[1995] UGHC 79

## THE REFUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT JINJA

CRIMINAL SESSION CASE NO. 260/94 $UGANDA$ ........ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\mathbb{R}^{POS}$ $\cdots \cdots$

## VERSUS

HUSSEIN BASITA ................................. ACCUSED BEFORE: THE HONOURABLE JUSTICE C. M. KATO

## JUDGMENT

The accused person Hussein Basiita, whom I shall hereinafter refer to as the accused, is indicted for defile. ment c/s 123(1) of the Penal Code Act. The indictment alleges that on the night of 12-1-94 the accused unlawfully had sexual intercourse with one Kadija Nandego who was by then below the age of 18 years. He pleaded not guilty to the indictment.

The case as established by prosecution is briefly that on the evening of $12-1-94$ the accused paid a visit to his cousin called Zaituna Tikabulamu (P72). When it came to sleeping time Zaituma surrondered her bed to the accused where the accused was to spend a night, in the same room where that bed was there was another bod for a child called Kadija Nandego. Late at night Zaituna heard the same girl yelling or screaming, when she went to the room she found the accused dressing up and when she asked the girl as to why she was screaming she said that she had felt something pumping into her private parts. Zaituna examined the private parts of the girl and discovered that she was having some blood in her private parts and there was a slippery liquid like semen in her private parts. The same condition was observed by the child's father Suleiman Bate (PW3) and also Maliamu Wankanire (PW4). The accused tried to run away but was hold by Suleiman Bate (PW3). The RC officials were called and the chairman RC1 Isabirye Zingira Mawazi (PW5) also examined the girl and found her private parts blooding and there was some seamen, her condition was bad. Eventually the matter was reported to the police at Idudi.

raficul According to the accused he did not defile the young girl at all. On the night in question he had visited Zaituna with the view of demanding his money amounting to 50,000/=... which he had lent her to buy land for Bate but late at night he was surprised when he heard people calling him and when he asked Zaituna as to what was $\mathrm{goin}_{\mathcal{G}}$ on she simply replied by saying: "You are stupid like your mother, you have done such a silly thing that I cannot even respond to your call". Some strangers who had come to that home started assaulting him badly and when asked why he defiled the girl he denied the allegation. He was eventually taken to Idudi police station and he was not summer as to whether or not he had ever made a statement at Iganga police.

It is trite law that the accused does not bear the burden of proving his innocence. The burden is upon prosecution to prove the guilt of an accused person beyond reasonable doubt in all criminal cases with the exception of a few statutory cases: Woolmington v. DPP. (1935)AC 462. It is also the law that no accused person should be convicted on the weekness of his defence but should be convicted on the strength of the case as proved by prosecutión: Israil Epuku s/o Achietu v. R. (1934)1 EACA 166 at page 168. In a case of defilement like the present one. prosecution is enjoined to prove that on unlawful sexual intercourse took place and that the girl with when such a sexual interceurse took place was below the age of 18 years and that the accused did take part in that unlawful sexual intercourse: Section 123(1) of the Penel Code Act.

To prove the first ingredient of this offence prosecution relied on the evidence of PW2, PW3, PW4 and PW5 who said that on that night when they examined the firl she was bleeding from her private parts and there was a liquid like human semen in her private parts. The girl herself was unable to testify before court because she was too young to testify. When a voire dire was conducted to determine her capability to testify it was found that she could not testify even without taking an oath. The learned counsel for defence Mr. Wangoola argued vehemtly that in the absence of doctor's and complainant's ovidence the court should find that there was no pexual intercourse. With due

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respect to the learned counsel I agree that in coses of this nature doctor's report is desirable but it is not mendatory, in the same way the evidence of the complainant is desirable but in soot peculica circuastences it can be dispensed with. There is however no law that says in all cases of this nature the complainant or a doctor must testify in order for prosecution to secure a conviction. What is important is that there should be some credable evidence apart from that of the child and doctor which the court may base its decision upon. The evidence of PM2, PM3, PW4 and PW5 clearly phous that the young girl had semen and blood in her private parts. I take the evidence of these people to be truthful and I accept it as such. I find prosocution has proved beyond reasonable doubt that Kadija Nandego had sexual intercourse with a man on that particular night.

Regarding the issue of age of the girl, PW2 stated the age of the girl to be 9 years at that material time but the father of the $girl (PV3)$ said the child was born in May 1983 which means the girl was between 8 and 11 years at that material time, an age which I take to be far below 18 years. It is my finding that at the time this incident took place Kadija Nandego was below 18 years. I accordingly hold that is a defilement was counitted upon Kadija Nandego on the night of $\mathcal{L}^{(k)}(x) = \mathcal{L}^{(k)}(x) \mathcal{L}^{(k)}(x) = \mathcal{L}^{(k)}(x).$ $12 - 1 - 94$ .

Having resolved that defilement was committed upon Kadija the next issue that concrup for consideration is whether or not the accused participated in the defilement. Case for prosecution on this issue depended mainly on circumstantial evidence. It is the law that where prosecution case is based on circumstantial evidence the court will not proceed to convict on such evidence unless the evidence is of such a nature that it points to nothing else but the accused's guilt and that such ovidence has not been weakened or destroyed by some other co-existing factors: R. v. G. W. <u>Senkatuka (1946)13 EACA 89: Simon Musoke v. R. (1958)EA 715</u> and Teper v. R. (1952) AC 480 at page 489. In the instant case the circumstantial evidence relied upon by prosecution is that of PW2, PW3, and PW4 who testified that on that night the accused spent a night in the same room with the complaiment but they were sleeping on different beds and he was the only

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nale in that room. I agree with the opinion of the gentlenan assessor who said as there was no other person in that room and accused was the only make in that room it was reasonable to draw an inference that he just be the follow who defiled the girl. The accused's story that he did not defile her and that this latter was being planted on him because of the 50,000/= he had allegedly lent to Zaituna and she was resisting payment cannot be true. The accused after his arrest additived to chain on RC1 (PW5) that he had defiled the girl except that at that material time satan had tempted him. He repeated this same admission to the D/inspector of police Nicolas Ewire (PW7) in his charge and caution statement Ex. P1 which was admitted by consent of both sides whereby he said he behaved in the way he behaved because he was acting under the power of witchcraft. In that statement the accused was raising the defence of irresitable inpulse which is not available. in a case of this nature: R. v. Ibrahi: Werege Wanala (1943)10 EACA 49 and R. V. Shekanga s/o Ndeka (1948)15 EACA $15\&$ .

In all these circumstances and in full agreement with opinion of gentleman assessor Lubega who assisted me in this case (assessor Baganbe had to be discharged as he failed to turn up when the hearing had been adjourned) I find that prosecution has proved beyond reasonable doubt that it was the present accused who defiled the little girl Kadija Nandego. I find him guilty of defilement contrary to section 123(1) of the Penal Code Act and I do convict him of that offence. $\mathcal{N} \sim$

C. M. KATO JUDGE $7 - 9 - 95$