Uganda v Ssengooba (Criminal Session 456 of 2024) [2025] UGHC 182 (15 April 2025)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUBENDE

#### HCT-13-CR-SC-0456 OF 2024

**UGANDA :::::::::::::::::::::::::::::::::::**

#### **VERSUS**

## SSENGOOBA WILSON ::::::::::::::::::::::::::::::::::::

# BEFORE: HON. JUSTICE LUBEGA FAROUQ

#### JUDGMENT

## 1. Introduction:

- 2. This is the judgment in a criminal trial where the Accused, Ssengooba Wilson was indicted with one count of Aggravated Defilement contrary to S.116 (3) and (4) (a) of the Penal Code Act Cap.128. - 3. Background: - 4. The prosecution case was that on the 10<sup>th</sup> day of Novermber, 2023 while in Kirawula village, Mubende district, the accused performed a sexual act upon Namusu Anita, a girl aged (9) nine years. - 5. When the accused was arraigned before court for plea taking, he denied the charge against him, and accordingly a plea of not guilty was entered. - 6. Burden and standard of proof: - 7. Upon the accused person denying the charge, it became the burden of the prosecution to prove all the allegations against him beyond reasonable doubt. - 8. The expression "reasonable doubt" is however incapable of definition. Modern thinking is in favour of the view that proof beyond reasonable doubt is the same as proof which affords moral certainty to the Judge. - 9. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Ed.) as follows-


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"It is difficult to define the phrase "reasonable doubt". However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the *truth of the charge.'* "

In the treatise, The Law of Criminal Evidence authored by H. C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Ed.) that-

> "The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."

10. The burden discussed above does not shift to the accused except where there is specific statutory provision to the contrary. It therefore, implies that the accused does not have any legal obligation to prove his innocence but can only be convicted on the strength of the prosecution evidence. However, if doubt arise in the state case, the same ought to be resolved in favour of the accused.

# See: Article 28(3) of the Constitution of Uganda, Basita Hussein V. Uganda SCCA No. 35 of 1995, RV. SIMS (1946) 1 KBS and Woolmington V. DPP [1935] AC 62.

#### 11. Legal Representation:

- 12. At the hearing of this case, Mr. Julius Nabimanya appeared for the Prosecution while the accused was represented by Counsel Nabaggala Maureen on State brief. - 13. To prove its case, the prosecution led evidence of one (1) witness, the victim. In addition, prosecution agreed with the defence, and tendered in court the following documents, PF3A-medical examination form of the victim (PEX1), PF24A- medical examination form of the accused (PEX2), the baptism card of the victim-PEX3 and the sketch plan of the scene of crime-PEX4. With that catalogue of evidence, the prosecution closed its case. - 14. On the other hand, the accused made an unsworn statement in his defence, and was the only witness called for the defence.

### 15. Analysis of court.

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- 16. The charge of Aggravated Defilement preferred against the accused person is provided under S.116 (3) and (4) (a) of the Penal Code Act, cap. 128. - 17. Section 116 (3) of the Penal Code Act, Cap.128 states that "Any person who performs a sexual act with another who is below the age eighteen years in any of the circumstances specified in subsection (4) unlawfully commits a felony called aggravated defilement, and is liable on conviction by the High Court to suffer death" - 18. Section 116 (4) (a) of the Penal Code Act, Cap. 128 provides for among other circumstances that aggravate the offence of defilement, it thus provides that the circumstances referred to in subsection (3) are as follows "where the person against whom the offence is committed is below the age of fourteen years.................................... - 19. In the precinct of the above provisions of law, it shows that for the Accused to be convicted of the offence of aggravated defilement, the

prosecution must prove each of the following essential ingredients beyond reasonable doubt;

**MARINA**

- a) That the victim was below 14 years of age. - b) That there was a sexual act performed on the victim - *c)* That it was the accused who committed the offence. - 20. The duty of this court is to establish from the evidence on record of court whether prosecution has beyond reasonable doubt proved the three (3) ingredients highlighted above. Accordingly, this court will proceed to determine the same hereunder:

# 21. Ingredient one: That the victim was below 14 years of age

- 22. The age of the child can be proved based on a full assessment of all available information, giving due consideration to official documentation including a birth certificate, school records, health records, statements certifying age from the parent or child, or medical evidence. - 23. PW1, the victim testified that she is aged 10 years. Prosecution tendered in court the medical examination report of the victim (PF3A) which was admitted in evidence as PEX1. The said medical report shows that the victim was examined on 18/11/2023 and found to be aged between 8-10 years. - 24. Also the baptism card of the victim which was admitted in evidence as PEX3 shows that victim was born on 9/09/2014 and baptized at Madudu parish on $21/12/2014$ . - 25. Section 133 (3) of the Children Act, cap. 62 provides that court shall determine the age of the child based on a full assessment of all available information, giving due consideration to official documentation including a birth certificate, school records, health records, statements certifying age from the parent or child, or medical evidence. - 26. The prosecution evidence establishing the age of the victim was neither challenged in cross examination nor responded to in the defence evidence. It is trite law that where the evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted by the other side as

inherently credible and probably true. (See: **Uganda Revenue Authority** V. Stephen Mabosi No. SCCA No. 26 of 1995).

- 27. In that view, I find that prosecution has ably proved this ingredient to the satisfaction of court beyond reason doubt, - 28. Ingredient two: That there was a sexual act performed on the victim. - 29. The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence, and corroborated by medical evidence or other evidence. (See: The case of Bassita Hussein V. Uganda, Supreme Court Criminal Appeal No. 35 of 1995). - 30. PW1, the victim testified that the accused found her playing, he called her behind the toilet, removed her knickers and played sex with her. PW1 further informed court that after the incident, her parents took her to the hospital when she was decaying. - 31. To confirm the evidence of PW1, Prosecution tendered in court PF3A-the medical examination report of the victim which was admitted in evidence as PEX1. The said medical report shows that the victim was examined on $18/11/2023$ , and it was found that she had a raptured hymen and bruises in her vagina. The report indicates that the probable cause of the victim's raptured hymen and injuries in her vagina was due to penetrative sex. - 32. No evidence was led by defence to discredit or disprove the above prosecution evidence. I am persuaded by the prosecution evidence that a sexual act was performed on the victim. I therefore find that prosecution proved this ingredient beyond reasonable doubt. - 33. Ingredient three: That it was the accused who committed the offence. - 34. Participation of the accused can be proved by adducing evidence, direct or circumstantial placing the accused at the scene of the crime as the perpetrator of the offence.


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- 35. The victim while giving her testimony pointed at the accused in the dock, and informed court that she knows him. She stated that the accused used to come and dine at her mother's eating place, and would buy food from her mother. - 36. PW1 further stated that on the fateful day, the accused found her playing, called her and asked her to go behind the toilet. He then removed her knickers and performed "ebyekisiru" (sexual intercourse) with her. - 37. It has been stated that in sexual offences, it is usually the victim who is the only identifying witness, as it is in the present case, there is no legal requirement on the number of witnesses required to prove a fact. (See: SSenyomo Charles V. Uganda, Court of Appeal Criminal Appeal No. 0051 of 2012). - 38. It is now settled law that conviction can be based on the testimony of the victim of an offence even when she is a single witness. In the case of SSenyomo Charles V. Uganda, (Supra), it was held that-

"Conviction can be based on the testimony of the victim of an offence even when she is a single witness since the Evidence Act does not require any particular number of witnesses to *prove any fact.*"

- 39. In his defence, the accused gave unsworn evidence in which he denied defiling the victim. He stated that he was arrested and charged with the offence of defiling the victim because he had a grudge with the victim's father relating to competition over a woman. - 40. I have carefully considered the evidence in this case as a whole. It should however, be noted that the accused gave unsworn evidence hence less weight is attached to it. The process of cross examination would have helped in weighing on the truthfulness of accused's evidence. Regardless of the accused's choice to give unsworn evidence, the court is enjoined to evaluate and analyze his evidence vis-a/vis that of the prosecution with the view of establishing the veracity of the allegations labeled against him

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by the prosecution, and to establish whether the accused establishes a defence in his evidence.

- 41. In my evaluation of the evidence as the whole, I have observed that the accused's lawyer did not during cross examination rebut, destroy or discredit the prosecution evidence made by PW1 against him. Therefore, PW1's evidence remains intact in establishing the culpability of the accused. The accused's evidence contains general denials that establishes no defence at all. - 42. The above notwithstanding, the victim being the only identifying witness, the law requires court in the case of Abdulla Nabulere V. Uganda Criminal Appeal No.9 of 1978 and Bogere Moses V. Uganda SCCA **NO.1 of 1997** to take into consideration the following principles before convicting based on such evidence. The said principles are as follows- - (a) Court must consider the evidence as a whole. - (b) The court ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were favourable or difficult. - (c) The court must caution itself before convicting the accused on the evidence of a single identifying witness. - (d) In considering the favourable and unfavorable conditions, the court should particularly examine the length of time the witness observed the assailant, the distance between the witness and the assailant, familiarity of the witness with the assailant, the quality of light, and material discrepancies in the description of the accused by the witness. - 43. In this case, PW1 who was the only identifying witness told court that on the fateful day, the accused found her playing, he called her and asked her to go behind the toilet where he found her, removed her knickers and performed "ebyekisiru" (sexual intercourse) with her. Typically, children play during broad day light hence, the conditions for identification were favourable.

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- 44. PW1 further said that she knew the accused very well as he used to come and dine at her mother's place and would buy food from her. That, piece of evidence points to the knowledge of the accused by the victim prior to the commission of the offence. - 45. Secondly, a sexual act by nature requires close proximity which brings me to a conclusion that PW1 was able to positively identify the accused at the scene not only as a bystander but as the perpetrator of the offence since the offence was committed during broad day light when the children were playing. - 46. The accused also in his evidence, said that he was arrested and charged with the offence of defiling the victim because he had a grudge with the victim's father relating to competition over a woman. This buttressed PW1's evidence regarding her knowledge of the accused prior to commission of the offence. - 47. In light of the above, although PW1 was the only identifying witness, I am satisfied that the accused was properly identified by PW1 (the victim). - 48. Consequently, basing on my analysis and evaluation of evidence as presented in the foregoing, I am convinced that prosecution ably proved participation of the accused in the commission of the offence of aggravated defilement beyond reasonable doubt. Both assessors advised me in their respective opinions to convict the accused as charged. - 49. In the result, I find that prosecution has proved all the essential ingredients of the offence of aggravated defilement against the accused. Accordingly, the accused is hereby convicted of the offence of aggravated defilement contrary to S.116 (3) and (4) (a) of the Penal Code Act Cap.128.

LUBEGA FA Ag. JUDGE

Judgment delivered in open court in the presence of the accused person and advocates for both sides on the $15$ <sup>th</sup> day of April, 2025

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