Uganda v Okello aka Obote (HCT-00-CR-SC 65 of 2020) [2023] UGHCCRD 170 (17 May 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA HCT-00-CR-SC-0065-2020**

**UGANDA ------------------- PROSECUTOR**

#### **VERSUS**

**OKELLO WALTER a.k.a OBOTE -------------------- ACCUSED**

# **BEFORE: THE MR. JUSTICE MICHAEL ELUBU**

# **JUDGEMENT**

The accused, **OKELLO WALTER aka OBOTE,** is charged with the offence of Aggravated Defilement, contrary to section 129 (3) and (4) (a) of **the Penal Code Act, Cap 120**.

It is alleged in the particulars of offence that the accused person, on the 14th day of April, 2019, in Kakajjo Zone, in the Central division of Kampala district performed a sexual act on A. M., a girl aged 4 months.

Okello pleaded not guilty bringing all the elements of the offence into issue.

The brief case for the prosecution is that Okello Walter, 32, the accused person, and one Lagum Sharon, 19, lived as husband and wife in a one roomed dwelling found in Kakajjo zone in Kisenyi, which is in the Central Division of Kampala district.

A. M., was their daughter born on the 31st of October 2018.

On the 14th of April 2019, Lagum went to pick cloths from a nearby place, where they had been taken for washing. She left the accused alone with the baby in the room.

When she returned shortly thereafter, the baby was lying on the bed crying furiously. She picked the child and noticed blood on the bed, at the spot, where the baby had been. She took the child out and as she gave her a bath. It was then she noticed that there were open wounds on the genitals. She asked the accused what had happened to the child but he kept quiet.

Lagum accused him of defiling the child. First he denied then said, 'Forgive me'. Lagum took the child to a neighbour called Jamila Akite Ouni, PW 1, who also saw the wounds. They both went and reported the matter to the LC I Chairman. He immediately ordered for the arrest of the accused person.

Okello was brought and immediately taken to Owino Police station. A mob gathered and wanted to lynch the accused prompting PW 3, D/Sgt Gidudu Paul, a police officer, to immediately transfer him to Old Kampala police station.

A. M. was medically examined and the report found that she had open wounds on her genitals. She also had to undergo surgery to repair the damage. The medical reports were tendered as prosecution exhibits PE 1 and PE 3.

The accused, **OKELLO WALTER aka OBOTE,** denied committing this offence. He admitted that Lagum was his wife and the victim his child. He agreed that she was born on the 31st of October 2018.

It was the evidence of the accused that he did not have a smooth relationship with Lagum. They often had severe misunderstandings.

It is his evidence that on the night 14th of April 2019 A. M. was unwell. That the next morning he asked Lagum to take the child for treatment. That Lagum opted to make lunch first which the accused ate and left for one Odur's place. While there Lagum called him to come home. When he returned she showed him the child's swollen genitals. He asked Lagum what had happened but she answered that she did not know. He gave her 1000/- and went to one Mama Susan's home. That is then that Lagum and Jamila alleged that he had defiled the child. From there he was arrested and eventually charged.

The accused stated that, in his view, it appears Lagum had pinched the baby's genitals.

As this is a criminal case it is trite law that the burden of proof rests with the prosecution and never shifts (**Okethi Okale vs R 1965 E. A 555**). The standard of proof to be met is beyond reasonable doubt (see **Kamesere Moses vs Uganda S. C. C. A 8/1997** (unreported)

The essential elements in a case of Aggravated Defilement are that:

- a) The victim was below 14 years of age. - b) That there was a sexual act performed on the victim. - c) The Accused person participated in the commission of this offence.

#### **a) The victim was below 14 years of age.**

Age, just like any other issue or fact in contention, must be proved by cogent direct or circumstantial evidence. In this case, the onus is on the prosecution to establish that the victim was below the age of 14 years.

In this case, the mother of A. M. stated that her daughter was born on the 31st of October 2018. The accused who is the father of the child also confirmed in his defence that the victim was born on the 31st of October 2018. The victim was produced in court, on the day that her mother testified, and this court saw her. Even now, she was clearly still an infant.

Two medical examination reports were tendered. There is a medical examination report, PF 3, which was completed by a Doctor Kakembo on the 15th of April 2019. He estimated the age of the victim to be 4 months old then. PE 3, the second medical report, is from CORSU Rehabilitation hospital which was made on the 31st of May 2019. In it the age of the victim was placed at 7 months.

In view of the foregoing there is overwhelming evidence that the victim in this case was below the age of 14 years when the offence was committed.

#### **b) That there was a sexual act performed on the victim.**

The second element in this case is whether a sexual act was performed on the victim.

The evidence here is that Lagum Sharon told the court that on the 14th of April 2019, she left her residence briefly in the afternoon. When she returned, the child was on the bed crying furiously. She picked her up and realised that there was blood on the spot where the victim had been lying.

Lagum saw open wounds in the child's genitals. The mother showed the victim to her neighbour, PW 1, Jamila Akite who also examined the baby's vagina and saw the injury.

The victim was medically examined on the 15th of May 2019. The doctor found wounds and bruising on the baby's perineum and vulva. The perineum had a tear. It was explained that the perineum is the tissue between the vagina and the anus. It was concluded that there had been penetration.

The victim was admitted in Kawempe and Mulago before ending up at CORSU Rehabilitation Centre. An examination at the centre established that A. M.'s had a perineal tear. As a result, she had to undergo surgery to have the damage repaired.

The Doctor from CORSU, Dr Judith Stenkamp, who saw the injury and was part of the surgical team, concluded that the injury was probably caused by penetration.

The defendant argued that the injury must have been caused by the mother of the baby. He argued that she pinched the child.

From all the foregoing however, that explanation is implausible.

It should be noted that Section 129 (7) (b) of the **Penal Code Act** describes a sexual act to mean firstly 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.

From this definition, where any person uses any object or organ on the victim vagina then defilement is complete.

The evidence on record clearly establishes that the victim's vagina was penetrated and damaged as a result. The medical evidence and the examination done by the mother and Akite establish and corroborate this.

In view of the above the second element of the offence has been proved.

### **c) Participation**

The accused denied committing this offence.

He stated that the child had been unwell the previous night and they (Lagum and himself) were planning to take her to hospital the next day. That he left Lagum with the child in the house. He then went to one Odur's house which was in the neighbourhood. At lunchtime Lagum called him to return home for lunch. When he came, the child was crying and alone in the house but shortly thereafter, Lagum also returned and accused him of defiling the child. He said that he looked at the child's genitals which were swollen but suspected that Lagum had pinched the child.

He stated it was not possible for a grown man like him to have sexual intercourse with a baby. She would have died.

He also denied staying next to PW 1 Ouni at that time. He had shifted to a lodge because the previous landlord sold the premises.

It was Lagum's evidence that the accused was her husband at the time. He is also the father of the victim. The three of them lived in a single room. She stated that on the 14th of April 2019 she left the accused alone in the house with the victim. At the time she went to a nearby dobbi to pick cloths.

The accused was left lying on the bed with the baby. When she returned the baby was crying frantically. Lagum picked the baby and saw blood at the spot where the baby had been sleeping. She also saw the open wounds on the baby's genitals. The accused was bare-chested and only dressed in his under pants.

Lagum states that Okello asked her to forgive him when she accused him of defiling the child.

She took A. M. outside and showed her to PW 1, a neighbour living next door, who also saw the wounds on the victim. Detective Sargent Gidudu Paul, a police officer at the Owino police post, rearrested the accused when the defence secretary brought him to the police post. He too saw the wounds on the victim.

The accused in this case states that the baby's genitals were swollen and he accuses Lagum of pinching the child.

Okello told this Court that he had endured an extremely troubled relationship with his wife. That she spent a lot of time in bars and running with other men. He had sometimes beaten her and she once cut him across the chest with a razor blade.

He also said it was PW 1 who was partly responsible for making his wife behave the way she did and could be the one pushing his wife to falsely accuse him. I note however, from other pieces of evidence on record, that PW 1 was involved in the treatment of the baby right from the beginning and up to her surgery.

When the above strands of evidence are closely considered, it is clear that there was no direct evidence in this matter. It is all circumstantial in nature.

Although very often circumstantial evidence is the best evidence it must always be narrowly examined because evidence of this kind may be fabricated to cause suspicion on another. Consequently, before inferring the guilt of an accused person from circumstantial evidence, it is necessary to ensure that there are no other co-existing circumstances which would weaken or destroy the inference (see **Magidu Musisi vs Uganda SCCA 3 of 1998**).

Generally, in a criminal case, for circumstantial evidence to sustain a conviction, the circumstantial evidence must point irresistibly to the guilt of the accused (**Mureeba Janet and Others** SCCA 13 of 2003).

In **R. Vs. Kipkering Arap Koske and Another** (1949) 16 EACA.135 and **Simon Musoke Vs. R.** (1958) EA 715 it was held that in order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

The evidence here will be tested in accordance with the parameters set out above.

There was no retort or challenge regarding the evidence given by Lagum that when she confronted the accused about the incident he immediately asked her to forgive him.

Most importantly, the accused was alone in the house with the child. He admitted sending Lagum to check on cloths at the dobbi. This gave him ample time and opportunity to molest the child. It was also true that the Lgum found A. M. crying, bleeding and with wounds in her genitals when she returned. The accused was half naked and dressed in his underpants at the time.

It is a principle of law that evidence should always be evaluated as a whole. I have carefully balanced his version of events against the circumstantial evidence. Okello insinuates that PW 1 and Lagum have tramped up this matter against him. I have considered the reason given by the accused for the baby's injury. He stated that the child was pinched yet she clearly had a serious penetrative injury that required major surgery. My view is that he made an attempt to down play the nature of injury and mislead the court. This was certainly not a pinch but a penetration.

I therefore reject the accused persons version of events and explanations pointed out above.

The facts in this matter are incompatible with his innocence and point irresistibly to Okello molesting his infant daughter by performing a sexual act on her. There is no other plausible explanation for the events outlined above.

I am persuaded that the evidence shows, to a standard beyond reasonable doubt, that the accused committed this offence.

The assessors advised the court to find that the accused participated in the commission of this crime and accordingly find him guilty.

In the result, and in agreement with the assessors, I find **OKELLO WALTER aka OBOTE,** *guilty* of the offence of Aggravated Defilement contrary to Sections **129 (3)** and **(4) (a)** of the **Penal Code Act** and **convict** him**.**

**.....................................................**

**Michael Elubu**

**Judge**

**17.5.2023**