Uganda v Twesigomwe Justus (Criminal Session No. 0020 of 2023) [2024] UGHC 1278 (3 December 2024)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KISORO CRIMINAL SESSION NO. 0020 OF 2023 (Arising from KIS No. oo22 of 2022) (Arising from CRB No. 437 of 2022)** 10 **UGANDA** :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PROSECUTOR** VERSUS **TWESIGOMWE JUSTUS**::::::::::::::::::::::::::::::::::::::::::::::::::::::**ACCUSED**

## 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

Twesigomwe Justus who for the rest of my judgment I shall refer to as the Accused is indicted for Aggravated Defilement Contrary to **Section 129(3) and 4(a)(b)(c)** of the **Penal Code Act.**

20 The facts giving rise to the indictment are that Twesigomwe Justus on the night of the 06/07/2022 at Nyaruyaga Cell in Kisoro District being the parent/father of Mutoni Scovia and infected with Human Immuno Deficiency Virus (HIV) performed a sexual act with the said Mutoni Scovia a girl aged four (04) years.

The Accused denied the charge.

25 **Representation:**

Ms. Nagayi Noeline (State Attorney) appeared for the Prosecution while Mr. Bakanyebonera Felix represented the Accused on State Brief.

The Assessors for this trial were Mr. Rwangeyo Joseph and Mrs Idah Mugenga.

5 During the Preliminary hearing sanctioned under **Section 66** of the **Trial** on **Indictment Act (TIA)** medical evidence in Police Form 3A and Police Form 2A were admitted as uncontested evidence.

The Police Form 3A was in respect of the medical examination of the Victim Mutoni Scovia conducted on 12/07/2022 at Kisoro Hospital by Dr. Rukundo a

10 Senior Medical Officer and received as Exhibit P1.

The Police Form 24A was in respect of the medical examination of the Accused Twesigomwe Justus examined on the 12/07/2022 at Kisoro Hospital by Dr. Rukundo a Senior Medical Officer and was received as Exhibit P2.

**The Burden and Standard of Proof.**

15 This being a criminal case it is one whose proof lies squarely on the Prosecution and the Accused has got no duty to prove his innocence. It is also proof beyond reasonable doubt.

Any doubts unless fully explained must be resolved in favour of the Accused and the Accused must only be convicted on the strength of the Prosecution case and 20 not on the weakness of the defence.

**See: Ssekitoleko versus Uganda (1961) EA 531**.

**Ingredients of the offence.**

The Prosecution must prove each of the following essential ingredients beyond reasonable doubt for the Accused to be convicted of Aggravated Defilement.

5 **1. That the Victim was below the age of 14 years.**

**2. That there was a sexual act performed on the victim.**

**3. That the Accused is infected with Human Immuno Deficiency Virus.**

**4. That the Accused is a parent or person in authority over the Victim.**

**5. That it was the Accused who performed the sexual act.**

**a) Age.**

The most reliable way of proving the age of a child is by production of birth certificate, followed by the testimony and medical evidence where available. It

15 has however been held that other ways of proving age of a child can equally be conclusive such as the Courts' own observation and common sense assessment of the age of the child.

**See (1) Uganda versus Kagoro Geofrey HCCS No. 0141 of 2002.**

**(2) Uganda versus Mawadri Joel H. C. Crim. Session No. 0012 of 2018.**

20 It is the evidence of Niyonsaba Diana (PW2) that she is the mother of Mutoni Scovia and she is presently 6 years and in 2022 she was 4 years. Mutoni Scovia (PW3) appeared before this Court and testified that she is 6 years old and a Pupil of Primary one at Kisoro Primary School.

The medical examination in Exhibit P1 places her age at 4 years with an 25 observation that she still had milk teeth.

The defence it must be noted did not dispute the age of Mutoni Scovia (PW3) as being below 14 years.

5 This Court had the opportunity of observing Mutoni Scovia (PW3) as she testified before it and I am sufficiently satisfied from physical observation of the Victim that she is indeed a girl well below the age of 14 years.

It is therefore my finding that the prosecution has proved beyond reasonable doubt that the victim Mutoni Scovia is a child below the age of 14 years.

10 **b) Sexual Act.**

**Section 129** of the **Penal Code Act** defines *"a sexual act"* to mean penetration of the vagina, mouth, or anus, however slight of any person by a sexual organ or the unlawful use of any object or organ by a person on another person's sexual organ. The same provision defines "*sexual organ"* to mean a vagina or penis.

- 15 It is the evidence of Niyonsaba Diana (PW2) that the in night of the 06/07/2022 at around 10:00PM she was assaulted by the Accused and ran away from home returning the next morning. It is her testimony that at the time Mutoni Scovia was sleeping and when she woke her to have breakfast she discovered that she had whitish substance with blood coming out of her vagina and she decided to 20 take her to the Hospital. Mutoni Scovia (PW3) whose evidence was received on oath after a voiredire was conducted testified that she still remembers the things that her father had done to her and that on the night that her mother had gone to Hospital she was sleeping in her bedroom where her father put his thing into hers. - 25 To demonstrate the location of her thing Mutoni Scovia torched her vaginal area and testified that she felt pain when her father inserted his thing into her thing and that she cried. That blood came out of her. This evidence is well corroborated

5 by the medical examination of the Victim Mutonyi Scovia (PW3) in Police Form 3A that was received as Exhibit P1.

The findings were that the genitals of the Victim had bruises on the vulva, no presence of a hymen was observed and the vaginal orifice, vulva and vestibule was full of pus discharge.

10 The possible cause of the injuries is indicated to be attempted vaginal penetration that caused the loss of hymen.

The testimony of Mutonyi Scovia (PW3) that a sexual act was performed on her is well corroborated by the physical examination of her mother Niyonsaba Diana (PW2) and the medical examination in Exhibit P1. The evidence presented by the

15 Prosecution has therefore been credible and I find that the Prosecution has proved beyond reasonable doubt that a sexual act was performed on the Victim Mutoni Scovia.

**c) That the Accused is HIV positive.**

- 20 It is the evidence of D/CPL Mukama Yowab (PW4) the investigating officer in this case that the Accused upon being arrested was subjected to an HIV test on Police Form 24A and the medical results revealed that he was HIV positive. This evidence is corroborated by Police Form 24A in Exhibit P2 a medical report by Dr. Rukundo conducted on 12/07/2022 at Kisoro Hospital that indicates that an HIV - 25 test was conducted on the Accused and he was found to be HIV positive. The Accused in his defence did not dispute that he was HIV positive. Exhibit P1 it must be noted was admitted as un contested medical evidence.

5 It is therefore my finding that the Prosecution has proved beyond reasonable doubt that the Accused is HIV positive.

**d) That the Accused is the father of the Vitim Mutoni Scovia.**

It is the evidence of Niyonsaba Diana (PW2) that she was co-habiting with the 10 Accused and that the Victim Mutoni Scovia (PW3) is their daughter. It is also the evidence of Mutoni Scovia (PW3) that she knows the Accused as her father. The Accused in his defence acknowledged that Niyonsaba Diana (PW2) was his wife and Mutoni Scovia (PW3) is his biological daughter.

The evidence on record clearly shows that the Accused and Niyonsaba Diana 15 (PW2) lived together as husband and wife. The evidence also shows that together they had two daughters the Victim Mutoni Scovia and Mutesi Yvonne. This Evidence is uncontested. It is therefore my finding that the Prosecution has proved beyond reasonable doubt that the Accused is a parent of the Victim Mutoni Scovia (PW3).

**e) Participation of the Accused.**

The Accused in his unsworn defence denied the charge against him stating that on the night of the 06/07/2022, there was scuffle between him and his wife Niyonsaba Diana (PW2) who abused him and provoked him into fighting. 25 According to the Accused he decided to leave home and returned the following day at 7:30PM and found when Niyonsaba Diana (PW2) had left the house with all the children. That when he inquired from neighbours he was told that she had left carrying a bag with the children. It is the evidence of the Accused that the 5 Police later arrested him over the Defilement of his daughter something he knew nothing about.

It is trite law that where an Accused person has raised the defence of alibi the onus to discredit his defence is upon the Prosecution.

**See Kyalimpa Edward versus Uganda SCCA No. 0010 of 1995**.

10 To discredit this defence the Prosecution relied on the evidence of Mutoni Scovia (PW3) who testified on oath after a voiredire had been conducted and she testified that she knows the Accused who is her father and he is called Justus while her mother is called Diana (PW2) and that she has a sister called Yvonne.

According to Mutoni Scovia (PW3) she still remembers the thing that her father

- 15 did to her. She states that it was during the night her mother had gone to the Hospital and that she was with Yvonne but Yvonne was asleep. Mutoni Scovia (PW3) testified that while in the bedroom their father put his thing into hers as she was sleeping. To demonstrate the location of her part that she meant Mutoni Scovia (PW3) touched her vaginal area. It is her evidence that she felt pain when 20 her daddy inserted his thing into her thing and that blood came out of her and - she cried. In the morning according to her when her mother came she told her that her father had sex with her and the mother took her to the Hospital.

It is a rule of practice for the Courts not to convict an Accused on uncorroborated evidence of a Victim of a sexual nature. Corroboration is also required as a matter

- 25 of practice when relying on the testimony of a single identifying witness. - **See Chila and another versus R [1967] EA 722**.

- 5 The Supreme Court also in **Remigious Kiwanuka** versus **Uganda SCCA No. 0014** of **1993** held that it is settled law in sexual offences that though corroboration of the Prosecution evidence is not essential in law, it is in practice looked for and it is the established practice to warn the Assessors against the danger of acting upon uncorroborated testimony. - 10 The demeanour of Mutoni Scovia (PW3) as she testified before this Court was one of a truthful girl. She appeared to be forthright and I did not detect any deceit in her body language. Mutoni Scovia (PW3) did not waiver under the cross examination of defence counsel and was emphatic that while their house did not have electricity it was their father the accused who was in the house with them 15 on the night in issue and he was the one who had sex with her. Mutoni Scovia (PW3) also denied the claims of the Accused that they left with their mother on the night in issue insisting that while it was true that their parents had fought that night they did not go with their mother (PW2) and that she returned and - found them the following morning at home and that she told her that daddy had 20 sex with her. I accept the evidence of Mutoni Scovia (PW3) to be true.

Her evidence is corroborated by that of her mother Niyonsaba Diana (PW2) who testified that on the 06/07/2022 when the Accused returned at around 10:00PM they were involved in a quarrel and that the Accused assaulted her and she injured herself on the shoulder bled and fled her home when the Accused tried to tie a 25 rope around her neck. It is her evidence that she went to Kisoro Hospital where she was admitted and that at 6:00AM the following morning she received a phone call from her landlord who told her to go home and check on her child who had spent the entire night crying. Niyonsaba Diana (PW2) states that she got home at

- 5 around 7:00AM and found the Accused still at home and that the Accused passed by her saying that he was going to work. According to Niyonsaba Diana (PW2) after she had prepared breakfast she woke Mutoni (PW3) and discoved that she had whitish substances with blood coming out of her vagina and that she decided to go with Mutoni Scovia (PW3) in search of the Accused who they found in a bar 10 and that the Accused told her that it was her men who had defiled her. It is the evidence of Niyonsaba Diana (PW2) that Mutoni Scovia (PW3) had refused to tell her who had sexually assaulted her saying that her father the Accused told her that if she talks about it he would assault her and that it was only at Kisoro - 15 that her father had got his penis and inserted it into her vagina.

The evidence of Niyonsaba Diana (PW2) corroborates that of Mutoni Scovia (PW3) in a material particular that on the night of 06/07/2022 after she had been assaulted by the Accused it was her who left home leaving the Accused and the children behind.

Hospital that she was persuaded by the medical personnel and that she revealed

20 Further corroboration is the fact that when she returned the following morning she found the Accused still at home with the children.

The defence of the Accused that he was the one who left the home with the children is therefore false.

Exhibit P4 the sketch plan tendered in by D/CPL Mukama Yowab (PW4) clearly 25 illustrated that the family lived in a single room with the bed of the parents adjacent to that of children. The argument of Mutoni Scovia (PW3) that it is the

5 Accused who sexually assaulted her because he was the only one with them in the house on the night in issue rings true.

Further corroborative evidence that it was the Accused who performed a sexual act on his daughter Mutoni Scovia (PW3) can be found in the evidence of Mushawimana Catherine (PW1) a medical social worker attached to Kisoro 10 Hospital who testified that she engaged closely with Niyonsaba Diana (PW2) and Mutoni Scovia (PW3) when they reported the incident at the Hospital and that Mutoni Scovia (PW3) revealed to her that it was her father who had sexually

assaulted her.

According to Mushawimana Catherine (PW1) they carried out HIV test on 15 Niyonsaba Diana (PW2), Mutoni Scovia (PW3) and Yvonne. The results for Mutoni Scovia (PW3) returned positive. I do not believe that it is mere coincidence that the HIV tests carried out on the Accused on Police Form 24A in Exhibit P2 also turned out to be positive.

I am fortified in this view by the fact that the medical examination of the Accused 20 in Exhibit P2 indicates that he had a lot of pus discharge from his penis and the medical examination of Mutoni Scovia (PW3) on Exhibit P1 also indicates that pus discharge was found in her vagina upon examination.

It is imperative to note that both the Accused and Mutoni Scovia (PW3) were examined on the 12/07/2022. The medical finding in Exhibit P1 that the injuries

25 and loss of hymen suffered by Mutoni (PW3) was due to attempted vaginal penetration together with the presence of pus in the penis of the Accused and

5 vagina of Mutoni (PW3) leaves no doubt in my mind that the Accused is responsible.

The Accused has alluded to a possible grudge between him and Niyonsaba Diana (PW2) as being the cause of the allegations against him. I do not believe there to be any truth in these allegations.

10 There is no evidence that Mutoni Scovia (PW3) was in any way involved in the disagreements that her parents had and in any case her evidence was straight forward and free of any deceit.

The evidence presented by the Prosecution has been cogent and consistent. I find that there is overwhelming corroborative evidence that a sexual act was 15 performed on the victim Mutoni Scovia (PW3) by her father the Accused and the defence of alibi raised by the Accused has been discredited and he has been placed at the scene of crime committing the crime.

After considering the evidence adduced by the Prosecution and defence together, it my finding that the Prosecution has successfully proved its case beyond 20 reasonable doubt and in full agreement with the Assessors. I find the Accused guilty of the offence of **Aggravated Defilement** Contrary to **Section 129(3**) and **4 (a) (b) (c)** of the **Penal Code Act** and convict him of the same.

Before me,

25 ……………………………………. **Samuel Emokor Judge. 03/12/2024**