[1995] UGHC 73

TIG REPUBLIC OP UGANDA IN THE HIGH COURT OF UGANDA '. , SESSION H OIDEiT AT ¹IBARARA CRIMINAL SC3SION CASE NO,

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WAHJSIMBI MPANGA: sssacsssssssisssssssssssssssssssssssss:: \* ACCUSED BEFORE: THE HONOURABLE MR# JUSTICE T.^P LTJKANZA.

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The accused in this case is known as Walusinibi Mpanga stands indicted of defilement of a girl under the age of ¹⁸ years# Th© particulars were that Mpanga on or about the 28th day of February 1993 at Kashozi Sheema in the Bushonyi District the accused had unlav?ful sexual intercourse with one Najuko Jackline a girl under the age of ¹⁸ years.

/The,.prosecution called a total of seven witnesses whereas the accused gave evidence and called his mother in support of his defence.

The case for th© prosecution was that the complainant PW4 fell sick in the month of February 1993, However on 26th February 1993 she went to the hotel of her sister -PVT2. labile she was there the accused person together with a man called Karamuzi went to take tea in the hotel. PN4 served them. After serving them the men told her that they wanted to marry her. She rejected the idea she informed them that she was. still ^a student.

On 28th February ¹ J93 her mother sent her to one Nprah- Kajumbi who owned a Hotel at Buterana. That was a different hotel from the one operated by PW2, There a man called Emmanuel Hirji Busingye and the accused came to her. The said Busingye told Ffl4 that he had a message for her father (Ptf4's father) Busingye delivered to the complainant a parcel wrapped in a handkerchief and PW4 was urged to deliver the same to her father. According to her the percal fell down and disappeared. Immediately she got confused. She followed those men and found herself at a place called Kashozi in Shuku Sheema in the home of one called Karamurd<> went to that place together with Emmanuel zfnd Karamuzi. Later Emmanuel pronounced that the accused and

PW4 were husband and wife. The accused was also present. During the night the accused sexually intercoursed her and she bled from her vagina felt pain and also cried. PW4 had never played sex with any other person before. Later she learnt that Mpanga the accused was a witchdoctor and that Emmanuel Busingye was his customer/client.

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Then on a Friday they went to Kampala. That is tosay PW4, Emmanuel and the accused person. They went to a place called Natuga where she remained with the accused person and they played sex for a whole month. Emmanuel left them he warned PW4 and the accused that the father of PW4 one Ferezi Matereas<br>and returned to Kashozi but when the said Emmanuel came to Matuga was Rodring for his daughter. As a result of that report Emmanuel took PW4 to the taxi park Kampala and disappeared from her.

As she stayed stranged at the taxipark she saw a friend of her father who had a minibus who agreed and took her and dropped her at Masaka. She ended up in the home of her maternal uncle called Labani Lubega. Later her father Fin want and collected her from there and took her home.

When cross examined PW4 replied that she met the accused for the first time on 26th February 1993 and had also not known Karamazi before. When she was given the handkerchief she became confused for a month. That is from That she gained her senses on the same day. She stayed in Karamuzi's 28.2.93. home for a week. Karamuzi did not have a wife but his mother used to do the cooking for them. She never went for medical examination. She felt pain but merely used local herbs.

The testimony of FW1 was to the effect that he was the father of FW4. He got to know about this case in March 1993 after a report from PW2 that her sister had gone missing since 28th February 1993. The witness together with PW3 and PW5 RCs of the areas went looking for the girl where Karamuzi and Busigye lived but they failed to trace the said Busingye, Karamuzi and the complainant.

PW1 explained that he went to Kampala Matuga in the home of the accused person but in the first time did not find the accused and the complainant present. On the second occassion he went to Matugga he found the accused present but on enquiring for the whereabouts of the girl the accused $.../3.$

replied, that he had given the child to one Emmanuel Busingye who had, delivered th^G child to hifr\* He conceded that his daughter had some mental disorders\* She was one time mentally deranged "but since the incident she has gone back to school\*

In his defence the accused as DII1 testified that before his arrest he was practising as a local native doctor\* During the months of January to May 1993 he was- in Matugga\* He had never been to Kashozi. He explained that Jackline (PW4) came with her husband Emmanuel Busingye for treatment\* She was mentally disturbed. They came in May 1993 and after treating them they went away\* later oaniQ arrest him alleging that he had defiled his daughter and even demanded ³ million shillings so that he could many the girl\* He refused to marry the girl he did not know and at the sametime he did not have the money\*

HT2 came out in support of his son, that in February 1993 the accused person was at Matugga and never went out in that month. On 28th February 1993 he was at his home treating patients\*

As I warned the Assessors the burden is on the prosecution to adduce evidence to prove the charge preferred against the accused person beyond reasonable doubt ^rfcLale. J5(2) (a) of the 19^7 constitution, Woolmington vs\* BEP 1935 AG p462\* The prosecution has therefore to prove the following. ingredients of the offence\*

(i) That the complainant was under the age of ¹⁸ years.

(ii) That the complainant was sexually intercoursed.

That is the male organ penetrating the female organ of the complainant\*

(iii) That it was the accused person who sexually intercoursed the complainant\*

As regards ingredients Ho. ¹ about the age of the complainant\* It has been held that the best way of proving the age of a child is by producing a duly certified birth certificate See ^R vs \* Cox 1898: TAB 1979\* In the same case

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It wao age can be proved by\* any'lawful evidence. In that case the court relied on the evidence of a person -who had seen the child, and the headmistress of the elementary school at which the eldest sister attended. And in the case of Lr vg. Recorder of Crims by Erparte Purser 1951 2 AER page 889. It was said that age can be determined by observation and common sense. See Also ^R v Turner 1910 IKB p346.

In the instant case the evidence wb have over this issue is that of the . father BI1 and the complainant PW4. PW1 was consistent that his daughter was bom on ¹¹ th May ¹⁹⁷⁹ whereas the complainant testified that she was bom on 5th November 1979\* it is obvious there was some discrepancies about the actual date when PW4 was bom but both PW4 and PW1 agree on one vital point and that is the year 1979\* i am of the view that the contradiction did not go to the root of the matter. FVI1 was the father and had seen the child bom. And even the court and the assessors observed that the child was below 18 years. She was sixteen when the alleged offence was committed. I therefore agree with the assessors opinion that Jackline Najuka was below the age of 18 years at the time she was alleged to have been defiled.

As. to whether the complainant was sexually intercoursed the only evidence over this ingredient is the testimony of the complainant W4 alone. She testified that at Kishozi she was sexually intercoursed by the accused person afact denied by the accused person. The latter testified that at that date he was away at Matuga attending his patient. Medical evidence was missing to corroborate the fact that the complainant was defiled since she testified that she bled very much.

In any sexual offence though the person against whom the offence is alleged to have been committed be an adult? the jury or assessors should be directed that it is not £afe to convict on the uncorroborated testimony of the complainant but that if they are satisfied of the truth of the complainant'^s evidence they may after paying attention to the warning nevertheless convict see in tlie absence of such a direction a conviction cannot stand. There are . indeed features of unexplained episodes in the prosecutions case. PW4

testified that she was taken to Kashozi by Emmanuel Busingye and Karamuzi in the home of Karamuzi whereby the accused had sex with her for six days. Karamuzi had a mother who used to cook for them i.e. Karamuzi, the accused No efforts were made to call this woman as a witness. Her evidence and PW4. could have corroborated PW4's testimony that she was sexually intercoursed at Kishozi. Even then at Kashozi this matter was not reported anywhere say to the RCs of the areas as is usually who provide nowders. Now then she allegedly said that she was taken to Matuga, PW4 never reported the matter to any of the authorities there. Also the failure to call Busingye and Karamuzi as witnesses wen who played such signicant role in the disappearance parents threw some doubt on the prosecutions whether PW4. of PW4/was a truthful witness. I am also of the view that the friend of FW4's father who had a minibus and who assisted and dropped PW4 from the taxi park Kampala to Masaka should also have been called as a witness and so was the maternal uncle of PM1 Labani Lubega where PW1 picked PW4. If those witnesses were called by the prosecution they would have removed some doubts as to whether PW4 told this court the truth. I am afraid. I am unable to act on the evidence of the complainant alone that she was sexually intercoursed without corroborative evidence to that effect. And even then PW4 said that PM1 was mentally sick and the latter said she was confused for a month no reliance could be placed on her testimony. This ingredient was not proved by the prosecution. to the required standards.

The last ingredient of this case whether the accused really sexually intercoursed PN4. The accused raised an alibi that on the date in question he was at Matuga attending to his patient. His version was corroborated by DW2 who. in my humble opinion appeared truthful witness. However an accused person who raises an alibi as a defence to a criminal charge does not thereby bear the burden to prove it the burden lies on the prosecution to disprove the alibi by placing the accused person at the scene of crime this the prosecution failed to do. PW informed this court that went to Matuga two times. On the first occassion he did not find both the accused and PW4. On the second occassion he met the accused and asked him about the whereabouts of FM4 and replied him that he gave his child to Busingye. That is no $.../6.$

oiroumstantial evidence to connect .the accused with the commission of the offence\* The accused's evidence on this point was that after treating Prfzps mental sichness she hardod her over to Busingye whom he said was her husband\* I believed the accused person\*

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In the final analysis the prosecution has failed to disprove the alibi by placing the accused at the scene of crime See Sekitoleko- vst Uganda 19^7 BA \$31 , ^R Vs\* Lobell ¹⁹⁵⁷ ^P 734» Therefore- in agreement with the unanindous opinion of the gentiemori and lady assessor I find the accused not guilty of the offence of defilement contrary to section 123(1) of 'the penal code as Amended and I acquit him of the charge forthwith ©nd unless he is being held for any other offence I order for his immediate release, i . .

Accused before court\*

Mr\* Wagona for the state present\*

X

Mr. Nguruye on state brief for the accused persons.

Assessors: . , "

Mrs\* Byamugisha

Mr\* Bupyindo\*

Court judgment is read in the open court and signed,

I, HUICANZA. /j JUDGE

3.7.1995.