[1994] UGHC 88

## TIPI REPUBLIC OP UGANDA,.

IN THE HIGH GQURT OF UGANDA AT FORT PORTAL CRIMIN'.!, SES3IOT^T PAGE NO, 212 OF 1992

UGANDA:nt::::::::::::::::::::::::::::::::::.::PROSECUTOR. =VERSUS==

STEPHEN RUHUNGA ACCUSED.

BEFORE: THE HONOURABLE LADY JUSTICE M, KIREJU,

## J U D G M E N T.

whom The accused person Stephen Ruhunga /' I shall hereinafter refer to as the accused, is indicted with defilement of a girl under the age of 18 years Contrary to the Provisions of Section 123 (I) of the Penal Code Act as amended hy Statute No. 4 of 1990. He pleaded not gulty to the indictment.

The prosecution at the hearing was led by learned Counsel Mr. Kikomeko and the accused was represented by learned Counsel Mr. Mugamba.'

The case as established by the prosecution is that the victim P.¥/. 2 on the night of 13/12/1991, she was sleeping in her room (Muzigo) with her brother Wilson Tumusabe P. W.3 when the accused who was occupying the next room came to their room pushed her brother from the bed and played sex with her. The victim cried and told the accused that he was going to infect her with slim (Aids) and the accused said that he did not have slim. The victim cried and told him that she was going to report him to her grandmother Susan Tibakanya now deceased.

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The accused told her to keep quiet and not to mention it to anybody the following day.

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$\epsilon_{\rm c} = \epsilon_{\rm c} \, \omega_{\rm c}$

1250r

公

When P. W.3 Wilson Tumusabe heard the victim crying who was her sister he woke up, and the victim informed him that Stephen had defiled her. After the act the accused refused to leave the victim's room and the brother of the accused $D_{\bullet}W_{\bullet}$ who was sleeping next door but could hear what was going on in the victim's room, invited the two children to go and sleep in his room. They moved to $D.$ $\forall$ . 3's room but then the accused left the children's room and they went back and slept until the following day when the victim went and reported to RCI Chairman Polycap Kateba. The Chairman convened a meeting the accused was called and he admitted having defiled the victim, P. W.5 Stephen Mugisa was present. The accused was arrested and taken to Fort Portal Police Station, he was received and detained in the cells by $P_{\bullet}W_{\bullet}4$ v/PC Wanyeza. The accused was/ he made a cautioned statement which he denied in Court. The statement was identified by P. W. S. D/IP. S. Kumalirwa as the recorder one D/IP. Balinda was dead, it was later exhibited as P.2 both the English and Rutoro version were tendered in Court. The victim was examined by doctor and the Medical report was exhibited as Exh. P. I.

On his part the accused denied defiling the girl. He said that he lived with his brother Wilson $D.$ W.3 in a porter's house at Erika Kirungi's farm. They shared one room and another room was occupied by the victim's family, the third room was occupied by Rwekisangi and his wife. He denied going to the victim's room on the night of 13/12/91. He denied having made the cautioned statement voluntarily, he said he was beaten. He said that when he was arrested and taken to RC. Chairman he was beaten, and

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later transferred to the Police Station and detained there. He did not have any grudge with the victim or her mother and did not know why the children accused him of such a serious There was also the evidence of D. W.2 Mrs. Mary Kirungi offence. who testified that she employed the suspect on her farm. She also claimed that there was a grudge between the accused and the victim's mother because the accused and his brother slaughtered a chicken and they refused to give it to the children. According to her, she did not think that the accused defiled the The last defence witness was D. W.3 Wilson Sande the younger girl. brother of the accused who testified that he shared the same room with the accused. He claimed that the night of 13/12/1991, the accused slept with him in their room, they did not hear onything from the children's room next door. He testified that the accused never went out that night although in crossexamination he admitted that the accused could have more out while he was sleeping.

It is now established principle of our law that the burden of proving accused's guilty beyond reasonable doubt is upon the prosecution throughout, it never shifts to the accused except in some rare case where the statute provides otherwise: Serugo vs. Uganda / 1978 / HCB I, Woolmington vs. D. P. P. ∠ 1935 / AC 462 and Okethi Okalo and Others vs. Uganda $\angle$ 1965 $\angle$ RA. 555. In order for the prosecution to secure a conviction for defilement it must prove beyond reasonable doubt that there was an act of sexual intercouse and the

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victim of the intercourse was a girl bclov/ oho age of 18 years which used to bo 14 years before the amendment: U y\_ Josej)h I/Iulmch^^ In eases of defilement the consent of the victim in immaterial: Eria Ngobi\_y. IL 19,5,3. 20 'OAC. A.. 154>. The prosecution is also required to prove that the accused took part in the act of defilement.

I shall first deal with the ingredient whether the victim was a girl below 18 years of ago at the time the alleged defilement took place. There is the evidence of the victim P. W. 2 who testified on oath that she was 14 years at the time of testifying. The doctor P. W. I John Friday Ruhweza testified that ho examined the victim on 17/12/91 and he found her to be aged 12-J-.years. The fact that the victim was a girl below 18 years was not disputed by the defence. I had the opportunity to see the victim and she appeared to be far below the age of 18 years. She looked to bo .just over 14 years of ago. I have therefore found that at the time the victim was defiled she was below the age of 18 years.

Tn order to prove that there was sexual intercourse the prosecution relied on the evidence of P. V/. I the doctor, P. W. 2 the victim, P. W. ³ Tumusabe and the confession by the accused which was admitted in evidence after a trial within a trial.

P. Y/. I testified that Jane Kombabazi (P. W. 2) was sent to Puhinga Hospital on 14/12/91 with Police Form 3 with the request that She be examined, she was a complainant in a defilement case. Ho examined the victim on 17/12/91 and

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found her to be aged $12\frac{1}{2}$ years her heymen was raptured but he could not tell how long it had been raptured. There was evidence of inflammation around the private parts, these findings were consistent with force having been used. There were no injuries on the thighs or other parts. He found the female (victim) to be weak and was not capable of putting up any resistance. He did not know how long the injuries on the private parts had been inflicted, he did not find any venereal disease. P. W. I explained that the heyman may rapture if interferred with from outside by an object being forced into the entrace of the vagina. He further testified that although there are some few cases of rapture by other objects in most cases it is raptured by male organ through intercourse. Other causes he said were as a result of the female falling on a sharp object and there would be more injuries than if the penis is used. He added that the penetration in this case was likely caused by a penis because of the evidence of inflammation and the reddening of the private parts which showed that something was reported several times. The report of the doctor was not disputed by the defence and it was put in evidence as Exh. P. T.

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$\bigcap$

In addition to the doctor's evidence there was the evidence of the victim herself. Since she was just over 14 years at the time she testified and at the time the crime was committed she was even younger, I first found out whether she<br>and their importance of telling the truth, understood the nature of oath./which she did, and therefore she testified on eath as an adult. Although the law allows a person who is 14 years and above to testify on eath - Kibangeny Arap Kolil v R 1959 EA. 92. I warned the accessors as I warn

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myself to treat her evidence with caution 'because at the tine of the incident she was much younger and nay not have been clear of what happened as children sometime take to fancy.

P. YZt2'^s evidence was that while sleeping in her room with her brother P. Y/.3, the accused envadod. their room at around 9 pushed off P.h.3 who was sleeping on the same bod with her and intercoursed her. He inserted his penis in her vagina, that when she cried and said ''Stephen you are infecting me with slim" ho replied that ho did not have slim. She told him that she would report him to her grandmother Susan Tibakanya - ^&lt; (deceased) which sho did the foliovang morning.

P. W.3 Tumusabe Wilson, said that he was in Primary one, after a voire dire, it was found that he did not understand the nature of an oath. After further examination, he was found to bo intelligent enough and to understand the duty of telling the truth. Ho gave unsworn evidence. His evidence and that of P. W. 2 was received in chambers in the presence, of the accused, both counsel, Court Clerk, the mother of the two children and gentlemen assessors. I decided to take the evidence of these two witnesses in chambers because as P. W.2 started answering questions and narrating her ordeal, sho started crying but oven in chambers, she continued sobbing throughout her testimony but was coherent and answered all questions. P. W.3Ts case was oven worse, he gave his whole testimony in tears despite the fact that his mother was seated next to him. However, his testimony was brief and straight forward but ho refused to answer any questions from the defence Counsel. I shall comment on the demeanour of these two children at t?io end of this judgment.

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The evidence of P. W.3 was that he woke up on that fateful night to find his sister P. VZ. 2 crying, she informed him that Stephen, the accused had defiled her. Counsel fox the accused attacked the evidence of these children that they must have been discussing what .' happened on that night, that they had been rehearsing the story for the last 2 years. lie said that the children were told what to say and could have been mistaken on what happened on that, night ho warned Court to bo cautious with their evidence. I viewed the submissions by Counsel seriously and I agree that sometimes evidence can bo discussed so many times tha.t everyone in the family come to narrate what happened ovon if he/sho did not witness it himsclf/herself. However, in this case, after seeing P. V/, 2 and P. Y/.3 giving evidence in tears I did not think, that this is a case which the two children could have found pleasure in discussing so many. times that it stuck in their heads and they camo to Court to toll the same stor Matters relating to sex arc usually very embarrassing to most people and do not make an easy subject for discussion especially with children who do not understand it very well. As was pointoc out by counsel for the state sox is a secret.'.' act not for publicity. I therefore defer from the submission of counsel and find that the evidence of P.'7.2 and " P. V/. 3 were not rehearsed or influenced but they toll the truth as things happened.

The evidence of the doctox\* was that th. injuries found on the private parts of the victim were consistent with the penetration of a. penis rather than any other object. Ho also f< that the victim could not have offered any resistance thu.ts why probably there were no other injuries. The doctor's evidence

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taken together with that of P. W.2 leaves no doubt in my mind that there was penetration and the act of intercourse was complete. In full arroament with the assessors, I find that the act of sexual intercourse has been proved by the presecution. The unsworm evidence of $P_{\bullet}$ . 3 go to show the consistency in the prosecution evidence in respect of this ingredient.

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Having found that there was defilement, the next crucial issue to consider is whether the accused Stephen Ruhunga was responsible. Connected with this is ue is the question of the accused's confession. The testimony of the accused is that he never defiled the girl. On the night of 13/12/1991 he did not live his room to go to the children's room. He said he did not know why P. W.2 and P. W.3 decided to allege that he defiled P. W.2. He confirmed that he had no grudge with the children or their mother or any of the witnesses in the case. He said that he made the statement to the Police but it was under threat. In cross examination he said that he did not know when he was borm, and that he did not know his age although he had said he was 25 years in examination in Chief. He did not know when he was arrested and taken to Police that hy forgotten the dates. He said that he had lived with the children in the same house for 4 months. He used to look after the children during the day, in case of a problem he would enter their room to assist them. He shared his room with his brother D. W.3, and if someone talked in the next room one would hear from his room. He said that how can they say that he defiled the girl when he was never medically examined. The second defence witness was D. V.2 Mary Kirungi who said that she employed the accused and his brother on her

$...$ farm at Kltumba. Her evidence was found to bo of no value as she was testifying to things she had no knowledge about since .she was not at the scene where the crime is alleged to have taken place. In full agreement with bhe assessors, her evidence-was rejected as it was based on speculation. The last defence witness was D. W.3 Wilson Sundo: the brother of the

accused. He said that he shared the same bed with the accused. On the night of the alleged defilement, the mother of the children had gone to Mwongo. He said that if something happened in the children's room he would hear but that night ho did not hear anything. He claimed that Ruhunga, the accused never went out that night. He denied having brought a girl in that room that night. In cross examination he admitted that Ruhunga could have gone out without his knowledge while he was asleep. He claimed there was a, grudge between him and his brother and the family of the victim because they had slaughtered a chicken and refused to give some to the children. He did not know **c •** whether the accused slept with the victim that night but he would be surprised if he did.

On the other hand p.^v,\ 2 testified thc<u on the fateful night her mother had gone to I/Iwen\e, she vzas in the room with her brother P. WQ2.. /looping on the same bod, the accused camo and pushed their door, wont to hor bed and defiled her. She cried and told him that ho was infecting her with slim (Aids) and ho said he did not, have slim. Shu cried and told him she was going to report him to her grandmother. The accused refused to leave their room and she continued to cry. D. W.3 hoard her crying and told her to go to their room if :;hc accused had

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refused to live her room. Wien she got out of her room, the accused came out of the room and told her to go back to her room. By this time she was with P. W.3 who had also woken up. The accused entered his room end she told him again she was going to report him. During the act the accused tried to toll her to keep quiet and not to toll anybody about it. She said that she indentified him by his voice. The accused had earlier cone into the children's room and sat at the bod end and he was told to go out because they wanted to sloop and ho left.

This is a case where all conditions for proper indentification as sot down in the case of Abudala Nabulero vs. Uganda 1979 HOB.,.\_77\_. were not present. It was at night and there was no light in the room. However, there is the evidence that the victim and the accused had lived as neighbours for over 4 months. The accused testified that he used to look after the children. D\*W\*3 said they used to give thorn food. The victim said she recognised the accused by his voice. The victim, talked to her attacker and called him by the name of Stephen, the accused responded by saying that ho did not have slim, he did not deny the name. The victim talked with the attacker for quite sometime as he was trying to harsh hex- down. D. W.3 is supposed to have heard what was going on and invited the children to go to their room if the accused insisted in staying in their room (children) but as the children were going to the accused's room, the accused decided to cone out of the children's room, and he entered his own room and the children saw him as they paraded in the night going back to their room.

The fact that the victim had lived with the .ceased and 1-cnew his voice well and he was seen moving from the victim's room to his room convinces no that the accused was properly in '.antifled The accused had also gone to the children's room and found that they were alone without their mother. Although the accused denied in his testimony that he did not know that the children\* mother was away, his brother said that their mother was away in Mwonge. that night and I a.i sure the accused also know. I believe the testimony of the victim, she appeared to be truthful and honest, she was sure site had identified the accused. As the accused said that they had no grudge between then, there was no re -son why she would have. wanted to accuse him and not 7,7.3 or any other person. I also believe P.7.2 when she said that 7.7.3 had a girl friend in the room, this explains ^w why the accused could not stay in his room as he could not possibly share the sane bed with his brother and his girl friend.

1'¹

I have considered the accused\*s testimony and found it to bo just a bare denial to exonerate himself, ho did not strike me as an intelligent person but he was also not truthful. Por example ho completely failed to say whore ho got the story Jie claimed ho was forced to toll in his confession. The testimony of his broblr. T 1.7.3 d.if' not as::i;:t the accused very much as ho admitted that ho could not have known if the accused sneaked out of their room that night without his knowledge. Ho also tried to say that there was a grudge between them and the victim's family but the accused himself said that there was no grudge. This witness was

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also shaky and kept looking down, ho did not strike no as a vd tnoss of truth and I find his evidence c omplc toly unre1ⁱ ablo. He .also agreed that the accused could not have invited him to bo present when ho was defiling the girl, sox being a secret act.

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I now warn myself as I warned the assessors oil acting on the evidence o ^C a sj n -;lc- indenbifying wi tness however if the Court is satisfied that bhe witness could not have boon mistaken then time is no need for corroboration although it is good practice to do so. Thu evidence of P. W.3 was not sworn so it cannot be used to corroborate the evidence of P.-7.2, although ho also said that he identified the accused as the person who went to their room that night. However, I am of the opinion that there is enough evidence to corroborate that of P. W. 2 although I believe her evidence as the truth.

Th; prosecution also put in evidence the confession by the accused. The accused said that he was forced to make this , state:-ent because of boating and the promise to let him off. However, as I already sold thu state.-.ent was admitted as having been found to have boon made voluntary an! correctly recorded. The issue now is to find out whether it is true when considered with the evidence on record as a whole. Counsel for the state argued that looking at the statement together with the evidence of thu prosecution witnesses namely P. Y/.2 and P. W.3 the confession cannot but be true.

The accused's cautioned statement is as follows:-

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"lam borne at Kijumba villaye, C-ombolola Kihura, Mwongc County.

On 1/3/91 I and my brother Wilson Sande, loft our homo and cane to Fort PortrJ. to look for on employment. We got a job of a porter to clear cattle farm of one called Erika Kirunyi of Kitumba village, and wo used to sleep in one house/room for porters, on one bod. Next to our room there was a certain woman who rented it too and there wore two children one girl called Ja.no Kemba.bazi and her brother named Tumusabo.

On 12/12/91 my brother Sande Wilson brought his girl friend to sleep in our room. When it became night time T left my brother Sande Wilson to sleep with his girl friend while I requested the girl Jane Konbabazi to allow mo and I sleep in their house. She accepted to my request. Her mother had gone for a visit to Mwenge. Hence at 8.30 hours I wont to sleep in their house. The two children used to sloop on the yround. I slept next to this girl.

At around 9 p\*m. T heard my brother Sande Wilson playing sex with his girl friend. I became stimulated and my penis rose up and became stiff. This gi?1 turned her body facing mo and she lifted her log and placed it over my thigh. At t.bis stage I held my penis and inserted it into her vagina and started playing the sex with her on top of .her vayina and spomed once. At this stage the young boy started

crying end ordering mo to live their house and go >CQ mine. Thu girl told mo to stay and sloop but the boy insisted that I should quit.

At this juncture I feared people to allege that I had attacked those children in thoir house. So I decided to go to our room. When the girl friend of my brother saw me come back she decided to go back to h- i" homo which was nearby at Kituinba. Wo accompanied her anJ. whon wo wore nearing her home wo l ;ft h r end camo back homo and slept.

On 15/12/91 wO woke up and wont to work on the farm and coie back at 10 a.m. and thorogCtur we wont to the village to find temporary jobs to get some for survival and camo back at I p.m. Whon wo reached hone the vice Chairman Polokalipo called no at his homo. There ho told mo that the girl had reported no that 1 defiled her. H"; wrote a letter referring the defiled girl to hospital.. At this juncture I was arrested and taken to Police. Hero I wish to request that the woman mother should forgive me and wo settle the matter, whatever she .requests mo I will bo able to pay her. I was tempted to do this by sartan. "

The above confession is very much in line with the prosecution evidence except for a few matters like the date of defilement and arrest. However, the accused in his testimony said hu was forgetful and illoturato so ho could have mixed

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up the dates. The date of defilement isl 3/12/91. The statement is so detailed, giving first hoard information of what happened Ho admits having made the statement hut' that he was threatened. Tho question is, where did ho got such a story which tallies with that of tho prosecution witnesses. Ho doos not 'allege that it was tho recording Officer who fabricated the story besides ho did not have any interest in tho case. In full agreement with tho assessors I have found the accused's confession to bo true and it is most likely that it is the reason why ho denied it.

It is good practice to look for corroboration before convicting on a retracted confession as in this case but if the Court is satisfied that the confession is but true, it of con warn itself of the dangers/actiny on such a confession without corroboration and proceed to convict - Tawgmoj^^ys^ Uganda. 19.6.7. HA..84♦. I now warn myself as I warned the assessors but I am satisfied that tho confession is true and corroboration is not needed. However, them? may bo need for corroboration in view of the fact that this is a soxuol oil nice . Whether or not this Court believes tho story of the victim P. W. 2 corroboration of her evidence as by law require ⁵ is vital and necessary. Independent corroboration is required v/hich must show or tend to show that the offence of defilement v/hich the victim hero alleges took place and that it was committed by tho accused ^R ^v -Baskoryi11e\_lj}16^JSL\*..6,5;8\*,

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Apart • rom the evidence of the victim horsolf there io the cvi'.-.oncc of Stephen Mugisa P. W.5 who testified that after nm lab-. noth-rr Susan Tib.'lcanya had r'ported to him that P. W. ² ha¹ be on defiled by the accused they wont to the Vice Chairman's homo Polycap Kateba. A meeting was convened and the accused admitted having defiled the- girl, rd.though in his evidence in Court the accused denied having admitted the offence at the Vice Ch.-iirman 's hone, but I believe the tostimony of Magisa as he struck no as an honest witness. I believe that the accused was nob beaten at the Chairman place because if ho was, ther-'- was no reason why he did not include this natter in his state, oat which was so detailed. Another piece of evidence which corroborates the accused's confession are the findings in the Medical report Exh. P. I. where the doctor found that the private parts of the victim had boon tampered with. Medical report also corroborates the evidence of P. Y/,2. Although the accused was not medically examined which was an over sight in my view, there was enough evidence to connect him with the crime as stated above.

After considering the evidence in this case put forward by the prosecution which I found truthful end that of the accused I hove cone to the inevitable conclusion that all evidence\* point to the accused as the person who defiled P. W.2 on th., night of 13/12/91. Ho had the opportunity since the mother of bho children was away., his own brother had a girl friend in the room, thjy shared, end so he found himself in the children'^s room wluru Mrtan tempted him to do this wrong act. Considering the location of the house and time of night • • • J? and the fact that if there was any trouble in the children's room, the accused and his brother would surely hoar then rules out the possibility of another person having committed the crime and leaves the accused who was nt large that night with nowhere to sleep, as the offender/ The possibility of f grudges were ruled out as the accused himself denied then, those put forward by D. W\*3 did not amount to a grudge worthy any consideration.

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Thu few inconsistencies in the evidence of prosecution witnesses were minor and immaterial and therefore I ignored then ns not intended to toll deliberate lies to Court.

In conclusion I have found that the prosecution has proved beyond re .-.sellable doubt that the ••ccusod did defile the victim Jone Kembabazi on 13/12/91. In full agreement wi th the opinions o f the go^t¹ tlon\* in asuu s. ors I fi nd t ^j u iccuso ¹ guilty of the offence of 'ofi l.;m.;n.t Contr -"/ to uhu provisions of S. 123 (I) of the- Penal Code Act and I do convict him of the offence.

I said I would coiinent on the evidence of the two children P. W.2 and P. W.3. V/hon P. W. 2 the victim started to give her evidence, she broke down and star cod crying <ns she looked at the accused standing opposite her. I decided to adjourn the case into chambers in the hope bh; t the atmosphere would bo more friendly and less gloomy. Thu witness sat with her mother next to her, but despite this arrangement she

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continued to sob throughout her testimony. ®io small boy P/.7\*3 was oven worse he started crying from the first question until he finished his testimony. He refused to answer defence Counsel's questions. The atmosphere in chambers become mournful. I.on of the opinion that this is not what a fair tried, should bo whore a witness ;ivcs evidence cryin,3 as if ho is being tortured and all those- present ,-t emotionally exposed. It must . have K on difficult for everyone present in chambers to rennin compose ³ and calm dur 111.3 the sobs of these children us they testified. This is not to soy that the cries of the children unfairly influenced the decision of Court in reaching a just and fair decision in this trial.

1S'

The law relating to the evidence of children especially in sexual offences need a major surgery in my humble opinion if justice is to bo achieved. Our law is still lagging behind, some Coimtrios like England have awakened to the need to make sure that the evidence of children is received in a special way. The child n cd to bo prepared before ho comes to Court to Jaiow what to expect, whom. ho -/ill find there and possible questions ho will be asked. Sone methods like ''live vodoo link" and screening off of the accused so that the witness does not see him and protection iron rigorous cross cxaiiination arc sone of these now methods. I ref .r to Part ill of the Criminal 155J pf\_. tn this regard. Sono of these methods may apponr bo bo expensive but any price should bo ends , paid to sc-' the / of justice. As was properly pointed ouu accused, by Counsel for the / Courts are not Courts of tears but

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of justice, therefore everything possible should bo done to update our law, because there is a limit to the ingenious methods the Court con use to achieve justice outside the sot rules

Sgd. ( M. KIR'CJU ) J JLPUu. Jh. 4/1/94.

4/1/94s- Accused in the dock. Parties as before. Assessors in Court. Mr. Lutaya Court Clerk/interpreter.

Court;~ Judgment delivered in open Court before;, the above.

Sgd. ( M. KITTSJU *Y* J U D ^C^t"E,. 4/1/94.

I have no evidence of the previous conviction of the accused person. However, this is s.rious offence capital in nature which carries a maximum death penalty. Secondly it is an offence which is on a fast pace of increase in the Republic of Uganda and especially in this part of the Country.

In October, the files committed were- 8 cases on defilement out of l8 cases. Emotions aside this Court is omplorc to take judicial notice of this period where Uganda is at cross roads.

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Tho Uganda populsticsi is throatoned with Aids scourge and all methods posoihl should be used to save future posterity by savin.'; the ;< guo p- people from tho likes of th^ accused. Ian not saying that tho accused has boon examined and found with Ai-but ^T n also not saying that ho doos not have it. Tho victim and her brother looked at the accused and his brother for support in absence of their mother. Accused himself admitted that ho as-? isted them. Th children had developed a trust for these propio it is re. . ? bt?.blo th t this brust w?s violated by the ace i.sod by k.- re tiessly defiling the young lady.

I prcy that this Court imposes a very stiff sentence upon the convict, vu.ry deterrent so that not only is the public saved from his Cri linal act for long tine but also that others who mJ./\ht have bom ontertailing such, ideas to learn from him. ^I prcy for ;-• tif¹ ^r , de 16rront sentence.

Hr., .. C'Ccucnl. is a very broken men, he has no wife, no children? no father no mother, th. only person ho has is his brobh-r who a?p^\*-C?ed in Court. Tho accused is. a member of our community, *he* is not a rabid dog in search of destruction? m,.■•/ci fully th<- law dc-is not mweo capital punishment mandatory in a cas • like thio on and mercifully it has boon discovered that the accused has no passed criminal record. Accused is a young person w'.'.-.o did not find pride in v;hat transpired rather ho is a vital yoiiip, man who has prospects in the cor.miunity. Ho has boon convicted and. ought to bo mnishod but in passing sentence, I pin?/ that this Court has the need to exorcise tho wisdom of Solmon taking into account the circumstances of this

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young nan and realising that there should bo nooning "to punishment. Such punisbnont as will make the young nan realise how erring ho was and at the sane tine gave him opportunity to reform and bo of any use in the Society, bo passed. I so pray. I also pray that the- Court takas into account\* the\* tine the- accused has boon on remand.

Allocutus:- 1 pray Court to consider, I have 2 children of my brother who died, and there is none to look after those children. Ian also very wook, I have a broken rib.

Sonucnccj- I have- carefully considered the strong views expressed by Counsel for the State with' regard to this offence. I have also considered counsel for the accused's submission in mitigation together with the accused's own prayer. I hove also noted that the accused is a, first offender end has been on remand for 2 years.

However, the Court takes serious note, the rat.; at which this crii-ie is bring coru.iitted in this sixa .and the possibility of infecting the victim with the deadly disease Aids. I also take judicial note of the fact that defilement can be a life throatoningevent which \* could precipitate considerable psychological problems in the victim.

In view of bhe factors stated above, I think a deterrent senten a. in the instant case is in order.

I .accordingly sontcr.co the .accused to 8 years Imprisonment.

$C$ $V$ $\sim$ $\sim$ $V$ $s_{\mbox{\scriptsize G}}a.$ ( $n.$ KIR JU ) $J\ U\ D\ G\ \Xi_\bullet$ $4/1/94.$

$-22-$

Court:- Right of apovel to the Supreme Court against conviction and rank met vithin 14 days hereof explained to the nocus d.

$\mathcal{W}$

$\mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L}$

CAKI CVA $\textsc{Sgd}_\bullet$ ( $\mathbb{M}_\bullet$ KIRBJU ) JUDGE. $4/1/94.$ $\mathcal{A}$

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