[2011] UGSC 28

## THE REPUBLIC OF UGANDA

. Full SI not a

## IN THE SUPREME COURT OF UGANDA **AT KAMPALA**

TSEKOOKO: KATUREEBE: KITUMBA: TUMWESIGYE: (CORAM: KISAAKYE; JJ. S. C).

# CRIMINAL APPEAL NO. 08 OF 2008

#### **BETWEEN**

**MATUMBWE WILLIAM ::::::::::::::::::::::::::::::::::::**

#### AND

UGANDA :::::::::::::::::::::::::::::::::::

[Appeal from the judgment of the Court of Appeal at Kampala (S. G. Engwau, A. Twinomujuni, and S. B. K. Kavuma, JJ. A) dated 4^th July, 2009.

## **JUDGMENT OF THE COURT**

The appellant, Matumbwe William, was tried and convicted by the High Court at Mbale (F. Mwondha, J) on an indictment for the offence of defilement contrary to section 123(1) of the Penal Code. He was sentenced to life imprisonment. He appealed to the Court of Appeal which overturned the conviction for defilement on grounds that there was no evidence of sexual penetration of the victim, and, instead convicted the appellant of the lesser offence of attempted defilement contrary to action 123(2). The Court of Appeal set aside the sentence of life imprisonment and substituted therefor a

sentence of 15 years imprisonment. The appellant appealed to this Court.

The facts giving rise to this case are well stated in the judgment of the Court of Appeal. They are that on LOth November L999, at Morotome village, Kabwangasi sub-county in Pallisa District the accused was alleged to have defiled one Barbra Amacu, a minor aged 6 years at the time. The mother of the victim, one Jane Kalepo (PW2) testified that she left her daughter at home taking care of ^a baby. On return she found the baby alone, and the victim, Barbra, nowhere to be seen. There was a shed nearby where Kalepo sold malwa drinks. She heard some noise from shaking forms and went there to investigate. She found the appellant on top of the small girl Barbra, with his pants down and the child's dress pushed up. Her pants had been removed. The appellant started running away while pulling up his trousers. PW2 followed the appellant while making alarm. Many people, including L. C officials of the area answered the alarm. The appellant entered the house of one Mugugwa (PW4) where he was arrested by the L. C officials and taken to Kabwangasi Police Post. Meanwhile the complainant (PW2) checked the private parts of the victim and found that:-

"She hod bruises in vogina os he wos trying to enter."

PW2 took the victim to Pallisa Hospital for examination which was done by a doctor the same day. Doctor Celement Kirya (PW1) found that the victim had inflammation on the entry of her private parts but that her hymen was not ruptured. lt is on the evidence of PW2 and that of the doctor, PW1, that the appellant was convicted of defilement. lt was also the same evidence that, on appeal, the Court of Appeal found that the evidence did not prove penetration, hence quashing the conviction for defilement and substituting therefor the lesser offence of attempted defilement, The appellant appealed to this court against conviction. Dissatisfied with the decision of the Court of Appeal, the Director of Public Prosecutions cross-appealed against that decision and sought to reinstate the conviction and sentence of the High Court.

The appellant filed two grounds of appeal as follows:-

- 7- "THAT the learned tustices of Appeal erred in low in confirming the appellant's conviction on the hasis of unsotisfoctory ond uncorroboroted circumstontial evidence." - 2- "Thot the leorned tustices ol Appeal erred in law when they foiled to odequately re-evaluate the evidence odduced ot triol ond hence reoched on erroneous decision."

Of course the first ground, is wrongly framed because the Court of Appeal quashed the conviction by the trial judge.

For his part, the DPP in cross-appeal filed 5 grounds of appeal as follows:-

- 7- "The leorned Justices of Appeal erred in low ond foct in holding thot sexual penetrotion (in respect to the oct of defilement) had not occurred in order to prove the offence of defilement to the prejudice of the appellant" - 2- "The leorned Justices of Appeol misdirected themselves ond based their decisions on speculotion in holding that...........it seems the interview the mother hod with her left her with no doubt thot the appellont wos still trying to penetrote but had not yet succeeded" - i- "The learned Justices of Appeol erred and gravely misdirected themsetves on the law in holding thot in the absence of the vitol evidence of the victim in a sexual offence the offence of defilement connot stand." - 4- "The learned Justices of Appeal erred in law and foiled in their duty os the first appellate court to properly scrutinize the evidence before the trial court ond subject it to proper evaluation in order to arrive at the right conclusion." - 5- "The leorned Justices of Appeol erred in low and misdirected themselves in evoluating the evidence of PW2 Jane Kolepo, (mother of the victim) in isolotion and rejected it before considering ond evaluoting the rest of the evidence in

support of the prosecution cose to the prejudice of the appellant."

At the hearing, in this court, the appellant was represented by Mr. Henry Kunya on State brief, and the State was represented by Mr, Vincent Okwanga, Senior Principal State Attorney.

Mr. Kunya argued both grounds together. He initially argued that the evidence upon which the appellant had been convicted by both the trial Court and the Court of Appeal was unsatisfactory and purely circumstantial and would not support a conviction be it for defilement or attempted defilement.

On being presented with the cross-appeal, however, counsel quickly changed his mind and supported the decision and sentence of the Court of Appeal, namely that the evidence could only support ^a conviction for attempted defilement, and that the sentence of L5 years imprisonment was commensurate with that offence.

For the state, Mr. Okwanga argued that the Court of Appeal had totally misconstrued the evidence on record. He contended that both the mother of the victim, PW2, and the doctor, PWL had testified that the victim had bruises in her vagina. He asserted, quite rightly in our view, that in sexual offences, such as defilement, or

rape, the slightest penetration into the victim's vagina was sufficient to warrant a conviction for that offence. There was no requirement that the hymen of the victim had to be broken. He conceded, as had indeed been observed by both the trial Court and the Court of Appeal, that the victim had not given evidence in court which was highly desirable, but that nevertheless independent, strong, circumstantial evidence could support a conviction. The court should not make adverse inference on the non-appearance of the victim if other credible circumstantial evidence is available, as was in this case.

He prayed that this court, as the highest court should clarify on the law and set the record straight. He submitted that on the evidence on record, this court should quash the decision of the Court of Appeal and uphold the decision of the High Court for both conviction and sentence.

The only issue that arises in this appeal is whether there was sufficient evidence to support a conviction for defilement. We are of the view that the Court of Appeal correctly stated the law when it stated in its judgment thus:-

"ln order to prove a chorge of defilement, it must be proved thot the occused person hod sexuol intercourse with the victim. lt is not, however, necessary that full sexuol

ollence. See MUIUNI APOLLO -Vs- UGANDA CR. APPEAL NO. 26 0F 7999.', intercourse should have taken ploce. lt will be enough if there is evidence showing thot some penetrotion of the mole sexuol organ into the victim's vogina took place. lt hos been repeatedly held in our superior courts thot in sexual offences, the slightest penetrotion will be sufficient to constitute on

ln this case, the evidence is that the appellant was found by PW2 on top of the victim while his pants were pulled down and the victim's panties pulled off. On examination shortly after by the mother, PW2, she found bruises in the vagina of the child, She testified thus:-

"l checked the girl ond she hod bruises in the vooina os he was trying to enter. From police, I took het to the hospitol Pollisa for exomination,"

The witness further testified under cross-examination that she was present when the doctor examined the victim.

The doctor, PW1, testified as follows:

"The oge of the girl is 5 yeors. There wos penetrotion, the hymen was not ruptured."

Under cross-examination, the doctor stated;-

"The entry of the vagina was red. There were no signs of spermotozoo, Redness can be coused by friction. Friction con be caused by anything physical. I didn't find out whot coused the redness. I concluded because the police officer told me thdt she wos sexually dssdulted."

As the Court of Appeal observed in its judgment, after examining the victim, the doctor filed Police Form 3 where the second question on the form asked was:-

# "Are there ony signs of ony form, however sight oI penetrotion."

The doctor replied "Yes (Red)"

The fifth question on the form asked was:-

# "Are there ony injuries or inflommotion oround the private port?"

The doctor answered "Yes"

The doctor however left unanswered the question whether the above injuries was consistent with sexual force having been used.

From this evidence it appears to us that there was consistency in the evidence of PW2 and PW1 that there was some injury in the vagina of the victim, and the only explanation that could possibly be made for that injury was the fact that the appellant was found on top of the victim in the circumstances described above. ln our view, the Court of Appeal erred in speculating that the injury in the girl's vagina could have been caused by infection or any other cause not being a sexual act. The Court's conclusion that the doctor used the word "penetration" because he was only making an inference from the fact that he was told that a sexual assault had occurred and from the inflammation (redness) of the vagina of the victim, was unfair because there was sufficient explanation how that injury got there. There was no evidence of disease or any other means by which the victim could have got the injuries. ln any case, if the court was prepared to convict the appellant of attempted defilement, it would seem to follow from evidence that in the process of that attempted defilement, some injury was caused in the entry of the child's vagina. That entry did not need to be deep enough as to break the hymen to constitute the offence of defilement. This is in fact consistent with the finding of the court when it stated thus:-

'Though we were not sdtisfied that penetration hod occurred, yet we hove no doubt thdt he had completed ollthe necessory preporotions ^bvr'emovin oher and his clothes, lvino on too of her ond bruisino her sexuol parts to enoble him delile the young girl."

ln fact, according to the evidence of both PWL and PW2, the injuries were in the victim's vagina. There is no doubt in our mind that the offence of defilement was committed

We would therefore dismiss the appeal allow the cross appeal and restore the conviction for defilement as held by the trial Judge. We however, think that the sentence of life imprisonment imposed by the trial judge was harsh in the circumstances. We impose a sentence of 15 years imprisonment.

...day of $\mathbb{R}$ $\mathbb{R}$ .................................... **Dated** at Kampala this ....

J. W. N. Tsekooko Justice of the Supreme Court

**B. M. Katureebe** Justice of the Supreme Court

$CML, R$ inmba

C. N. B. Kitumba Justice of the Supreme Court

J. Tumwesigye Justice of the Supreme Court

E. M. Kisaakye Justice of the Supreme Court