Uganda v Semugoma (Criminal Session Case No. 54 of 1992) [1992] UGHCCRD 4 (17 December 1992)

on Justice Behales

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA CRIMINAL SESSION CASE NO.54 OF 1992

UGANDA SONELL. ASSESSES ASSESSES SECURICAL PROSECUTOR

VERSUS

SEMUGOMA WILLIAM SECOCCASS SECRETS SERVICE COMMISSION

**ACCUSED**

**BEFORE:**

THE HON. MR. JUSTICE C. M. KATO

## JUDGMENT

The accused person William Semugoma whom I shall holoinafter refer to as the accused is indicted for defilement of a girl under the age of 18 years contrary to Section 123(1) of the Penal Code Act. as ammended by Statute 4 of 1990. The accused pleaded not guilty to the indictment.

The facts of the case as outlined in the indictment are that on or about 28th May, 1991 at the village of Bunamuwaya in the district of Mukono the accused had sexual intercourse with one Estupa Namboze, a girl who was under the age of 18 years.

Prosecution called a total of four witnesses. The first 3 witnesses: Fatuma Namboze (PWI), Kasifa Nampijia (PWII) and Dr. Katende (PWII) appeared in court, but the evidence of the 4th witness Joseph Omona (PW4) who was the arresting officer was admitted under section 64 of T. I. D. The case for prosecution as established by the evidence of those witnesses was that on the 28th May, 1991 the complainant Fatuma Namboze (PWI) was a home with other children and the accused who was working at their home as a cusual labourer and as a night watchman, went to the room where the complainant used to sleep. He got hold of her and dropped her on the bed, he held her mouth and started playing sex with her. He threatened her that if she ever told anybody of what had happened he would tie her hands and drop her in the late. The complainant did not immediately complain to anybody because of this four but after some weeks when her mother came back from Masaka where she had gone for a visit she informed her of what had happened after the mother had discovered that she was not waking normally and she was having some discharge from her vagina. The complainant was dashed to the hospital there she was considered of Dr. Katende who found out that the girl had in fact had a equal intercourse with somebody, she had some injuries in her private parts.

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On the other hand the case for the definee was a complete denial of any involvement by the accused in the commission of the offence. In his own unsworm statement the accused complained that the person who had defiled the young girl was a different man altogether known by the name of William Sengoba. The accused complained that th. mother of the victim had decided to put him into this problem because he h i aided William Sengoba to escape.

It is the law that prosecution bears the duty of provingabeyond reasonable doubt the guilt of an accused person. The burden does not shift to the accused person : Woolmington V D. P. P. (1935) AC 462 and Ckath. Okale V Uganda (1965) EA 555 at 559. In a case of defilement like the one now under consideration the prosecution is duty bound to establish to the satisfaction of the court two main matters namely:- that the victim of defilement was below the age of 18 years at the time the alleged defilement took place, secondly it must also be proved that there was carmal knowledge of the girl or penetration into the victim's agina. It is also the duty of prosecution to call evidence connecting the accused with commission of the alleged offence.

In the instant case the complain nt told court that she was about 12 years at the time of the commission of the arime. Her mother confirmed that her daughter was in fact aged 12 years at the time as she was born on 28.2.1980. The doctor who did not specifically carry out any axamination regarding the age of the girl estimated the age to be between 14 and 16 years. Taking the evidence of these people to be truthful 1 find that the victim Fatuma Namboze at the time of the alleged defilement was between the age of 12 and 16 years, which means the victim was below the age of 18 years at the time she was defiled.

Regarding the second ingredient of this crime the prosecution relied on e evidence of three witnesses namely PWI Intura Famboze who testified that on that particular day when she was in one of the rows at how home she was knocked down by the accused who put out his penis between hor legs and proceeded to have sexual intercourse with her and she felt pain as he was doing so. After the intercourse she saw some whitish substance running out of her vegina. In her evidence the mother of the girl Kasifa Nampijja testiiod that on her return from Masaka where she had paid a visit she found that the complainant was walking with some difficulty and she asked her what had hap med. The complaimant told her what had happened to her, then she proceeded to examine her private parts which she found full of pus and was having foul smell. She attributed this to an application. of sexual intercourse. The doctor who examined the complainant lso was of the opinion that the young girl had had sexual intercourse prior to the examination.

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The evidence of these three witnesses is not seriously challenged by the defence on this point. What the defence says is that the alleged defilement was not by the accused but by some other person. I accept the evidence of the three prosecution witnesses to be quite truthful and 1 find it as a fact that there was penetration and therefore prosecution has proved beyond reasonable doubt that the complainant was defiled.

In coming to the above conclusion 1 have been fully mindful of the fact that the complainant being a child of tender ago and this being a sexual offence corroboration of her evidence was required! I have been satisfied that such corroboration has been sufficiently provided by the testimony of the doctor and that of the complainant's mother both of who discovered that the girl had actually had sexual intercourse with somebody. This case must clearly be distinguished from the dase of : R V Ramanzani Bin Mawingu (1936) 3 DACA 39. In that in that case the allegedcorroborative, evidence was given by children whose evidence required corroboration, but in the present case the complainant gave smorn evidence and the evidence of the doctor and that of Kasifa did not require any correboration.

The pertinent question that now requires determination of this court is whether or not the accused had anything to do with the defilement of this young girl.

It is the case for prosecution that the accused was responsible for the defilement. On the other hand it is the case for defence that the accused did not have anything to do with this young girl but another man called William Sengoba did. This rissue is connected with another issue of identification. According to the complainant this incident took place during broad daylight and she had known the accused as the night watchman of their long before. She had also been seeing him working on the fence. According to FW2 the accused was so much used To the family that he was being treated as a cliam of the family. In my view these facts inevitably show that the accused made the assummer to the complainant. The accused's story that it was William Sengoba was accused's story that it was William Sengoba was committed this offence is merely based on the mistake which was corrected as the beginning of the trial. The mistake was that the name Semugoma had been wis-such as Sengoba but prosecution applied for an amendment and the name was a reactive charged to Semugoma.

To my mind the person whom the complainant same was mobody else but the accused. The Accused's claim that Sengoba William is different than him cannot be sustained. I accordingly hold that the accused was positively identified by the complainant as there were conditions favouring correct identification

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I must point out here that Fatuma Namboze impressed me as a young girl of high degree of intelligence and understanding which a seared to be above that of ordinary girls of her age. The possibility of her mistaking the accused for another person is totally rejected.

In all these circumstances and in consilete agreement with the unanimous opinions of the two gentlemen assessors I hold that prosecution has proved its case against the accused beyond reasonable doubt. I find the accused guilty of the offence of defilement contrary to section 423(1) of the Penal Code Act and I do convict him of that offence.

> $\pi$ C. M. KATO J U D G E $17/12/92$