[1996] UGHC 28

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## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT SESSION HOLDEN AT GULP

CRIMINAL SESSION CASE NO. 368 OF 1995

UGANDA . . . .. PROSECUTOR -versus-

ODYEK PONSIANO ACCUSED

BEFORE; THE. HONOURABLE MR. JUSTICE G. M., OKELLO

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The accused, Ponsiano Odyek stands indicted on a charge of defilement contrary to section 123 (1) of the Penal Code Act.. •' \* The particulars of the offence alledged that Odyek Ponsiano on or ■'? about the 22nd day of September 1993 at Wii Atto Village, Te got •' Parish, Bobi Division, Omoro County in the Gulu District had unlawful sexual intercourse with one Ajok Hellen, a girl under the age of ¹⁸ years.

When the charge was put to him, the accused pleaded not guilty... By that plea, the accused set in issue all 'the essential elements in the offence charged. That meant that each and every essential element in that offence had to be proved beyond reasonable doubt to secure a conviction. The essential elements requiring proof bey«cnd reasonable doubts in the offence of defilement are:-

- a) that the victim was at the material time of the commission of the offence under the age of ¹⁸ years. - b) that there was unlawful sexual intercourse with the victim (proof penetration). - c) that it was the accused who had the unlawful sexual intercourse with the victim. ,

The law places the burden ofproving the essential elements beyond reasonable doubt on the prosecution. An accused does not bear the duty to prove his innocence or his defence. The above principle was laid down since the decision in V/oolmington - xs - . DPP (1935) AC--462» This principle is being followed by courts in this co^ri'try• See Leonard Ansineath - vs - Republic ( 1963) EA ²⁰⁶ at 208.

As to whether the victim in this case. Hellen Ajok was at the material time under the age of ¹⁸ years, the prosecution relied on the evidence of four witnesses

The victim PW ¹ who becuase of her tender age gave evidence not on oath, told court that she was aged ¹⁵ years. She could not however tell when she was born. She appeared abit abnormal. PW ⁴ and PW ⁵ who are the mother and father of the victim respectively told court that the victim was aged ¹² and ¹⁵ years. The father PW ⁵ went further to state that the victim was born in 1980. Dr Kilama PW ² of G-ulu Hospital who examined the victim on 23rd September 1993 reported that his examination of the victim revealed that she was aged ¹¹ years old.

All the above evidence indicated that the victim was under the age of ¹⁸ years. Though birth certificate is the best evidence on ones age, one of the parents can also testify as to a child's age. Though there was no birth certificate in this case showing the date of birth of the victim, I am satisfied like the assessors wiih the above evidence that the victim was under the age of ¹⁸ years. I had also seen the victim when she stepped in to give evidence, she was clearly a child of tender age. From the above I find like the assessors that 'the prosecution has proved beyond reasonable doubt that the victim was at the time of the commission of the offence under the age of ¹⁸ years.

On whether there was unlawful sexual intercourse with the victim, the prosecution relied on the evidence of four witnesses. The victim (P\7 1), Acito Jennifer (Pl 3), the mother of the victim (PW 4) and

Dr. Ki lam^a (PW 2) who examined the victim. Before ^I give the summary of the evidence of these witnesses, ^I think it is instructive to point out that to prove sexual intercourse there is need to prove penetration of the man'^s penis into the victim'^s vagina. It should be noted that to constitute sexual intercourse, it is immaterial that the penetration should go the full length, of the man's penis or that there should be ejaculation. Sexual intercourse is complete with the slightest penetration.

In the instant case, the victim PW ¹ told court in her unsworn statement that in September 1993 she was returning from school when she met the accused who told her that he would give money to buy beans and ground nuts. Thon he pulled her into a nearby bush and there he lifted up her dross and his own and lay on her stomach and th^j^he felt pain all over her body. According to her, she later reported to her cousin sister Acito Jennifer PW 3\* The said Acito Jennifer was herself a child of tender ago. Because of her age, she gave evidence not on oath. In her said statement Acito (PW 3) . t told court that when Ajok Hellen the victim complained to her that tho accused had sexual intercourse with her, she examined the victim and found blood and some watery substance in the victim's vagina. Juliya Okech (PW 4) who is the mother of the victim told court in her testimony that she was returning home from a political meeting when a lady friend informed her that her daughter Hellen Ajok was defiled by the accused. According to PW 4, when she heard that report, she rushed towards home and found people meeting at a neighbour's home. At the mooting the accused and the victim were present. The accused was apparently already arrested and being questioned on the allegation. Then she pulled the victim aside and examined her. According to PW 4's evidence, she found blood and "Odyek's sperm" in the victim's vagina. Dr. Kilama (PW 2) who examined the victim a day after the allo gid defilement told court that he found no external injury on the victim's body. But that he observed that her hymen was freshly raptured and was still bleeding. According to the

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Doctor he concluded that the victim was defiled as in his view the rapture of the hymen was consistent with penetration.

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It is clear from the above evidence that apart from the evidence of Dr. Kilama (PW 2) the evidence of the other witnesses did not prove the penetration essential to establish sexual intercourse. The- evidence of the victim fell short of stating that her assailant had gained entry' into her vagina. Similarly the evidence of PW ³ and PW ⁴ that they examined the victim arid found blood and some watery substance in her private part did not prove penetration either. The evidence of Dri Kilama. which indicated that there was a rapture of the victim's hymen indicated that there was penetration. Prom that I agree with the lady and gentleman assessors that the prosecution has sufficiently proved sexual intercourse. I therefore find that there was sexual intercourse with the victim.

The next question then is who had the unlawful sexual intercourse with the victim. The prosecution contended that it was the accused. The evidence relied on was that of the victim PW 1. She told court that she knew the accused as a neighbour, their homes being only one mile apart. That on the fateful day she was returning from school when she met the accused who committed the offence on her. According to PW ¹ she identified the accused positively. There was no other evidence direct or circumstantial which connected the accused with the offence. The victim gave evidence not on oath. The defence is an alibi. That ho was not there.

It is important to point out that the law requires that when a child gives evidence not on oath, her evidence must be corroborated (section ¹² Oath Act). In the instant case, PW ¹ gave evidence not on oath. Such evidence requires corroboration which is not available. The effect is that there is not sufficient evidence to prove linkage of the accused with the commission of the offence. In those circumstances I find that the prosecution have failed to prove their case against the accused sufficiently. In disagreement with the

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Lady's Assessor therefore I find the accused not guilty.

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The State Attorney cited a number of cases which dealt with the need of warning in sexual offence for need of corroboration» Those cases cited are relevant to rape cases where once the court gives the necessary warning may convict even if there was no corroboration provided that it was satisfied that the prosecutrix was truthful. Those casus do not apply to defilement where the victim is a child whose unsworn statement by law requires corroboration. Having said so much, I now acquit the accused of the offence with which he was charged. He is thus ordered to be set free forthwith unless he is being hold on some other lawful ground.

G. M. OKELLO

JUEGE

29th July, 1996