[2018] UGHCCRD 126

### **THE REPUBLIC OF UGANDA**

# IN THE HIGH COURT OF UGANDA AT ENTEBBE

### HCL-00-CK-2C-0222-S016

## **UGANDA :::::::::::::::::::::::::::::::::::**

#### **NERSUS**

#### **BECONSELECTION ACCUSED** HAJI NUMAN KIDDE

## BEFORE: HON. MR. JUSTICE J. W. KWESIGA

### **INDOMENT**

maintained in his defence that this case was fabricated. The accused person pleaded not guilty to the charge and **Vears.** district he performed a sexual act with Madina Nalumansi, a girl aged 9 Act. It is alleged that on 22^nd February 2015 at Mende village, Wakiso Aggravated Defilement Contrary to Section 129 (3)(4)(a) of the Penal Code Aggravated Defilement Contrary to Section 129 (3)(4)(5) $\frac{1}{2}$ The Accused person Haji Numan Kidde aged 65 years is indicted with

elements of the offence namely that:-The state has the burden of proof in this case to prove the essential

- Nalumansi, alleged victim was aged below 14 years. - That she was subjected to a sexual act and that this was by the - Accused can be convicted. Accused person. All the three elements must be proved before the

the case beyond reasonable doubt. offence to determine whether the state has discharged the duty of proving been proved guilty. I will examine evidence on each element of the criminal offence is presumed innocent unless he pleads guilty or he has Constitution of the Republic of Uganda. That every person charged with a The legal position in Uganda settled under Article 28(3)(a) of the

reasonable dubt. of the age of the alleged victim being below 14 years was proved beyond satisfied that the state has proved beyond reasonable doubt that the fact ms I .blo shefore, in 2015 she must have been 9 years old. I am the sine years of bepared to be below 14 years at the time of Nalumansi (Victim) and found her to be 9 years old. Nalumansi (PW6) said pyy) Joshua Magade, a senior Clinical Officer told court that he examined

evidence or circumstantial evidence. victim's evidence or testimony by those who saw it happen, medical the girl's vagina. A sexual act or sexual intercourse can be proved by the Section 129(7) of the Penal Code Act defines a sexual act as penetration of there is no proof of sexual intercourse or participation by accused person. The defence contested the remaining two elements of the offence that

"әวиәрілә victim's own evidence and corroborated by medical or other είτς της θ. Αι αριστία με με με με με με με με με με με με με a penetration may be proved by direct or *intercourse,* Uganda - Criminal Appeal No. 35 of 1995 that "The act of sexual The Supreme Court settled this in the case of Basita Hussein Versus

sufficient to prove the fact beyond reasonable doubt. sexual offences to prove penetration provided prosecution evidence is In my view, medical evidence is desirable evidence but not a must in

were taken for examination. home crying. That her dress was wet and blood stained. That her clothes Accused person had sexual intercourse with her in the field. That she went implication of giving evidence on oath/affirmation, she told court that the Though a moslem who did not appreciate the duty and .ntso no Nalumansi Madina (PW6) a child of tender age who was unable to testify In the instant case, the testimony alleging the sexual intercourse was by

without oath or affirmation". evidence of a person who sind navig even lists onw nerror of a personal ρε counicted or juament diven noon the uncorroborated found on it. Section 10 of oaths' Act (Cap.19) states:- "No person shall The above evidence must be corroborated before a conviction can be

"nəvip əd əsas tant ni bluone primism". corroboration of sworn evidence though a particular careful charge.----The evidence of an unsworn child can amount to evidence relates to an assault to him or herself or to any other s,piido she case. It makes no difference whether the child's implicating the accused is that of unsworn children, the Judge be corroborated by sworn evidence; if then the only evidence ER 272 stated "To sum up, the unsworn evidence of a child must Lord Goddard (as he then was) in R. Versus Campbell (1956)2ALL

evidence in support implicating him or her". nnless the evidence is corroborated by some other material of the prosecution, the accused shall not be liable to conviction evidence admitted by virtue of this sub-section is given on behalf understand the nature of an oath and evidence is **receive** "---**but where**" Section 40(3) T. I. A requires that where a child of tender age does not

defilement was on 22^nd February 2015. he saw bleeding on $23^{\rm rd}$ February 2015, this supports the story that she started bleeding. This was corroborated by PW7, Joshua Maganda that In the instant case, the unsworn evidence states that she was defiled and

of the Accused Person. There was no other evidence in the whole case to corroborate participation

garden the victim was consistent with her story and led us where $\mathbf{I}$ pies $\mathbf{I}$ pies $\mathbf{I}$ pies $\mathbf{I}$ pies $\mathbf{I}$ pies $\mathbf{I}$ pies $\mathbf{I}$ story of the child. He stated that the Accused denied participation but he pM4, D/C Okwanga Ceaser did not helpt the state case he relied on the

participation. it occurred". This was a mis-direction and un-reliable evidence to prove

be acquitted. participation was not proved. The accused person is not guilty and he shall I agree with the defence contention that the vital element of the offence,

Dated at Entebbe this 30^th day of May 2018.

J. W. Kwesiga

#### $ə6pnc$

8TOZ/SO/0E

In the presence of:-

- Mr. Ssekajja for defence - AN: Tuhairwe Julius ASS suilul ewritate - Miss Gorret Boogere Court Clerk.