Uganda v Okot (Criminal Revision 12 of 1996) [1996] UGHC 41 (27 May 1996)

THE REPUBLIC CF UGANDA IN THE HIGH COURT OF UGANDA - AT GULU. CRIMINAL REVISION ORDER NO. 12/96 Criminal Case No. MG. 710 of 1995 Uganda .... versus ... Okot Zake Before: The Hon. Mr. Justice Galdino Moro Okello.

ORDER:

The Han. Mr. Egands in which

This case file was sent to this court by the Chief Magistrate of Gulu for a possible Revision Order.

The accused was charged with Indecently assaulting a female contrary to section 122(1) of the Penal Code Act. He pleaded guilty and he was convicted and sentenced to 4 years Imprisonment. The facts narrated by the prosecution alleged that the accused "tried to defile the complainant". It was upon those facts, that the trial Magistrate convicted the accused. In my view those facts were vague and do not constitute the commission of the offence charged.

When the file was sent to the Resident Senior State Attorney, he was of the same view, that the facts as narrated by the prosecutor did not disclose the commission of the offence of Indecently assaulting a female contrary to section $122(1)$ of the Penal Code Act. The learned Senior State Attorney did not wish to be heard in the event of a Revision Order being made. He however prayed for a retrial under section 331A, 331B and 341 of the Criminal Procedure Code.

To constitute the offence of Indecently assaulting a female, the facts must disclose the indecency of the assault on the female, for example that the assailant touched the breast or the genitals of the female. It is not enough to state that the accused "attempted" to defile the complainant without disclosing what he actually did. The facts as narrated did not disclose the assault and its indecency. They therefore did not disclose the commission of the offence charged. For that reason the

conviction can not stand. It is therefore quashed and the sentence set aside.

The Resident Senior State Attorney prayed for an ordej? of a retrial. Section 331A of the Criminal Procedure Code empowers this court to order a retrial where the circumstances warranted. In the instant case the circumstances do not justify such an order because the facts as narrated to not disclose the commission of the offence. That vaguer.ess only shows that the police did not sufficiently investigate the allegation. For that reason, no useful purpose will be served by malting the order prayed for. Consequently, the accused is hereby ordered to be released from Prison forthwith unless he is being held on some other lawful ground.

> GALDINO MORO OKELLO JUDGE 27/5/1996.