[1993] UGHC 79

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT TORORO

### CRIMINAL SESSION CASE NO. 3 OF 92

UGANDA:::::::::::::::::::::::::::::::::::

#### $-$ versus $-$

DISMAS OBURU:::::::::::::::::::::::::::::ACCUSED BEFORE: THE HON. MR. JUSTICE TINYINONDI GIDEON.

# $R$ U L I N G:-

The accused was indicated with defilement under S. $123(i)$ of the Penal Code Act. The particulars of the offence were that Dismas Oburu, on 2.2.7991 at Malaba village in Tororo District, had unlawful intercourse with Loy Akongo, a girl under eighteen years.

After the prosecution had called four witnesses, it closel its case whereupon Mr. Natsomi, Counsel for the accused, on state brief, submitted that the prosecution had not made out a prima facie case.

Mr. Natsomi clarified that at this stage the court is not required to decide whether the evidence is worthy of credit or whether if believed it is weighty enough to prove the case conclusively. What was in issue was whether properly directing its mind to the law and the evidence this court can convict if the accused offers no explanation. Learned Counsel referred to the famous BHATT CASE (1957)EA 332. He then submitted that in defilement cases the prosecution must prove the age of the complainant and the fact that the accused knew that the complainant was under the age of 18. He submitted that the prosecution must prove beyond reasonable doubt either by a birth certificate or the evidence of one of the the parents or any other person who knew the girl. He referred to UG. vs. J. MULIND A 1975 HCB 206 and UG. vs. N. OKELLO 1984 HCB 22. He further submitted that the prosecution had failed to prove beyond reasonable doubt the complainant's age, Yet this is an essential element of $...12.$

## of the crime.

Counsel referred to the evidence of FW3, Florence Aboth, and PW4 Onyango regarding the age of Loy Anyango as most unsatisfactor PW3's evidence was ful of serious discrepancies. PW4's evidence was equally full of discrepancies.

Learned Counsel contended that the prosecution must alisb prove the sexual act. That the actus reus can only be proved by the evidence of the complainant. That since defilement is an offence of a personal nature, without the complainant's evidence an essential ingredient of the offence was not proved. Counsel referred to UG. vs. SWAHIB SSEBBALE 1986 HCB 36 and UG. vs. NAKAZIBWE 1982 HCB 76.

He further submitted that the failure by the prosecution call some witnesses operates adversely against it. In this call the prosecution omitted to call the arresting officer. He cited UG. vs. B. KAB. ALI dies BEN (1972)2 ULR 28 and BUKENYA & OFS vs. UG. /T9727EA 549.7 In addition, Counsel continued. the prosecution failed to call the evidence of the person who accompanied the complaniant to the hospital. The evidence was crucial in respect of the age of complainant.

Counsel pointed out the only evidence called regarding the age of the complainant was the accused's statement which was not corroborated. He submitted that it was trite law that in all sexual offences corroboration was essential. He quoted: CHILM & ANOR vs. R. 1967/EA 722 Learned Counsel prayed that the accused be acquitted under S.71 of the T. I. D.

Ms. Khisa, the Resident Senior State Attorney, replied the a prima facie case had been made out. That in a case of defilement the prosecution had to prove -

$.13.$

(a) the act of sexual intercourse; and

(b) the age of the victim as being below 18.

$\overline{2}$

Learned Counsel submitted thao the prosecution called four witnesses to prove these ingredients, The« evidence of PWJ, an elder sister of the victim, was that the victim was below ¹⁸ having been born in 1980. In Counsel's viev^ this witness was in the best position to know the victim's age. She referred to Exh. P4 where the accused made a statement referring to the victim as a "young girl" She referred to paragraph ¹ of the same statement where the accused confessed admitting that the girl was "under the age of ¹⁴ years",

Ms. Khisa stated that when PW4 was cross-examined he talked of the victim being a child who did not qualify for 14 years because she had not yet developed full breasts^o She submitted that the victim's ago had been proved as being below 18,

Learned Counsel reverted to the discrepancy regarding the date of birth and actual age and submitted that this w.as ^a minor discrepancy not pointing to deliberate untruthfulness.

With respect to the act of sexual intercourse Counsel contended that PWJ's evidence and Exh, P1 offered sufficient proof. So also the evidence of PW2 who visited the scene with the victim where he found signs of struggle and trampled-upon grass. In Exh P1 the accused did not deny the sexual act except to say the girl consented which consent is not relevant in this case because the victim is, in law, not capable of giving consent Learned Counsel also referred to the failure of the complainant to testify and pointed cut that PWJ testified that the complaniant died. In her view this should not be to say that the aggressor should go unpunished. Counsel distinguished the SvVAHIB case (supra) as a robbery case and therefore distinguished on the facts. She also distinguished the NAKAZIBWE case (supra) as one on elopment where the issue was who was the aggrieved party for purposes of compensation.

Learned Counsel invited this court to apply BHATT'^S case (supra). She stated that this court properly directing its mind on the law and evidence could convict the accused if he elects to keep quiet. She also invited court to consider WAIBIRO with MUSA vs. R: 1960/EA p. 184.

In regard to corroboration, Counsel submitted that Exh. P is sufficient basis for a conviction once the court has warned itself of the dangers of acting on uncorroborated evidence. She prayed that the accused be called on to put up his defence.

In considering the submission that the prosecution has not established a prima facie case I am guided by the law as enunciated in the following cases:-

BHATT vs. T: $/1957/\text{Li}$ 332 laid down the principle as

"A prima facie case is one where on full consideration of the evidence a reasonable tribunal properly directing its mind to the evidence and law could convict if the accused offered no evidence."

In UG. vs. ONYATO: 1979 HCB 39 it was stated-

"A mere scintill cannot be enough nor can any amount of discredited worthless evidence."

WAIBIRO alias MUSA vs. R: /1960/EA 184 the law is stated In as follows -

> "However, it is also true that a prima facie case does not mean proof beyond reasonable doubt. The reasons that would lead a judge to a decision on submission of no case to answer would not in<br>law be the same as would activate him whether<br>or not to convict."

#### Finally in <u>UG. vs. MAFABI & Anor. H. C. CR. C 90/74</u> 7

it was stated: ~

"In considering the submission of no case two considerations arise -

- (a) Whether there has been no evidence to prove an essential element in the alleged offence; - (b) Whether the evidence adduced by the prosecution has been so discredited as a result of crossexamination or is so manifestly unreliable that no reascnable tribunal could safely convict on it."

Under Section 123(1) of the Penal Code Act the essential ingredients of the offence are :-

(a) the unlawful act of sexual intercourse.

(b) the age of the victim (herafter "the girl") being under 18. With due restect to Mr. Natsomi it is not in my view, an ingredient cfithis offence that the accused knows the victim to be under 18 years,

For the purposes of this case the evidence contained in the accused's statement, Exhibit P1, was, inter alia.:

> "I admit I had sexual intercourse... I had already asked her for love on three different occasions and she had agreed..."

Add to this the evidence of FW4 who examined the girl and this court is prepared to hold that the first essential element of the offence was proved. I refer to R. vs. ARNOLD $\sqrt{19497}$ WM quoted in ARCHBOLD (38th Ed.) para 2905.

With regard to the second essential ingredient I must confess that it presents a lot of difficulties to resolve due to the naucity of authorities. The section of the Act creates a capital offence. The gravity of the punishment is clear - death. This therefore, in my view, requires strict proof of the age of the A mere scintilla will not do. This proof can be by a girl. birth coupled with some identification or by some other persons who knows the girl: R vs. COX /789871 QB 179. In this case no birth certificate was forthcoming. PW3, Florence Aboth, elder sister of the girl, testified that she was not aware that a birth certificate was issued in respect of the girl. We therefore have resort to the second alternative where we have the evidence of PW3. During cross-examination she stated as follows:

"My parents are both dead. I am 27 years." I was born in 1968. I know Akongo was born in 1980."

Earlier in her evidence-in-chief the witness testified.

"By 2.2.91 Akongo was 12 years"

Learned Counsel for the accused submitted that these discrepancies cast a lot of doubt on the age of the complainant, while the $.../6.$

learned Resident Senior State Attorney called them minor and pointing to deliberate untruthfulness. I observed the witness in ccurt. I do not think she was telling any lies. But she struck me as innocently ignorant about the cycle of time. She was ignorant about her cwn age and not any better about the girl's age. Her evidence was unreliable, therefore.

The other person who testified to the girl's age was F74 Victo Onyango, a clinical medical officer at Tororo Hospital who examined the girl. Needless to say he is not "any other" person who knows the Girl" under the actions of R vs. COX case (supra). He personally did not know her. FW4 testified:

> "I examined one Loy Akongo. She was 12 years cld. I looked at the girls physical appearance as well.<br>She was young and had not developed full breasts."

During cross-examination PW4 states -

"When I examined Akongo I found she was 12 years. I took into account the following factors -

(a) I asked the parent

(b) On examination she had not qualified to be 14 years. The hymen is intact.

A girl of over 18 years can $\gamma$ . her hymen intact, In determining age it is immaterial to determine whether the hymen is broken or not. These are the only factors I considered,"

when the court asked 1W4 he testified

"A man accompained the patient. He did not tell me his name. I knew he was the father because when I asked him he told me he was one. I did not ask him when the girl was born."

The above evidence cannot be relied on. It is rife with self contradictions and inconsistent with that of PW3. Clearly PW3 stated that her parents died. So either the parent who took the girl for examination had to be called to give evidence or FW4 was telling lies that the man was a parent. PW4 admits he did not ask that 'parent' the age of the girl. / . one breath FW4 relies on the hymen for his test of the age in the final

next he states that the condition of the hymen is immaterial. There was thus no basis for his conclusion.

I have to direct my mind to the statement Exh. F1 of the accused made on 11.2.91. He stated that-

> "I admit I had sexual intercourse with a girl under fourteen wears."

The statute replacing S.123 of the Penal Code came into force on 28.9.90. The policeman who recorded the statement was clearly ignorant about the law. It follows therefore that the accused was not told of the elements of the offence he was going to face. No wonder he did not state the age apart from referring to the victim as a "young girl". The age under the section is 18 years but not 14 years.

In view of all the above I come to the only finding that the prosecution has failed to establish a prima facie case. They have failed to call evidence to prove an essential element of the offence which is that the girl was under 18 years. Strict proof the age is required, Rv. ROGERS 111 LT 1115. In addition the earldence of PW3, PW4 and the contents of Exh. P1 have been severely mauled in cross-examination and is so unreliable that it would be unsafe for this court to convict the accused person for this capital offence/if he elected to keep quiet. I therefore uphold the submission of the defence, Counsel that the prosecution has failed to establish a prima facie case to require the accused to make a defence. I acquit the accused person. He should accordingly be set free unless he is otherwise lawfully held.

Tinyinondi Gideon JUDGE 3.4.1993.