[1995] UGHC 39

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»j5TS PEj/UBIJC OP UCAEDA

117 THE I£C(£I COULT OP UGATDJA AT KAMPALA

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## ,<mw- case, no.. 5.9/21

UGA1WA ? ^&gt; \* ' - - •'»' ? \* ' ² 3: ? ^s :»; 2: PROSECUTOR

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ADOHIA TIBASIIEI^IlCRWA u 2::: ³ :: :: ACCUSED

KSPOICE: TJ\$.. UORCU^AEIE MR JUSTICEKrfKAJig^

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The accused, in this case was indicted with the offence of Defilement contrary to section 123(1) of the Penal Code. The allegation's being that on or between about the ¹⁸th day of March, 1S23 at Kyaganaffe Pwiisi village in the Mbarara District the accused unlawfully had sexual intercourse with Murungi Diana a girl under the age of ¹⁸ years. ^j2h^e prosecution called the evidence of Annet Rushamata and ^Z closed its case. This was after fruitless efforts were made to have the victim as a witness After exercising -yie Vordire it vzas -ostaKLished that she nould not understand the nature of an oath nor was she possessed of sufficient inte.lligence to justifj^r the reception of her evidence though not on oath nor did she understand the duty of speaking the truth. She vrcis therefore discharged.

As I stated earlier on the prosecution closed its case by offering no further evidence and thereafter Mr. Mwenekahime .made a submission of no case to answer and hence this ruling to resolve the matter. PW1 testified that she is a nurse at Buzi.bwera Trading Centre, while she was there her house girl called Kemiwngi and the victim Dian Birungi reported to her that Dian8^1^ been defiled by the accused She enquired from Diana whether she knew the sus)?ect. Both Kemirungi and Diara informed her that they did

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not know the culprit by name but used to see him whenever they went to collect water\*

As a result of that report PW1 undressed Dianaand found that her loiichers had been torn one side and there was blood in her private parts. Immediately matters were reported to the' RCs of the areas. Then in conjunction with the secretary for defence together with the ² girls a search was mounted for the accused, The' accused was spoted with a jerrican coming from, the trading centre Bwezibwera going to the well. The accused v/as identified by the ² girls as the man who defiled Diana,one of the two girls. The secretary for defence arrested the accused person and took \_ him to the police station at Bwezibwera where they were issued with'police form wliich they took to Bwezibwera head.th centre where the victim was medically examined and later the said forms were returned to Bwezibwera police post together with knickers recovered from the victim. The police form v/as tendered in evidence for identification only. BY71 continued taking the victim to the health centre for treatment. She disclosed that Kamurungi is no longer living with her but Baker the Secretary for defence is still around though .he is now no longer ^a member of the RCI\*

In cross examination there were some contradiction in the evidence she made in court and the statement recorded from her at the police station as to whether both girls reported the incident to her together or whether the incident was reported to her at separate time by either of them. She further replied in cross examination that Diaxais not mentally balanced since her childhood and that was one of the reasons why -she could not go to school.

Well I gave my anxious consideration to the submission by the learned counsel appearing for the accused person and the

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state. The law is that a submission of no case to answer may be upheld when $\tau \in \mathbb{R}^{n-1} \times \mathbb{R}^{n-1}$

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- (a) There has been no evidence to prove an alleged essential element of the offence. - (b) The evidence adduced by the prosecution has been discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. - (c) Also a prima facie care must mean one where a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.

Also at this stage the court is not required to decide finally whether the evidence is worthy of credit or whether if believed it is sufficient to prove the case conclusively See V R 1957 RAP 332 Ali Fadhul vs. Uganda Criminal Appeal No. 30 of 1989 SCU unreported.

In defilement cases the prosecution has to adduce evidence to prove the set of

(1) that the child had been defiled that is there had been penetration of the male organ into that of the victim. 'ii) It must be shown that the girl was under 18 years of age and it has also to be proved that it was the angular person temporable for this act.

In the instant case no evidence has been adduced by the prosecution to prove that Diamahad been defiled. Diama did not give evidence to that effect. The other girl Kamirungi who is stated to have been to other with Dian and who probably would have shown that Diana was sexually intercoursed was not called as a witness. The evidence of TW1 alone that she examined Diana

and the stand

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and saw blood to her private parts and torn knickers is not corroborative evidence to show that Diana was defiled in the absence of the testimony from Diana and her companion Kamerungi The police from EXP1 is not helpful either The person who allegedly examined Diana was never called as a witness.

Evidence has so far been adduced to show that Diana was below 18 years by 191 who said she was aged 10 but no evidence has been adduced to show that the accused was responsible for the act.

Also no reasonable tribunal properly directing itself on the law/evidence could convict the accused if he gave no explanation. $\mathcal{L} = \mathcal{L} \mathcal{L} = \mathcal{L} \mathcal{L}$

And finally the evidence provided by the sole prosecution witness in cross examination is somehow full of some material Kahima contradictions and in this way I agree with Mr. Mwene L that no reasonable tribunal could safely conviction convict on it.

The sum total of all this is that prosecution has failed to prove beyond reasonable doubt that the accused committed the of offence with which he is being indicted. I find the accused not guilty of the offence of defilement contrary to section $123(1)$ of the Penal code Act and I acquit him forthwith and unless he is being held for any other offence I order for his immediate release.

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$\psi$ I. MUKANZA JUDGE

$12.2$

$\sim$ $\frac{1}{2}$

At 2.30 $n.m.$ Court as was constituted in the morning. $\mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L}$ Ruling is read and signed.

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I. MUKANZA JUDGE 8.6.1995.