[1994] UGHC 116

## THE REPUBLIC OF UCANDA

IN THE HIGH COURT OF UGANDA

## AT MASINDI

### CRIETEAL SESSION CASE NO. 179/94

UGAIDA :. PROSECUTOR

#### **VERSUS**

SSENYONGA YOWANA. ACCUSED BEFORE HIS IORSHIP THE HON. JUDGE I. MUKANZA

JUDGMENT:

. Ssenyonga Yowana here is after referred to as the accused stand indicted of Defilement contrary to section 123(1) of the Penal Code Act. The particulars being that on or about the 12th day of October 1993 at Katamarwa village Kigumba sub county, in the Masindi District, the accused unlawfully had sexual intercourse with Miss Kayesu a girl under the age of 18 years.

The prosecution in support of its case called about six witnesses. The evidence of PW1 was admitted under S. $64-(1)$ of the trial on indiciment Decree 26 of 1971. The accused also gave an unsworn statement and did not call any other evidence.

The evidence of DR. G. L. Gusongoire PW1 was to the effect that on 13th October 1993 he examined the girl Kayesu. He found her aged about 7 years and her hymen had been raptured about 12 hours before.

The girl had injuries around her private parts and the same were consistent with force having been used. There were also wounds on the face and bruises on the thighs. The injuries were consistent with the girl having put up some resistence. The girl was not strong enough to put up resistence. The injuries were twelve hours old and there was also evidence of venereal disease as per the laboratory report attached. The report went on to show that the private parts of the victim were rotten, smelly and had puss and was very much swollen especially the left perennial

$3870.1200 -$

region and the child could hardly walk.

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The unsworn statement of PW2 Kiseyu was to the effect that the accused is her father. She used to stay with him before the police took him. Her mother was known as Norah. Prior to the incident she went to sell milk and when she returned she gave money to the accused person. The latter responded by beating her mother. Norah left for Moungu and she remained together with the accused person. When her mother left they stayed for a night without the accused disturbing her. They shared the same bed.

On the second night the accused removed all his clothen for herself she had her clothes on. She did not remove them. Thereafter the accused brought a knife and removed out her knickers and thereafter had sexual intercourse with her. She had resisted the act. She laid on her face the accused held her firmly and forced her to face him. She laid on her side and that was the position when the accused sexually intercoursed her. She wept but the accused kept on intercoursing her and at the same time was beating her.

On the following day when Risenyi came the accused was arrested and taken to the trading centro where he was caned. She had never had sex before. She was taken to hospital for treatment but before that she could not walk because her vagina was swollen. She was now staying with one Gabriel Kaboyo. $In$ cross-examination she replied that when her father the accused had sex with her it was night time.

The evidence of PW3 Gabriel Kabeye was to the effect that the accused person was married to his sister Mary Kageyi the mother of PW2. His sister fought with the accused and left in July last year 1993. The victim who is aged 7 years has been living with the witness ever since the police arrested the father. Also when the mother left, Kayesu has been living with the accured person.

On 13th October 1993 he received information from PW4 the employer of the accused person to the effect $.../3..$

that FW2 had been defiled. As a result of that report he proceeded to the chaimai?. R. C. I. where she found DW2. He talked to the girl who informed him that it was her father the accused who had sexually intercoursed her. The accused who was by then at ILLgUEiba Police post was transferred to ISasindi and for Mm he took the girl to Masindi for medical examination.

PW4 Stephen Mwangala alias Kisani testified that the accused was his herdsman and used to stay in his home at Katamarwa and was staying in Ms own house. for him he was living about ³⁵ strides away from. the accused's house. That he had two homes and on 12th October ¹³⁵³ he was in his second homo at Kataxiarwa. At around 8.00 p.m. he hoard Kayesu crying. lie went to the accused . and asked him why bis daughter was crying. The accused replied that he beat the girl because his (the accused's) grandfather also used to beat him. He went to bed and then at around 11.00 p.m. he heard the girl crying. He did not <-,o there but went there the following morning. YZhen he talked to the accused person he did not give him. a proper explanation. He called for the girl who was not walking properly. He enquired from her what had happened to her and she replied him that the accused had slept with her. The witness together with the vice chairman R. C. I. curried the girl to the trading Centre.

The evidence of ¹⁴⁷⁵ Sabani Ibrahim alias Malala was simply that he knew the accused person and that the latter load sexual intercourse with Ins daughter. This witness did not disclose to the court the source of liis information but on being cross examined by the 1st Assessor replied that the accused when interrogated he denied the offence.

The sixth witness to testify for the prosecution was Detective woman Constable Nabirye attached to Kigumba Police Post. She knew the accused person and in the .month of October 1533 she was allocate: the file of defilement and because the victim was with her around she cxani.ued her private parts. During the examination she found

that her vagina. was swollen. She took the victim to Kiryandongo Hospital whore the latter was examined by a Doctor. Later she brought the victim and the accused person to JJasindi Police Station.

Wien cross examined PW6 testified that he dealt with the case on 12th October 1993 and she took the victim to Kiryandongo hospital on the following day and brought then to Masindi on 13th October^&gt; 1993-

In his unsworn statement the accused stated that he was a herdsman. He did not have cows but used to work for others. He worked for one ICisani (PW4).

In October ¹⁹⁹³ towards tho end he was at Eisani's second home. On 6th October ¹⁹⁹³ when he came back he found the child V missing. He started looking fur her because it was night time. As he slept the girl returned at around 2.00 a.m. when he tried to find out where the girl was she replied that she was at Gabriel's place. She left her to go to bed since it was deep in the night.

On the following morning they "tried to find out who had slept with the girl. The girl did however inform him that someone came and took her to his home and had sex with her. Since he was alone he oould not trace the parson, However the victim.\*& private parts got swollen, he reported to his master and RCs who directed hin to^ carry the girl to the trading centre and he did so. At the trading centre he was tied with ropes on the allegation that he had sexual intercourse with his daughter.

He was remanded in cells at Kigumba Police Post and later was transferred to ISasindi. Eayesu is aged ⁷ years and now stays with her uncle. Horah Eigenyi was his wife and left him in February, 1993-

Precisely "that was the case for both the prosecution and the defence. I was addressed by tic" learned counsels appearing for both the state and accused person and would pc commenting on their suteri ssicns whenever necessary.

However before I proceed to evaluate the evidence the gentlemen assessors were directed on the burden of proof as I directed myself now, I directed the appears that the burden of proof in criminal cases vests with the prosecution to prove the guilt of the accused person beyond reasonable doubt. I directed them that this burden does not shift except in a few instances the present case not being one of those exceptions see Woolmington vs. DPP A(at page 462, Article 15 (2) of the 1967 constitution. With what burden of proof to prove the charge beyond reasonable doubt the prosecution has to adduce evidence to prove the following ingredients of the offence.

That the victim was carnally known i.e. that she was sexually $1.$ intercoursed.

It must be proved that the act of carnal knowledge was unlawful.<br>That the victim was agire under the age of 18 years.<br>And finally that it was the accused person who had carnal $\overline{2}$ . £. knowledge of the victim.

The evidence on the first nurredient of this offence came from first the Doctor who examined the victim. That was PTM. The latter evidence was admitted under S.64 (1) of the TID as explained above. PW1 examined PW2 almost twelve hours after the incident. She found that the girl had been defiled. Her hymon was The girl had injuries around her private parts and those replared. according to 1771 were consistent with force having been used. The evidence of PW1 further showed that the victim was infected with veneral disease. The vagina was discharging some puss. It was smelling and swellen.

Besides TW1's evidence, the victim as FW2 gave an unsworn statement. She gave an explanation of what had happened in the night of the incident. She explained that after her mother had had some misunderstanding with the accused she left. She then shared the She explained that on the first night when bed with her father. she slept with her father nothing happened but on the second occasion the material date the accused forced her and sexually . . . . . . . . /6. *.*

irftoreoursed her. She wept. PW3 on information received proceeded to-.the R. C.s where he met the victim on the following day. Tho accused was ali'eady under arrest at the police post Kigumba. PW3 interviewed the girl who informed him. tliat it was the accused who had defiled her. Ecsindes the evidence of PW3» There «as the ovid^-'-Ce of yet another witness W4 an employer of the accused person and who shared the premises wi th the accused person. He heard the victim crying in that night. He went to find out from the accused person what had happened. The accused simply-replied him he was disciplining the girl as he too used to be beaten by his parents while still young. PW4 went back to sleep bat when he was away the child cried again. He did not go back but on tbQ following morning he went to the accused and talked to him about the matter why Ms daughter was crying in the previous night. The accused could not give a satisfactory reply. He talked to the girl who informed him that the accused person had had sex with her in the previous -night. B74 observed that PW2 was walking with. some difficulties. While still on this ingredient whether PW2 was defiled there was the evidence of yet another witness PW6 a detective woman constable. Her evidence was to the effect tliat she was allocated the defilement case to investigate at Kigumba Police Post but because the victim was by then around examined her private parts and found that the vagina was swollen and took her to Kiryandongo hospital for medical examination.

Th^e accused denied the allegation in las unsworn statement he informed the court that when ho re-turned home he found PW2 missing from home. He looked for the girl but because it was ni/b.t "time he could not do much. He went to bed. Vfliile sleeping the girl re-turned at around ²¹⁰⁰ a.m. On enquiring from her where. she had been., the ^irl replied -chat she was at her uncler^s Cftbricl They went to sleep. On the following morning he .tried to find out from the girl who had sexually intercoursed her

her the girl simply replied that she was taken by a stranger who sexually intercoursed her. He was alone and could not do anything but he reported the incident to hise bose. The victim's incident got swollen and was arrested by the authorities.

Submitting on behalf of the accused person Mr. Isingona stated that the prosecution case hinges on the evidence of PW1 the Doctor, the victim PW2 and PW4 the employer of the accused person that it is a fact that some one unknown to the accused person had semially intercourse the victim. I do not agree with the learned counsel there was cogent evidence to show that the accused sexually victim. intercoursed her own daughter. There is the evidence from the / There was also the doctor's evidence. There was the evidence of PW4 who tried to find out what had happened to the victim she heard her crying and the girl even told him PW4 that it was the accused person who had intercoursed her. There was no room for the victim to have manufactured evidence against the accused person She told this incident to her uncle PW3. Both PW4 and the woman detective constable PWG talked to this girl and this was ... immediately after the act of sexual intercourse, and the girl said it was the accused who had sex with her. Be that as it may I am aware of the fact that the unsworn statement of PW2 a child of tender years requires some corroboration as a matter of law. This is as an independent evidence which tend to connect the accused person with the commission of the offence with which the accused person is charged. I am of the view that the doctor's evidence (PW1) who examined the victim PW2 twelve hours after the incident and found PWZ's hymen reptured was sufficient corroboration to the fact that FW2 was defiled. About corroboration in sexual offences see Absi KIBOZO VS. UCAFDA 1965 EA P 509. Also for other cases on this topic see Uganda vs. Joseph Mulindwa 1975 HCB P 206 Up nia vs. Tikolla 1966 B 345. Uganda vs. TOMASI SEMFUMA and Another Or. Rev. He. $\frac{23}{70}$ .

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However I am aware of the fact that PW1 was the sole eye witness in the case. I warned myself and the gentlemen assessors the danger of convicting the accused persons on the evidence of PW2 a single eye witness to this incident as per the guideline Bowiav case 1967 EA P. 583. To ensure that PW2's identification of the accused person was free from the possibility of error (after all the incident took place at night). There were the following factors. PW2 had known the accused person before. Thev were only two people living in that house. They shared the same Before they went to bed PW2 ought to have recognised the bed. person who is her father. They slept together till the following morning I believe PW2 about this matter. PW4, who came to check on the victim crying in the night and who made enquiries on the following morning and talked to the girl saw her walking with some difficulties. All this evidence go to show that it was the accused person and nobody else who intercoursed the girl. This girl could not have nistaken about the identity of the assailant. The accused claim that it was the stranger who had intercoursed his daughter. All those were all lies. I believe the testimonies of PW1, PW2, PW4 and PW6 as being nothing but the truth and though there must have been inconsistence in their evidence but those were not major ones so as to reject their testimonies.

From what has been explained above my finding is that the victim was sexually intercoursed defiled, and that it was the accused person who defiled Eayesu. This therefore disposes of ingredients number 1 and 4. That the girl was defiled and that it was the accused the defiled her.

The second ingradient is that it must be proved that the act was unlawful.

A person commits the officies under $S.123(1)$ of the Ponal Code Act who volawfailly intercoursed a girl under 18 years.

The accused sexually inducerursed layesu his daughter who at that time was agony years. That was a according to the

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testimonies of PV/1, P\72> PW3 and the accused hiinsulf. Obviously the sexual intercourse of the girl was an unlawful act. l(h~ third ingredient to bo proved by the prosecution was whether the victim was under ¹⁸ years of ago. On this ingredient wro'W- \_ was the evidence of the Doctor PW2 who examined the vict?.m twelv houses after she had been defiled. Re found her aged ⁷ years. Evon the accused the father of the victin was very helpful on this regard. He informed this court that PW2 was aged 7 and that ha was bom in ¹⁹⁸⁶ when Museveni liberated this counti So fron what hr.s transpired above it is the firm view of this court that Kayesu 3?V72 was under the age ¹⁸ years.

In conclusion. I find that the prosecution has proved its case against the accused person beyond reasonable doubt and in agreement with the rmaniaous opinion of the gentlemen Assessors I find the moused guilty of the offence of defilement of a gir under ¹⁸ years contrary to section 123 (1) of the Penal Code Act a-.id I convict hin accordingly, jj.

SGD, J-I. 1UKATTZA, 23/9/94,

•

23/9/94 Accused before court.

Ur. ICiboli USA present.

Ur. Isiivjome counsel appearing for the accused present on state brief.

Court/Clerk Ur. Kamese.

ASSESSORS; 1st assessor Ur. Bijirwenlvya

2nd assessor I.'r. Kapore - all present.

Court; Judtjment is read and si-jaed in tlie open, court. Mr. ^K'abaJJ.: 'iho accused is a first offender ain? has been on remand since 1ut':e October 1993\* This act of defiling liis evsa dau^liter is aboninable and the accused does not seem tc be repentant about

what he did. I pray that you pass a deterrent punishment. M. ISINCOMA: As my learned friend has pointed out the accused has been on remand for long. He is a first offender I pray that the two factors be taken into account when passing sentence.

# REASONS FOR SERVEL CE:

I took into account the submissions of the learned counsels for both the state and accused person; I took into account that the accused is a first offender. He has been on remand for almost a whole year now. He committed a serious offence which carries the maximum of death penalty. The accused defiled his own daughter which I find was rather about nable as pointed by I feel the society must be protected from people the RSA. like the the accused person whose lust for sex take them to sleep with their own children. And with the AIDS scourge provalent in the country the court takes &very serious view of this offence.

## **SENTENCE:**

The accused is sentenced to 12 years imprisonment. R/A EXPLAINED.

$\mathbf{f}_{\mathbf{u}} \mathbf{f}_{\mathbf{c}}$ I. HUEANZA Sgd. (JUDGE) $23/9/94.$