[2023] UGCA 233

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CRIMINAL APPEAL NO. 0044 OF 2014

**ANGUYO GEORGE ::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

UGANDA :::::::::::::::::::::::::::::::::::

(Arising from the High Court of Uganda sitting at Luwero before Justice Rugadya Atwoki Criminal Session No. 0125 of 2012)

# CORAM: HON. RICHARD BUTEERA, DCJ HON. CHRISTOPHER GASHIRABAKE, JA HON. OSCAR KIHIKA, JA

#### JUDGMENT OF COURT

The Appellant was indicted and convicted of the offence of Rape contrary to sections 123 and 124 of the Penal Code Act and sentenced to 40 years' imprisonment.

The Appellant, being dissatisfied with the decision of the trial court, filed an appeal against both conviction and sentence on the following grounds;

- 1. That the learned trial Judge erred in law and in fact when he failed to adequately evaluate the evidence as regards conditions of correct identification adduced at the trial and, hence reaching a wrong conclusion. - 2. That the learned trial Judge erred in law and in fact when he rejected the appellant's defence of alibi, thereby occasioning a miscarriage of justice. - 3. That the learned trial Judge erred in law and in fact when he imposed a manifestly harsh and excessive sentence of 40 years' imprisonment

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without taking into account the mitigating factors in the circumstances of the case.

4. That the learned trial Judge erred in law and in fact when he failed to deduct the period the appellant spent in remand in sentencing.

# Backgtound

The victim; one Katushabe Fatuma knew the appellant as a resident in Kakinzi village, Kikamulo Sub County in the Nakaseke District and the appellant also knew the victim's home. The appellant on the 1lth May 2Ol7 at about mid night stormed the house of the victim where she was staying with her two sisters, Mary Mukangalambi and Maria Nyaraga who was sick. While the victim was lying on her bed, the appellant and another person called Kabodi stormed into the house and demanded for money from her. She got up and handed him twenty-two thousand shillings (Ugx 22. O00).

Thereafter, the appellant ald another person ordered the sister to the victim; Mukangalambi to face down and not look up. The appellant then had forceful sexual intercourse with the victim. During the course of the entire ordeal the appellant warned her not to make any noise. The other person Kabodi, also had sexua1 intercourse with the victim. After the rape, the appellant left the victim helpless and ran off. Due to a candle burning in the house; the victim was able to identify the appellant as Anguyo alias Kizza and the other assailalt as Kabodi who took her money and had sexual intercourse with her without her consent.

The appellant was arrested the next day 12th May 2011, after the victim reported the matter to the police.

# Representation

At the hearing of the appeal, Ms. Maureen Kemigabo appeared for the Appellant while Ms. Nabaasa Carolyn appeared for the Respondent. Both parties filed written submissions which were adopted by this court.

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#### Ground one

That the learned trlal Judge erred in law and in fact when he failed to adequately evaluate the evldence ae regards condltlons of correct ldentiflcatlon edduced at the trlal and, hence reaching e wrong conclusion.

## Appellants submissions

Counsel submitted that the law on identification was laid out in Abdulla Nabulere Vs Uganda [1979] HCB 77 which set the conditions for a proper identification. There should be sufficiency of light, the distance between the witness and the culprit, the time spent with the culprit arrd the familiarity of the witness with the culprit should all be taken into account. Counsel argued that the record of proceedings indicates that the crime was committed at night when visibility was not good. Counsel submitted that the hnding of the learned trial Judge in regard to identification of the appellant was contrary to the principle laid down in Abdulla Nabulere (Supra).

### Respondents submlssions

In reply, the respondent's counsel submitted that the learned trial Judge was alive to the conditions required for correct identification and the requirement for caution before arriving at a conviction. Counsel submitted that familiarity of the witness with the culprit is a key element and in this case, the victim was familiar with the appellant prior to commission of the offence. That the light from the wick candle and the time spent was sufficient for the victim to identify the assailant as the appellant.

# Conslderatlon of the appeal

As a first appellate court, this Court is enjoined to carefully and exhaustively reevaluate the evidence as a whole and make its own decision on the facts, bearing in mind that it has not had the opportunity to see or hear the witnesses, especially if the demeanour of the witnesses is key to the findings made. Even

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where the demeanour of witnesses is relevant, this Court may reverse the decision of a trial Judge if it is of the view that considering all the circumstances, the decision cannot stand. Where the question is one of drawing inferences from the facts adduced, this Court is free to reverse the findings of the trial Judge, if after reviewing the evidence, it is of the view that the findings of the trial judge were wrong. (See the caaes of Pandya v. R [195fl EA 336; Klfamunte Henry v. Uganda SCCA No. 1O of 1997, and Bogere Moses and Another v. Uganda, Supreme Court Crlmlnal Appeal No. 1 of 1997).

Rule 3O of the Judlcature (Court of Appeal Rulesf Dlrectlons SI 13-1O provides that;

"3O. Power to reappralse evldence and to take addltlonal evldence

(7) On ang appeal from a declslon oj the Hlgh Court rrctlrtg ln the exerclse of l\* orlginal Jurlsdlctlon, the court mag

# (a) Reappralse the euldence and drau lnJerences ol fact'

We have borne the above principles in mind in resolving this appeal

# CONSIDERATION OF GROUND ONE

The appellant, in this ground of appeal, contests the evidence of identification which placed him at the scene of crime. The case of Abudalah Nabulele & Tbo Others Vs Uganda, (Court of Appeal for Uganda Crlmlnal Appeal No 9 of 1978 is one of the leading authorities on identification and the following rules are stated therein: -

- a. " The testlmong o:f a slngle u,rltness regardlng ldentlficatlon m;ust be tested utth the greatest care. - b. The need Jor cautlon ls even greater uhen lt ls known that the condltlons fa uoring a correct identificatlon utere diflic.rtlt.

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- c. Where the conditions were difficult, what is needed before convicting is 'other evidence' pointing to guilt. - d. Otherwise, subject to certain well known exceptions, it is lawful to convict on the identification of a single witness so long as the Judge adverts to the danger of basing a conviction on such evidence alone.

... The judge should then examine closely the circumstances in which the identification came to be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good, the danger of a mistaken identity is reduced but the poorer the quality, the greater the danger..."

The Supreme Court in the case of Moses Bogere and Another Vs Uganda, (Supreme Court Criminal Appeal No. 1 1997) stated the approach to be taken by a trial Court in dealing with evidence of identification by eye witnesses in a criminal case as hereunder: -

"This Court has in many decided cases given guidelines on the approach to be taken in dealing with evidence of identification by eyewitnesses in Criminal cases. The starting point is that a court ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were or were not difficult, and to warn itself of mistaken identity. The Court should proceed to evaluate the evidence cautiously so that it does not convict or uphold a conviction unless it is satisfied that mistaken identity is ruled out. In so doing the Court must consider the evidence as a whole, namely, the evidence if any of the factors favoring correct identification together with those rendering it difficult. It is trite Law that no piece of evidence should be weighed except in relation to all the rest of the evidence. (see Sulaiman Katusabe Vs Uganda S. C. Cr. App No 7 of 1991) (Unreported)."

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In the case before us, there were two identifying witnesses. One of the identifying witnesses was PW2, the sister to the victim. According to her testimony, PW2 knew the appellant for about 1 year prior to the commission of the offence. She testified that on the fateful night, the appellant came to their house with one other person, balged the door and entered forcefully. PW2 lit the wick light (tadoobal. The appellant and his colleague asked PW2 and the victim for their husbands. They replied saying that they didn't have husbands. The appellant and his colleague demanded for money and ordered that the wick light be put off. PW2 put out the light after about 5 minutes of interaction. The appellant and the other man, whom PW2 could not identify properly both had sex with PW2's young sister Fatuma. After having sex with her, they grabbed the money, shs 22,OOO /= and ran away.

The victim (PW4), also testified to the fact that she knew the appellant before the incident as he used to pass around their home. She was a.lso able to identify him using the wick light. She testihed that both the appellant and his colleague had sexual intercourse with her and also took the Ugs 22,OOO/= she had offered when they demanded for money.

From the testimonies of the two identifying witnesses, it is clear that the victim and her sister, PW2, knew the appellant before the offence was committed. They both testified that they used to see him passing near their home and could ably identify him using the wick light which was lit when they door was banged.

We reiterate that in cases of identification, circumstances to be taken into account include the presence and nature of iight, whether the appellant is known to the witness before the incident or not, the length of time and opportunity the witness had to see the accused and the distance between them. We are satisfied that the learned trial judge, in his judgment, took all this into account. We find therefore Iind no reason to fault his finding.

We are satisfied that the appellant was properly identified and as such, ground one fails.

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## Ground 2

That the learned trlal Judge erred ln law and ln fact when he reJected the appellant's defence of alibl, thereby occaslonlng a mlscarrlage ofJustlce.

# Appellant's submissions

Counsel submitted that the appellant set up an alibi as his defence and stated that he was in Kiryandongo that night doing shopping for his family. He further submitted that the prosecution did not discredit the alibi. Counsel relied on the decision in Mushlkome Wetete alles Peter Wakhokha and 3 others Vs Uganda, S,C. C. A No. 1O of 2OOO for the proposition that an accused person who puts forward an alibi as an answer to the charge against him does not assume any burden of proving that answer.

Counsel also submitted that demeanour alone is not enough to base a conviction of a person as the same can be affected by many factors.

#### Respondent's subrnlsslons

In reply, counsel submitted that the appellant was placed at the scene of crime by PW2 and PW4 and therefore the defence of alibi was an afterthought. Counsel argued that even though the appellant had spent the day in Kiryandongo, the same does not absolve him of culpability for acts committed on the night of the same day.

# Consideration of ground 2

Counsel for the appellant submitted that an accused person who puts forward an alibi as an answer to the charge against him does not assume any burden of proving that answer. We agree with that submission as it indeed reflects the position of the law.

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LlwtY The Supreme Court of Uganda, in the case of Androa Asenua & Another Vs Uganda, (Cr. Appeal No 1 of 19981 [1998] UG SC 23, considered the defence of alibi and observed as follows;

slt ls trite tho, bg settlng up an dllbl, an a.c.}used person does not therebg cLr;sufi.e the burden ol provlng lts tntth so as to ralse a doubt ln the prosecutlon ccse. See l,Itale as. Uganda (1968) E. A. 365; Sekitoleko us, Uganda (1967) E. A. 531 and L. Anlseth us. Republlc (1963) E. A. 206. In the crrse o..f R us. Chemulon lllero Olancro (1937) ⁴E. A. C. A. 46, lt uas stated:

"The burden on the person settlng up the deJence oJ allbl ls to account Jor so rnuch olthe tl,ne ol the tro,n,sa,ction ln questlon as to render it inposslble as to haoe commltted the lnputed dct".

The appellant's alibi was that he was in Kil.randongo on the day the offence was committed. However, as counsel for the respondent rightly pointed out, even though the appellant may have spent the day in Kiryandongo, that in and of itself, does not absolve him of culpability for acts committed on the night of the same day.

Notwithstanding the foregoing, in resolving ground 1, we have already found that the appellant was properly identified by PW2 and PW4 and thus placed him at the scene of crime. Additionally, the prosecution also produced PW3, a resident of Kyampisi, who also knew the appellant as a village mate. She testified that on the fateful day, she saw the appellant and his colleague when they came visiting to her home and she offered them seats. Later, as she was leaving to escort her sister, she asked them to leave.

As she was escorting her sister, the appellant and his colleague followed them as they proceeded to their mother's house. It was during that process that PW3 saw the appellant and his colleague moving towards the home of the victim.

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It is our considered view that the above pieces of evidence squarely placed the appellant at the scene of crime. We are satisfied that the evidence produced by the prosecution effectively debunked the alibi set up by the appellant.

Ground 2 accordingly fails as well.

## Grounds 3 and 4

3. That the learned trlal Judge erred ln law and in fact when he imposed a manlfestly harsh and excessive sentence of 4O years' imprisonment wlthout taklng lnto account the mitigating factors in the circumstances of the caae.

# 4. That the learned trial Judge erred ln law and ln fact when he falled to deduct the perlod the appellant spent ln remand in sentencing.

## Appellant's submisslons

Counsel submitted that the sentence passed by the learned trial Judge of 40 years' imprisonment was harsh and excessive in the circumstances of the case and that the learned trial Judge did not consider the mitigating factors of the case. In addition, counsel submitted that the period the appellant had spent on remand was not considered by the learned trial Judge. That the learned trial Judge sentenced the appellant to 4O years' imprisonment in total disregard of the sentencing guidelines. Counsel relied on the decision in Rrrabugande Moses Ve Uganda S. C. C. A No. 25 of 2Ol4 which enjoins court to mathematically deduct the period an accused person has spent in lawful custody.

#### Respondents' submlsslons

In reply counsel submitted that the learned trial Judge was alive to the principles of sentencing and passed an appropriate sentence of 40 years' imprisonment for an offence that attracts a maximum sentence of death. Counsel argued that the appellant not only sexually assaulted the victim in full view of her sisters but

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also took away her money. Counsel contended that the appellant's actions deserved a deterrent sentence.

With regard to the period spent on remand, counsel submitted that the decision in Rwabugande Moses Vs Uganda S. C. C. A No. 25 of 2014 was made after the appellant had already been sentenced on 7^th February 2014 and it was not a requirement to arithmetically deduct the period spent on remand. Counsel argued that it will be incorrect for this court to fault the learned trial Judge for rightly applying the law as it was then.

#### Consideration of grounds 3 and 4

It is the appellant's claim that the sentence is illegal on account of the failure of the trial Judge to arithmetically deduct the remand period in accordance with the Supreme Court decision in Rwabugande Moses Vs Uganda (op cit) and Article 23 (8) of the Constitution of the Republic of Uganda. The appellant also contends that the learned trial Judge passed a harsh and excessive sentence without putting into consideration the mitigating factors of the case.

While sentencing the appellant, the trial Judge stated as follows:

"The accused was convicted of rape. The victim was a 54 years old woman. This was gang rope and only the accused has so for been to court. The accused aged 26 years had forceful sexual intercourse with a woman who of 54 years who would have been his mother. She was token through a bitter and painful experience court was told that she bled profusely and could hardly fall after the gong rope. Even at the time of testifying, she was still suffering from the effect of that gang rope. Her uterus was after out of place.

That is the frame and this lady was not only subjected to but contents to suffer all because the beastly act of the accused and his cohor. In mitigations court was told that accused is the $1^{\rm st}$ offender aged 26 years and no could reform of he is that type and he told

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court to consider that he has children who needed his care one would which that accused was advance that children are produce by women and often mostly looked after by men hence the need to not only respect them, but the desire of court and all to prevent them. He did neither he instead abused this old woman womanhood in spite of her plea to be left alone as she has ceased along time from engaging in sex the accused has spent $2$ years and $6$ months on remand which I have duly considered. The defence asked for imprisonment of 20 years while the state asked for 40 years. I have considered all the above. And the remand period I also not see any mitigating factors. I found that there were accordingly factors including the side of the victim the mysterious injuries inflected on her I am therefore satisfied that imprisonment for 40 years shall be sufficient and I so order."

Article 23 (8) of the Constitution of the Republic of Uganda, 1995 requires the sentencing court to consider the remand period in the following terms:

"Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence *before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.*" [Emphasis added]

In the **Rwabugande case (supra)**, the expression "take into account" the remand period was interpreted by the Supreme Court to involve arithmetical deduction thus:

"It is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. This is because the period is known with certainty and *precision; consideration of the remand period should therefore necessarily mean* reducing or subtracting that period from the final sentence. That period spent in *lawful custody prior to the trial must be specifically credited to an accused.*"

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Subsequently the Supreme Court clarified the meaning of the expression "take into account' in the case of Abelle Asuman Vs Uganda, Supreme Court Crlmlnal Appeal No.66 of 2O16 (delivered on 19th April 2018) thus:

"What is material in [the Rutabugande deci.sion i.s that the period spent in lauful custody prior to the trial and sentencing of a conuict must be taken into account and according to the case of Ruta.bugande that remand period should be credited to a conuict uthen he is sentenced to a term of imprisonment. This Court used tlp uords to deduct and in an arithmetical uaA as a guide for tte sehteicing Courts but those metaphors are not deriued from the Constitution.

Where a sentencinq Court has clearlu demonstrated that it has taken into aecount t iod uict the sen uld not be interfered with bu the appellate Court onlu because the sentencinq Judqe or Justices used different words in their iudqment or missed to state that theu deducted the peiod sDent on remand. These mag be i.ssues of stgle for u-thich ^a louer Courl would not be faulted uhen in effect the Court has complied with the Constitutional obligation in Article 23(8) of the Constitution." [Emphasis added]

From the above, it is clear that the guiding question is whether, from the style used by the trial Court, it clearly demonstrated that it had taken into account the period spent by the appellant on remand. It is our considered view that the learned trial Judge took into account the period the appellant spent on remand.

We are not inclined to interfere with the sentence of 4O years passed by the learned trial Judge, as in our view, he did take into account all the requisite factors before arriving at his decision.

As all the grounds have failed, we accordingly dismiss the appeal

We so order


Delivered and dated this 2.1 day of August 2023.

....

**RICHARD BUTEERA** Deputy Chief Justice

.

**CHRISTOPHER GASHIRABAKE**

**Justice of Appeal**

. . . . . . . . **.** $\overline{a}$

OSCAR JOHN KIHIKA

Justice of Appeal

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