the victim coming. They arrested him and told him that he had defiled the victim.

#### Determination.

20 The burden of proof, as is always the case for all criminal offences, is on the prosecution, except in a few statutory offences, to prove the guilt of the accused beyond any reasonable doubt. See *Ojepan* Ignatius vs. Uganda Cr. App. No. 25 of 1995 (Unreported). This burden does not shift and the Prosecution can only secure a conviction on the strength of the prosecution case and not on the weakness of the defence. The standard of proof is beyond reasonable doubt.

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The ingredients of the offence which the prosecution must prove to the above standard are the following;

- 1. That the victim was below the age of 14 years. - 2. That a sexual act was performed on the victim. - 3. That it was the accused who performed a sexual act on the victim.

#### 1. That the victim was below the age of 14 years.

The mother of the victim in this case testified as PW2. Her evidence is that the victim was born on 10th of June, 2009 meaning that she was at the time of the alleged offence, 10 days shy of her 13th

- $\mathsf{S}$ birthday. The victim herself testified as PW4 and told court that she was 15 years on the day of her testimony on 22nd January, 2024. PW7 Okello Labedo, the Clinical Officer who examined her on 3rd June, 2022 found that she was of the apparent age of 13 years as per the Turner Method which involved examination of the breasts. The defence in their own submissions conceded that the victim was below the age of 14 years. Based on the evidence adduced, and a commonsense examination of 10 the victim, and in agreement with the opinion of the assessors, I find that this element of the offence - has been proved beyond reasonable doubt.

#### 2. That a sexual act was performed on the victim.

Section 129(7) of the Penal Code Act defines a sexual act to mean penetration of the vagina of any 15 person by a sexual organ, however slight; or the unlawful use of any object or organ on another person's sexual organ.

The victim testified that a sexual act was performed on her when her assailant forced his way into their house and pointed a knife at her neck and threatened to kill her if she made an alarm. He then 20 undressed her and also undressed himself and proceeded to have sexual intercourse with her. He then left after threatening to kill her if she told anyone. The next day she reported to her sister in law Atimango Christine that the accused person had had sexual intercourse with her. They also reported the same to her parents upon their return on the $2nd$ June.

25 Atimango Christine testified as PW3 and told court that on the 1st June, 2022, the victim was not feeling well. When she inquired, she told her that the accused came at 3:00am in the night, threatened her and had sex with her.

PW7 Okello Labedo, a Clinical Officer at Awach Health Centre IV examined the victim on 3rd June, 2022. On the genitalia he found a slight bruise on the vaginal canal.

In proof of this ingredient, the prosecution is relying on the evidence of the victim who testified that a sexual act was performed on her. They submitted that she was able to describe the act of sexual 5 intercourse. They are also relying on the evidence of PW7, the medical personnel who examined her and testified that he found a bruise in the vaginal canal.

The defence on the other hand challenged the evidence in proof of this ingredient and submitted that apart from the victim saying the accused person had sexual intercourse with her, she did not

10 describe how the incident actually occurred. She only told court that the accused undressed her and had sexual intercourse with her. That the submission by the prosecution that the victim stated that the accused person put his private parts in her is not correct. They further submitted that the evidence of PW1, PW2 and PW3 as to the fact of sexual intercourse is based on information from the victim.

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That the only evidence that corroborated that of the victim in relation to the fact of sexual intercourse is the evidence of the medical personnel who examined her and testified as PW7 but this evidence was destroyed in cross examination since although he told court that there were bruises he did not indicate it in his report.

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To prove sexual intercourse, the prosecution is required to lead evidence that there was penetration however slight of the victim's sexual organ. In *Hussein Bassita Vs. Uganda, SCCA No. 35/1995*, the Supreme Court of Uganda stated;

"The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim's own evidence and corroborated by medical or other evidence. Though desirable, it is not a hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt."

It follows from the above that a sexual act can be proved by the direct evidence of the victim or circumstantial evidence, and it is not in all cases that there must be the victim's evidence and medical evidence as long as there is other cogent evidence.

- $\overline{5}$ Sexual intercourse is constituted when the male sex organ, the penis, enters the female sex organ, the vagina. The slightest degree of penetration suffices and it is therefore not necessary that there must be rapture of the hymen or serious injury to the victim's genitals. See: *Adamu Mubiru vS*. *Uganda; COA Crim. Appeal No. 47/1997* - $10$ In this case there is the direct evidence of the victim that a sexual act was performed on her. The medical examination report comprised in Police Form 3A admitted in evidence as PEX2 and the testimony of PW7 shows that there was a slight bruise wound on the right lateral vaginal wall. Further corroboration can be found in the evidence of PW3, Atimango Christine who testified that on the day after the incident the victim was not feeling well and when she inquired, she told her 15 that the accused person had sexual intercourse with her the previous night. The evidence on record is therefore sufficient to prove that a sexual act was performed on the victim.

#### 3. That it is the accused who performed a sexual act on the victim.

The accused pleaded not guilty thereby bringing in issue all the essential ingredients of the offence. 20 Notwithstanding the defence of the accused, the burden of proof lies on the prosecution to prove all the elements of the offence particularly the participation of the accused.

It is the evidence of the victim that it was the accused who performed a sexual act on her. The prosecution is relying on the evidence of the victim.

The accused on his part denies committing the offence. He put up an alibi and advances a grudge arising out of a land dispute as the reason behind the allegation.

The evidence of the victim is that it is the accused person who performed a sexual act on her during the night in question. The testimony of the victim is that the accused person was known to her for 30 a long time as the son of her uncle Goro. On the 31st May, 2022 their parents went for a meeting and left her at home with two of her sisters by the names of Angeyo Gifty and Agenorwot Cynthia aged 6 years and 4 years respectively. That night (now 1st June) at about 3:00am while they were in the house sleeping the accused came and called her by the name "Nyake" and told her to open the

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- $\mathsf{S}$ door. She refused to open the door and told him that it was late, and he told her that he needed her to do something small with him. When she refused to open the door and threatened to report him to her parents, he pushed the door and entered the house while she hid behind the door. He flashed a torch on her bed and did not find her. He later found her behind the door, dragged her to the bed and pointed a knife at her neck and threatened to kill her if she made an alarm. He then - 10 undressed her, undressed himself and had sexual intercourse with her and left. He threatened to kill her if she told anyone about it. She also told court that the accused was known to her, and she knew he was the one because she heard his voice. She was also able recognize him because he flashed a torch. That as they struggled the torch fell down and she was able to see him because the light did not go off. The next day at about mid-day she informed her sister Atimango Christine that the 15 accused came to their house in the night and had sex with her. When her parents returned, they reported the incident to them, and the matter was reported to the police.

Atimango Christine who testified as PW3 told Court that on the 1st June, 2022 at around 12pm, the victim came to her, and she was not feeling well. When she inquired, she informed her that the 20 accused person came to their house at 3:00am in the night, threatened her and had sexual intercourse with her. When the victim's parents who had gone for a meeting at the home of one Ochora returned we reported the matter to them.

The accused on his part denied committing the offence. He testified as DW1, and his evidence was $25$ a total denial and he set up an alibi. He however admits that the victim is known to her as the daughter of his paternal uncle, and he resides a distance of about 2 kilometers from their home. On the 1st day of June, 2022, he went to Awach Centre to buy diesel. When he reached there was a football match at which he met some friends and also went to dance till morning. He only returned home at mid-day and when he opened the grinding mill, that is when he saw his sister, the victim,

30 and his brother Ojok David who arrested him and took him to Bur Coro. They told him that he had defiled the victim. They took him to the police from where he was taken to the Health Centre. He also stated that the allegation is motivated by a grudge arising from a land dispute between his father and the father of the victim, Kipiranono David.

- To prove this element of the offence, the prosecution is relying on the evidence of the victim who $\mathsf{S}$ testified that the accused was known to her, and they had interacted before, and she was familiar with his voice. During the night in question, she heard the accused calling her "Nyake,Nyake,Nyake", a name she is commonly known by people in the area. The prosecution submitted that since there was verbal communication between them and that there was ample time for her to recognize his - voice during this exchange. They are also relying on the evidence of the victim that at the time the 10 accused person had a torch which he flashed and as they wrestled the torch fell down enabling her to see and recognize him. They further submitted that the incident took about an hour and the victim had ample opportunity to identify her assailant and therefore putting the accused at the scene of crime and the report she made to PW2 confirms that she was not mistaken. That the evidence of - PW2 and the father of the victim corroborates her evidence. They prayed that court disregards the 15 accused person's alibi as it is full of falsehoods. They also invited court to disregard the evidence of the grudge as the same was not between the accused and the victim so she would have no reason to lie against him. - As for the defence, they submitted that the alleged offence was committed at 3:00am in the night in 20 a room where there were other children, none of whom saw the accused or gave evidence. They pointed out that there is no evidence that the accused and the victim wrestled. The only evidence is that the torch fell down. That even if the victim knew the accused, the incident happened at night when there was difficulty in visibility.

With regard to voice identification, they pointed out that this is not conclusive because the accused could have changed his voice. That since PW3 was only told about the incident in the morning her evidence amounted to hearsay evidence which creates doubts. Lastly, they submitted that the accused was consistent with his defence and there were no contradictions in his evidence. That even if there

were weaknesses in his defence, it is trite law that he should be convicted on the strength of the 30 prosecution case and not the weaknesses in his defence. They invited court to find that the prosecution has failed to prove the case against the accused and should therefore be acquitted of the offence.

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If the quality is good, the danger of mistaken identity is reduced but the poorer the quality the greater the danger...

When the quality is good, for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused before, a court can safely convict even though there is no other evidence to support the identification evidence, provided the court adequately warns itself of the special need for caution."

In this case, the victim is a single identifying witness. The evidence shows that the circumstances did not favour correct identification as the incident happened at 3:00am when it was dark. The next day

- 15 at around midday, the victim narrated her ordeal to PW3 Atimango Christine who was at home since her parents were away and named the accused person as the person who attacked her during the night. On the 2nd when her parents returned, she also reported to them that the accused had defiled her on the night of 1st June, 2022 at around 3am. According to her the accused person was known to her being the son of her uncle, this the accused person himself admits. They also live in - 20 the same area and they had known each other for a long time and that the accused had a torch which remained on throughout the ordeal. She was also able to recognize him by his voice which was familiar to her since the accused started talking to her when he was still outside (at the doorway) asking her to open the door, and throughout the incident up to when he exitted her house. Her evidence of identification is corroborated by the fact that she reported to PW3 that it the accused 25 who attacked her the previous night.

In Mayombwe Patrick Vs. Uganda, COA Crim Appeal No. 17/2002, it was held that a report made to a third party by a victim in a sexual offence where she identifies her assailant to a third party

is admissible in evidence.

In light of the above I find that the evidence on record places the accused squarely at the scene of crime and thereby destroys his alibi. His alibi accordingly fails. I also disregard the evidence of the grudge as the motivation for this allegation against the accused person. As pointed out by the prosecution the said grudge was never raised or put to the victim at the time she testified and there

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- $\mathsf{S}$ is nothing to suggest that the victim made the allegation against him because of this grudge whose particulars never came up at any time during the proceedings save for the fact that he mentioned it in his defence. I consider this an afterthought. In light of the evidence placing the accused at the scene I also treat the alibi to be an afterthought. It was also not raised at the earliest opportunity so that the prosecution witnesses would respond to it. The evidence places the accused at the scene of - $10$ crime. I disagree with the opinion of the assessors, and I find that the prosecution has proved the case against the accused to the required standard. I hereby find him guilty of the offence and convict him accordingly.

26th day of August. 2024 Delivered in Gulu this ........ 15

**ACELLAM COLLINS JUDGE**