[2024] UGHC 1099

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CR-SC-0055-2024**

**UGANDA=====================================================PROSECUTOR**

**VERSUS**

**BYARUHANGA JAMES==============================================ACCUSED**

**BEFORE JUDGE DAVID S. L. MAKUMBI**

**JUDGMENT**

**REPRESENTATION:**

Senior State Attorney Godfrey Oundo and State Attorney Ruth Naisamula for Prosecution.

Counsel Moreen Cinderella Biira for Accused on State Brief.

**THE INDICTMENT**

The indictment in this case is that of Aggravated Defilement c/s 116 Subsections 3, 4(a) and 4(c) of the Penal Code Act.

The particulars of the offence are that on the 1st day of June 2023 at about 2100 HRS in Nyamatunga II village in Kasese district, the Victim’s mother and wife to the Accused Mbambu Jedress left the Victim with the Accused while she went out to borrow salt from a neighbour. She then heard the Victim Kabaganda Judith, a female child aged 1½ years old cry out and upon returning to the house she had found the Accused performing a sexual act on the Victim. Upon being discovered the Accused dressed up and fled the scene till he was eventually arrested.

The Victim was examined and found to have an inflamed vulva and perforated hymen.

The Accused was also examined and found to be medically sound for trial.

The Accused was subjected to a full trial and was put to his defence upon the close of the Prosecution case. The Accused person opted to give evidence on oath in his own defence and did not present any witnesseses.

**ANALYSIS:**

According to the time-honoured case of **Woolmington v DPP (1935) AC 462**, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.

It is equally trite that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt.

The determination of whether or not the burden and standard of proof have been discharged is based on the Supreme Court decision in **Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991** where it was held that,

*“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”*

For an Accused to be found guilty of Aggravated Defilement the following must be proved beyond reasonable doubt.

1. The victim was below the age of 14 years and the alleged offender is a parent to the victim (Aggravating Factor) 2. An unlawful sexual act was perpetrated against the victim. 3. The accused was involved in the sexual act against the victim.

The evidence of age can be established by way of an official birth certificate, testimony of the parents and by court’s own observation.

In this matter, the Victim’s mother testified as PW1 that the Victim was 2 years and 4 months at the time of her testimony. This was consistent with the allegation that the Victim was 1 ½ years old at the time of the alleged offence in June 2023. This testimony was also consistent with Police Form 3A entered in evidence as Prosecution Exhibit No. 1 (PE1). According to PE1 the apparent age of the Victim was found to be 1 ½ years old.

The Defence did not contest the evidence of the age of the alleged victim and against the background of the Prosecution evidence I found that the Prosecution had proved beyond reasonable doubt that the victim was below the age of 14 years old.

In this matter the Accused person testified as DW1 that he is the father of the Victim. PW1, the mother to the Victim also testified to the Accused being the father to the Victim.

The Defence did not contest the evidence of the relationship between the alleged Victim and the Accused and I found that based on both the testimonies of the Victim’s mother and her father the Accused the Prosecution had proved beyond reasonable doubt that the Victim and Accused were related as daughter and father respectively.

As concerns proof of an unlawful sexual act the Supreme Court held in the case of **Hussein Bassita v Uganda – Criminal Appeal No 35 of 1995** that,

*“The act of sexual intercourse of penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence.”*

Counsel for the Prosecution contended there was sufficient circumstantial evidence of the sexual act from PW1 corroborated by PW2 and Prosecution Exhibit 1. Counsel for the Accused contested the evidence of inflammation on the grounds that it could have been caused by infection but Counsel for the Prosecution maintained that PW2s testimony and the Medical Report were sufficient to demonstrate that a sexual act had taken place. Furthermore Counsel for the Prosecution argued that Counsel for the Defence was estopped from contesting the findings in the Medical Report as it constituted an agreed fact at the beginning of trial.

The Medical Examination Report marked PE1 and tendered in evidence as an agreed fact established that the victim’s hymen was perforated and the vulva was inflamed. The medical report was also supplemented by the testimony of the author Mbambu Roseline who testified as PW2. PW2 informed Court that she was a health worker at Kinyamaseke HCIII where the victim was examined. She testified that she held a Diploma in Clinical Medicine and Community Health and that she had been practicing for 6 years.

PW2 testified that she had seen friction marks on the victim’s vulva and also that it was inflamed. She further testified that the inflammation was a reaction to injury caused by a blunt object that she believed was a penis. She also testified that the child appeared psychologically tortured and would cry so hard when her private parts were touched.

During cross-examination PW2 testified that she had done a vaginal swab and sent it to the police. She also testified that inflammation can be caused by infections and injury but had seen no signs and symptoms of infection. She went on to opine that in the absence of other signs and symptoms she believed it was a penis that caused the inflammation. However, she went on to testify in cross-examination that if it had not been for the history she had received about the Victim she would not have drawn the same conclusion.

During re-examination PW2 maintained that she would not have concluded that the blunt object was a penis without hearing the history about the Victim.

When Court asked PW2 to further elaborate about the nature of injuries she testified that she saw bleeding and that the genitalia was reddened and oozing blood. She then went on to opine that the cause was forced sexual intercourse which she described as “using too much energy against something”.

When Court inquired about PW2s experience in examining minors who were victims of sexual assault she testified that she had never encountered a case like the one she handled.

I have carefully considered the evidence of unlawful sexual intercourse in this matter. The challenge I find with the medical evidence is that in the medical report PE 1 PW2 documented the injuries to the Victim’s genitals as “vulva is inflamed”.

Section 7 of Police Form 3A lays out the following instruction to a medical examiner, “*Examination of the regions of the body. (Carefully document the nature, number, position, age and dimensions of all injuries and show them on the pictogram on page 4).*

Furthermore PW2 documented the probable cause of the injury as “*straneas (sic) sexual intercourse)*.

As much as the testimony given by PW2 was considered expert opinion, I found myself wondering whether strenuous sexual intercourse with a 1 ½ year old girl would result only in inflammation of the vulva. This led me to examine the graphical documentation of the injury in the report.

On the pictogram PW2 documented the injury as depicted below:


I compared the depiction above with another image by which the vulva is anatomically described below:


**Image Source: https://my.clevelandclinic.org/health/body/vulva**

I noted from the comparison of the two images that the medical examiner had circled an area at the very bottom of the vulva area and also included the anal area and documented that, *“inflamed vulva and hymen perforated.”*

In my view there is clear inconsistency in the type of injury described and the possible cause. This inconsistency is reinforced by the graphically incorrect identification of the vulva in relation to the injuries described.

PW2s graphical representation of the Victim’s injuries meant that either she did not know what she was doing or that she was simply drawing up a report as a result of confirmation bias based upon the history that she was given by the Victim’s mother. Either way I cannot safely base a conclusion that a sexual act took place on such untidy and vague evidence.

It should be understood that medical evidence is by its very nature scientific and to that extent needs to be as detailed, logical and accurate as possible. I am mindful of the limitation in resources at most of the health centres upcountry but this still does not excuse the lack of diligence and care in terms of presentation of information that is ultimately going to be relied upon to determine whether an accused person is going to be deprived of their freedom.

In a United Nations Population Fund 2018 publication **“*Case Law Regarding Medical Evidence in Relation to Sexual Violence”* by Dr Justice Shalini Phansalkar Joshi – Judge of the High Court of Judicature at Bombay, Mumbai** he states at Pages 9-10 with regard to the importance of medical evidence in sexual offences that,

*“In the absence of any other direct evidence or eye-witness on record, an offence of rape takes place in secrecy, the only piece of corroborating evidence in case of doubt is medical evidence. It is therefore essential for medical officers to conduct the medical examination of the victim properly and to collect and preserve such evidence carefully.*

*In case of child-victims of sexual abuse, medical evidence acts like direct evidence, as it gives the proof of the incident in the nature of tear or rupture of hymen or injuries to genitals and other parts of the body.”*

I wholly agree with the observations of the learned Judge as cited above on the importance of medical evidence in matters such as the instant one before this Court. In this matter, it is clear from the testimony of the mother of victim PW1 that she never actually witnessed the sexual act. This Court was therefore left with only the option of direct evidence of the medical report documented in PE 1. However, this report has proven to be contradictory and unreliable especially given PW2s own testimony that some of the conclusions she made were based on the history given to her by the Victim’s mother. The Victim herself being barely above one year old obviously could not testify as to what allegedly transpired. The process of collection and reporting on medical evidence before Court is a scientific process for which even the slightest error or misreporting can result into a serious miscarriage of justice. It is for that reason that medical evidence should be treated with the narrowest of interpretations in my view and where there seems to be a lack of clarity or consistency it should be weighed most carefully and in the absence of any other clear evidence resolved in favour of the Accused.

It was also a point of concern for me that during examination in chief PW2 only described inflammation of the vulva. She made no mention of perforation of the hymen despite this detail being captured in her report PE 2. Even when Court asked her to clarify the injuries she failed to mention the perforation to the hymen and instead introduced other details which were not included in the report to wit the genitalia appearing reddened and oozing blood. These were critical details that ought to have been brought out in the report instead of the witness box.

The testimony of PW2 in this regard was also contradicted by the evidence received from PW1, PW3 D/C Kabasa Lazaro and PW4 D/C Ngelese Godwin. PW1 testified that she had been given a letter by the LC1 Chairman to go and report to police on 2nd June 2023 which she said she did. It was then that she was given a police officer to take the child for medical examination. Curiously, while PW3 confirms that PW1 had reported a case at Nyamaseke Police in the morning of 2nd June 2023, neither he nor PW4 ever mentioned PW1 being referred with the Victim for medical examination. There is a stamp on evident on PE 1 suggesting that the Victim had been referred by the O/C Nyamaseke Police. If indeed this referral is to be believed then it had to tally with PW1 and PW3s testimony that the case had been reported early in the morning. The trouble with this position is that PW4 testified that as Scene of Crime Officer he had arrived at the scene with the O/C CID (PW3) at around 10AM. As part of the documentation of the scene, PW4 had taken a picture of the alleged Victim entered in evidence as PE 3D.

In the picture PE 3D the victim appears fully clothed and while with an open-mouthed expression on her face, the expression did not appear to me as that of a child in the sort of pain occasioned by a sexual assault where blood would still be oozing from an assault that had happened almost 12 hours earlier. Furthermore, the picture also begs the question that if the police investigators arrived at the scene around 10AM then at what point in time did PW1 report the case and then also find the time to have the child medically examined. Furthermore if indeed the child was still bleeding almost 12 hours later from a supposed sexual assault it would be highly unlikely that the child would be able to stand in the manner that she appeared in the picture. I would also expect that such child would be hospitalized.

All in all I find that in the circumstances I agree with Counsel for the Defence that the Prosecution did not prove beyond reasonable doubt that an unlawful sexual act took place. The quality of the medical evidence in this regard left room for doubt as to the reliability or even the truthfulness of the report.

With regard to the argument that the Defence was estopped from denying the facts of the medical report having been admitted as an agreed fact, Section 67(3) of the Trial on Indictments Act provides that any fact or document admitted or agreed, whether the fact of document is mentioned in the summary of evidence of not, in a memorandum under this section shall be deemed to have been duly proved, but if during the course of the trial, the court is of the opinion that the interests of justice so demand, the court may direct that any fact or document admitted or agreed upon in a memorandum filed under this section be formally proved.

My reading of section 67(3) of the Trial on Indictments Act suggests that what the object of the section was not to preclude the disputing of the contents therein but rather it was intended to prevent the Accused having agreed to its admission into evidence from turning around later and contesting its admissibility for one reason or the other. The content of the admitted document remains open to both court and the defence to scrutinize in the interests of reaching a just and fair decision. I therefore disagree with Counsel for the Prosecution and find that Counsel for the Defence and indeed this Court were free to establish the correctness and authenticity of PE 1.

As concerns participation the Prosecution also relied on the evidence of four witnesses.

PW1 testified that she had heard the Victim crying and returned to the house to find the Accused on the bed with the Victim who was partially undressed without the trousers she had left the Victim wearing. She testified that the Victim was crying and hitting her private parts and that the bedsheet was wet. She further testified that she had seen whitish fluids and that her husband had disappeared immediately after she found him.

During cross-examination PW1 also testified that she did not know why some details like the child hitting her private parts were left out of her statement. She also testified that she did not find the Accused on top of the child.

PW2 Mbambu Roseline testified that she examined the victim on 2nd June 2023 and that she had observed inflammation which was likely caused by a blunt object being a penis. She further testified that by her observation the child was psychologically tortured because whenever she would touch the private parts the child would cry so hard.

During cross-examination PW2 testified that the child’s vulva appeared reddened and swollen. Upon inquiry from Court PW2 maintained that the cause of the Victim’s injury was forced sexual intercourse, that is, using too much energy against something. She also admitted that she had not previously handled a case of forced sexual intercourse of a 1 ½ year old and a grown person.

For reasons I have already explained I found both the medical report PE 1 and the testimony of the author PW2 unreliable.

PW3 D/C Kabasa Lazaro testified that PW1 reported a case of aggravated defilement of her daughter on 2nd June 2023 and had claimed that she had found her husband with the child while in his underwear with his penis fully erect. He further testified that she had informed police that when PW1 confronted her husband the neighbours had started to gather and he fled. The Accused was arrested a few days later. He further testified that he had recovered bedsheets from the scene and that the Accused was not present when he went to the scene with the Scene of Crimes Officer.

During cross-examination among the key things that PW3 stated was that PW1 and other witnesses had stated that the Victim was with the Accused in the same room. He further testified that PW1 had not mentioned sexual intercourse to police. He further testified upon inquiry from court that he did not observe the Victim’s private parts.

PW4 D/C Ngelese Godwin, the Scene of Crime Officer (SOCO) testified that he went to the scene with PW3 and collected a bedsheet from the scene which was submitted for forensic analysis but results were not yet out. He also took pictures at the scene which were tendered in evidence as Prosecution Exhibits 3A, 3B, 3C and 3D.

During cross-examination PW4 testified that he had not seen any visible traces on the bedsheet before it was submitted for forensic analysis.

The Defence contested during submissions on no case to answer that the evidence of the sexual act was unreliable. In this regard the Defence contended that the evidence in the medical report PE1 was influenced by the history provided by PW1.

For his part the Accused testified as DW1 in his own defence and denied that a sexual act had taken place as well as his own role in it. He insisted that he was being framed over a dispute with his in-laws over bride-price.

The evidence pertaining to the Accused’s involvement was from PW1 the Victim’s mother who was the only witness that placed the Accused at the scene. She testified that she had left the Accused with the Victim at home on 1st June 2023 and had gone to look for salt but returned when she heard the child crying and found the Accused had undressed the child.

For his part the Accused DW1 testified that he had returned from work on 1st June 2023 and found his in-laws gathered at his home. He testified that they accused him of defiling his daughter and he denied it. They had then asked him about unpaid dowry and threatened to call the police. He had then decided to leave as he had been previously been falsely accused of a similar act. He had spent the evening at a friend’s house. He had then been detained the following day and taken to police when he tried to collect the key for his home from his in-laws.

During cross-examination the Accused also stated that he had left home out of concern that he had previously been falsely accused. The Prosecution tendered in the Accused’s police statement on grounds that he had been inconsistent about the reason for which he had left his home on the fateful evening.

I have carefully considered all the evidence concerning the participation of the Accused. From the perspective of sexual act itself I already held that there was reason to doubt that the sexual act even took place due to the poor and contradictory quality of the medical evidence. The absence of the sexual act alone vindicates the Accused in terms of participation. However, even when it comes to the evidence of PW1 who supposedly caught him soon after the act, I observed that her evidence was indeed contradictory. This is because by her own testimony she had found the Accused on the bed with the Victim who she first described as naked but then later said she was partially undressed. One further contradiction came out when PW3 testified that PW1 had reported to police that she had encountered the Accused standing in his underwear fully erect. He further testified that she had started to complain and when neighbours gathered the Accused had fled the scene.

The testimony of PW3 concerning the information received from PW1 was in stark contrast to what PW1 testified because she stated in examination in chief that when she had stumbled upon her husband lying on the bed with the Victim, he had gotten up without a word and exited the house. She further testified that her husband had disappeared and that she had gone to her father’s house. PW1 mentioned nothing about any people gathering at her house on the evening that she allegedly caught her husband molesting the Victim.

When I consider the inconsistencies apparent in the medical evidence as well as those apparent in the witness testimonies I find that the inconsistencies therein are so grave in as much as they go to the heart of whether the sexual act ever took place and also the very participation of the Accused in the same.

I considered the arguments of Counsel for the Prosecution by which she contended that there was sufficient circumstantial evidence in light of the testimony of PW1 who testified that the Accused had been found in the house with the Victim. She further testified that he had disappeared from the home soon thereafter. Counsel further argued that this evidence was corroborated by PW3 who testified that the Victim was not walking properly. Counsel for the Accused contested the evidence on the grounds that there had been a four year old sibling at the scene of crime who was of sufficient age to have been able to witness the crime.

However, for the reasons I have outlined above I find that the evidence of PW1 was not reliable and consistent especially when considered alongside the testimony of the Accused himself concerning her likely motivations for testifying against him. I also noted a measure of inconsistency in the evidence of PW3 concerning the state of the Victim. Whereas he stated that the victim was not walking properly, he also very conspicuously failed to confirm the cause of this. It would have been crucial to visually confirm injuries since unsteady walk in a 1 ½ year old toddler is also quite normal as such child is still learning how to walk.

With regard to inconsistencies and contradictions apparent in witness testimony the Supreme Court has held that,

*“It is not every inconsistency that will result in a witness testimony being rejected. It is only a grave inconsistency, unless satisfactorily explained, which will usually but not necessarily result in the evidence of a witness being rejected. Minor inconsistencies will not usually have the effect unless the court thinks they point to deliberate untruthfulness.”* (see **Sarapio Tinkamalirwe v Uganda – Criminal Appeal No. 27 of 1989**).

In the circumstances I am inclined to believe the Accused’s own defence on oath when he testified that he was being framed over disputes to do with bride-price. The inconsistencies in the witness testimony in this matter are not only grave but point towards the likelihood of untruths.

To that extent therefore I find that the Prosecution has not proved beyond reasonable doubt that the Accused participated in the offence.

**ACQUITTAL:**

In light of the foregoing analysis I agree with the Assessors and I find that the Prosecution has not proved the offence of Aggravated Defilement contrary to Section 116, Sub-sections 3, 4(a) and 4(c) of the Penal Code Act against Byaruhanga James and I accordingly acquit him.

The Accused is free to go unless he has other lawful pending charges against him.

Right of Appeal explained

Before I take leave of this matter I think that there is urgent need to put in place standardized guidelines for medical examiners with regard to examination and documentation of victims of sexual abuse. If these guidelines are already in place then they need to be more widely publicized and included in the training curriculum of both medical and paramedical staff. It is guidelines of this nature that will help ensure that the quality of medical evidence being brought before the Court can be measured against an objective standard in the name of ensuring justice and fairness for the Victims and for the Accused persons. A good reference and starting point would be the Guidelines for Medico-Legal Care for Victims of Sexual Violence published by the World Health Organization.

**David S. L. Makumbi**

**JUDGE**

**04/12/2024**