To discharge the burden of proof cast on it by the law, the prosecution called the evidence of three witnesses: Orimubona Mary (PW1)
who was the victim’s grandmother to whom the victim reported the incident, Aijuka Fortunate (PW2) who was the victim and Yowana
Kebitwire (PW3) who was the local council chairman to whom the incident was reported to. He arrested the accused and handed him to
the police.
The prosecution further relied on the medical examination report of the victim Aijuka Fortunate which was admitted during the preliminary
hearing under section 66 of the Trial on indictments Act. The statement of the arresting officer No. 29862 PC Jaffer Bambale was
also admitted under the same section.
The accused on his part made a sworn defence and raised the defence of total denial and alibi.
In regard to the first ingredient whether the girl victim was below 18 years old, the prosecution relied on the medical examination
report of Dr Sekitto Jonathan which was admitted during the preliminary hearing under section 66 of the Trial on indictments Act.
In that report the said doctor had estimated the age of the victim at 8 years.
Orimubona Mary (PW1) who was the victim’s grandmother testified that the victim was 12 years old. The victim herself testified
that she was 12 years old. That means that she was about 8 years when the alleged offence was committed. The above pieces of evidence
were not challenged by the defence. As the victim was giving evidence, the court used ordinary observation and common sense and came
to the conclusion that the victim was visibly young and indeed below 18 years old. Therefore in agreement with both assessors I conclude
that the first ingredient has been proved beyond reasonable doubt.
As to whether there was sexual intercourse involving the girl victim, all that is needed is proof of penetration however slight.
Even proof of rapture of the hymen is not necessary. Proof of penetration is normally by the victim’s evidence and or medical
evidence and other cogent evidence: Bassita Hussain Vs Uganda (supra).
The evidence of the victim Aijuka Fortunate was that on Christmas day in the year 2002 as she was returning from prayers from Rwabokoba
Church she encountered the accused who suddenly grabbed her and forcefully had sexual intercourse with her after removing her knickers.
She felt a lot of pain. Later on she went back home crying and revealed the incident to her grandmother.
Orimubona Mary who was the victim’s grandmother testified that on Christmas day the victim returned from prayers while crying
at around 4.00p.m. Her dress was soiled. The victim revealed to her that she had been sexually assaulted. She examined her private
parts and confirmed that she had been defiled as her private parts had injuries. The victim had difficulties in walking. The medical
evidence also corroborated the evidence of the victim and her grandmother that the victim had had sexual intercourse. This medical
examination report by Dr Sekitto of Nyakibale Hospital was admitted during the preliminary hearing during the preliminary hearing
under section 66 of the Trial on indictments Act. The examination was carried on 27/12/2002 whereby it was established that the victim
had signs of penetration. Her hymen was raptured 1-2 days ago. She had inflammations around her private parts, which were consistent
with force sexually used. The injuries were about two days old.
From the above evidence I have no slightest hesitation in finding that there was sexual intercourse involving the girl victim.
This brings me to the last ingredient which relates to the identity of the person who committed this offence. On this, the prosecution
relied on the evidence of the girl victim and her grandmother. The victim Aijuka Fortunate (PW2) testified that on the fateful day
she met the accused as she was returning from Christmas prayers. The accused whom she knew as their neighbour in the village grabbed
her and had unlawful sexual intercourse with her. The incident took place during broad day light. Mary Orimubona (PW1) who was the
victim’s grandmother testified that on the fateful day the victim returned from prayers while crying and informed her that
the accused had had forceful sexual intercourse with her.
The defence of the accused was that of total denial and grudge. The grudge was because the victim’s grandmother (PW1) had refused
to pay his debt after he renovated her house.
In the instant case the complainant was a child of tender years whose evidence would call for corroboration as a matter of law. There
is corroboration in the testimony of My Orimubona (PW2) who testified that immediately after the act the victim went home crying
and immediately informed her as to what the accused had done to her. In Omuroni Francis Vs Uganda; Court of Appeal Criminal Appeal No. 2 of 2000 it was held that after being sexually assaulted the complainant’s information to a third party as to the identity of the assailant
is relevant and admissible in evidence. That is how the evidence of PW1 constitutes corroboration of the victim’s story.
The defence of grudge and total denial were merely afterthought. The accused was properly identified at the scene. The accused was
very well known to the victim since they were neighbours. They were living only 400 metres apart. The offence took place during broad
day light at 4.00p.m. on a peculiar Christmas day. These were therefore favorable conditions for proper identification. See Isaya Bikumu Vs Uganda, Supreme Court Criminal Appeal No. 24 of 1989.
Immediately after the assault she reported the incident to her grandmother (PW1) naming the accused as her assailant. It is trite
law that evidence of the victim is the best evidence of identification. Badru Mwindu Vs Uganda, Court of Appeal Criminal Appeal No. 1 of 1997 is a case in point.
From the above evidence I can not resist the conclusion that the participation of the accused had been established beyond reasonable
doubt.
In conformity with the unanimous opinions of lady and gentleman assessor I do find that the prosecution has proved the case against
the accused beyond reasonable doubt. The accused is accordingly found guilty and convicted.
RUBBY AWERI OPIO
JUDGE
1/9/2005.
14/9/2005:-
Accused present.
Twinomuhwezi present for the state.
Ndimbirwe present for the accused on state brief.
Judgment read in open Court.
RUBBY AWERI OPIO
JUDGE
14/9/2005.
Twinomuhwezi:-
I have no previous record of the accused. The offence carries maximum death sentence. This office is on the increase. There is AIDS
disease. He has been in custody since July 2003. We pray for deterrent sentence because the convict was a very young girl.
Ndimbirwe:-
The convict is very remorseful. This is his first time. We pray court for leniency. Take the period on remand into consideration.
He was 26 years old at that time. He should be given a chance to live a useful life.
SENTENCE:-
This is a very serious offence as it entails maximum of death sentence. The offence is on the rise and has attracted public outcry
especially due to AIDS. The offence is aggravated by the tender age of the victim. She was merely 8 years old while the convict was
26 years old. The convict introduced the victim to sexual intercourse at a very tender age. She will live to hate sexual intercourse
for life. For the above reasons this court will take a very serious view of the offence.
I have looked at the mitigating factors. The convict is first offender. He has spent along time in custody. He is fairly young. He
should be given chance to live as a useful citizen. I am not going to impose the maximum death sentence. However considering all
the circumstances of this case especially the tender age of the victim at 8; the convict is sentence to twelve years imprisonment.
The sentence takes care of the period spent on remand otherwise he deserved fifteen years.
Right of Appeal explained.
RUBBY AWERI OPIO
JUDGE
14/9/2005.
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