Uganda v Olelea (Criminal Session Case 381 of 2022) [2025] UGHC 320 (19 May 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI CRIMINAL SESSION CASE NO. 0381 OF 2022 UGANDA ::::::::::::::::::::::::::::::::::: **VERSUS**

OLELEA ABAKARI ::::::::::::::::::::::::::::::::::::

### Before: Hon. Justice Boniface Wamala

#### **JUDGMENT**

## **Introduction**

[1] The accused in this case stands indicted of Aggravated Defilement c/s 129 (3) and (4) (a) of the Penal Code Act [now section 116 (3) & (4)(a) of the PCA Cap 128]. It is alleged that the accused on the 23<sup>rd</sup> day of February 2022, at Campswahili Cell B2-3, East Division in Soroti City unlawfully performed a sexual act with Nakiru Lilian, a girl aged 07 years. The accused pleaded not guilty and the case proceeded for hearing.

#### Representation

[2] At the hearing, the state was represented by Ms. Adero Doreen 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 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

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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* $\left| 1947 \right| 2$ *ALLER 372.*

## The evidence in this case

## Agreed facts

[4] The state and defence signed a memorandum of agreed matters wherein some facts were agreed upon, namely that;

a) The victim was 07 years old at the time of the incident; and

b) The accused was well-known to the victim since he was a neighbor to the victim's mother.

[5] The following documents were also agreed upon in the said memorandum, namely;

a) The victim's medical examination (PF3A);

b) The accused's medical examination report (PF24A); and

c) The sketch plan of the scene of crime.

[6] 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

[7] The prosecution led evidence of four witness while the defense led evidence of one witness. For the prosecution, PW1 was Onyango Kokas, a builder,

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resident of Cell B Campswahili. He stated that he knew the accused as a neighbour. He knew the victim as she used to pass by his building site. On the fateful day at about 9:00am, while at the site, one John called him to go and see Abubakari (the accused) who had taken a young girl inside his house. PW1 went to the accused's house and found the door locked. He called the accused to open but the accused responded in a tough voice. Accused later opened the door and closed it again. PW1 kicked the door, entered and found the victim lying on the bed naked. He pulled the victim out of the house and called neighbours. He asked the child whether she had been going to that house and she said it was the second time to go there. She further said that the accused had had sexual intercourse with her a day before. She stated that on this occasion, the accused had just started pushing his penis into her vagina. People gathered and started beating the accused. The victim's mother was called and she took the girl aside, checked her and found sperms on her thighs. PW1 stated that he had no grudge with the accused.

[8] **PW2** was **Abwangu Jacob**, a male adult aged 45 years, vice chairperson LCI of cell B Campswahili, Eastern Division. He stated that he knew the accused who conducts himself as if he is mentally unstable and stays at the same village. On the fateful day, PW2 was in Soroti town when he was called by one Akello Christine (not the victim's mother) to rush to Campswahili. When he reached there, he found people gathered at the accused's home beating the accused. He was informed that the accused had taken the victim inside his house and had sex with her. He saw the victim around who looking scared. PW2 asked a one Aumo Martha to check the girl which she did together with the victim's mother whereupon they found that there was no penetration but her private parts were wet with watery fluids that looked like sperms. The accused and the victim were taken to police.

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[9] PW3 was the victim, Nakiru Lilian, who stated that she was 10 years old at the time and in primary one at Islamic Primary School. She stated that she knew the accused since her mother had rented at their place. On the fateful day, while she was passing near the accused's place to go and buy bread, the accused grabbed her, took her to his house, removed his clothes and hers, then inserted his penis in her vagina. Some builders came and found them. They pulled out the accused, first beat him, then took him to police. She stated that she did not sustain any injuries in her private parts. She also stated that this was the first time she experienced a sexual act although before this, the accused used to follow her while she was going to school. She further stated that after the incident, her fellow pupils started mocking her, calling her Bakari's wife and she dropped out of school.

[10] PW4 was the victim's mother, Akello Christine, a female adult aged 28 years and resident of Campswahili Cell in Soroti City. She stated that the victim was born on 17/11/2014 and she was currently 10 years and 5 months. The accused was her neighbor. On the fateful day at about 7:00 am, she sent the victim to go and buy bread. The road usually used by the victim passes by the accused's door. PW4 was later informed by the LC Chairperson that the accused had defiled her daughter. She ran to the accused's home and found when the accused and the victim had been taken to Otucope police post. When PW4 asked the victim, the victim told her that the accused had held her hand, taken her to his house and defiled her. PW4 stated that she did not check the victim's private parts but the victim was taken to the police clinic for medical examination.

[11] In defense, the accused, **Olelea Bakari Shaban** testified as **DW1**. He stated that he was aged 34 years, resident of Campswahili in Soroti City. He stated that he did not know the victim and he first saw her here in court. He only knew her parents whom he used to see before he was arrested in 2022. He

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denied the allegations and sated that on the fateful day, he went to Princess Diana Health Centre for treatment at about 10:00 am because he had malaria. After treatment, he went back to his home. He stated that although Onyango Kokas (PW1) knocked on his door, there was no child in his house. But PW1 convinced people that he had gotten him defiling a young girl. The accused was beaten from around the market before he was taken to police. In cross examination, the accused stated that he did not have any grudge with the victim's parents or the LCI chairperson.

#### **Submissions by Counsel**

[12] Counsel for the prosecution and the defence made and filed written submissions which I have adopted and considered in the determination of the matter before the Court.

## The law and ingredients of the offence

[13] The offence of aggravated defilement is provided for under Section 116(3) and (4) (b) of the Penal Code Act Cap 128, in as far as is relevant to the present case, 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 ...*"

[14] 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;

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- 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*

[15] 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).

[16] In this case, it was agreed between the prosecution and the defence that the victim was 07 years old at the time of the incident. The medical examination report of the victim (PF3A) stated the victim's age as 07 years basing on the dental formulae of her teeth at the time which revealed 12 pairs of primary teeth. The victim's mother (PW4) stated that the victim was born on $17/11/2014$ which put her age at 07 years and 05 months as at $23/02/2022$ . These facts were not contested by the defense. Prosecution has proved this element of the offence beyond reasonable doubt.

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

[17] 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. In this case, it was the testimony of the victim (PW3) that the accused grabbed her, took her to his house, removed his clothes and hers, then inserted his penis in

her vagina. She stated that she did not sustain any injuries in her private parts. This was the first time she experienced a sexual act. PW1 and PW2 stated that when they checked the victim, there was no penetration but her private parts were wet with watery fluids that looked like sperms. The victim's medical examination report (PE1) showed that the hymen was ruptured although there was no evidence of recent penetration. In their final submissions, Counsel for the defence did not contest that this ingredient was satisfied by the prosecution. I have found the evidence by the prosecution 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. The prosecution evidence by the victim is that while she was passing near the accused's place to go and buy bread, the accused grabbed her, took her to his house, removed his clothes and hers, then inserted his penis in her vagina. PW1, a neighbor to the accused, stated that when he kicked the accused's door open, he found the victim lying on the accused's bed naked. In cross examination, PW1 stated that when the accused first opened the door, he had no shirt on and the zipper of his trouser was open. When he entered and found the victim on the bed, the accused jumped off the bed and wanted to fight PW1.

[19] In defence, the accused totally denied being involved in the sexual act and stated that he did not know the victim and first saw her in court. He further stated that on that day from 10:00 am, he had gone to hospital for malaria treatment after which he returned to his home. The Court, therefore, has to consider whether there is any possibility of mistaken identification of the

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accused or a frame up before reaching a conclusion as to whether the accused was the person that performed the sexual act on the victim. The Court also has to consider the accused's defence of alibi and establish whether the prosecution has led sufficient evidence as to disprove the accused's alibi and place the accused at the scene of the crime.

[20] Where an accused person puts up a defence of alibi, he has no duty to prove it. The burden lies on the prosecution to disprove it; by adducing credible direct or circumstantial evidence placing the accused at the scene of the crime as a participant in the commission of the offence. In this case, the accused was identified by the victim (PW3) and a neighbor (PW1). The accused was well known to both witnesses. The victim narrated her encounters with the accused before, on that date and after the occurrence. She stated that before the incident, accused used to follow her while she was going to school. Indeed, after the incident, the victim was mocked by her fellow pupils as the "wife of Bakari", which made her to fall out of school. PW1 on his part narrated that he kicked the accused's door and found the accused in there with the victim naked, on his bed. This is evidence is direct, strong, credible and corroborated. It leaves not the slightest possibility of mistaken identification of the accused person. It also rules out any possibility that the accused was framed up. The evidence on record showed that there was no grudge between the accused and either the victim's mother or the neigbour (PW1).

[21] My conclusion, therefore, is that the prosecution evidence has effectively placed the accused at the scene of the crime. Once the accused is placed at the scene of crime, his defence of alibi 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 accused person that performed the sexual act on the victim.

# Decision of the Court

[22] In all, therefore, I am satisfied that the prosecution has proved all the ingredients of the offence of aggravated defilement against the accused person beyond reasonable doubt. In agreement with the opinion of the gentlemen assessors, I find the accused person guilty of the offence as indicted and I convict him accordingly.

It is so ordered.

Dated at Soroti this 19<sup>th</sup> day of May, 2025.

Boniface Wamala JUDGE