[1996] UGHC 45

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT SESSION HOLDEN AT GULU

CRIMINAL SESSION CASE NO. 434 OF 1995

**UGANDA** FROSECUTOR $\cdots\cdots\cdots\cdots\cdots$ ............. **VERSUS**

Capacital Distriction

AMONE WILLIAM .................. AGGUSED

BEFORE: THE HONOURABLE MR. JUSTICE G. M. OKELLO

## JUDGEMENT

The accused, Amone William was indicted on a charge of Defilement contrary to section 123 (1) of the Penal Oode Act. The particulars of the offence alleged that Amone William on or about the 17th of March 1995 at Laroo Forest Ward, Gulu Municipality in Gulu Disunlawful triot unlawfully had/sexual intercourse with Lopaka Margaret a girl under the age of 18 years.

On arraignment the accused pleaded not guilty. By that plea the accused set in issue all the essential elements in the offence charged. That meant that each and every essential element in the offence charged had to be proved beyond reasonable doubt to secure a conviction. The law places the burden of proving those elements on the prosecution. This principle of the law was laid down since the decision in Woolmington -vs- DPP (1935) AC 462.

<span id="page-0-0"></span>The essential elements requiring proof beyond reasonable doubt in the offence of Defilement are:-

- $\overline{1}$ ) that the victim was at the time of the alleged commission of the offence under the age of 18 years. - that there was unlawful sexual intercourse with the victim $2)$

sexual intercourse is signified by proof of penetration however slight of the assailant\* s penis into the victim's vagina. 3) that it was none other than the accused who was the assailant. The prosecution called the evidence of five witnesses to discharge the burden of proof cast on it by law.

On the age of the victim, evidence was given by the victiralhoi\*-' self PW 2. She' told court that when the incident happened she was ¹⁶ years old since she was bom in 1979:\* Thi(s, evidence was supported by the evidence of the victim's paternal aunt who npw acts like her mother since the victim's both parents' are' now dead.. According to her aunt PW 4^f the victim was bom on 3rd April 1979. That put the victim at the age of ¹⁶ years last year when the offence was allegedly committed.

Prom the above evidence, I am satisfied that the prosecution have proved beyond reasonable doubt that the victim was at the time of the alleged commission of the offence, aged under ¹⁸ years old. Counsel for the accused also conceded from the above evidence that this ingredient had been proved beyond reasonable doubt. I think this concession was justifiable'.

There was the medical evidence by Dr. Okello Oyok (Ptf 1) of G-ulu Hospital. He testified that he had examined the victim on 18th March 1995 when she was brought to him with a complaint of Defilement. According to the Doctor, his examination revealed that the victim was aged ¹⁶ years old. That evidence was not supported by any professional reasons. As ^a professional evidence, it should have been backed up by professional reasons to support the conclusion. Absence of such reasons rendered the Expert evidence of very little evidential value.

Counsel for the accused also conceded that it was likewise proved beyond reasonable doubt that there was sexual intercourse with the victim. Evidence on this was provided by the victim. She testified that, her assailant found her having lunch with her sister Lanyero Linda at the verandah of their house when he pulled her into their house where he threatened to stab her with a knife which he had if she shouted. Then he throw her down unzipped his trousers and inserted his penis into her vagina. According to her, she felt pain at the insertion and later felt some warm substance injected into her vagina. That was evidence of sexual intercourse.

The law requires court to warm itself and the assessors of the danger of convicting on the uncorroborated evidence of the victim in a sexual offence. That once that warning was given court may convict even if there was no corroboration provided that it was satisfied that the victim was truthful. I have warned the assessors as I now warn myself of the danger of convicting on the uncorroborated evidence of the victim in a sexual offence.

In the instant case, there was the evidence of Linda Lanvero FW 3. This was a child of tender age. She gave evidence not on oath She told court that when the assailant came, he took her into thoir kitchen and there threatened her not to make any noise and to remain there or else he would kill her. After that she peeped through assailant the window of the kitchen and saw the who had no trousers on and was lying on top of the victim on a bed in another house, pulled his penis and was inserting it into the victim's vagina. This evidence was intended to corroborate the evidence of the victim with regard to the issue of sexual intercourse. I find this evidence incredible for it is difficult for one peeping through a window (a small one at that) from enother house, to see an assailant lying on top of his victim on a bed in another house inserting his penis into his victim's vagina. This might have been an imagination but not

$\mathfrak{F}$

factual. Besides, while this witness claimed that the assailant had removed his trousers, the victim testified that the assailant did not remove his trouser^ hut only unzipped it. Secondly, evidence of a child of tender age given not on oath itself requires corroboration and therefore can not corroborate another.

There was however, medical evidence given by Dr. Okello Oyok CPW 1) and the medical examination report Exhpl. According to Dr. Okello Oyok, he examined the victim on 18th March 1995 when she was brought to him with a complaint of defilement. From the Doctors testimony, the examination revealed the followingss-

- 1) Perineal bruises that means bruises around the vagina. - 2) Tom hymen and - 3) Abnormal vaginal discharge.

In the opinion of the Doctor, these injuries were three days old. Prom those injuries the Doctor formed the opinion that some one had sexual intercourse with the victim. The Doctor suspected the abnormal vaginal discharge to have been due to some sexually 'transmitted disease. But this was not conclusively established. Because of that recent rapture of the laymen and those perineal bruises, I am inclined to agree that there was sexual intercourse with the victim. Tliis therefore corroborates the evidence of the victim that her assailant had sexual intercourse with her. Eor that I agree with the assessors that tills ingredient had been proved by the prosecution beyond reasonable doubt.

No accused person can be properly convicted of any offence unless he has been adequately linked with 'the commission of the offence. Th the instant case, the prosecution relied on the evidence of identi fication of the accused as the assailant provided by the victim. There was no other evidence. The evidence of Linda ^L anyer⁰ PW 3 doos not provide the requisite corroboration for two reasons, firstly, she told court that the day she gave evidence in court was the

first time she saw the accused. That cast doubt on her evidence that she saw the accused on the fateful day. Secondly, because of her tender ago, she gave evidence not on oath. Such evidence itself requires corroboration. It can not corroborate another.

The defence was an alibi. That the accused was not at the scone of crime when the offence was committed. The law docs not place on an accused who raised an alibi as his answer to the charge against him to prove it. It is still the duty of the prosecution to destroy the alibi by leading cogent evidence that will place the accused squarely at the scone of crime.

Though the accused called tv/o witnesses his father DYf ² and his step mother D\7 ³ both of whom endeavoured to show in their evidence that the accused at the tine material to the alleged commission of this offence was at his hemo digging a pit latrine, the evidence of the victim is very crucial for the success or failure of tills case. It is therefore necessary to examine it closely to determine whether she was truthful since evidence of sexual assault is often easy to fabricate.

The victim (PW 2) told court that she had knovzn the accused before the incident as a village mate. She described his home as being on the way to the well and that she usually passed through his home whenever she went to the well to fetch water. That fact that the accused's home was on the way through which the victim's family pass whenever they go to fetch water in the well had not been challenged. It is probably true. The victim told court that 'the fateful day was the first day for tie accused to reach their home. This suc-ms to explain why PW ³ told court that the day she gave evidence was 'tile first day she saw the accused. Probably because of her tender age, PW ³ was not frequenting the well to fetch water. It also meant that the accused was not a common face in the homo of the victim. This appears to tally with the evidence of PW ⁴ who

explained that she was only three nonths old in her new home at Laroo Village and that because of that newness she had not yet known all her neighbours. It was therefore not surprising when PW 4 told court that she had not known the accused before. This was confirmed by DW 3 who admitted that she had not known PW 4 before. That she was pointed to her by a friend at a funeral place as the person who brought complaint against the accused.

The victim might have got to know the accused as she frequented the well to fotch water. This would not be far fetched because even the father of the accused (DW 2) had told court that the accused spent most of his time at the well digging. This placed the accused at a place where the victim could be meeting him when she wont to fetch water. For the reasons given above, I am satisfied that the victim had known the accused before. The denial by the accused that he did not know the victim can not therefore be true. It must be noted that PW 4 told court that the victim named her assailant as Amone whose home was on the way to the well, when she reported to her the assault on her. Naming the assailant at the first available opportunity is very important because it rules out frame up or con coction.

The incident, according to the $v_{i}$ ctim took place during a broad day time at 2.30 p.m. At that time there were no unfavourable conditions to mar correct identification. I am therefore satisfied that the victim had no difficulty to accurately identify the accused whom she had known before. I do find her truthful and therefore believe her evidence. The defence of alibi must therefore fail. The prosecution had therefore proved this ingredient too beyond reasonable doubt. For the reasons given herein above, I find the accused guilty as charged and in agreement with both assessors convict him accordingly.

$\mathbf{U}\mathbf{D}\mathbf{G}\mathbf{E}$ 7/11/1996

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## SfflTHTCEA

*⁹* 7

The offence of defilement of which the accused is convicted carries a maximum sentence of death. That maxinun sentence shows the seriousness with which the legislatures viewed -this offence. It is to protect young females against such assailants.

The philosophy of sentence is that it must befit not only the offence but also the offender. In the instant case, the accused is ^a first offender. The established practice of this court is not to impose ^a maximum sentence on ^a first offender unless that was ^a mandatory sentence. Court has power to impose lessor sentence if circumstances of the offence warranted. The circumstances in which this. offence was committed indicated that the accused went armed with a laiif^e to threaten his victim to secure access to her. Such an accused is dangerous for ho could kill if he met stiff resistence from his victim. Secondly, the accused is stated to have ^a wife. It was absolutely unnecessary for him to have gone for this young girl. This was more lust. His domestic hardship can not over weigh the gravity of this offence. The period he spent in custody will however be taken into account.- he had been in custody for about one year. I therefore consider ⁵ years imprisonment appropriate sentence in the circumstances. So I order'.

G. M. OICELLO

Judge

7/11/1996