[1995] UGHC 80

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT SESSION

# HOLDEN AT MBARARA

## CRIMINAL SESSION CASE NO. 326 OF 94

### UGANDA: 1111; 113; 11; 13; 14; 14; 15; 15; 15; 15; 15; 15; 15; 15; 15; 15

#### **VERSUS**

BAGUMA STEPHEN: \$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$\$ BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA.

# JUDGMENT:-

The accused Bagume Steven stand indicted of defilement contrary to section 123 (1) of the penal code as amended. He pleaded not guilty. The particulars of the indictment of that on or about the 9th of November 1993 at Kafunjo village, Bubare in Mbarara District the accused unlawfully had sexual intercourse with one Katushabe Adrina a girl under the age of 18 years.

$\bold{_{that}}$

The case for the prosecution was $\angle$ one Joy Tumushemerirwa PW1 was working for a lady called Nkore Faisi PW5. They were very many people/workers. She was staying with the complainant her niece PW2 aged 9 years. She knew the accused. He too was working in the home of the late Nkore. On 8.11.93 she went to attend a burial. She left Baguma, One Erieza and PM2 at home. She left the accused in charge of her house and she did not intend to spend the night there. Unfortunately she delayed and had to spend the night there. She returned in the morning of 9th November, 1993 and found PW2 having gone to school. When she returned PW2 informed her that she was sick. She did not tell her what she was suffering from. The following day she went back to school without telling her what she was suffering from. But in the morning of 11th November, 1993 the widow of the late Nkore PW5 came and took her to hospital. She suspected the girl might have been defiled because she was not urinating and had constitution. The doctor PW5 examined the girl after he had been presented with a police form from PWI. PW5 found that the girl was aged about 8 years old and her hymen was ruptured. The girl was brought on 24.11.93 and he filled in the forms on 1.12.93. There were injuries around her private parts. She had a vaginal discharge which was a sign of vaginal disease. The injuries were one week old. From his knowledge, education and experience the $\frac{1}{2}$ .

commonest cause of the hymen reputure is by sexual intercourse. The girl Adriana had a penis inserted into her vagina,

⁸ 2:

Qn her part the complainant F#2 gave an unsvrom statement after exercising the voirdire she wan a child of tender years, She testified that the accused raped her. He found her on the "bed and when she woke up she saw him. He came to her hed because PVFj was no there. She felt pain in the abdomen and in her private Parts, They were only two people at night. Later she told her that it was the accused and was taken to hospital. There she was told that she had been raped after examination,

When cross examined PW2 replied 'that she did not see the accused at night raping her. He did not talk to her. She saw th© aoousad when it-was. altoac^ in the morning and the accused was making water trenches in the farm. The accused left her bod when it was still at night before the cocks- orej^

The case for the defence was that DW1 used to make bricks. Ho denied having sexual intercourse with Adriana on 9th November, 1993\* \* He was at the home where he was working, And that is where ho spent that night on. the **ioh** of making trenches. It was agreed between him and Hi chard Wore his master that he would be paid 2O,OOo/=. Wen he finished the job he asked tha manager Byaruhanga Eriaza to pay him. The manager told him that he was going to see his master when he came back Eriaza did not bring him the money. He came to Mbarara and saw the master who asked him to keep waiting. Later he was arrested by the B-Cs officials, Adrian and her mother PW1 were, staying in the house of Bi chard.fs mother.

In cross examination the accused replied that he was arrest°d because of that money.

In cases of defilement the assessors were warned as I also warned myself that th© prosecution has to adduce evidence to prove beyond reasonable doubt the following ingredients of the offence,

(i) That the complainant was under the age of ¹⁸ years,

(ii) That she was sexually intercoursecL

(iii) And finally that it was the accused person who was responsible, Qn the first issue about the age of the girl there is th© evidence of her guardian FW1, She testified that the girl was aged ⁹ and the girl herself

testified, to the same effect that she was aged. ⁹ years. Br. Wasswa PW4 who carried out a medical examination of the complaint found, that PW2 was aged. about ⁸ years. The court also observed, that PW2 was a girl of tender years and definately below the age of ¹⁸ years, I therefore agreed with the gentlemen assessors that the prosecution had proved beyond reasonable doubt that PW2 was under ¹⁸ years.

³ 3 ³

As to whether PW2 was sexually intercoursed. On this ingredient wo have the evidence of the complainant herself and that of the doctor PW4 and partly that of her guardian PU| and Nkore PW5. PW2 testified that when she woke up she found the accused on her bed. He raped her. She felt pain in the abdomen and could not urinate. PW4 examined the girl and found that there were injuries around her private parts. She had a vaginal discharge which was a sign of sexually transmitted disease and her hymen was ruputered, PW1 and PW5 witnessed the complainant being examined.

?h?om what transpired above I was • agreeable with the gentlemen assessors that this ingredient was proved beyond reasonable doubt. The last ingredient is whether the accused participated in the commission of the crime. The learned counsels submitted very strongly on this issue# From the evidence on record Katushabe was the sole eye witness to this incident. At first she testified that the accused raped her. She found problem when urinating\* but when cross examined she replied that she did not see the accused at night raping her. He did not talk to her. She saw the accused in the morning. The accused left at night before the cocks crew. With that contradiction in her evidence it cannot be said that the complainant recognised the accused person as the person who sexually intercoursed her. Being the solo eye witness no one could believe her story. The contradiction is so major and not a minor one and it goes to the root of the case and thus make her evidence unacceptable# See Uganda vs, Pusmani Sabunj HUB Vol. 13 ¹⁹⁸¹ P\_1 Leonard Aniseth Vu 1963 EA p206 Uganda vs, Abdullah NqsurlffiZ page ¹ •

More so the complainant PW2 is a child of tender years and she gave an unsworn statement. According to section 38(3) <?f the TH) the accused cannot be convicted on her unsworn statement unless such evidence is corroborated by some other material evidence in support thereof implicating him. I agree with the submissions of the learned state attorney that ^S 38(3) of the TZD talk of shall not be liable in that the provision is not nandantory and an accused might

convicted on. the unsworn statement *of* a child of tender y©ars\* I tos referred to the authorities in ifcluEiande alias Nanyaaubwa Mande vs\* Itopublic 1965 ^A P# ¹⁹³ Kasani Buluhani ■vs. ft ¹⁹⁵⁸ EA p 471. I have road, those two cases but the « in facts theredistjnguishable from the instant case\*

. ⁴ • \*□

*. <*

\*

S owever the law in that corroboration is looked for all cases of **sexual** offences where the complainant is a **girl** or boy. (jJog for example Telesfora Alox and another ^V ft 1963 EA 140 a case of unnatural offence where child had given swom evidence\*

And in practise even whore the child did understand the nature of an oath and therefore gave a sworn testimony the warning about corroboration must arrays bo given See PJLqo^^/OJ^ai. X-4JJ51Q.. JiA. 86..

3h the end there was no evidence to corroborate the unswoxn statement of which as I sa.ii?. was contradictoi'y cn major issues\*

On the other hand the accused put up an alibi as defence to the criminal charge\* The prosecution failed to destroy end or disprove the alibi by placing the accused at the scene of .exine 3ee\_. ft *V*. Jcdmson, 1^.63 3 ^AM p 969.

All in all the prosecution have failed to prove that it was the accused person who sexually intercoursed the complainant\*

And finally in agreement with unanimous opinion of the gentlemen assessors I find 'bhat the proso-gution has failed to prove beyond reasonable doubt that the accused defiled Katushabe Adriana and in the promises j find him not {Juilty of the offence and ¹ acquit him forth with\* And unless ho is being held on any ^I other charge, I order for his 'imr:edj.ate release\*

I,

J. JJBaB 5-7.1995..

7.-1995 ^s Accused before court\*

Mr\* iiagona for the state present.

II??\* ITguruye fox tuo accused on str.to b:.ief present\* Court/Clerk Mr\* Kolunde. present\*

Assessors² Mr\* Kcmuhsnde and Mr\* ftw^aambe - present\* Cpurts Judgment is read in the open court and siraied\*

. . , ,c. ... s •\_ . Io MUICANZA C' • J ^U ^P ^G ^B 5.7.1995.