Uganda v Yamba Musa (Criminal Session Case 144 of 1993) [1993] UGHC 69 (6 December 1993)

Full Case Text

## THE REPUBLIC OF UGAPPA

## IT THE HIGH COURT OF UGAPDA CREMINAL SESSION CASE NO 144/03

$: : : : : : : : : :$ PROSECUTOR **UGANDA VERSUS** YAMBA MUSA : : : : : : : : : : : : : : : : : ACCUSED

**BEFORE:** THE HOW. MR. JUSTICE G. M. OKELLO

**JUDGMENT:**

Grace Ederu is the maternal aunt of Filista Oyotaru (victim) and neighborr of the accused Yamba Musa. She had known the accused for the last ten years.

In the afternoon of $21/4/93$ she was preparing meal for her family. She had just completed peeling potaties and had gone to a nearby banana plantation to fetch banana leaves to cover her potatoes for boiling when she found the accused Yamba Musa on top of her niece Oyotaru. They were apparently in the act of sexual intercourse urder cover of the banana plantation. She made alarm which was answered by many people. Oyotaru who tried to run away on seeing her was arrested by one of those who answered the alarm and brought back to the scene. The matter was immediately reported to the local R. C. executives. They responded speedily by coming to the scene and arrested both parties to the alleged sexual act. They were taken to Kuru Divisional Head Quarters and eventually to Kuru Hospital where they were both medically examined. Consequently the accused was indicted for defilement of Filista Oyotaru c/s 123 (1) of the penal code Act as amended by statute 4A of 1990. He denied the charge.

It is needless to labour the point that the duty to prove the charge against ar accused beyond reasonable doubt lies squarely on the prosecution, I-o secure a conviction all the essential elements of the alleged offence must be proved beyond reasonable doubt. For defilement the followings are the elements requiring proof:- (1) that there was sexual intercourse with the victim. (2) that the victim was aged under 18 years old. (J) that the sexual intercourse was unlawful. (4) that the accused was the oao who had the unlaw ful sexual intercourse with the victim\*

On whether there was sexual intercourse with the victim, the prosecution contended that there was. In this coQte^ticr the prosecution relied o- the evidence of the victim Filista-Oyotaru (PW6), the medical evidence of Dr. Adrabo PW5> Exh. P5 and the evidence of Grace Ederu (PW7).

Mr. Okwongali attacked the evidence of the victim as being unreliable because it is tainted with lies. I considered the discrepencies and I found them minor and do rot go to the **roots** of the case. They were mainly on whether or not the intercourse **was** with or without consent. Counsent is irrelevant **in the case** of defilement because the lav; assumes that a girl **under** the age of 18 years old car not give consent to such ar act.

The victim (PW6) testified that the accused had **sexual intercourse** with her or 21/4/95\* **The evidence of Dr, Adrafej** PW\$ shows that a person had sexual intercourse with the **victjn within** four hours from the time he examined her. That **he examined** the victim or 21/4/93 at 7.30 p.m. That from her vigina he t^served a think whitish substance oozing out in a thinner and **Clearer** discharge. He suspected the thick substance to be semen

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but when he examined it under ploroscope they that it contained no spermatasca. He explained that it is not upccumor for semen to cortain no spermatozoa. He further testified that he found inflamation of the vestibale and a budise of the right lip of the vigina. He attributed these to flictions. From these he concluded that there was somial intercourse with within the paut the victim-four hours. He also testified that he observed that the hymen of the victim was broken long before suggesting that she was no longer a vivrin.

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Mr. Okwangali attacked the evidence of the showe sitrong as being in adequate and not conclusive proof that sexual intercourse took place within four hours earlier. That lack of spermatozoa in the said think whitish discharge found oozing from the vigina of the victim suggested that he sexual intercourse took place with the victim within four hours earlier.

With respect, to the learned counsel, for the purpose of defilement or rape, it is not necessary that the intercourse must be completed with ejaculation. It is sufficient if there was penetration however slight. In this case the evidence of the victim shows that the accusais pends entered into her vigina. This was confirmed by the medical evidence showing a bruise of the labium-irflamatior of vestibule. There is also the evidence of the thick whitish discharge from inside the vigina. All these show that there was sexual intercourse with the victim. Z That there was penetration. ZSo I find like the assessors that this ingredient has been adequately proved.

As to the age of the victim, these is the evidence of the victim, herself who testified that she was 13 years old. There is also the evidence of her father RWS who testified that.

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the victim was born at Ledonga on 29/9/80. There is also the evidence of Dr. Adrebo PW5 giving his professional opirion that the Victim was aged between 12 and 13 years old.

Mr. Okwagali attacked both the evidence of the father of the victim PW8 and that of the Doctor as to the age of the victim. He argued that PW8 was unreliable. That there should have been produced in court a birth certificate from the Hospital.

As regards the medical opinion of Dr. Adrabo PW5, the learned counsel argued that he did not follow the convetional procedure to arrive at his conclusion to give weight to his professsional opinion. That this conclusion was not borne out by acceptable professional grounds.

I think the learned counsel had sound argument regarding how a professional opinion should be arrived at. Professional conlusion or opinion should be borne out by acceptable professional grounds. Acceptable professional procedure should be followed to arrive at a professional conclusion:- In this case, the Dr. PW5 conceded that he did not follow conventional procedure in determining the age of the victim eg. that he did not X-rayed certain required bones nor did he examine the teeth of the victi From the above I agree with the learned counsel that the opinion of the Dr. $PW5$ as to the age of the victim is of no weight.

However the issue of age is a question fact. It can be and verbal proved by any cmedible-cogent evidence. It does not have to be proved only by birth certificate from Hospital. A credible cogent evidence from any of the parents of the child whose age is in question can do. In the instant case the evidence PW8, the father of the victim has not been found to be inherently false. He gave his evidence forthrightly, answered questions put

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to him without hesitation« I find him to be a witness of truth. I therefore like the gentlemen Assessors believe him-Accordingly I find that the prosecution have proved beyond reasonable,doubt that the victim was aged under years old.

Gn the unlawfulness of the sexual intercourse, the RSA contended that the sexual intercourse with the victim was unlawful. He submitted that sexual intercourse is only lawful within marriage. He pointed out that our law recognises customary law. That certain customary laws recognise marriage of girls under the age of 18 years old. That outside marriage, having sexual intercourse with a gir± under the ag-.- of 18 years old was unlawful. He pointed out that in this case the victim was not married to the accused or to any other man under any customary J.aw~ **More**so that Lugbra custom does rot permit marriage of under aged girls. The prosecution relied on the evidence of PW6 and PW8. The accused also admitted in his sworn statement in court that the victim was \$ot married to him.

It would appear that section 12\$ of the penal code Act as amended by statute 4a of 1990 creating this offence of defilement anticipates situations where sexual intercourse with a girl under the age of 18 years old may be lawful. A possible situation may be sexual intercourse with such a girl married under customary law which allows marriage of girl «under eighteen years old.. . But such a custom which allows the marriagevof girls under the age **of** 18 years old is directly repugnant **tn . a** written **J.aw** (statute 4A of 1990) and therefore unenforceable under **section** 8 (1) Of the Judicature Act. The section reads:-

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"Nothing in this Act shall deprive the High Court of the Right to clearve an enforce the observance oi, or shall deprive any person of the benefit of any existing, custon, which is not repugnant to natural justice, equity and good conscience and not incompatible either directly or by necessary implication with any written law".

It is quite clear from the above provision of the Judicature Act 1967 that any custom which allows marriage of girls under the age of 18 years old would now be directly incompatible with the penal code Amendment statute $4A$ of 1990. It is yet interesting to note that section 4 of the Resistence Committee (Judicial-Powers) Statute 1 of 1988 gives jurisdiction to the RC courts over cases of (1) Pregnancy with girls under the age of 18 years old; and elopement with girls under the age of 18 years old. These are considered as cases governed by customary law. Yet person who impregnates such a girl clearly contravenes section 123 (1) of the Penal Code as amended by statute $4A$ of 1990 since one can not impregnate a girl of that age without having had sexual intercourse with her.

Be that as it may, the evidence of PW6 shows that she is not married to the accused or to any other man. This evidence was supported by the evidence of PW8, the father of the victim. He testified that the victim was not married to the accused or to any other man and that Lugbra custom does not allow the marriage of under aged girls. When asked as to at what age a girl can he allowed to marry according to Lugbra custom, PW8 replied that at the age of 21 years old. I think that was gross exaggaration because it is common ground that girls in villages in this country get married from the age of 16 years old upwards.

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Nonethe-less it is clear fi'om the above evidence that . whoever had sexual intercourse with the victim did so, unlawfully • The next question is, who had sexual intercourse with the victim on 21/4/93? The PSA contends that it was the accused. In support of this contention, the prosecution relied on the evidence of the victim PV76 who testified that the accused had sexual intercourse with her. That he inserted his penis into her vigina.

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I had already stated earlier in this judgment that I find the victim substantially truthful. She might have lied as to the manner the sexual intercourse was obtained from her. She all along tried to portray- that the sexual intercourse was obtained from her by the. accused by force or duress. Yet there are evidence which tend to show otherwise. For example, the medical evidence given by Dr. Adrabo PW5 shows that there was no sign of violence on both the accused and.the victim. Secondly', when she reported to her father that the accused had grabbed the cable Exh. P5 from her and threatened her, the victim cunningly returned to meet the accused though her father did not **ask her** to. This was the time 'u'hey in.tp oh#. o^ -th.e. ^a&ta^ tion for the sexual act. Thirdly, when her aunt Grace Ederu PW? found them in the act of sexual intercourse, thq victim tried to. run away. All the above tend to show that the victim was a willing partner to. the sexual intercourse. But as I had sa|d earlier, consent of a girl in defilement cases are irrelevant\$ l-'aw takes them to .be too young to he capable of giving consent to that act.

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The victim in thLsc case gave evidence on oath after she satisfied me after a viire dire that she understands the nature of an oath. With her evidence on oath>I an alive to the fact that it is not illegal to convict on the uncorroborated evidencez of the prosecutrix in sexual cases so long as the court is satisfied that she told the truth and the court has warned itself of the danger of convicting on such uncorroborated evidence. The established ru?.e of practice however is that corroborative evidence implicating the accused should be looked for.

In this case the evidence of Grace Ederu P/77 shows that the accused was found with the victim in a very compromising position. He was lying on top of tho victim in a banana plantation and that they were in the act of sexual intercourse. Mr. Okwangali attacked the credibility of this witness on the ground that she •was shifty and her evidence contradicts the evidence of the. victim as regards the position of the skirt of the victim at the time of the act of sexual intercourse. I considered that discrepancy and found it to be minor and goes to the detail of the case rather than to the root. The discrepancy was that the victim testified that the skirt was removed while PW7 testified that it was merely rolled upwards during the act of sexual intercourse. I consider the above to be a matter of detail which can be explained away on lapse of time9 I therefore find PW7 to be substantially truthful«

Mr. Okwongali further argued for the accused that even if PW7 was believed that the accused was found lying on top of the victim, that alone was no proof that he had sexual intercourse with the victim, more so when the medical examination carried on him four hours later did not reveal any sign that he had sexual intercourse within the past four hours.

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The evidence of PW7 places the accused and the victim ijU a very compromising position which raises a ^ery strong suspicion that they had sexual intercourseo The strong suspicion however, is not enought to fix the accused with the commission of sexual intercourse with the victim.. It does not prove that the signs of penetration found in the vigna of the victim were caused by the accused. More evidence is required to prove that he did. The medical evidence given by PW5 is not helpful. It exonerated the accused. That no signs of recent sexual intercourse were found on the accused possibly because he is circumcised. That his penis was found dry,

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I think this, is a matter of investigation.. It was not thorough. The evidence on record shows that the accused was found in the act of sexual intercourse with the victim and they were both arrested and four hours later they were medicallyexamined. It would appear that the examination was not thorough. **It** was confined to their bodies. The under pants, trouser/shorts which the accused wore immediately after the act of sexual intercourse were not examined for any trace of semen. If this W done, and any semen smear found on the accused's pants, trouser/ shorts was analysed and compared with the discharge found oozing from the vigina of the victim, some linking evidence **^ight** have been found. It would appear the above step was not thought to be necessary.

Without such linking evidence, it is not legally possible to associate the accused with the thick whitish discharge found oozing from the vigina of the victim. That would be acting on suspicion. To secure a conviction in any criminal case, the **evidence**

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adduced by the prosecution must leave no reasonable doubt« This standard has not been attained in this case, The evidence on record shows that the accused was with the victim in a very . compromising position. He was found lying on top of the victim when both were naked from waist downwards. As I had said earlier this merely raised very strong suspicion that they had sexual intercourse. This is not enough. More implicating evidence is required. 'But, the medical evidence exonerated him.-.

For those reasons, I disagree with both assessors. I find that the prosecution has not proved beyond reasonable doubt that the 'accused had sexual intercourse with the victim. In the end, I find the accused not guilty of defilement as charged. He is however found guilty of attempt to defile the victim contrary to section 123 £2) of the Penal Code Act as amended by Act 4a of 1990. He is convicted accordinglyo

G. M. OKELLO

JUDGE. 6/12/93