Uganda v Remijo (Criminal Session Case 86 of 1995) [1995] UGHC 43 (16 June 1995)

## THE REJUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

AT SESSION HOLDEN AT ARUA.

CRIMINAL SESSION CASE NO. 86/95 $\mathbb{F}^{\mathbb{F}}$

UGANDA ::::::::::::::::::::::::::::::::::: 一些 的复数 招

**VERSUS**

REMIJO ASUMA ::::::::::::::::::::::::::::::::::::

this down what a **BEFORE:**

## JUSTICE G. M. OKELIO

## JUDGMENT

The accused Remijo Asuma was indicted on a charge of Defilement contrary to section $123(1)$ of the Penal Code Act as amended by statute No. 4A of 1990.

The particulars of the offence allege that Remijo Asuma on the 26th day of May, 1994 at Anua Village in Arua District unlewfully had sexual intercourse with Atoniata Ojobiru a girl under age of eighteen years. When the charge was put to him, the accused pleaded not guilty thus setting in issue all the essential clonents in the offence charged. The effect of that was that all the essential elements in the offence charged had to - be proved beyond reasonable doubt if a conviction was to be secured of the accused for that offence.

In offence of Defilement like the instant one, the elements requiring proof beyond reasonable doubt are:-

- (1) That the victim was under the age of 18 years. - (2) that there was unlawful sexual intercourse with the victin. - (3) that it was the accused who had sexual intercourse with the victim.

The burden to prove the above ingredients always lies on the prosecution. This is derived from our constitutional principls

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that an accused is presumed innocent until proved guilty. That ment that an accused bears no duty to prove his innocence.

In the instant case, the prosecution called the evidence of seven witnesses in a bid to discharge the burden cast upon it by lew. The evidence of PW1-3 were admitted at a preliminary hearing under section 64 of the TID. PW4-PW7 gave evidence in court. The accused also gave vidence on oath in his defence.

On the age of the victim, there was overwhelming evidence indicating that she was under the age of 18 years. Herself testified as PW4 that she was 10 years old but could not tell when she was born. Hor own mother PW5 could not also remember when the victim was born. However, her elder brother (PM6) who was more enlichtened though could not remember the exact date and month when the victim was born, remembered that she was born in 1985. Dr. Amendua (FW7) the Medical Superintendent of Arua Hospital who on request examined the victim to determine amongst other things her age, of the opinion that she was<br>westen years old. He explained that his examination of her teeth formation, her breast development and her private part which still had no puble hair, indicated that the victim was by $6-6-94$ when he examined her was aged ten years. No one claimed that she was of am above the age of 18 years.

I have no doubt in ny mind that the victim was under the age of 18 years. At the time she gave evidence, I had to conduct a Voir Dire to determine whether she understood the nature of an oath to justify receipt of her evidence on oath or whether she was possessed of sufficient intelligence to justify receipt of her evidence not on oath. She was clearly a child of tender age. She still had difficulty controlling her running nosc. I therefore believe the evidence on her ago and I do find that the victim was under the age of 18 years. This ingredient was therefore proved beyond reasonable doubt.

As regards whether there was unlowful sexual intercourse with the victim, there was the unsworm direct evidence of the victim. She testified that the accused had sexual intercourse with her-According to her, on a date she could not remember, her mother went for a celebration in a neighbouring village and expected to return

late in the night\* Fearing that she could not alone sleep in their house, instructed-her to go and sleep with other children at a. neighbour's homo\* This was at the house of the mother of the accused-Accused who normally lived in Terego had at that tine cone ^wo months earlier to his mother's hone\* The victim testified that as instructed by her nether, she wont to sleep with other children at the hone of t&c mother of the accused. There, they went to sleep in the house of the mother of the accused. There were four other children who included one boy called Yowono\* According to the victim, this Yowana was of her ago though he was taller than her\* In the house, they slept on a papyrus mat put near the door way...

The victim (Pr/4) testified that at night, she was awoken by • pain in her vagina,. On waking, she- found that the accused was the one having sexual intercourse with her. She recognised him by the noon light which reflected into the house through the door which was open\* According to the victim, when she shouted and node alarm, the accused got out of her\* Then she got out and ran to their hone where she found her mother had' already returned. She reported to her mother what the accused had done to- her. P74 testified that her mother.-inturn informed the victim's older brother and the trio went to the hone of the accused's mother. According to P74, on arrival, her brother arrested the accused when they escorted to the chairman RCI (P73)\*

P75 and P/7'<sup>6</sup> who arc the mother and older brother of the victim respectively testified that on receipt of the complaint of the victim being defiled, they examined her. According to P/75, she observed' that the■.private part of the victim .was swollen\*. P76 testified that he observed sperm around the'private part of the victim\*- •

and PJ2 Betty and Grace Aluba whose evidence was admitted at' ra :preliminary lie aring-, told court that at the re quest of the •chairman, /they examined the '.victim <sup>7</sup>who -was 'alleged "to •••have -been 'defiled. :;Accofding'to; both-of then, 'they observed that Hhe private .port - of. the victim -was swollen and' that she- Had\* difficulty in walking\*

•. Dr\* Anandua, PW7- the Medical Superintendent of Arua ' Hospital

who was requested by Police to examine the victim who was alleged to have been defiled tostifed that ho examined the victim on 6-6-94\* According to the Doctor, he found inflamation and scratches around the private port of the victim, her hyrn.on was raptured a week earlier\* In his opinion the above injuries wore consistent with forcible sexual intercourse\*

Mr\* Murumba invited no to find from the above evidence that thoro had been unlawful sexual intercourse with the victill\*

Mr\* Okwongali submitted for the accused that the evidence of P/71 -2 and H75 -6 do not prove sexual intercourse which entails penetration\*

I agree with that argument bo cause swelling of the victim's private part did not mean there was penetration which is an essential element in <sup>a</sup> sexual offence like defilement\* All that the above evidence can prove is oct of violence on the victim\*

Mr\* Okwongali also attacked tho evidence of Dr- Anandua B77 as being inconclusive proof that there was sexual intercourse since the hynen could have been raptured by sone other means than penis\* Dr\* Anandua himself admitted in cross-examination that hynen could also be raptured by trauma for example by a stick or by finger\* More evidence was certainly needed to ruled out other causes for that rapture and to limit it to only penis\* As pointed out by Mr\* Okwongali, perhaps if vaginal smear was tested for the presence of spermatozoa, it could more reasonably be concluded that the cause of the rapture of of the victim's hynen was sexual intercourse • In the absence of such further evidence, there was no satisfactory evidence to corroborate tho victim's evidence of the unlawful sex. with her.

The victim testified that it was the accused who had the unlawful sexual intercourse with her\*

It was submitted for the accused that that evidence was also not con <sup>o</sup>borated\*

It is in ny view instructive to bear in mind at this stage that the lew requires unsworn evidence of a child of tender age to be corroborated, (S,12 oath Act)\* That is to be supported by an

independent evidence which does not only confirms the corrission of the offence but also that the occused committed it. (See Ugende -V- Georgen William Kiggundu (1978) HCB 281).

In the instant case, the victim as a child of tender age, gave unsworn evidence as FM4. Her evidence therefore by low required corroboration. My attention was also drawn to the case of Masaba Mwabu -V- Ugende (1978) HCB 187 where it was held that,

> " in case of defilement, the evidence of the girl must be corroborated implicating the accused".

There can be no doubt that the law requires evidence of the victim of defilement cases to be corroborated implicating the accused. It means the cyldence of victims of defilement cases, must be supported by independent evidence implicating the accused. The instant case is a defilement case. But there was no independent cvidence implicating the grouped to support the cvidence of the victin PW4. For instance the accused was not medically examined for any trace of semen or other matter that would connect him with the commission of this offence. In the absence of such evidence of linkage, it is difficult to find the accused guilty of this offence.

In disagreement with both assessors who I an afraid fid not seen to have heeded to my emphasis on the need for corroboration of the evidence of the victim of defilement cases, and advised a conviction of the accused as charged, I find the recused not guilty and I acquit him thereof. He is therefore ordered to be set free at once, unless being held on sone other lawful grounds.

Judgment delivered in the presence of Okwongali for accused. Murumba Resident State Attorney for State. Joyce Andezu Court clerk.

G. M. OKELIO

$16 - 6 - 95$