Uganda v Tumuhirwe Vicent (criminal case no. 296/1993) [1995] UGHC 74 (12 July 1995)

Full Case Text

Han MR JusticE EGOWSIA-NTENDE

TT RETUBLIC OF UGATDA IN MEE HIGH COULT ON USANDA AT KANDALA

HOLLICH AT LIBARARA CRIMINAL CASE NO. 206/03.

UCARDA :::::::::::::::::::::::::::::::::::

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TURUHINYE VEGERA: ::::::::::::::::::::::::::::::::::: THE NOMOULARTE ER. JUSTICE I. MUKANZA. BEFORE:

## JUDGMENT

The accused in this case is known as Tumuhirwe Vicent is indicted of defilement of a Girl contrary to Section $123(1)$ of the Penal Code Act and he pleaded not guilty. The particulars of the indictment were that on the 12th day of June 1992 at Kabibi cell, Kagarama village Kabingo subcounty Laingiro county in the Mbarara District the accused unlawfully had sexual intercourse with one Kashabe Jovent a girl under the age of eighteen years.

The prosecution case was that on the date of the incident the complainant Jovent Kashabe FW2 had to spend the night with her brother in one of the rooms of their house. Her mother PW7 was not around, she had gone to see her mother at a place some miles away. The father of the complainant was also not around was working in Kasese in the Railway Corporation. The accused was a porter working for the family. He was doing General duties and used to sleep in the same house with PW2 and PW7. When PW7 went to see her mother she left the accused in the house together with the children. According to PW2 when she was asleep at night she found the accused on top of The accused had entered his bail (omukira) in her vagina. her. She screamed but che accused pecified her that she should

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let him. finish said ho would give her money for the sane\* Eventually the accused left her, she was emphatic that the tai?. 3he was taJfin-, about was the tail men. use while urfmti.ng\* F72 felt pair. and on t' e following day she reported the matter to one of the <imcJ.es> DW3. According to PW3 the complainant camo while crying and noriuted the whole story how the accused had defiled her. 1\*73 reported the natter to the RO I chairman Fras'ieis Lugas.'a 17Z4 who at the time was cleaning the well wit?a villagers including the accused. xlia acoua-ed, wac. into^xsagated by 1774. Ho vzt-s escorted bach to the home of his. master and was questioned about the allo: ation. According to 'the chairman RC I PYZ4 when the ' enquired from the accused person whether the allegation were true the accused -denied In'wwledgo. Ckxasequently the accused \-zas apprehended and handed over to the authorities at the subcounty headquarters and eventually ended up at the police headquarters L'barara\* Also 1772 and her mothes; ?V?7 were given .police forms which they tool: to a. doctor fox <medic.il> exa illation., Doctor Busigye w.\*-.o a.'n€^rant?.y examined 'the complainant was reported to be avzay in the United Kingdom, on a coarse but t.';.o foiva/papars o'l w'ich she wrote, her fir.diiM'j^s o.ftor the medical examination wci'-e. iden'irlfied by Dr-, Y/asswa P75 and were put in omi-' ance a,s ;DL fU. Ueamwhile at the police station a confer sioual stutei'.ont wa.s recorded from the accused ■person and ferried part of the record of t'-is court after a, trial vithin a, trial was held JIMT1,

Dor the doience t.'ie accused denied having defiled the complainant. On 12.5.92 he vzus cleaning the well in Kabibi village and he spent the night in bis ?T»astorIs home in a sene-ra'ce house. He did not hnow wherce Boiigyorere DY/7 was on 11th June 1992. He axsl'isd for his none,/. He wanted to go home. PT7

said was going io borrow money fro Eakessiiae PW3» He waited for PY/7 but never turned n until he went to bed. Even on the following morning the accused (as BW1) enquired from PV72 where her mother was and 1372 replied him that she had no knowledge. He waited for sometime end then he went to clean the well.

While at the well, Eakasiima went and called the chairman and, took him aside and they started talking. He did not know their topic. Later the chairman consulted the Bataka and after a short time he was surrounded by the villagers. They arrested him, and started beating him. They took him to his master's home and did not know the reason why he was beate .

The defence case further -went on to show that Eakasiima PW3 'who had instigated the beating of the accused had a grudge against him because on one occasion when he was coming, from the banana plantation he found Eakasiima 1\*773 playing sex vzith his sister in law 1377. They were playing sex in PY/7's house. He told Bakasiima that he was going to report the incident to his elder brother, Eakasiima begged him not to report the incident to his brother and promised that he would give the accused all the money he wanted so that he could not reveal the matter. He refused to do so Bakasiima in response threatened that within 2 months the accused would see what would happen to him. When he heard all that he asked for Ms money in order to go away.

The accused ended up by testifying' that he is a munyankole by tribe and he does not understand a single word of luganda, lie cannot even greet in Uganda. He was assaulted at Kabugo subcounty, headquarters and was also assaulted at the police station. He has got scars to show that he was beaten.

As I warned the gentlemen assessors the prosecution has the burden to prove the guilt of the accused person beyond reasonable doubt throughout the trial. I did also warn then

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that this burden does not shift except in few exceptions the instant case not being one of those few exceptions See Uganda vs. Kahitira 1988-1900 HCB page 30.

The prosecution has therefore to adduce evidence to prove the following ingredients of the offence:

(i) That the victim is under the age of 18 years

(ii) That she was defiled. i.e. that she was sexually intercourted by the male organ penetrating into her vagina.

(iii) And finally that the accused person was responsible.

On the first ingredient of this offence there is the evidence of the complainant herself PW2 and that of her mother PW2 testified that she was born on 25th December, 1983 $P97.$ and that she was aged 12 years whereas her mother PW7 informed the court that PW2 was born on 6th July 1983. She testified that PW2 was baptised on 25th December, 1983. It would appear when PW2 confused the date/she was baptised as being the date of her I do not think that when PW2 confused the two dates birth. she was delibarately telling lies. Her mother FW7 was in a better position to tell the date when PW2 was born. Even by mere observation PW2 was far below the age of 18 years. She was aged about 9 years at the time when it was alleged that she was defiled. In the promises I find that this ingredient had been proved See Uganda vs. Joseph Mulindwa 1975 HCB p 206.

The second ingredient is whether she was actually sexually intercoursed. Here we depend on the evidence of the complainant herself PW2 and the medical evidence. PW2 Jave lengthy explanation how she was defiled and that she felt pain in her She said a tail (mukira) was entered in her vagine vagina. and later clarified that by the tailshe meant the organ male persons use whon urinating. She was shy to mention the word penis.

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The incident was reported to her uncle Balsaslima W3 on the following morning who in turn reported the matter to PW4 Francis Liigash.. PW3 and PW4 were consistent that when the complainant narrated her ordeal about the defilement in the previous night she was crying. I am of the view that the depressed condition of the complainant amounted to corroboration of her story t'lat she was defiled See Kihazo vs. Uganda 1965 M«5P. Z at.. F 510.

Besides her evidence that she was defiled there was medical examination report by Dr. Busigye who was reported to be away in the United Kingdom on a course. Dr. Wasswa PW6 identified the medical examination report by Dr. Busigye tho/b he knew her handwriting and used to see her sign documents and that the exhibit PII the medical form was signed by her. The medical report and the laboratory requests were put in evidence after being identified bjr DWG pursuant to Section 45 of the evidence Act Cap 43. The report was to the effect that "There are signs of vaginal penetration which results in the tearing of the hyric.., laboratory examination was insignificant because of the time lag".

0 n this ingredient Lb?. ITguruya the learned counsel who appeared for the accused submitted that PW2 did not know what was used to defile her. The complainant was doubtful as to whether she was actually defiled. She kept on telling court of mukira which literally means tail and human beings do not have tails. lie co:-,timed there is the medical evidence of the doctor who exarainod the victim. The evidence of Dr. Wasswa cannot be relied upon because his evidence is not direct evidence and contravenes S 58 of the evidence Act which says the evidence must be direct. That S 45 of the Evidence Act does not assist in the matter because PW6 is not being required to answer the

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question who made the report but rather the question whether FW2 was examined and whether the examination confirmed sexual intercourse. He continued even under all rules of statutory interpretation requirement where one sociion conflicts with an earlier section in the same law the last section overrides the provisions of the earlier one and S. 58 requires direct evidence. PW6 did not examine PW2. He is not therefore competent as witness on matters concerning about the state of the alleged That the writer of the document should have been victim. availed to the count to confirm whether she did carry out the medical examination.

It is true the complainant in her testimony informed the court that the man who defiled her used his tail. (omnkira) but in the course of her testimony as I have already stated above she clarified that by tail she meant that part of the body used by men when urinating. That explanation left no doubt that PW2 was sexually intercoursed by a man using ones penis.

As regarded the admissibility of the medical report. 5he report was identified by PW6, Section 45 of the evidence Act Cap 43 provides:-

"When the court has to form an opinion as to the person by whom the document was written or signed the opinion of any person acquainted with the handwriting of the persons by whom it is supposed to be written or signed that it was or was not written or signed by the person is relevant fact."

Dr. Busigye is away in the United Kingdom she could not be summoned to come and give evidence because of the procedural technicalties involved like transport, disruption of her studies and extra as explained by Dr. Wasswa PWG. $S. 45$ therefore empowers PW6 who knows and has seen Dr. Busigye sign and write documents to come and identify exhibit PII,

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with due respect to the learned counsel that report is admissible.

I do net at the some tine agree with Ur. Kguruye that 8,45 of the Evidence Act conflicts with Section 58 of the sane Act. The learned counsel did not elaborate on this nor did he cite any authority in support of his assertion. I would agree with the submission of the learned state attorney that conflict would arise with regard;to- two ccnflictin,;. statutooewhere the latter statutes would prevail over the first statutes but not in the present situation where sections 45 ctad are \_e~i 1 embraced in the same statute **%.e Evidence Act,** 'a of **the** view that the two sections oaior fax two independent and different situations. I did not lay my hand cut any authority in the library here to assist in such a situation.

All the same iggae the prosecution has been able to prove that the complainant was sexually intorccursed. The last ingredient is whether\* the accused was responsible. PT72 wes the single eye witness to this incident. She testified that when she woke up at night she found tlio accused oa top of hex\* having inserted his tail (penis in her vagina). Her pleas with the accused to leave her alone were not accepted. by the accused person. According to her the accused asked her to lot him finish and that he the accused would give her the money which he did on the following day. The accused denied the allegation. He testified that in the night in question he slept in a separate house from that of F'/2 and PTV7. He farther infoxmed this court that he demanded bis money to go away because PV73 had threatened to ham him after the accused had x'cfusod to forgive J?W3 whom. he 'found . placing sex with PW7 lais sister in law. The accused told PW3 that he was going to report this accident to PW3's brother. In fact the accused raised an alibi that he slent in a separate house on the material date. The law

io that ail accused person who puts forward an alibi as defence to a criminal- charge does not thereby assume any burden of proving it. The burden rests with prosecution throughout to disprove the alibi by placing the accused at the £cjne\_of crime . Ugaiida.,jvs..\_ Kaypndo. .1.2.8& . SOS page^ 2^. S,el&tp1eko,vs• EZLanxla^12&LJ,

PW2 was the solo identifying witness in this case. The law is that a fact may subsect to certain well known exceptions be proved by the single .testimony of a single witness but that rule does not lessen the need for testing with the greatest care the evidence of a single witness accepting identification especially where conditions following such identification was difficult See Bichard LTurimu vs. Uganda 1988-1990 HOB page 1y J.921 -20.. 2A.0A page\_J 56^..^Oiri.a\_y^ SA p. 5833 Nabudere vs. Uganda 1967 HOB P. 77.

In the instant case the incident took place at night there was no suggestion that there was any light in the house. PW2 testified that she was familiar with the voice of the accused person, PW2, her brother plus the accused person were- the only people who slept in that house in that night. PW2 testified that the accused laid on top of her for sometime and they talked to each other. They were near each other. On the following mor ing the complainant repo?, ted the incident to her uncle PW3 wh in turn repoited the matter to the 10 I chairman PJ4- She was crying I am of the firm view that PW2 identified the accused person as the man who slept on top of her and had sexual intercourse with her.

As I stated earlier the disstress condition of PW2 amounted to corroboration that she was defiled by the accused person

See Kibazo's case supra. And the medical reported corroborated testimony that she was defiled. This is of course $EW2'$ B decied by the accused person.

The accused is stated to have made a confessional statement. before Det/AIP Futura PW1. After a trial within a trial the court ruled that the confessional statement was admissible. The accused in his evidence has retracted the confessional statement. In R vs. Nitilanda 1940 7 EACA p. 46. It was held that when a confession has been retracted by an accused person it is the duty of the prosecution to prove it. And in Tuyamod. vs. Uganda 1967 TACA Page 84 at 91. It was stated that the present rule that as applied in East Africa in regard to retracted confession is" that a matter of practice or prudence at the trial that it is dangerous to act upon a statement which has been retracted in the absence of corroboration in some material particular but that the court might do so if it is fully satisfied in the circumstances of the case that the confession must be true."

In his confessional statement. The accused had this to say:-

"I admit the charge/defiled the child I did not know that the girl was under 18 years. I asked her to have sex with her and she agreed. And I promised some money and I gave her Shs. 100. But later the girl accused me to her parents. I did not force her. But we agreed. This is my This is my statement have been read over to me in Luganda language it is true and correct."

A condession is the unequivariant admission by the accused person of the commission of the offence with which the accused is charged. A confession must either admit in terms of the offence or at any rate substantially and the facts which constitute the offence See Unanda Twikirize 1988-1990 HCB 37.

As I said earlier a trial within a trial was held and I held the confession admissible. The accused has retracted it.

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It is common knowledge that according to the confession though the accused had sex with the complainant he did not know -that the girl was under 18 years so one of the ingredients of the offence, the child was under 18 years has not "been admitted. The confession is therefore not true,

My finding is however 'that the distress condition of PW2 as testified to by PV74 and PW3 that she was weeping when they talked to her was sufficient corroboration of the fact that she was defiled. See Abas Eibazo vs, Uganda, 196.5,. EA». 507, Also the medical report that Dr, Eusingye found the hymen of the girl, ruptured was sufficient corroboration that PW2 was defiled. I am of the firm view that the alibi by -the accused person that he slept in a different house from the house where PV72 was defiled has been disproved because the prosecution has managed to place the accused at the scene of crime See Ssekitoleko case and others supra. If there wore inconsistences and contradictions in the prosecutions case those were minor ones did not lead to deliberate untruthfulness, I believe the prosecutions witness told this court the truth See Tarjir MCA. Cr... . Application . IJo,. 167 of 1969.

I am of the view that the prosecutions has proved its case against the accused person beyond reasonable doubt and in agreement with the opinion of the gentlemen assessors I find the accused person guilty of the offence of defilement of a girl under 18 years and I convict him accordingly.

I. LFJKAJ'TZA' 0

JUDGE 12.7\*1955.

SENTENCE: The accused is sentenced to 12 years imprisonment. - I. MUKANZAC-3 JUDGE 12.7.1995,.