[1995] UGHC 44

## THE REPUBLIC OF USANDA

## IN THE HIGH COURT OF USINDA AT ARUA

## CRIMINAL SESSION CASE NO.90/95

**UGANDA**

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PROSECUTION

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VRS.

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the the party and the down

AZIGA ITOLE

REFORE: THE HON. HR. JUSTICE G. M. OKELLO

**JUDGIENTY-**

. The socused, Aziga Itele was indicted on a charge of Dafilement of a girl under the age of 18 years contrary to section 123 (1) of the Penal code Act as amended by Statute 4A of 1990.

$\star$ . The particulars of the offence alleged that on the 13th day of August 1993 at Kibiri village in Arua District, the accused unlawfully had sexual intercourse with ZAHARA JUMA, a girl under the age of 18 years. In arrangument, the accused pleaded not guilty. By that plea, the accused set in issue all the essential elements in ... the offenee charged. That meant that all the essential elements in that offence had to be proved beyond reasonable doubt if a conviction was to be secured of the accused for the offence.

Essential elements requiring proof beyond reasonable doubt in an offence of Defilement are:-

(1) that the victim was under the age of 18 years.

- (2) that there was unlawful sexual intercourse with the victim and - (3) that it was the accused who had that unlawful sexual intercourse with the victim.

The burden to prove the above essential elements lies throughout on the proportion. That burden does not shift to the accused for under our law, an accused has no duty to prove his innocence.

In the instant case, the prosecution called the ovidence of three witnesses in attempt to discharge the burden cast upon it by law.

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The ccoused himself gave unsworn statement in his defenco and called. the evidence of one witness, His defence is a denial of the offence.

On the age of the victim Zahara Juma, thero was over whelming evidence indicating that she was under the age of 16 years at tho time of tho alleged sexual intercourse, The victim herself gave evidence as PW1 • She testified that she was a pupil of Arua Primary school, then in P5» According-to her, she was 16 years old having boon born on 19/V79- That- evidence was supported by the testimony of the victim's father ono Ali Kenyi PW2. Though he would not remember the exact date whan the victim was born, ho could remember that she was born in 1979- By ^a simple mathematical, calculation, it meant that at the time of the alleged sexual intercourse, the victim was aged about 14 years. She was therefore under tho ago of 18 years.

In his address to me, Mr. Oyaxmoi Counsel who appeared for tho accused on state brief, conceded that that ingredient was proved beyond reasonable doubt. I share that view and like both: assessors I find that the prosecution had proved beyond reasonable doubt that the victim in this case was under the age of ¹⁸ years.

On whether there was unlawful sexual intercourse with the victim and by the accused, there had been serious contention. As usual there was no eye witness of the sexual act. 'The direct evidence available was tho testimony the victim herself (PW1). She testified that in the night of 13/8/93 she was in company of two other girls. They were returning from a Duluka Dance when the accused and another boy found them. The accused's friend went with one of the three girls and the accused pulled her to his home. Tho third girl proceeded home. According to the victim she spent tho whole night with the accused at his home and in Ids house where he had sexual intercourse with her. Sho went to her father's home the following morning.

though consent is irrelevant in cases of defilement because the law presumes that victims of such cases are too young to give consent to the sexual act, it should nevertheless bo pointed out here that in the instant case there was no evidonce of any form of resistance on the part of the victim. Sven the following morning when she wont to her father's home, she did not report tho matter to any body. Her father PW2 testified that sho had. to bo beaten before she could reveal that sho spent the night with the accused.

The accused denied that he had sexual intercourse with the victim or spent tho night with her at all. '. DW2 supported his evidence.

Tho rule of practice enjoins tho trial Judge in sexual cases to warn tho assessors and himself of the danger of convicting on tho uncorroborated testimony of the complainant in a sexual case. (see Chila V. ^R (1967) 3A 722). I did warn the assessors in this case as I now warn myself of such danger.

In tho instant case, tho prosecution reiiod on tho evidence of PW3 the medical assistance who examined both tho accused and tho victim on 16/8/93 for corroboration of tho testimony of the victim. According to PW3, carried out physical examination of tho victim and also examined her vaginal smoar under microscope on 16/8/93. He testified that tho tost of the vaginal smear revealed tho prosone^o of spermat The Report was at tho trial tendered in evidence and was marked 5xh. P1 •

In the view of tho nodical assistant (?W3) tho presence of the spermatozoa in tho victim's vaginal smear indicated that there had boon sexual intercourse with tho victim within tho last twenty four hours from tho time he examined tho victim. He further testified that bis physical examination of the victim revealed that her hymen was rapturod weeks or oven months ago.

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PW3 further testified that ho also examined the accused on the same date. According to him he carried out physical examination of the accused and also examined the accused!s urd.no under microscope. PW3 testified that the physical examination of the accused revealed healing woulds on his penis. In the opinion of PVB, though those wounds could also have teen caused "by some other means, rough sexual intercourse was also a possible cause. PVB testified that the microscopic examination of tho accused's urine revealed tho presonco of spermatozoa. Tho Report was received in evidence and was marked 3xh. P2.

Mr, Murunba submitted for tho state that the presence of spermatozoa in tho victim's vaginal smear corroborated her testimony that there was sexual intercourse with her within tho last twenty four hours.

I have no quarrel with that view as there could ba no other reasonable explanation as to how tho sperm cells got into tho victim's vagina other than by soxual intercourse. I thus disagree with Mr. Oyarmoi when ho submitted that soxual intercourse had not been proved beyond reasonable doubt. I do find that the presence of sperm colls in tho victim's vaginal smear corroborated hor testimony that thero was sexual intercourse with her. This ingredient had therefore been proved to the required standard.

On who had that unlawful soxual intercourse with tho victim, Mr. Murumba submitted that tho presence of sperm cells in tho accused's urino (3xh. P2) corroborated tho victim's evidence that the accused had sexual, intercourse with her.

I respectfully disagree with the learnod Resident State Attorney on that submission because tho presence of the spermatozoa in the

accused's urine (3xh. P2) was not conclusive proof that the accused was the very parson who mast havo had sexual intercourse with the tho victim and introduced £ sperm cells into her vagina. For that conclusion to he safely drawn more facts needed to bo established first. For instance, it had to bo established that tho sperm cells found in the victim's vaginal smoar were similar to those sperm cells found in the accused's urine. This was rot dono. When court asked him for the similarity of the sperm cells found in the accused's urino with those found in the victim's vaginal smear, PW3 answered that when ho examined tho victim and the accused, the sperm cells were already dead and therefore he could not determine whether they wore active or less active. Without evidence linking tho sparm colls found in tho urino of tho accused with those found in the victim's vaginal smear as being from the same source it can not be conclusively stated that tho accused was responsible for the presence of tho sperm cells in the victim's vaginal smear. That only raised strong suspicion and that does not provide the corroboration required to tho victim's evidence that the accused had sexual intercourse with her.

Mr. Murumba also submitted that the healing wounds found on the accused's ponis indicated that he had forceful sexual intercourse with the victim who was under tho age of ¹⁸ years. That submission is also misleading because PW3 testified that rough sexual intercourse was one or the possible causes of those wounds. It can not therefore conclusively be said that tho injury was caused by his having had forceful sexual intercourse with the victim.

There is therefore no corroborative evidence to the victim's (PtH) testimony that it was the accused who had sexual intercourse with her. I have already warned ijyself of tho danger to convict on the uncorroborated evidence of tho prosocutrix of a sexual case. In tho instant case, the evidence of the victim PW1 indicated that tho accused and her both live in Kenya village in Arua municipality. The accused

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himself admitted this facto Ho also indicated, in Ills evidence that ho and the victim knew'.each other⁹ I had pointed out earlier that the victim had told court that the accused pulled, her to his hone© But on the record? there was no evidence of resistance from the victim. She spent the whole night with the accused and was even not willing to complain until when her father beat her. All. these indicated that the accused and the victim had pre-arranged their rendezvous and the subsequent act. I therefore do not doubt the victim's evidence of identification of the accused as the person who had sexual intercourse with her. Her unwillingness to complain of tho act could only moan that she wanted to protect her boyfriend and to keep their secret. Sven her father PW2 testified that ho directed that tho case bo taken to police because tho accused had become abusive to him. That meant that if tho accused held agreed to settle tho matter customarily, this case would have died there. It would not have been here before us today.

I must say that I have no doubt in my mind of the truthfulness of the victim as to what happened. She had been an impressive witness. Open and straightforward. She was not shaken in cross-examination. I do not believe the denial of tho accused supported by his older brother. This was a desperate attempt to wriggle out of tho obvious. Like the Assessors therefore I find that the accused hade sexual intercourse with tho victim in tho night of 13/8/93\* That sexual intercourse was unlawful since ho was not married to her and tho victim was still under the ago of ¹⁸ years. Sho was still incapable of consenting to sexual act. For tho reasons given above, I find that tho prosecution have preevod their case against tho accused beyond reasonablo doubt. So in agreement with both assessors, I convict tho accused of defilement as charged. ?

GJI. 0K3LL0

JTJBGS. 29/6/95