Uganda v Twijukye (Criminal Session Case 196 of 2019) [2024] UGHC 841 (28 May 2024)

# 5 **IN THE HIGH COURT UGANDA AT KABALE CRIMINAL SESSION NO. 0196 OF 2019 Arising from Kab AA – 0009 of 2019 Arising from CRB No. 013 of 2019) UGANDA =============================PROSECUTION** 10 **VERSUS TUMWIJUKYE DENIS=====================ACCUSED**

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

## 15 **JUDGMENT**

The Accused Tumwijukye Denis stands indicted for **Aggravated Defilement Contrary to Section 129(3) (4) (a)** of the **Penal Code Act**. The particulars giving rise to the offence are that Tumwijukye Denis on the 10/01/2019 at Rwamuyora Village in Rubanda District performed a sexual act with 20 Kobusingye Clare a girl under the age of 14 years.

The Accused denied the charge.

## **Representation.**

Ms. Najjunju Julie (Senior State Attorney) appeared for the Prosecution while Mr. Kibulirani Nicholas represented the Accused on State Brief. The 25 Assessors in this trial were Mr. Livingstone Ndyamutunga and Ms. Sylvia Muhawenimana.

5 During the preliminary hearing pursuant to **Section 66** of the **Trial on Indictment Act (TIA)** medical evidence in PF24 in respect of the Accused Medical examination was received as Exhibit P1 the detail of which was that the Accused was examined on the 12/01/2019 and found to be of a normal mental Status.

## 10 **The Burden and Standard of proof.**

This being a criminal trial it is one in which the Prosecution has the onus to prove its case beyond reasonable doubt. The burden does not shift to the Accused person and the Accused must only be convicted on the strength of the Prosecution case and not on the weakness of the defence case.

## 15 **See Ssekitoleko versus Uganda [1961] EA 531.**

## **Ingredients of the offence**.

For the Accused to be convicted of Aggravated Defilement the Prosecution must prove the following ingredients beyond reasonable doubt.

- 1) That the victim was below 14 years of age. - 20 2) That a sexual was performed on the victim. - 3) That it is the Accused who performed the sexual act on the victim.

## **1. Age.**

The first ingredient of the offence of Aggravated Defilement is proof that at the time the offence the victim was below 14 years. The most reliable way 25 of proving the age of a child is by production of a birth certificate followed

5 by the testimony of the parents. It has however been held that other ways of proving the age of a child can be equally conclusive such as the Courts own observation and common sense assessment of the age of the child.

## **See Uganda versus Kagoro Godfrey HCSC No. 0014 of 2002**.

In this case the victim Kobusingye Claire (PW6) stated that she was 16 years 10 having been born on the 20/09/2007. It would therefore mean that on the 10/01/2019 when the offence of Aggravated Defilement was committed against the victim she was 11 years and this being 8 months shy of her 12th birthday.

This evidence was corroborated by the victim's mother Orishaba Olivious 15 (PW2) who gave her date of birth as 20/09/2007.

Corroborative Medical evidence is provided by SP Dr. Odulusi Daniel (PW5) who examined the victim Kobusingye Claire on PF3A and whose report was received as Exhibit P3 the apparent age according to the report placed the victim to between 10 – 12 years based on the dentition of 24 and 20 development of her primary sexual characteristics. The Accused in his defence on cross-examination also places the age of the victim in 2019 at about 12 years.

This Court had the opportunity of seeing Kobusingye Claire testify before it and the impression formed is that she is indeed a girl of 16 years and 5 years 25 ago was definitely below the age of 14 years.

5 I find that on the basis of available evidence the Prosecution has proved beyond reasonable doubt that Kobusingye Claire was a girl below the age of 14 years on the 10/01/2019.

## **Sexual act.**

**Section 129(7)** of the **Penal Code Act** defines a sexual act to include 10 penetration of the vagina, mouth or anus however slight by the sexual organ of another or unlawful use of any object or organ on another person's sexual organ.

Proof of penetration is normally established by the victim's evidence, Medical evidence and any other cogent evidence.

15 **See Remigious Kiwanuka versus Uganda SCCA No. 41 of 1995**. The slightest penetration is enough to prove the ingredient.

In the instant case the victim Kobusingye Claire (PW6) testified that sometime in 2019 her mother sent her with her brother Dismas Ampumuza (PW1) to collect firewood where the Accused found them and that the 20 Accused pulled her arm by force and took her to his uncompleted house where he proceeded to forcefully remove her knickers and have sexual intercourse with her. It is her evidence that her brother Akampumuza (PW1) tried to pull the Accused off her but failed and that the Accused after gave her a piece of firewood and told her to go back home.

5 Her evidence is corroborated by that of Dismas Akampumuza (PW1) a 12 year old boy whose evidence was received on oath after avoiredire was conducted and he testified that on the date in issue of the 10/01/2019 he was with his sister at around 6:00PM collecting firewood when the Accused forcefully took his sister to his house and that he followed them there and 10 found the Accused lying on top of his sister with his thing in side her and

that he tried to pull the Accused off her but the Accused abused him that "Kamanyoko" and that he went crying and reported to his mother.

Further corroboration was given by Orishaba Olivious (PW2) the mother of the victim who testified that on the 10/01/2019 she had gone to the trading 15 centre in the evening leaving behind her daughter Claire (PW6) and son Dismas (PW1) and that when she returned she was met by Dismas (PW1) who was alarming that Kobusingye Claire (PW6) had been defiled and that when she examined Claire (PW6) she found that her private parts were wet and there were blood stains on her knickers.

- 20 Corroborative Medical evidence was presented by SP Dr. Odulusi Daniel (PW5) who examined the victim Kobusingye Claire on PF3A and his Medical findings were that that the victim had an old raptured hymen lying backwards and the possible cause was healed blunt penetrative vaginal trauma. The victim was examined on the 23/01/2019. - 25 I accept the evidence of Kobusingye Claire that a sexual act was performed upon her. This is well corroborated by the evidence of her brother Dismas

- 5 (PW1). The examination of her mother Olivious (PW2) was literally minutes after the said sexual act and I accept her evidence that the private parts of the victim were wet and her knickers blood stained. Exhibit P3 confirms that there was penetration of the victim's vagina but that the same was old. The medical examination was conducted close to 2 weeks after the incident. It is - 10 not clear whether this affected the medical findings because the Doctor (PW5) stated that the victim could not recall the exact date on which the sexual act was performed upon her. This fact not withstanding it is my finding that the Prosecution has proved beyond reasonable doubt that a sexual act was performed upon the victim Kobusingye Claire (PW6).

## 15 **Participation of the Accused**.

It is the evidence of the victim Kobusingye Claire (PW6) that she knows the Accused as a neighbor and in 2019 her mother sent her and her brother Akampumuza Dismas (PW1) to collect firewood.

That as they were collecting firewood on the lower part of their home the 20 Accused found them and promised that he would give them firewood. Kobusingye Claire states that the Accused then pulled her by the arm by force and forcefully took her to his unfinished house that is on the lower side of their home and that inside this structure the Accused pulled off her knickers, placed her on the ground got on top of her and proceeded to have 25 sexual intercourse with her. 5 According to the victim as the Accused was having sexual intercourse with her, her brother Dismas tried to pull him off but failed and ran to call their mother but did not find her. That the Accused after gave her a piece of firewood and told her to go back home.

It is her testimony that it was at around 5:00PM when they met the Accused 10 as they collected firewood and that she and her brother told their mother what had happened when they got home.

Her evidence is corroborated by that of her brother Dismas Akampumuza (PW1) who testified that on the 10/01/2019 at around 6:00PM he was with his sister Kobusingye Claire (PW6) collecting firewood above the house of

15 the Accused when the Accused came and told his sister that he wanted to marry her. It is his evidence that his sister tried to run away but that the Accused chased her, got her and took her to his house where he followed them and found his sister lying down with the Accused on top of her and that his "thing" was inside her. According to Akampumuza Dismas (PW1) he 20 tried to pull the Accused off but the Accused was abusing him that "Kumanyoko" and when he failed he run to call his mother leaving the Accused on top of his sister.

Orishaba Olivious (PW2) the mother to the victim (PW6) testified that on the date in issue of the 10/01/2019 she had gone to the trading centre in the 25 evening leaving her daughter Kobusibgye Claire (PW6) and Akampumuza Dismas (PW1) with instructions for them to collect firewood. It is her 5 evidence that upon her return she was informed by Kobusingye Claire (PW6) and Akampumuza Dismas (PW1) that the Accused had defiled her daughter Kobusingye Claire (PW6).

The investigating officer D/sgt Nkurunziza Kenneth (PW4) testified that he visisted the scene on the 14/01/2019 recorded the statement of Kobusingye

10 Claire (PW6) and Akampumuza Dismas (PW1) and also drew the sketch plan of the structure in which the Accused defiled the victim and the same was received as Exhibit P6.

The Accused in his sworn defence denied the charge testifying that he knows Kobusingye Claire the victim in this case the daughter of Selestine (PW3) 15 and knows nothing about having sexual intercourse with her. It is his evidence that on the 10/01/2019 he was in his garden weeding and spraying his Irish potatoes and on the 11/01/2019 as he was at home with his parents Biryomumeisho Kenneth came to their home and told him that at the trading centre it was being said that he had defiled Selestine's daughter and should 20 be arrested.

The Accused states that he and his parents wondered at this information and he decided to take a bath and went to the stage where he was arrested by the residents and placed on a Police Motor Vehicle that took him to Rubanda Police Station where he was detained and later produced in Court. 25 The Accused therefore denies performing a sexual act on the victim Kobusingye Claire.

5 Where an Accused person raises the defence of alibi the onus is on the Prosecution to discredit this defence and to place the Accused at the scene of crime.

I find the evidence presented by the Prosecution to be cogent and consistent.

The Accused was well known to the victim Kobusingye Claire (PW6) and her 10 brother Akampumuza Dismas (PW1) being a neighbor. The Accused does acknowledge that he knows the victim. The victim (PW6) places the attack on her as having occurred at around 5:00PM while Dismas (PW1) places it at around 6:00PM. It must be noted that Dismus (PW1) at the time of the commission of the offence was only 7 years and as such had limited 15 experience and exposure to estimating time. Be that as it may the time span of 5:00PM – 6:00PM is still broad day light.

The Accused spoke to both witnesses at a close range and both interacted with him at a very close range, this being when the Accused got on top of the victim to perform a sexual act on her and when Dismas (PW1) attempted

20 to pull him off but failed to do so given his young age.

The victim (PW6) and Dismas (PW1) gave their evidence in a candid and forth right manner. Both were emphatic in their testimony that they knew the Accused and that they interacted with him on the date in issue of the 10/01/2019. I have no reason to believe that their testimony was propelled 25 by malice or ill will. Indeed the Accused did not make any such allegations. 5 I carefully observed the demeanour of the victim (PW6) and Dismas (PW1) as they testified. I did not detect any deceit in their body language.

The offence was committed in broad day light by a neighbor that they were familiar with.

I therefore rule out any possibility of error in the identification of the 10 Accused and accept the testimony of the victim (PW6) and Dismas (PW1) to be a true account of what transpired.

The testimony of Orishaba Olivious (PW2) that immediately upon her return her children (PW1 and PW6) narrated to her that the Accused had performed a sexual act on the victim and that upon checking the victim (PW6) she 15 found her private parts wet and her knickers blood stained corroborates the evidence of the victim (PW6) and Dismas (PW1).

It is my finding that the defence of alibi put up by the Accused has been discredited by the Prosecution and the Accused has been placed at the Scene of Crime committing the offence.

20 After considering the evidence adduced by the Prosecution and the defence together it's my finding that the Prosecution has successfully proved its case beyond reasonable doubt and in full agreement with the gentleman and lady Assessors I find the Accused guilty of the offence of Aggravated Defilement Contrary to **Section 129(3) (4) (a**) of the **Penal Code Act** and convict him 25 of the same.

5 Before me,

………………………………… **Samuel Emokor Judge 28/05/2024**

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