[2024] UGCA 135

# TTIE REPT'BLIC OF UGANDA IN THE COURT OF APPEAL OI. UGANDA AT MBALE CRIMINAL APPEAL NO. 2O5 OF 2011 lCoram: Egonda-Ntende, Gashlrabake & Kthika, JJA|

## WAMBOOZA DISAN :::::::::::::::::::::::::3::::::::::::::::::::::::::::::: APPELLANT VERQUS

UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT lArising from the decision of the High Court at Mbale before Her Lordship Flavia Senoga Anglin delivered on 3Oth August 2Ollf

## JUDGEMENT OF COURT

The Appellalt was indicted and convicted of the offence of Aggravated Defilement Contrary to Sections 129(3) and 4(a) of the Penal Code Act Cap l2O and sentenced to life imprisonment.

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

- 1. The Learned Tial judge erred in laut and fact when he relied on onlg the euidence of one uitness tuhich was not corroborated to conuict the accased person. - 2. The Learned Tial Judge erred in law and in fact u-then he sentenced the accused to a harsh sentence of impisonment for life.

## Background

The facts leading to this appeal as ascertained from the Record of Appeal are that the appellant was a very close relative (cousin) to the victim's

father. The appellant, on27th May 20 10, at about 16:00hrs. at Bugimwera village, Sironko District, performed a Sexual Act with Wanyenza Margaret a 2-year-old girl. The victim's father was moving around his house when he found the appellant defrling the victim. The appellant realizing that he had been caught in the act pleaded with the victim's father for forgiveness.

The appellant's pleas fell on deaf ears as the victim's father instead raised an a-larm. Many people responded to the alarm resulting in the appellant being arrested and taken to the police. The appellant was interrogated where upon, under the charge and caution statement, he admitted to have had sex with the victim. The appellant and the victim were subjected to medical examination on 28th May 2010 on both police form 24 and police form 3. The results indicated that the appellant was found to be an adult of sound mind and that the victim was aged only 2 years with a fleshly raptured hymen respectively. The appellant was charged with aggravated dehlement and subsequently convicted.

## Represeatation

At the hearing, the appellant was represented by Ms. Faith Luchivuya while Ms. Fatima Nakafeero, a Chief State Attorney from the office of the Director of Public Prosecutions (DPP) appeared for the respondent. Both parties frled written submissions which were adopted with leave of court. Counsel for the appellant sought leave of court to validate the notice of appeal that was filled out of time and to extend time for filing the memorandum of appeal. This court granted the appellant's prayer.

#### Consideration of the appeal

This being a first appeal from the decision of the High Court in the exercise of its original jurisdiction, this court is required to reappraise the evidence and draw its own inferences of fact (See rule 30(1) (a) of the Judicature (Court of Appeal Rules) Directions, S1 13-10, which provides that.

## "( $l$ ) On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may-(a) reappraise the evidence and draw inferences of fact."

Additionally, the court is required to remind itself of the fact that it does not have the same advantage as the trial judge in observing and hearing the witnesses testify and should thus make allowance for that. In **Kifamunte v Uganda, SCCA No. 10 of 1997** the Supreme Court held that; "We agree that on a first appeal, from a conviction by a Judge the Appellant is entitled to have the appellate Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it."

(See also; **Pandya v R [1957] EA 336**).

We have kept these principles in mind in while resolving this appeal. We shall resolve the grounds in the order in which the parties argued them.

#### GROUND 1

The Learned Trial judge ered in law and fact when he relled on only the evidence of one witness which was not corroborated to conwict the accused peraon.

## Appellant's Submissions

In his submissions, Counsel for the appellant queried the authenticity of the evidence of a single identifying witness since it wasn't corroborated. Counsel contended that other witnesses like area LC chairman who took the victim to police, the arresting officer and the victim's mother were not called to testify. He averred that there was no independent evidence to corroborate the testimony of PW3. He also submitted that PW3's testimony was inconsistent with the medical doctor's report which provided that the victims' hymen had already been raptured. Counsel submitted there should have been a DNA test carried out on the substance alleged to have been seen in the victim's vagina to determine whether it matched the appellant's person's strain. Counsel for the appellant concluded by submitting that there was no sufficient evidence on record to convict the appellant.

## Respondents submlssions

In reply, Counsel for the respondent relied on the authority of Bukenya & Ors v Uganda ll972l EA 549 where the East African Court of Appeal noted that the prosecution has the discretion to decide which material witnesses to call. He further submitted that the failure to parade all the other witnesses by the prosecution was.not fatal to the prosecution's case. He argued that the evidence of PW3 whs direct and of high evidential value.

Counsel further submitted that there is no particular provision requiring for the ingredient of raptured hygren in the offence of aggravated defilement. He referred to the provisions of the Penal Code Amendment Act Section 129(3) and (4) (a) under which this particular appellant was indicted. Counsel also relied on Ntambala Fred v Uganda SCCA NO.34/2O1 S where the Court referred to the case of Mukasa Evarlsto v Uganda SCCS NO.53 1L999 in which it was acknowledged that rapture of hymen of a victim of delilement was not essential for arriving at a verdict of defilement. What is important is whether, on the evidence available. the prosecution has proven beyond reasonable doubt that the accused had had sexua,l intercourse with the child. The fact that a child's hymen is already raptured does not mean that the victim cannot be deftled subsequent to the rapture of the hymen.

Counsel for the respondent further submitted that from the record of appeal, the appellant's mental health was never disputed by the appellant during the trial, and the appellant bringing it up at this point makes it a new matter for which the learned trial judge can't be faulted.

Counsel further argued that there was no need for a DNA analysis since there was suflicient evidence to support the conviction.

Regarding the issue of corroboration of evidence, counsel referred to the authority of Ntambale Fred v Uganda (supra) where the justices of the supreme court found that a conviction can be based on the testimony of the victim as a single witness provided.that court finds her to be truthful and reliable. Counsel further contended that the factors in this case all favoured correct identification of the ;ppellant and the witness remained firm even during cross examination.

Counsel prayed that this Honourable Court be pleased to uphold the conviction of the Appellant and dismiss ground one of this Appeal.

## Consideration of Ground I

It is trite law that the prosecution has the duty to prove each element of an offence beyond reasonable doubt. For the Appellant to be convicted of Aggravated Dehlement, the prosecution must prove, beyond reasonable doubt the following elements.

- 1. There was unlawful sexual act committed. - 2. The rrictim of the offence was below 14 years of age at the time of the offence. - 3. The accused person is the perpetrator of the unlawful sexual act.

In the present case, the appellant disputes his participation in the offence, this ground is solely targeting the 3'd ingredient. Although the prosecution produced 3 witnesses, only I witness testihed to the element of participation of the appellant, PW5. The appellant now faults the learned trial judge for relying on the evidence a single identifying witnesses without corroboration.

Section 133 of the Ewidence Act Cap 6 provides that there is no particular number of witnesses required to prove any fact. However, in circumstances where courts are dealing with the evidence of a single identifying witness, then courts are cautioned to look at the same carefully. In Abudalah Nabulele S 2 Ors v Uganda Criminal Appeal No 9 of 1978 the rules for identification were laid down as stated herein: -

a. The testimony of a single witness regarding identification must be tested with the greatest care.

- b. The need for caution is even greater when it is known that the conditions favouring a correct identification were difficult. - c. Where the conditions were diffrcult, what is needed before convicting is 'other evidence' pointing to guilt. - d. Otherwise, subject to certain well-known exceptions, it is law{ul 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.

Furthermore, in Moses Bogere and Another v Uganda SCCA No.l of 1997 the court laid down how a trial Court should approach the evidence of identification by eyewitnesses in a criminal case.

"This Court has in mang decided cases giuen guidelines on the approach to be taken in dealing with euidence of identification bg egeu.titnesses in Ciminal cases. The starting point is that a court ought to satis.fu itself from the euidence whether the conditions under uhich the identification is claimed to haue been made were or were not dfficult, and. to utarn itself of mistaken identity. The Court should proceed to eualuate the euidence cautiously so that it does not conuict or uphold a conuiction unless it is satisfied that mistaken identity is niled out. In so doing the Court must consider the euidence as a whole, namelg, the euidence if ang of the factors fauouing correct identification together with those rendeing it dffiait. It is trite Latu that no piece of euidence should be uteighed except in relation to all the rest of the euidence."

The conditions taken into consideration to ascertain correct identilication were briefly summarized in Asiku Jamil v Ugan& Crlminal Appeal No.2O3 of 2OO4, where this Court pointed out the 4 considerations that determine proper identification by a single identifying witness to namely: familiarity, lighting, distance between the witness and the accused and the length of time taken to observe the accused.

In this case, the victim's father caught the appellant red handed at the scene with the victim, who was naked with her legs wide apart, the victim was crying, the appellant's pants were down with his penis out. The defilement happened during the day, at around midday therefore the lighting was good to enable correct identification. PW3 was familiar with the appellant since he was his cousin and observed him at a close distance. PW3 had enough time to observe the appellant that he even called his wife and other people who all came to the scene.

So, like the learned trial judge, we too find that the conditions of identification favoured positive identification and there was no possibility however remote of mistaken identity.

Furthermore, the requirement fdi corroboration is not mandatory to sustain a conviction. Corroboratioh is required when the conditions of identification are difficult. See Abudalah Nabulele & 2 Ors v Uganda, Criminal Appeal No 9 of 1978 which in effect held that where the conditions of identification are difficult, what is needed before convicting is "other euidence pointing to guilt."; ln the matter before us, it is quite clear that the conditions of identihcatiotl were not difficult at all.

Counsel for the appellant submitted that PW3's testimony was inconsistent with the medical doctor's report which stated that the victims' hymen had already been raptured. Our understanding of Counsel's submission is that because the victim's hymen had already been raptured, the appellant could not have been the one that defiled the victim.

However, courts have held that a raptured hymen is immaterial when assessing penetration, what is important whether important is whether, on the evidence available, the prosecution has proven beyond reasonable doubt that the accused had had sexual intercourse with the child. See Ntambala Fred v Uganda, SCCA NO.34 l2OL5,

In the instant case, the appellant was found at the crime scene and secondly, appellant confessed to having deliled the victim two previous occasions. This could explain the already raptured hymen.

Lastly, we agree \ /ith the respondents, that the appellant's mental health was not an issue at the trial court arid cannot be raised at this stage of trial. In the circumstances, Ground No.1 of this Appeal fails.

## GROUND 2

The Learned Trial Judge erred in law and ln fact when he sentenced the accused to a harsh sentence of imprisonment for life.

## Appellant's aubmissions

Counsel for the appellant submitted that the learned trial Judge sentenced the appellant to imprisonment for all his life which makes the sentence harsh and excessive. Counsel for the appellant, relied on the case of Kagoro Deo v Uganda CACA NO.82 of 2O11 where this court reduced a sentence of life imprisonment to 22 years where the victim was 2 and Yz years old and further submitted that since the law mandates that there should be consistency in sentencing, this court ought to set aside the sentence of life imprisonment.

## Respondent's submissions

Counsel for the respondent pointed out the aggravating circumstances of the case which include the age gap., 22-yex-o1d defiling a 2-year-old, the fact that the appellant was well fit to be the victim's guardian, the victim suffered serious injuries, she could no longer control her urine and was introduced to sex at such an early age. Counsel submitted that the physical and psychological effects of the heinous acts of the appellant on the victim are irreparable and the victim shall forever live with them as rightly observed by the learned trial judge. Counsel prayed that this court deeply evaluates into these aggraivated factors to uphold the sentence of life imprisonment. Counsel foi the respondent prayed that this Honourable Court be pleased to dismiss this appeal and confirm both con'riction and sentence as herein before submitted.

## Consideration of ground 2

This ground of appeal faults the learned trial judge for passing a harsh and excessive sentence.

We are mindful of the fact that we cannot interfere with the sentence imposed by the trial court which exercised its discretion unless such sentence is illegal or is based on a wrong principle or the court has overlooked a material factor or that the sentence is manifestly excessive or so low as to amount to a miscarriage of justice. (See Kamya Johnson Wavamuno v Uganda SCCA No- 16 of 2OOO, Liwingstone Kakooza v Uganda SCCA No. 17 of 1993) Kiwalabye Bernard v Uganda Criminal Appeal No. 143 of2OOl.

It was Counsel for the appellant's contention that the learned trial Judge sentenced the appellant to imprisonment for life which makes the sentence harsh and excessive. Counsel for the appellant, relied on the case of Kagoro Deo v Uganda CACA NO.82 of 2O11 for the proposition that this court while determining the sentence of the appellant should be guided by the principle of consistency in sentencing.

Counsel for the respondent in reply submitted and pointed out the aggravating circumstances of the case which include the age gap, 22-yearold defrling a 2-year-old,, the fact that the appellant was well fit to be the victim's guardian, the victim suffered serious injuries, she could no longer control her urine and was introduced to sex at such an early age. Furthermore, that the physical and psychological effects of the heinous acts of the appellant on the victim are irreparable and the victim shall forever live with them.

While sentencing the learned trial Judge stated as follows;

"The accused is sentenced to imprlsonment for life. The offence carries a maximum sentence of death'The accused defiled a uery young child as a result of uhich the uictim ha\* been caused long life problem. It is on record that the acansed told father of the uictim that it utas not the first time he did it' The damage caused to the uictim is psychologically irreparable and the phgsical damage is yet to be assessed' While the accused has been in pison for 1 gear and 2 months a detenent sentence will keep him awag from societg and per cLnnce other children will be Protected."

It appears to us that the trial Judge did not address herself to the mitigating factors before passing sentence. Having perused the record, we frnd that the mitigating factors submitted were that the appellant was a first offender, aged 2l years of age and had spent 1 year and 2 months on remand. The tria-l Judge clearly did not consider the mitigating factors before sentencing the appellant.

In the Supreme Court case of Ahqrlkundlro Yustlna Vs Uganda, Suprelme Court Crlmlnal Appeal No. 27 of 2015 the court held as follows;

"Before a conulct can be sentenced, the trlal court ls obllged to exerclse its dlscretlon bg considerlng metlcttlouslg all the mtttgatlng tactors and other pre-sentenclng requlrements as elucldated ln the Constlhttlon, sto'futtes, Practlce Dlrectlons together wlth general prlnclples of sentenclng as gulded by co^se law."

In the instant case, the trial judge did not weigh all the mitigating factors against the aggravated factors. This therefore places a duty on this Court, as a Court of Appeal, to weigh the raised factors given the fact that failure to consider all the mitigating factors amounts to an error in law.

In the case of Klfamunte Henry Vs. Uganda, Supreme Court Crlmlnql Appeal No.70 oJ 7997, the court observed that

olt uas the dutg of the first appellate court to re hear the case on appeal bg reconslderlng all materlols uthlch were before the ttial court and make up lts own nind. Needless to scg that tallure bg the ffrst appellate court to eualuate the moterlal euldence as a uhole constilfifies an error in law....u '

We therefore set aside the sentence passed by the trial Judge and invoke the provisions of Section 11 of the Judicature Act to re-sentence the appellant.

As stated before, the mitigating factors submitted were that the appellant was a first offender, aged 27 year's of age and had spent 1 year and 2

months on rem€rnd. The aggravating factors on the other hand are that the appellant repetitively defrled a 2-yeAr-old and this affected the victims' ability to control her flow of urine and she may never live a normal life. Her parents are very poor and may not afford to rectify the problem. The appellant was an uncle to the victim and he was not remorseful.

In passing sentence we are guided by ; Constitution (Sentenclng Guldellnes for Courts of Judlcature) lPracticef Directions, 2Ol3 which stipulates under Item 3 of Part I (under Sentencing ranges - Sentencing range in capital offences) of the Third Schedule, that the starting point in cases of Aggravated Defilement should be 35 years' imprisonment, which can then be increased on basis of the aggravating factors or reduced on account of the relevant mitigating factors. We additionally take cognisance of the principle of uniformity and consi'stency in sentencing which we are also required to comply with.

In Taremwa Apollo Vs Uganda, Court of Appeal Criminal Appeal No. 193 of 2OL4 where the girl defiled was 8 years old, while the appellant was of the age of 29 years at the time he committed the offence and a first offender, this Court reduced the sentence of 21 years' imprisonment imposed by.the High Court to 15 years' imprisonment.

In Ninsiima Gilbert Vs Uganda, Court of Appeal Criminal Apped No. O18O of 2O1O, the appellant was convicted of the offence of aggravated defilement and sentenced to 30 years'imprisonment by the High Court. The victim was 8 years old. On appeal, this court while reducing the sentence to 15 years' imprisonment stated, "fhe appellant being aged 29 gears, afirst offender, hauing spent 3 Aears

and four months on remand, a person with family responsibilities and *with dependents to support, we find that a sentence of 15 years' imprisonment* is appropriate and is in line with sentences passed by *courts in previous cases having a semblance to this one"*

However, the Supreme Court in **Bonyo Abbdul v Uganda, SCCA No.07 of 2011** confirmed a life sentence for aggravated defilement.

Having considered all the aforementioned factors we are of the view that the appellant be sentenced to a period of 20 years. We deduct the period of I year and 2 months spent on remand with the result that the appellant shall serve a sentence of 18 years and 8 months with effect from 31^st of August 2011, the day that he was convicted

$14$

This appeal partially succeeds.

Dated at this. .2024

HON. JUSTICE F. M. S EGONDA-NTENDE

HON. JUSTICE CHRISTOPHER GASHIRABAKE

HON. JUSTICE JOHN OSCAR KIHIKA