PAUL NGAHU WANGURA VS The Republic PAUL NGAHU WANGURA VS The Republic

REP

Paul Ngahu Wangura, the Appellant, was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence being that on the 27^th day of June 2022 at around 1500hrs at Rwathia in Nyahururu Sub-County within Laikipia County, the appellant intentionally and unlawfully caused his penis to penetrate into the vagina and anus of I.M.W. a juvenile aged 7 years.
In the alternative the Appellant faced a count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence were that on the 27^th day of June, 2022 at Rwathia in Nyahururu Sub-County in Laikipia County, he intentionally and unlawfully caused his penis to come into contact with the vagina and anus of I.M.W. a girl aged 7 years.
He was taken through full trial, convicted and sentenced to serve life imprisonment.
The case as presented by the prosecution was that the complainant was returning from school at 3.00pm while in company of N a child in Grade 1 when she saw the assailant who came from the bottom of the slope and talked to her friend T’s grandfather. The individual followed them and told N that the complainant was his friend. The person told her sit on the road then he took her to the bush as N went home.
The individual told her that he wanted to show her some greeting and while at the bush he removed her stockings and panty, made her to lie facing upwards then, inserted his penis into her vagina. He turned and made her lie down facing downwards and he inserted his penis into her anal region. Although he covered her mouth, she was in pain hence she cried asking him to stop the game. He seized her neck and told her to let him go first then she would follow.
That she left the bush and on the way encountered K a grade four (4) pupil. She could not find her school bag hence went home without it. At home she found her grandparents but did not tell them anything as she was afraid. Her mother was away at work.
On 29^th June, 2022 PW2 Joyce Wangechi Kihara was at home washing PW1’s clothes when she noticed some faeces on her white panty and black discharge. She asked why she had pooped on herself and she explained that a thief had inserted his penis into her vagina and anal region, then threatened to kill her hence she did not tell anyone and she said that the thief stole her school bag.
They went in search of the bag which they found in the bush. They went to school where they found her sweater and jacket. The complainant was taken to Nyahururu County Referral Hospital for examination and treatment. PW5 Ernest Gakere, a Clinical Officer examined her on 29^th June, 2024 and found a hymen that was freshly broken, her vagina was reddish and swollen. She had lacerations and bruises in her anus.
On 14/07/2022 PW2 called PW3 No. 247745 PC Peter Karanja on phone and informed him about a suspect. She went to the Maina police post, and proceeded to show the officer where the suspect lived. The suspect was arrested and subsequently purportedly identified by the victim. He was escorted to Nyahururu Police Station.
PW4 No. 248545 PC Emmanuel Kipngetich the Investigating Officer stated that the suspect was not known by PW2 but she asked around and learnt that the suspect lived in Maina village. Subsequently, he received a call from an officer attached to Maina Police Post who said the suspect had been found. Statements were recorded, and the appellant was arraigned.
Upon being placed on his defence the Appellant stated that he was a casual labourer in Maina village but he did not know the victim. That on 14^th July, 2022 he heard a knock on the door. The person asked his father if he was Ngahu’s father and he answered in the affirmative. He was asked if he was Ngahu and he admitted. He was arrested and taken to Maina Police Post. A lady, a man and child went to the police station and when asked whether he was the one, the child admitted. He was taken to Nyahururu Police Station where he recorded a statement.
That on 13^th July, 2022 a lady (Joyce) was at their home asking if he could work for her and she would pay him Kshs.6,000/- per month. He waited until the following day but she did not turn up. What he saw were police officers who arrested him.
DW1 Wagura Ngatia, the Appellant’s father testified to have been at home with him when the police went to effect arrest. That he asked why they were arresting him but the police did not tell him anything. It was later that he learnt that he had allegedly defiled a child and he was shocked.
The Appellant who was aggrieved with the conviction and sentence appealed on grounds that can be condensed as the identification was not apt and the conduct of the Appellant was not consistent with culpability.
This, being a first appellate court, it is duty bound to re-examine evidence adduced at trial, scrutinize the finding bearing in mind that it did not have the opportunity of seeing or hearing witnesses to assess their demeanour, then form its independent conclusions. This, was summed up in Okeno v Republic (1972) EA 32 thus;

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”

The offence of defilement is provided for in Section 8(1) of the Sexual Offences Act that stipulate thus;

“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”

The elements of defilement are hence;
The age of the victim.
The act of penetration.
Identification of the perpetrator.
It is significant to prove the age of the victim as stated in the definition in the Act. In Francis Omuroni v Uganda Criminal Appeal No. 2 of 2000, the Court of Appeal stated that;

“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”

In this case age was proved by evidence of a birth certificate. The official record of birth of the victim was not challenged. This was a reliable method of proof. The date of birth is indicated as 23^rd December, 2014. This being a definitive way of proof, at the time of the occurrence the victim was 7 years old.
On the second element; penetration is defined by Section 2 of the Sexual Offences Act as;

“… the partial or complete insertion of the genital organs of a person into the genital organs of another person;”

Evidence of penile penetration in this case consisted of physical evidence of the victim through her testimony detailed verbal account of the events of the day and medical examination. The victim alluded to the act of the assailant inserting his penile shaft into her vagina and anal area. Subsequently, two (2) days later she was subjected to medical examination. It was established that her hymen was freshly torn, she had laceration and bruising of the vaginal walls and on the upper part of the anus. These were signs of forceful sexual activity, and trauma which were physical signs of penetration.
The State/Prosecution having proved the first two (2) ingredients, it was duty bound to prove the 3^rd ingredient of identification of the perpetrator. The wrongdoer was identified by the victim who was a single witness. In her testimony the victim stated that she did not know the wrongdoer but he came from downhill and spoke to her friend T’s grandfather. That she saw the culprit after he was arrested and he told them that he was known as Ngahu.
After the report was made to the police seemingly they did not move to investigate. But, PW2 the mother of the victim made an effort of looking for the wrongdoer. She went to school and allegedly found that N had informed teachers about what transpired. The complainant having mentioned the grandfather of T, she allegedly went to inquire from him about the person. In her evidence she stated thus;

“I. told me that the thief was talking to “guka ya T”. I called him and he said the person is called Paul. He said he worked for Priscilla Wairimu. She gave us directions to Paul’s house. I took I to Nyahururu Hospital. She was examined. I was told that she had been injured more in her anus and not as much n her vagina. I started tracing the said Paul. Neighbours had heard about what had happened to my child. They assisted me in tracing Paul. I was told he lived in Maina. I reported at Maina Police Station. I was given an O.B. number. I was told where Paul lived. I went to that house and found his father. I told his father that I wanted to hire Paul. I gave him my contacts. Went back the next day and we found Paul. He was arrested and taken to Maina police station. We went to Maina police station and the child saw Paul. She was so scared. She took off and was about to be knocked down by a motor cycle. Paul was also interrogated and he confirmed having defiled my child. We then recorded our statements.”

Section 143 of the Evidence Act provides thus;

No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.

To establish facts presented it wasnot mandatory to call a specific number of witnesses, a superfluity or witnesses may not be necessary. As long of the testimony of a witness even if single is credible and reliable then the evidence may be sufficient to support the case. What matters was the quality of evidence adduced.
Section 124 of the Evidence Act provides that;

Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.

Cleary evidence of the victim does not require corroboration but emphasis is placed on the credibility and reliability of the victim’s account of the events. The burden of proof lies with the prosecution. It behoves the prosecution to prove the case against the accused beyond reasonable doubt. This, duty is met when sufficient evidence is provided.
In Bukenya & Others v Uganda [1972] EA 549 the court stated that;

“i. the prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent.

ii. The court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case.

iii. Where the evidence called barely is adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.”

Evidence of the victim is that she was with her schoolmate and neighbour N. and when the perpetrator asked her to sit on the road N. was present. The perpetrator allegedly told N. that she was his friend. As he took her to the bush N. went home. Prior to reaching home the culprit communicated with T’s grandfather.
According to PW2, information that led to the arrest of the Appellant was given by T’s grandfather who supposedly said that the Appellant worked for Priscilla Wairimu who gave directions to the home of the Appellant.
Evidence adduced must be direct. (See Section 63 of the Evidence Act). Evidence adduced by PW2 in respect of the culprit was hearsay as she did not perceive what happened. Such evidence is inadmissible. N, the grandfather of T and Priscilla Wairimu were crucial witnesses who should have been called to clarify whether or not the allegations were true or not. In as much as the victim may have said the truth, failure to call the three (3) witnesses was detrimental to the prosecution’s case.
PW3 the arresting officer stated that the victim identified the Appellant after he was arrested. This would be as a result of visual recognition which would call for an identification parade being conducted or some other mode of identification like images being availed to her of various people including that of a suspect. This was not the case herein.
PW4 on the other hand claimed that;

“The accused confirmed that he was involved in defiling the girl.”

This was an insinuation that the Appellant acknowledged wrongdoing.
Section 25 of the Evidence Act provides that;

A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.

Section 25 A of the Evidence Act provides that;

(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.

It is purported by the investigation officer that the Appellant confessed having committed the offence. It is trite that a confession cannot be used against an accused unless it is made under specific circumstances. It must have been made before specific persons. For a police officer, he must have been of a rank not below a Chief Inspector of Police.
PW4 was the investigating officer and he was of the rank of a constable, he was not eligible to take a confession as an investigation officer is excluded. Such evidence was hence not admissible. This is a case where investigations conducted were poor such that they led to a miscarriage of justice.
The upshot of the above is that the appeal is meritorious, accordingly, it is allowed. The Appellant shall be released forthwith unless otherwise lawfully held.
It is so ordered.