[2024] UGCA 173

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT MASAKA

# CRIMINAL APPEAL NO.0152 OF 2019

(CORAM: Hellen Obura, Muzamiru Mutangula Kibeedi, Moses Kazibwe Kawumi, JJA)

**MUWONGE VINCENT**

**APPELLANT**

**VERSUS**

### **UGANDA**

$\mathsf{S}$

RESPONDENT

(Appeal from the decision of the High Court at Masaka, Nabisinde J $10$ delivered in Criminal Session Case No.30 of 2016)

# JUDGMENT OF THE COURT

The Appellant was charged with Rape contrary to Sections 123 and 124 of the Penal Code Act and sentenced to 30 years' imprisonment on 30^th $15$ November 2018. The appeal is against both the conviction and the sentence.

# **Background**

On 28^th November 2015 at Bulenzi village in Kalungu District, a one Bukenya had a function at his home. His daughter was wedding. The victim of the offense in this appeal (hereinafter called NG) claims to have attended the function but at 9.00pm left the venue to answer the call of nature.

The Appellant is alleged to have attacked and raped NG threatening her 25 with death. NG struggled to free herself but was assaulted by the Appellant and she yielded to the aggression. The Appellant is stated to have run away with NG's cloths after the rape incident.

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NG tried to reach her home but the Appellant chased her until a one Ssekanjako who was not called as a witness appeared and the Appellant vanished.

Ssekanjako assisted NG with a towel and proceeded to Bukenya's home 5 to inform NG'S mother, Nabuuma Berna(PW4) who found the daughter in a sorry state wrapped in a towel. PW4 went to and found the Appellant at his home. She reported the incident to his parents but they showed no concern. PW4 reported the incident to the Village Chairman who referred the matter to Police.

The Appellant is stated to have disappeared from the village but was $10$ arrested on his return after about five days, he was charged and convicted of the offense.

The Appellant raised an alibi to the effect that he had gone to treat his father in another District on 26^th November 2015 and returned on 31^st November 2015 only to be arrested and charged with an offence. The 15 Appellant claimed that NG's family held a grudge against him over a house NG's mother had wanted to buy but the Appellant and his mother resisted the transaction.

Dissatisfied with the decision of the trial court the Appellant lodged an appeal with the following grounds:

- 1. The learned trial Judge erred in law and fact when she ignored the fact that there was no evidence that the Appellant had performed a sexual act with the victim, and thereby convicted the Appellant of Rape. - $25$


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# **Representation**

Mr. Ssekyewa Sam appeared for the Appellant while Mr. Simon Peter Ssemalemba—Assistant DPP together with Mr. Atoe Moses-Senior State Attorney appeared for the Respondent.

5 Counsel for the Appellant sought leave of the court to validate the Appeal filed out of time and for the court to adopt the filed submissions for the determination of the Appeal. Leave was granted on the two applications. The Respondent's submissions were also adopted for the same purpose.

#### Duty of the court $10$

This being a first appeal, the duty of the court is to subject the evidence produced in the trial court to an exhaustive scrutiny for it to reach its own conclusions on both the law and the facts. The court is however required to take into account the fact that it had no opportunity to observe the witnesses.

A decision made by the trial court on conflicting evidence based on the demeanour of the witnesses must therefore be accorded its due weight since the appellate court did not have the opportunity to assess the demeanour of the witnesses.

#### Kifamunte Henry V Uganda. SC criminal Appeal No.10 of 1997. 20

# Submissions.

### **Ground of Appeal No.1**

Counsel for the Appellant faulted the trial Judge for not fully evaluating the identification evidence in view of the alibi raised by the Appellant. It was argued that had the court properly evaluated the evidence, it would have concluded that the Appellant was not at Bulenzi village on 28^th November 2015 but at Bubondo village in Bukomansimbi District where he had gone to treat his sick father.

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For the Respondent it was argued that the trial court extensively evaluated the evidence relating to the identification of the Appellant as the assailant in the complaint lodged by NG. The trial Judge believed the evidence of NG as to who raped her, and also believed PW4 who 5 found the Appellant at his home soon after she knew about it.

It was pointed out by Counsel for the Respondent that PW4 was not challenged on the evidence that the Appellant disappeared from the village after she had reported the incident to the Village Chairman which evidence the court believed.

Counsel finally argued that the court evaluated the evidence relating to 10 the conditions favouring a proper identification of the Appellant as the assailant in this case. NG knew him as a village mate, she heard his voice all through the ordeal as he threatened to kill her, the incident took a long time and the two were in close proximity to each other.

15 Counsel invited the court to dismiss this ground of appeal.

# Consideration by the court

It is not in contention that a sexual act was occasioned to NG on 28^th November 2015 and she sustained injuries in the process. The injuries were corroborated by the medical evidence admitted by consent of 20 Counsel under Section 66 of the Trial on Indictments Act. The medical report also detailed genital injuries attributed to forced coitus.

We note that the victim was aged 25 at the time the alleged offence was committed and could not have appeared in the nude to Ssekanjako seeking for help if she had willingly participated in the sexual act. She was also a mature person staying separately from her mother and could not have called for help if she had willingly yielded to the sexual act.

The evidence of PW4 about the condition in which she found her daughter wrapped in a towel with facial and chest wounds attributed to

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the struggle to free herself from the assailant further points to the fact that she had not voluntarily yielded to the sexual act.

It was the evidence of NG that she grew up with the Appellant at Bulenzi village and their homes were not far apart. It was her evidence 5 that she had earlier at the function seen the Appellant putting on jean trousers which evidence was not tested in cross examination.

NG told court that she saw the Appellant by the aid of the moon light as he dragged her into the nearby garden and saw him all through the rape ordeal. She also identified him by his voice and they were close to each other for all that time.

PW4 was steadfast in her evidence that the Appellant was at his home after NG had been raped. She was not challenged on this piece of crucial evidence. PW4 further stated that the Appellant left the village and went to his grandmother's home but she chased him away and he returned to the village upon which he was arrested. This piece of evidence was not also tested in cross examination.

In Kayibanda V Uganda (1976) HCB 296 it was held that once a crucial piece of evidence is not challenged the presumption is that it is true.

In Nabulere V Uganda (1979) HCB 87 the court set down factors that should be considered when determining whether or not a witness 20 positively identified an accused person. The factors include whether there was enough light, prior knowledge of the accused, sufficient time to identify the accused and the proximity between the witness and the accused.

NG stated and was not challenged that there was bright moon light on 25 the night she was raped. She knew the appellant as a village mate they had grown up together with at Bulenzi village and she was close to the Appellant for long enough during the rape incident. NG also stated that she recognized the Appellant by his voice.

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Much as the Appellant was under no obligation to justify his innocence and the Prosecution had the duty to destroy his alibi by placing him squarely at the scene of the rape as the assailant, an evaluation of his evidence creates doubt in its credibility.

5 The Appellant stated that he had gone to take care of his father but later changed to state it was his uncle. The Appellant denied his statement in the Charge and Caution statement that he was at Bulenzi village on 28^th November 2015 contrary to what he told court in the alibi. The Appellant had earlier owned the Charge and Caution $10$ statement.

We also note that the Appellant raised a grudge as the motivation for NG's family to frame him of the Rape charge. The Appellant stated that he and his mother resisted the purchase of a family house by NG's mother. On the contrary, it was his evidence that his mother deserted their home when he was 7 years old and did not know where she was staying which denies credence to his mother's alleged involvement in the grudge with NG's parents.

The trial Judge had the opportunity to observe the witnesses during the trial. She found NG and PW4 as impressive and truthful witnesses which decision this court gives its due weight since it is based on their demeanour during the trial. The trial Judge also warned herself and the assessors of the danger of convicting on the evidence of a single identifying witness before convicting the Appellant.

After analysing and re-evaluating the evidence adduced by the two sides, we find the Prosecution evidence more credible than that given by the Appellant. The Prosecution placed the Appellant at Bulenzi village on 28th November 2015 as the person who raped NG and thus destroyed his alibi.


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We find no reason to depart from the holding of the trial Judge that it was the Appellant who raped NG.

The 1^st ground of appeal is dismissed for want of merit.

### Submissions

5 **Ground of Appeal No.2.**

It was submitted that the sentence imposed by the trial Judge was harsh and excessive in the circumstances. Counsel invited the court to invoke its mandate granted by Section 11 of the Judicature Act to set the sentence aside and substitute it with an appropriate sentence.

The court was urged to consider the youthful age of the Appellant and $10$ the fact that he was a first time offender to review the sentence and impose an appropriate one so that he can serve his Prison term and rejoin society as a reformed citizen.

Counsel referenced Kalibobo Jackson V Uganda. Criminal Appeal No.45 of 2001 where an appellant aged 25 was sentenced to 25 years 15 but which was reduced to 7 years on appeal. Counsel also referred to Lugi Sairus V Uganda. Criminal Appeal No.50 of 2000 where the court reduced a sentence of 13 years to 10.

On the contrary, it was submitted for the Respondent that the imposed sentence was appropriate given the circumstances in which the offense 20 was committed. Counsel referred to Anguyo V Uganda CACA No.0044 of 2014 in which a 26 years old appellant was sentenced to 40 years for raping a 54 years old victim. The court was further pointed to Mubangizi Alex V Uganda. SCCA No.07 of 2015 where a 23 years old appellant had a sentence of 30 years upheld for raping a 64 years old $25$ victim. $\beta V$

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### Consideration by the court

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$10$

The law regarding sentencing and the circumstances under which an appellate court may interfere with the trial court's discretion is well settled. In Karisa Moses V Uganda. SCCA No.23 of 2016 the Supreme Court observed:

"An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless the court is satisfied that the sentence imposed by the trial Judge was manifestly so excessive as to amount to an injustice".

Guided by above observation and guided by previous cases with almost similar circumstances to the present case we find the 33 years' prison $15$ sentence imposed by the court rather steep. In Mubangizi Alex (supra) this court upheld a sentence of 30 years for rape. In Anguyo George V Uganda. CACA No.0044 of 2014 this Court upheld a sentence of 40 years in a rape case but the circumstances in the two cases are quite different. $20$

We have considered the aggravating and mitigating factors that were advanced before the trial judge imposed his sentence. We are also alive to the fact that the appellant was HIV positive at the time he committed the offence which would make his stay in prison onerous. We are also mindful of the fact that rape is a heinous offence and is 25 especially so where the assailant, like the appellant was, is aware that he is HIV positive.


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Much as offenders ought to be given deterrent sentences in order to discourage would be offenders from attempting it, we find a sentence of 22 years' imprisonment to be appropriate and we are guided in reaching this decision by authorities with facts almost similar to the present. Wanyanga Eremiya v. Uganda SC. Criminal Appeal No. 71 of 2018

In the result the appeal partly succeeds. The sentence of 33 years imposed by the trial court is set aside and invoking Section 11 of the 10 Judicature Act the Appellant is re-sentenced to 18 years. The period of 3 years he spent on remand is deducted and he shall serve 15 Years from 30^th November 2018 being the date he was sentenced.

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Dated at Masaka this....................................

Hellen Obura **Justice of Appeal**

$\mathsf{S}$

Muzamiru Mutangula Kibeedi **Justice of Appeal**

Moses Kazibwe Kawumi 25 **Justice of Appeal**