[1992] UGSC 31

**A**

# THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF'UGANDA AT. MENGO

COROM: MANYINDO, D. C.. J, ODER, J. S. Cf & PLATT, J. S. C)

. CRIMINAL APPEAL NO. 14/91 :

BETWEEN': •

AND '

MOSES. BAGADA ::: APPELLANT ' •V ^> ■' .

# UGANDA RESPONDENT

\*

(. Appeal from conviction and sentence of High Court decision holden at Fort Portal (Hon« Mrs. L. E. M\* Mukasa Kik.ony.ongp) dated , . 17th December, 1990). • *\*

#### IN

# HIGH COLR. T CRIMINAL SESSION CASE NO.98/90

# JUDGMENT OF THE COURT

conviction and sentence. • The Appellant was convicted of attempted rape contrary to Section ¹¹⁹ of the Penal Code Act.and sentenced ■'to 6-years imprison men.t and 12.strokes of corporal punishment. He appeaLjagainst

case W-he.ther the charge". It was not.an alibi alternatively, if he was there,' the situation was that'he and the . . •' •• woman had made an agreement-to meet for sexual intercourse. The appeal was framed in. the alternativewas not at the scene and the that the Appellant was one of mistaken identity; or identified, for he was not the person-involved. According to the second alternative there was consent. such an argument was open.xto. the defence., depended on what line the' Appellant had taken at.the trial, He said, that he "knew' nothing about That meant that the Appellant had been wrongly

•4.' • •\* /2.

an alibi if he had wished, but he did not. • I know nothing about this offence, because I was not at my grandmother'^s house at the time, In these circumstances the only issue was identification. If then the Appellant was not the man involved, he could hot have made anassignation with the*'*complainant. No question of consent could defence, beaause the defence did not allege that he had been. must have been somewhere , elsewhere. Whilst of course 'the Appellant • else if he had been wrongly identified, it was sufficient for him to simply allege wrong identification without trying to set up He did not say, for example, as she will, bear me out.'

abandoned. The Court put this. M/S Bossa representing the appellant and in the end the grounds of appeal dealing with consent were

arise.

some liquor with the complainant and her friend Beatrix Kyamanywa alias Bu tele si (PW2) at the latter's house. escorted halfway home at about 8.30 p.m. by Beatrix Kyamanywa. Beatrix Kyamanywa returned and found the The The Ratter stood Although, the Appellant and Complainant Appellant on top of the Complainant with his trousers down\* Complainant's dress *was* pushed up.- ' The Complainant had raised the After the latter had left the Complainant, she met a youth called Maini. '. They heard a cry. known to the Complainant.- On that evening the Appellant had taken alarm. \* Beatrix remonstrated with the Appellant, a while and then ran away. On the question ,of identification raised in ground ¹ of the memorandum of. appeal, there is little to say. The Appellant was The Complainant was

.../3

lay in a darkened place by a tree, there was generally some moonlight, as both women testified. They knew the Appellant very well. They spoke to him. The Appellant told Beatrix not to interfere in the matter. The Appellant lived 30 yards from the scene of the incident. There was evidence therefore which the Court could prefer to the denial of the Appellant. We are satisfied that the Appellant's conviction was justified.

A difficult question arose on sentence. At the time of the offence the Appellant was 17 years of age. By the time he was convicted he was 21 years old. If follows that a youth who might have been dealt with apart from imprisonment was imprisoned, due to the delay in holding the trial. Now the situation is, that it is very difficult to give effect to the well-known principle of preventing youths who are first offenders, from becoming hardened criminals by long periods in custody. As far as possible, young first offenders should be tried speedily to allow the Court the use of the special provisions relating to such offenders. Of course this is not to say that other offenders should not be accorded spe ely trials.

In the meantime rape has been made a capital offence. The Appellant felt hurt and insulted and her reputation has probably been impaired. It is clear therefore that the learned Judge was justified in taking a severe view of the case, although the actual amount of harm was not great.

Taking both sides into consideration a period of 4 years in remand plus a further 6 years imprisonment with 12 strokes of corporal punishment is manifestly out of line, with the treatment he would have got as a young. first offender if the trial had not been delayed. Consequently we reduce the sentence to 4 years imprison ment and 6 strokes of corporal punishment. The appeal against sentence is allowed to this extent. The appeal against conviction is dismissed.

DELIVERED AT MENGO THIS ...... DAY OF $-1992.$

> $\mathtt{SGD}\colon$ S. T. MANYITDO DEPUTY CHIE" JUSTICE

SGD: A. H. O. ODER JUSTICE OF THE CU REME COURT

SGD: H. G. PLATT JUSTICE OF THE SURREME COURT

I CERTIFY TH'T THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABEGUMIRA STRAR SUPREME COURT