Uganda v Ocitti (Criminal Session Case 144 of 2020) [2024] UGHC 778 (26 August 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

## CRIMINAL SESSION CASE NO. 0144 OF 2020

$UGANDA \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots \dots$ **VERSUS** OCITTI TERENZIO::::::::::::::::::::::::::::::::::::

## BEFORE MR. JUSTICE ACELLAM COLLINS

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### JUDGEMENT.

The accused person Ocitti Terensio aged 46 years is charged with the offence of aggravated defilement contrary to section 129(3)(4) (a) and (c) of the Penal Code Act. The particulars of the alleged offence are that the accused person on the 20<sup>th</sup> day of November, 2019 at Pugwinyi Ayom village, Gweng Diya Parish, Awach Sub County in Gulu District being a paternal uncle to Achiro Cynthia performed a sexual act on the said Achiro Cynthia a girl below the age of 14 years.

When the indictment was read to the accused person at his arraignment on the 23<sup>rd</sup> day of January, 2024, he pleaded not guilty.

$25$ The prosecution called a total of 3 witnesses; the mother of the victim Anena Janet testified as PW1, one Labeja Patrick, LCIII Councilor for Persons With Disability and Community Volunteer in Charge of Children testified as PW2 and the victim herself testified as PW3.

At the commencement of the trial at the preliminary hearing and by a Memorandum of Agreed Facts signed on 23/01/2024, Medical Examination Reports comprised in Police Form 3A in respect 30 of the victim and Police Form 24A in respect of the accused person were admitted as prosecution exhibits PEX1 and PEX2 respectively and the contents thereof as agreed facts. According to PEX1 the victim was examined by Okello Labedo, a Medical Clinical Officer on 2<sup>nd</sup> December, 2019. He found her to be of the apparent age of 06 years and she was mentally sound. Upon examination he

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$\mathsf{S}$ found that her hymen was closed, no discharge noted but there were marked bruise wounds on the anterior vaginal wall and that the probable cause, in his opinion, was penile penetration. The accused person was also examined on Police Form 24A by Ojok Vincent, a Medical Clinical Officer of Kony Paco II Clinic on 4<sup>th</sup> December, 2019 and found him to be of the apparent age of 42 years, physically fit and mentally stable. He was also subjected to an HCT Laboratory test, and the results turned out negative.

PW1 Anena Janet, the mother of the victim testified that the victim was born on 1<sup>st</sup> April, 2013 and that she was 10 years at the time of her testimony on 23<sup>rd</sup> January, 2024. That on the 20<sup>th</sup> November, 2019 at around 10am, while at home in Ayom Village, the accused asked the victim to take pumpkin to his home. At about 10:00-11:00am as she was bathing her, she found her private parts wet with fluids that were slippery and whitish. When she asked her she disclosed to her that it was the accused "the father of Ayee" who carried her and inserted his penis in her vagina and was pumping her on himself. She then reported the matter to one Mwaka Charles, an uncle to the victim who promised to inform the victim's father, Odong David. After she waited in vain she reported to another brother of the victim's father by the names Okello Richard who then informed the victim's father one week later. They then took the victim to Awach Health Centre from where they were referred back to the police station for medical examination forms. Upon obtaining the forms they returned to the health centre where the victim was examined. PW2, Labeja Patrick, a brother to the father of the victim also told court that on the 1<sup>st</sup> day of December, 2019 he was called by the victim's mother and her father Odong David who reported to him that the child was complaining that the accused has slept with her. They took the victim to the police station and later arrested the accused person from the home of his mother where they had a meeting about the complaint that he had defiled the victim.

The victim herself testified as PW3 and gave sworn evidence after a voire dire was conducted. She testified that the accused person was known to her as a brother of her father who lives about 100 meters from their home. That on the day of the alleged incident the accused who was drunk passed by their home and found her mother whom he asked for a pumpkin. Her mother then sent her to take the pumpkin to the home of the accused. She went and found him squatting outside his house and he told her to take the pumpkin inside. He then carried her and started hitting her on his

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"buttocks". With the aid of the anatomical dolls presented to her she demonstrated that the accused $\mathsf{S}$ was hitting her on his penis. He then warned her not to tell anyone. Later when her mother was bathing her she asked what she was doing at the home of the accused, and she narrated to her what happened. Her mother then reported to Mwaka who advised her mother not to report to her father because he was cruel she later reported to another uncle of hers by the names Ocii. Later her mother reported to her father, and she was taken to the hospital.

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The accused on his part denied committing the offence. He however admits knowing the victim as the daughter of his young brother Odong David. His defence is an alibi to the effect that on the 20<sup>th</sup> November, 2019 he was attending a meeting of the Ayom clan at the home of an elder by the name Okech. He testified that on the fateful day he left home at about 7:00 in the morning and returned later in the evening at about 7:00pm. That until his arrest on 25<sup>th</sup> November, 2019 he was at home, and he did not hear anything about the allegation. He attributed the allegation to a grudge he had with the mother of the victim whom he rebuked for her infidelity. He called the evidence of Okello Richard, their brother, who testified as DW2. He testified that on the day of the alleged offence he was with the accused at the clan meeting. They left in the morning at 9:00am and returned in the evening between 6:00-7:00pm.

## Determination.

This being a criminal case, the onus of proof is on the prosecution. This burden does not shift to 25 the prosecution. The prosecution therefore has the obligation to satisfy the court of the existence of certain facts as alleged in the indictment. The burden is therefor on the prosecution to prove the guilt of the accused beyond any reasonable doubt. See: Ojepan Ignatius vs. Uganda Cr. App. No. 25 of 1995(Unreported). That burden never shifts. In addition, the prosecution can only succeed on the strength of their case and never on the weakness of the defence. The prosecution must also prove each and every one of the essential ingredients of the offence beyond reasonable doubt. By 30 pleading not guilty the accused has put in issue all the essential ingredients of the offence which the prosecution must prove beyond reasonable doubt.

- $\mathsf{S}$ The indictment in this case is for the offence of aggravated defilement contrary to section $12(3)(4)(a)$ and (c) of the Penal Code Act. The ingredients of this offence are that; - 1. That the victim was below the age of 14 years. - That the offender is a parent or guardian or a person in authority over the person against $2.$ whom the offence is committed. - $10$

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- 3. That a sexual act was performed against the victim. - That it was the accused responsible. 4.

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

As far as age of the victim is concerned, it is trite law that the best way of proving it is by producing a birth certificate, followed by the evidence of the parents. In the absence of a birth certificate, age 15 can also be proved by any admissible evidence. Age can also be determined by observation and common sense. See: Uganda vs. James Byakatonda; Masaka Criminal Session Case No. 205/1994 per Berko J (as he then was). In Omuroni Francis Vs. Uganda; Court of Appeal Criminal Appeal No. 2 of 2000 it was held interalia that in defilement cases, medical evidence is paramount in determining the age of the victim and that the doctor is the only person who could professionally 20 determine the age in the absence of any other evidence like a birth certificate.

In the instant case, there is no difficulty in arriving at the conclusion that the victim was below the age of 14 years. The defence conceded that there was evidence that the victim was below the age of 25 14 years based on her physical appearance. But notwithstanding the above there was the medical examination report comprised in Police Form 3A on which one Okello Labedo, a Medical Clinical Officer examined her on the 2<sup>nd</sup> November, 2019 and found her to be of the apparent age of 6 years. The Medical Examination Report was admitted as PEX1 and the contents as agreed facts. The evidence of her mother who testified as PW1 was that she was born on 1<sup>st</sup> April, 2013 meaning she 30 was aged 10 years at the time of her testimony. This court also had the opportunity of making a commonsense observation of the victim and there were all indications that she was a child of the apparent age of less than 14 years. For this reason, the court conducted a voire dire before her evidence was received. For all the above reasons, and in agreement with the opinion of the assessors, I find that the prosecution has ably discharged the burden of proof of this ingredient.

$\mathsf{S}$ 2. That the offender is a parent or guardian or a person in authority over the person against whom the offence is committed.

The accused person in this case was indicted for the offence of aggravated defilement contrary to section 129(3) (4) (a) and (c) of the Penal Code Act. This is the indictment that was read to the accused person and the one to which he entered a plea of not guilty. Although both the prosecution and the defence seem to have abandoned this ingredient of the offence, his plea of guilty brings in issue all the essential ingredients of the offence including this one.

The prosecution is further required to prove that the accused was a person in authority over the 15 victim. The Penal Code Act does not define "a person in authority". But for purposes of section 129(4)(c) of the Act, a person in authority means a person acting in loco parentis or in place of a parent to the victim of a sexual assault, or any person responsible for the education, supervision or welfare of the child and persons in a fiduciary relationship with the child i.e. relations characterized by one sided distribution of power inherent in the relationship, in which there is a special confidence 20 reposed in one who in equity and good conscience is bound to act in good faith with regard to the interest of the child reposing the confidence.

In this case the accused person is an elder brother to the victim's father Odong David, and therefore a paternal uncle to the victim. During her testimony the victim testified that the accused person was 25 known to her as an uncle and that he lived nearby their home. The accused person himself admits that the victim is the daughter to his younger brother Odong David. From the available evidence it is therefore clear that the accused, being an uncle to the victim, is a person in authority over the victim.

### 30 3. That a sexual act was performed on the victim:

Section 129(7) of the Penal Code Act defines a sexual act to mean:

(a) Penetration of the vagina, mouth, or anus, however slight, of any person by a sexual organ; $\alpha$ r

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(b) The unlawful use of any object or organ by a person on another person's sexual organ; For these purposes, sexual organ means a vagina or penis.

This ingredient can be proved by the direct evidence of the victim, or circumstantial and or medical evidence. Circumstantial evidence can be relied on to prove this ingredient of the offence if they point to the fact that a sexual act was performed on the victim. On the other hand, medical evidence

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can be used to prove that a sexual act was performed on the victim if the medical examination reveals that there were signs consistent with the fact of sexual intercourse.

In this case, the victim herself testified as PW3. In her sworn testimony she told court that on the fateful day the accused person passed by their home when he was drunk. He found her mother 15 cooking and he requested her for a pumpkin. Her mother told him that since he was drunk he could not carry the pumpkin. When she finished cooking she gave her three pumpkins to take to the home of the accused. She found him squatting outside and he told her to take the pumpkin inside the house and he was alone at home. He then followed her, held her and he was hitting her on his private parts. When the victim was presented with two anatomical dolls she was able to demonstrate 20 that the accused person was hitting her on his groin or private parts. He then told her not to tell

anybody and she could not move. Her mother then came and carried her and took her back home. While bathing her she asked her what she was doing at the home of the accused, and she told her what happened. She then went and reported to another uncle called Mwaka. She later reported to one Ocii, also a brother to her father and later to her father who then suggested they first take her 25 to the hospital.

PW1, the mother of the victim also testified that on the day of the alleged incident she was at home when the accused came and asked for pumpkin. She sent the victim to go and take the pumpkin to his home. That when the victim delayed returning home, she went to the accused person's home and carried the victim back home since she could not walk. At about 10:00am when she wanted to bathe her, she found her private parts were wet with some slippery and whitish fluid. When she inquired, the victim told her that the accused carried her and inserted his penis into her vagina and was pumping her on him. She then reported to Mwaka Charles, a brother to the victim's father who advised them not to tell the victim's father. When she waited in vain for information from Mwaka

$\mathsf{S}$ Charles who had promised to inform the victim's father, she reported to Okello Richard, another brother to the victim's father. It was Okello Richard who informed the victim's father after one week. They then took the child to the hospital at Awach Health Centre from where they were advised to go to the police and obtain police forms. They did and returned the victim for medical examination later. Apart from the evidence of the victim and her mother, the prosecution also led $10$ the evidence of Labeja Patrick, an LCIII Councilor for People with Disability and Community Volunteer in charge of Children in the area. His evidence is that on the 1/12/2019 the mother of the victim called and informed him that the victim was complaining that the accused person had slept with her. He participated in the arrest of the accused and forwarded him to the police. He had no knowledge of when the incident happened or how it happened.

The victim was examined on Police Form 3A by Mr. Okello Labedo, a Medical Clinical Officer on 2<sup>nd</sup> December, 2019 who found her to be of the apparent age of 06 years and mentally sound. Her hymen was closed with no discharge but there were marked bruise wounds on the anterior vaginal wall which in his opinion were consistent with penetration. The report was admitted as prosecution exhibit and the contents as agreed facts and marked as Prosecution Exhibit No. PEX1.

The accused person on his part, testified as DW1 and called one witness Okello Richard who is also their brother. He admits knowing the victim as the daughter of his brother, Odong David but denied committing the offence. In his sworn testimony he set up an alibi to the effect that on the fateful 25 day he was at a Clan Meeting of the Ayom Clan which took place at the home of an elder by the names Okech. It is also his evidence that from the day of the alleged offence on 20<sup>th</sup> November, 2019 up to 25<sup>th</sup> November, 2019 when he was arrested, he was at home, and he did not hear anything about the allegation. He attributed the allegation to a grudge between him and the mother of the victim because he rebuked her because of her infidelity.

DW2, Richard Okello is a brother to both the accused and the victim's father. He testified that on the day of the alleged offence he left home in the company of the accused at 9:00am and went for the Clan Meeting and that they only returned in the evening between 6:00-7:00pm

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- $\mathsf{S}$ After a careful evaluation of the above evidence, it is the finding of this court that a sexual act was performed on the victim. The victim was consistent and unshaken in her testimony that the accused carried her and was hitting her private parts with his. She demonstrated the act using the anatomical dolls presented to her. Her evidence was ably corroborated by the report she gave to her mother shortly after the incident. She was also unable to walk which made her mother to carry her from the - 10

home of the accused back home. Her medical examination done on the 2<sup>nd</sup> of December, 2019 whose findings were that she had marked bruised wounds at her private parts further corroborates her evidence.

I reject the defence of the accused person of the existence of a grudge between him and PW1. If any 15 grudge existed, he wouldn't have been given pumpkins from PW1 which necessitated her to send the victim to take it to his home. PW1 in her testimony denied the existence of any grudge between her and the accused. In any case, the specific assertion made by the accused during his defence that he ever rebuked PW1 because of infidelity which has made her to hate him and suggesting that it is the reason why she has framed him up, was never put to her in cross examination so that she could respond to it. It is therefore untenable. If PW1 had any axe to grind with the accused, she would 20 have immediately informed her husband about this incident so as to attract his vengeance on the accused. She listened to the advice of her brother-in-law Mwaka Charles that she shouldn't inform her husband who was away but rather that he (Mwaka) should be the one to inform him because if she did, he (the father of the victim) could kill the accused. Such is not the conduct of a person who 25 has a grudge.

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

The last ingredient the prosecution has to prove is that it is the accused who performed a sexual act on the victim. That accused in his sworn evidence denied committing the offence and set up an alibi

30 that he was at a clan meeting at the home of an elder by the name of Okech. In his testimony, on the 20<sup>th</sup> November, 2019 he left his home for the meeting in the morning at about 9:00am and only returned in the evening at about 7:00pm. That he was only informed of the allegation when he was arrested and taken to Awach Police Station. He further stated that from the day of the alleged incident on 20/11/2019 to 25/11/2019 when he was arrested he was at home, and he heard

5 nothing about the allegation. He denied the allegation and called his brother Okello Richard who testified as DW2. According to his evidence he went with the accused for the meeting. They left home at about 9:00am and returned around 6:00-7:00pm.

The law relating to the defence of alibi was stated by the Supreme Court in the case of Moses Bogere vs. Uganda SCCA No. 1 of 1997 where the learned Supreme Court Justices directed as follows: $10$

"What then amounts to putting an accused person at the scene of crime? We think that the expression must mean proof to the required standard that the accused was at the scene of crime at the material time. To hold that such proof has been achieved, the Court must not base itself on the isolated evaluation of the prosecution evidence alone, but must base itself upon the valuation of the evidence as a whole. Where the prosecution adduces evidence showing that the accused person was at the scene of crime and the defence not only denies it but also adduces evidence showing that he was elsewhere at the material time, it is incumbent on the court to evaluate both versions judicially and give reasons why one and not the other version is accepted. It is a misdirection to accept the one version and hold that because of that acceptance per se, the other version is unsustainable."

In the instant case, both PW1 and PW3 stated that the accused passed by their home at around 9am on his way to his home and asked for a pumpkin. PW1 later sent PW3 to take the pumpkin and 25 PW3 found him at home leading to the commission of this offence which was committed in broad day light. His not being confronted about the incident early is because PW1 was waiting for responses from her brothers in law to whom she had reported the matter, and they promised to inform her husband (the victim's father) who was not at home.

30 The accused never raised his alleged alibi during cross-examination so that the prosecution witnesses could respond to it, therefor casting doubts about its truthfulness. I therefore reject it and proceed to find that he was placed at the scene of crime.

$\mathsf{S}$ In agreement with the lady and gentleman assessor, I find that prosecution has proved all the ingredients of this offence against the accused beyond reasonable doubts and I accordingly convict him.

Delivered at Gulu this. 26th August $10$ $\ldots 2024$

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$15$ Collins Acellam **JUDGE**

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