Ocen v Uganda (Criminal Appeal No. 275 of 2015) [2023] UGCA 52 (15 February 2023)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL No.0275 of 2015 (Coram: Bamugemereire, Madrama & Luswata, JJA)

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#### OCEN DANIEL :::::::::::::::::::::::::::::::::::: VERSUS

UGANDA ::::::::::::::::::::::::::::::::::: (*Appeal from the decision of the High Court of Jane Elizabeth Alividza J. Uganda*) *holden at Entebbe before dated* 15<sup>th</sup> July 2015)

# JUDGMENT OF THE COURT

The appellant, Ocen Daniel was indicted for the offence of Aggravated Defilement contrary section $129(3)$ and $(4)(a)$ of the

Penal Code Act. 15

> The facts as can be gleaned from records of the trial court are that on 24<sup>th</sup> February 2012 at Tendo Gerenge Village Katabi Sub-County the appellant performed a sexual act on FN a girl who was under the age of 14 years. The appellant was convicted and

- sentenced to 25 years' imprisonment. Being dissatisfied with the 20 conviction and sentence passed by the trial judge, he lodged this appeal on the following grounds. - 1. The trial judge erred in law and in fact when she failed to evaluate the evidence on record as regards to whether a sexual act was performed on the victim thereby occasioning a miscarriage of justice to the appellant. - 2. The trial judge erred in law and in fact when she failed to evaluate the evidence on record as regards identification thereby occasioning a miscarriage of justice to the appellant.

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- 3. The trial judge erred in law and in fact whcn she dismissed the appellants defence of alibi, yet the prosecution did not disprove it in any way by way of evidence by investigation. - In the altcrnativc but without prejudice to the abovc, the trial judge erred in law and in fact whcn she scntcnced the appellant 25 years' imprisonment which scntencc was manifestly harsh and exccssive in the circumstanccs.

At the hearing of thc appeal the Appellant was reprcscnted by learned counsel Shamim Nalule on state bricf, whilc thc respondent was represented by the learned Assistant DPP Margaret Nakigudde. The appcllant appcared via an audiovisual link from Luzira uppcr prison duc to covid --19 restrictions. Both Counsel filed written submissions that have 10

been relied on by this court in the determination of this appeal. 15

### The Appellant's Submissions

Counsel for the Appellant attempted to raise issue based submissions on the existing grounds of appeal namely:

- 1. Whether thc trial judgc failcd to cvaluatc as to whcthcr <sup>a</sup> sexual act was pcrformed on thc victim. - 2. Whether the trial judge failed to evaluate thc cvidence on record regarding identification of thc appcllatc - 3. Whether the trial judgc crroncously clismisscd thc appellant's alibi - 4. Whether the sentence of 25 ycars imposcd by the trial judge was harsh and exccssive in thc circumstances

We see no need to re-baptise grounds of appeal as issucs and shall not change the nomenclature from grounds ofappeal to

issues. We now proceed discussing the legal arguments surrounding the grounds ofappeal.

While arguing the first ground counsel for thc appcllant contended that the burden of proof lies on thc prosccution and the standard is bcyond a reasonablc doubt. Shc submitted that thc lcarnccl trial juc{gc crrcd whcn shc hcld that a sexual act was performed on the victim, yet thc information on PF 3 was that thc victim hacl no cuts, no wounds, no bruise but just tcnderncss and an intact hymcn. Counsel added that PWl and PW2 wcre not truthful, and their evidence should not bc relicd on bccausc thcy tcstified that the vagina had blood yct PF3 showcd that thc hymen was intact with no wounc'ls, cuts whatsoever. Counsel relied on Uganda v Bizimana Francis High Court Criminal Case No. 230 of 2002 in wl.rich the High Court acquittccl thc accused on similar facts. Counsel submittcd that the cvidence of PW2 in this casc was nevcr corroboratcd by PF3 and that thc trial juclgc crroncously concluclccl that thc prosecution had provcd this ingredient bcyond rcasonablc doubt.

Regarding Ground No.2 counsel contended that the victim could not tell the dulation of the incident ancl that thc conditions of idcntification wcrc difficu lt.

On issue 3 counscl submitted that the appellant had a solid alibi that was not rebutted by the prosecution. The lnvestigating Officer PW3 did not do enough to investigate

whether the appellant was at the drinking place on the night the crime was committed. He instead asked from Dr. Ogwal whether he was with thc appcllant. Counsel submitted that the investigation in this respect was absurd since the appellant's statement was that he was at the drinking placc owned by Dr Ogwal and not necessarily that he was seated and drinking from the same pot with or sitting where Dr. Ogwal was to be found. Counscl founcl that thc failurc of the investigating officcr to ask the right questions and to the appellant's presence among thc pcoplc who wcrc at thc drinking place at that timc left his alibi undistulbed.

Concerning Ground No.4 counscl submittcd that thc lcarncd trial judge did not propcrly takc into account thc mitigating factors anc-l convcntional rulc of uniformity in scntcncc thcreby arrivcd at a harsh and cxcessivc sentcncc.

#### The Respondent's Submission

On ground No.1 whethcr thcrc was a scxual act, counscl for the respondent agreed with the findings of the trial Judge when she found as a fact that PWr saw hcr daughtcr coming to hcr crying with blood from hcr scxual organ. It was the respondent's case that the victim had bccn dcfilccl and that when they wcnt to a doctor he confirmcc.l that indeed shc hacl been defiled and that this evidcncc was not dcstroycd during cross examination. Counsel relied on the evidence of PWz, the victim who testified to the effect that the appellant removed her knickers, lay on top of her and started defiling

her. It was her testimony that she felt a lot of pain when the appellant penetrated her. PF3A, the medical doctor's report showed that the victim sustained grievous harm on the right labia majoro due to forced sex. Counsel relied on Muzee Imana v Uganda CACA NO.85 of 1999 to submit that the slightest penetration is sufficient proof of sexual intercourse.

Counsel further submitted that the trial .fudge properly analysed the evidence of the witnesses. He particularly alluded to the evidence of PWz, the victim, who testified that it was the appellant who violated her when he penetrated her vagina. Counsel invited this court to closely examine PF3A, the medical doctor's report which proved that the victim sustained grievous harm on the right labio majora due to forced sex. Counsel submitted that there was sufficient legal proof that penetration does not necessalily mean that the h)rmen has been raptured. In this regard he cited Muzee Imana v Uganda CACA NO.85 of 1999 which stands for the proposition that that the slightest penetration suffices in proving sexual intercourse. The victim was r4years and was competent to testifr without the need for a voi dire. She positively identified the appellant as the one who defiled her. Her evidence was cogent.

Regarding Ground No.z counsel asserted that thc victim was consistent and accuratc on the identity of the appellant whom she singled out among the many people she sampled in thc different bars and drinking placc which she was led to while

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searching for him. Counsel submitted that thc conditions for identification during the defilement werc favourable, since the victim had previous knowledge of the appellant and distance betwccn the victim and thc appcllant was zero regardless of the fact that the victim could not remcmber the duration of the defilement.

In arguing Ground No.3 counscl found that the learned trial judge was correct to dismiss the appcllant's alibi. PW3 testificd that Dr. Ogwal told him that thc accuscd was not with him at around 18:30 pm thc timc of thc dcfilcmcnt. Hc also added that the prosecution evidence placed him at thc place where hc was with arrested. Counscl contcnded that there was no evidence to support his alibi sincc hc was not where he claimed to be. Lastly regarding Ground No. 4, counscl submitted that the sentence of z5 years was neither harsh and nor exccssivc. Counscl prayccl that this court upholds the conviction and sentence of z5 years and that it be pleased to dismiss appeal.

#### The Decision of the Court 20

This is a first appeal. This Court is therefore rcquircd under Rule 30(1) of the |udicature (Court of Appeal Rules) Directions, 5.113-10 to rc-appraise the evidence and makc inferenccs on qucstions of law ancl fact. In Uganda v George

Wilson Simbwa SCCA No. 17 of zoo5, thc Suprcmc Court while discussing thc duty of the first appellate court held that

"this being the first appellate court in this casc, it is our duty to give the evidence on rccord as a whole that frcsh and exhaustive scrutiny which the appcllant is cntitled to cxpcct and draw our own conclusions of fact. Howevcr, as we ncvcr saw or hcard thc

witnesscs give evidence, wc must makc do allowance in that respect." This court will bcar thc above principlcs in mind whilc handling this appeal. Wc shall handle each ground separately.

#### Ground No.1

The trial judgc erred in law and in fact when she failcd to evaluate the evidence on rccord as rcgards to whcther a scxual act was performed on the victim thcreby occasioning <sup>a</sup> miscarriagc of justice to thc appellant. 10

While resolving this ground a good starting point is the law itself.

Section 729 (71 of the Pcnal Codc Act dcfincs a scxual act to mean penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ and the unlawful use of any object or organ by a person on another person's sexual organ. This section further defines a sexual organ to mean a vagina or a pcnis. 15 20

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PW z in her examination-in-chief tcstificd thus,

"l was alone on the road and no onc elsc was coming from the back, all of a suddcn someonc camc from behind and grabbed me by thc ncck saying that you, the daughter to my paternal aunt (Gwe muwala zoa senga) if you do anything I am going to strangle you. Hc hcld me tightly in the ncck. He thcn pulled me and took me to a small

bush, rcmovcd my knickcrs and threw mc down facing up as I was seeing him. After removing my knickers halfway, he hcld me using one of his hands as he uscd thc other hand to remove his trousers. I then started plcading for him to forgive me and thcn he slappcd me and ordcrcd me to stop making noise for him and then hc slept on mc. While he was dcfiling me I was feeling a lot of pain ancl I started telling him that it was hurting. He put his pcnis inside me."

- Her cvidence is corroborated by PW1's tcstimony and the PF3A. PW1, the victim's mother in her evidence confirmed that thc victim was bleeding in her private parts whcn she returned homc at 6:30.... that day. This court has also addrcsscd its mind to the PF3A which exposed the fact that therc was tenderncss 10 - around the lobia majora although the hymcn was intact. Section 129(7) (al provides that pcnetration howcver slight, amounts to a sexual act. It was held in Muzee Imana v Uganda, Criminal Appeal No. 85 of 7999, the fact that the victim's hymen was intact did not rulc out pcnctration and that thc slightest penetration suffices in proving sexual intercourse. 15 - The law on proof of sexual offenccs has becn discussed widely. In Bassitta Hussein v Uganda SCCA No. 35 of 1999, thc following principle was laid down, 20

"The act of sexual intcrcourse of penctration may bc proved by dircct or circumstantial cvidencc. Usually, thc sexual intercourse is proved by the victim's own evidence

and corroboratcd by thc medical cvidence or other evidence. . . "

The evidcnce of PW2 the victim is clear and the medical evidence PF3A supports the fact that a sexual act was performcd on the victim since thcre was proof of injurics on thc mouth of her genitals. Since I found thc cvidcncc of thc appellant to be cogent it does not require further corroboration. Scc

- 10 This court would like to distinguish Uganda v Bizimana Francis SCCA No. 230 of 2002 from thc casc bcforc us. In Bizimana the trial judge found thc medical evidcncc insufficicnt to corroborate the victim's testimony since the medical report was that therc were only bruises on the victim and thc bruiscs - 15 20 )E, were less than 7 days old, yet thc incident had happened over rz days earlier. In addition, Bizimana's defcncc was that the father of thc victim owcci him moncy. His argument was that the clcfilemcnt accusations wcrc a maliciously targctccl at him. Distinctively, in the case before us, such malice is abscnt sincc the parties hardly knew each othcr on a personal basis bcfore thc defilcment. Also, PF3A in this casc was sufficicnt and reliable to corroborate the victim's evidence. It illustrated tenderness on the labia majoro, and that this tenderness was caused by force uscd during the pcnctration. PF3A also confirmed that the injurics were inflicted on the z4 of February zorz, the exact date thc victim was dcfilcd.

This court thcrcfore agrees with the findings of the trial Judge when she came to the conclusion that the offence of defilement had been proved beyond reasonable doubt and therefore ground. Ground No.1 of this appc'at fails.

5 Ground No.2

Thc trial judgc erred in law and in fact whcn shc failcd to cvaluate thc evidencc on record as rcgarcls iclcntification thereby occasioning a miscarriagc of justice to thc appellant.

In Abudalah Nabulele & 2 Ors v Uganda Criminal Appeal No.

9 of 7978 it was observccl that the lcngth of timc, thc distancc, the light, and familiarity of the witncss with thc accused arc factors which go to the quality of thc idcntification cvidcncc. Wc had a granular look at thc rccord ancl concluclccl tlrat thc lcarnccl trial judge was alive to the ingredicnts that favour propcr idcntification. In her judgcmcnt she statcd as follows; 10 15

"Whether the accused was known to the witness at the time of the offence PW2 stated that she knew the Accuscd by face but did not know his name. That shc told l.rcr mothcr that shc can rccognizc his facc. That shc used to see the Accused with Dr (Ogwal) and hc uscd to rcfcr to him as a relativc. The fact that thc victim PW2 kncw thc accuscd beforc favourccl a positivc idcntification of thc assailan t.

The conditions of lighting: PW2 stated that thc incidcnt happcncd at arounci 6.30pm ancl thcrc was sufficicnt light for her to recognizc the accused. PW1 confirmed that PW2- camc homc at arouncl 6.30pm." Thereforc, this 25 condition favourcd a positive identification of thc Accused.

The distance between the accused and the witness at the time of identification: PW2 stated that whcn the accuscd was defiling her, she was able to look at him and cvcn recognized thc colour of shirt hc was wearing. This was a scxual act committcd in closc spaces betwecn individuals. Thcrcforc, thc clistancc was vcry closc, and this favourccl a positivc iclcntification. Thc lcngth of timc thc witncss took to observe the accuscd. The length of time this incidencc lastcd was not highlightcd during thc trial ancl court cannot make a concrctc cvaluation on this condition. However, I note that the victim was very sure of thc person who defilcd her. she statcd that...'l idcntified him. Wc met many mcn,, but I bypassed thcm all and I pickcd him out.'

After a careful analysis of thc conditions that favourcd corrcct identification we cannot fault the trial Judge for finding that PW2 was no stranger to thc appellant. 'l'his was bascd on factors such as effective lighting; it was broad daylight and the two were in close proximity. A minute or two under circumstances of gross violation of one's body might feel like eternity. Failure to specifically state how long the sexual act took place was immaterial and did not hinder her ability to recognise the appellant. 20

We are also intrigued by the ccrtainty in thc victim's tcstimony on the record, PW2 testified that.

"So, there is a bar we first wcnt to, but hc wasn't thcrc, we went to thc ncxt one and hc was not thcrc, wc wcnt to thc next one and he was still not thcre because I had sccn him vcry wcll and I had scen him beforc thc incident... Then we wcnt to anothcr bar that bclongcc{ to a one Joycc and that is where wc found him. I identified him and told my mothcr. He had cven changed his shirt and was now putting on a stripcd shirt... Thcre wcrc vcry many pcople there I didn't count them, but I managed to identify him from the many pcople who wcrc at thc bar."

We find this testimony consistent. PWz made a keen observation of the appellant both physical and mental. She knew thc colour of the shirt he wore when he committed the sexual act on her. She had observed that he did not speak good Luganda and indeed the appellant could hardly express himself in Luganda.

PW3 the Investigating Officer also tcstificd that, "when <sup>I</sup> intcrrogated Daniel Ocen, he acceptcd having known thc family of the complainant that they call hcr Senga." The victim in hcr evidencc also stated that the dcfilcr addrcssccl hcr as "kawala ka senga" mcaning thc daughter of 'senga'. These statements made contemporaneously prove that the maker was most likely the same person. Thc victim in hcr cvidcnce noted that the appellant did not pronounce the word 'senga' (paternal aunt) as 20 25

it should bc. This court finds it morc than a mcrc coinciclcnce

that the very bar the appcllant used as his alibi is where the victim and his mother found him even aftcr searching scvcral bars. Wc agree thc Assistant DPP, counscl for the respondent that the appellant's alibi was non-existent. Although he claimed

- to have been at his place of arrest the whole time, the victim's step by step description of the man, the way he was dressed, leading to his arrest leaves no doubt that she positively identified him. The victim tcstificd that she used to sec the appellant with Dr. Ogwal, leading her to believe thcy werc rclativcs. It did not - come as a surprise that the appellant namecl Dr. Ogwal's placc as his alibi. Upon critical analysis, we find that the victim had <sup>a</sup> long chccklist bcfore she finally zcrocd down to thc appellant. We havc analysed the process of finding thc appellant vis-A-vis identif ication, wc find that there was corrcct idcntif ication of thc 10 - appellant by PW2. Ground no.2 of this grounci fails. 15

Ground No.3

That the trial iudge erred in law and in fact when she dismissed the appellants defence of alibi, yet the prosecution did not disapprove it by way of evidence by investigation.

The appellant claimed that hc was at Dr Ogwal's placc at the time the defilement happened. Counsel for the appellant submitted that the trial judge failccl to disprove thc alibi ancl that no cvidence was prcscntcd to disprovc this alibi.

This court is well-appraiscd of thc principle of what amounts to an alibi and also that whcn an appcllant puts up thc dcfencc of alibi hc has no duty to prove it. The duty lics throughout on thc 25

prosecution. The onus is on thc prosccution to disprovc such <sup>a</sup> defencc of alibi. Moreover, the prosecution has a duty to placc the accused at the scene of clime see Festo Androa Asenua & Anor v Uganda SCCA No.1 of 1998 and Cpl. Wasswa & Anor v Uganda SCCA No.49 of 1999. The burden of proof in criminal cases lics throughout on the prosccution. An accused person can only be convicted on the strength ofthe prosecution case and not on the weakness of his defence Ssekitoleko v. Uganda [1967] EA 531. Thc appellant bcforc this court pleaded not guilty where after the prosccution was taskccl to prove their casc beyoncl <sup>a</sup> reasonable doubt. Proof beyond reasonable doubt though docs not mean proof beyond a shadow of c'loubt. The lcarned trial judge relied on Bogere Moses and Another v Uganda SCCA 1 of 1997 where the Supreme Court of Uganda held as follows:-

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"What then amounts to putting an accused pcrson at thc scenc of crimc? We think that the expression must mean proof to the required standard that the accused was at the scene of crime at the material time. To holcl tl.rat suclr proof has bccn achicvcc.l the court must basc itsclf upon the evaluation of the cvidence as a whole. Where thc prosccution adduces cvidence that thc accused was at thc scenc of crimc, and thc dcfencc not only dcnies it, but also adduces evidence showing that the accused person was elsewhere at the material timc, it is incumbent on thc Court to cvaluatc both vcrsions judicially and givc reasons why one and not the othcr vcrsion is accepted. It is a misdirection to acccpt one version and thc hold that 15 )i )\

because of that acceptancc per se the other version is <sup>u</sup>nsustainablc."

On this issue, here is what thc trial Judgc found, "... PVl2's evidence identifying him as thc pcrson who dcfiled hcr (thc victim slc) puts him at thc sccnc of crimc. Court founcl PW2 to be truthful and vcry consistcnt. Hcr idcntification of thc Accused was done in very favourable conditions that ruled out mistakcn identity."

The supreme court in Bogere Moses (supra) found that proof to the required standard that the accused was at thc sccne of crimc at the matcrial timc could dischargc cviclential burdcn and disprove an alibi. Wc, likc thc trial juclgc, agrcc that tl.rc conditions as pointed out in PW2's cvidcncc was that this offence was committcd during daytime ancl thc victim was 10

familiar with the assailant and thereforc thcsc conditions can bc said to favour positive identification and indced thcy rulc out chances of mistaken idcntity. 15

In Tito Bihogo v Uganda SCCA No.08 of 2014 thc Suprcme court dismissed an appeal and madc a finding that once the court bclow considcred thc ovcrwhclming cvidcncc of thc

identifying witncsscs, thc clcfcncc of alibi was not sustainablc. We have cautiously taken note of thc appcltant's alibi. On first sight, the alibi is simply his word against thc victims. Howcver, this court has considcrcd the cvidcncc as a wholc and wc havc

carefully re-evaluated both claims. Wc find that PW2's evidence is cogent and sincere. Indecd, we havc no rcason to disagree with thc trial Judgc. Wc find that PW1 madc an 25

accurate identification and prcscntcd to court sufficicnt proof that thc person who dcfilcd hcr was known to hcr and could bc traced on the village. Indccd, thc appcllant was placcd at thc scene of crime and then traccd and positivcly idcntified by thc

victim. The appellant's defencc of alibi is thcrefore discrcditcd. Ground No.3 of this appcal fails.

## Ground No.4

In the alternative but without preiudice to the above, the trial judge erred in law and in fact when she sentenced the

appellant to 25 years imprisonment which sentence was manifestly harsh and excessive in the circumstances. 10

It is trite that an appcllatc court is not to intcrfcre with thc sentence imposed by a trial court which has exerciscd its discretion on sentence unless the exercise of the discretion is

- such that it rcsults in thc scntcncc imposccl to bc manifcstly excessivc or so low as to amount to a miscarriagc of justicc or where a trial court ignorcs to consider an important mattcr or circumstances which ought to be considcrccl when passing thc sentcncc or where the scntcncc imposccl is wrong in principlc. 15 - (See Kyalimpa Edward v UC CA No. 10 of 1995 and Kyewalabye Bernard v Uganda SCCA No. 143 of 2001). Counscl for the appellant submittcd that thc lcarned trial judgc did not properly take into account the mitigating factors and convcntional rulc of uniformity in scntcncing thcrcby arriving 20 - at a harsh and excessive scntcncc. Thc juclgc while sentencing held thus;

"the offence you are charged with carries a maximum sentcnce of death penalty. Howcver, I will start from 35years imprisonment as thc starting point. I havc noted one of thc factors which I am considering is thc diffcrcnce in age, the girl was"l2 years, and thc convict was 25 ycars that was a big diffcrcncc of agc. Thc convict is said to havc used forcc and threatened thc victim. Thc victim told us, and you were also present how she bcggcd you to stop but you still continued. She begged you for mcrcy, but you did not show her any mcrcy. Howevcr, I also notc that the injurics wcre not vcry scrious, thercforc I sentcncc thc accuscd to 25years imprisonment. I will reducc thc four years hc has spent on remand, and he thcreforc serves a sentencc of 21 years imprisonmcnt."

From the wording of this sentcnce, we agrec with counscl for the appellant that the learned trial judge leaned heavily on thc aggravating circumstances. We have thereforc considcrcd the severity of thc scntence to chcck if it is out of rangc. '15

We are alive to the fact that the offcncc with which thc appcllant

was convictcd carries a maximum pcnalty of dcath. I-lowcvcr, taking into account the mitigating factors and uniformity rulc we have endeavoured to assess the sentencc in comparison to similar sentences passed by this court in parallel circumstanccs. The sentcnccs passcd by this court and thc supreme court in recent aggravated defilement cases include Kagoro Deo v Uganda, Criminal Appeal No. 82 of 2011.. 20

Morc particularly in Ninsiima v Uganda, Criminal Appeal No. 1080 of 2010 this Court reduced a scntence of 30 ycars to 15 years' imprisonment for thc offence of aggravated defilcmcnt.

- Given the facts surrounding this case, wc find that a scntcnce of 25 years was on the highcr side. We also notc that in scntcncing thc appellant thc trial Judge was morc swaycd by the aggravating factors and paid less attention to thc mitigating factors. Othcrwisc shc would havc found that thc appcllant as - 25year-old was a younl; offender with prospccts for reform. While thc trial Judge was more concemed with the appellant's good looks, she did not consider that a custodial scntcncc equivalcnt to his age was dctrimental to thc wcll-bcing of an otherwise young offendcr. We therefore find that this is a fit and 10 - propcr case for us to tamper with the sentcncc. Wc vary the sentcncc to 14 year's imprisonment to run from thc date of conviction. '15

In the result this appeal succecds in part.

Dated at Kampala tni, ..lS. Iiry oi 20 202)

## HON. I,ADY JUSTICE CATHERINE I]AMUGEMEREIRE IUS'TICE OI APPEAI,

2 l m $\mathsf{S}$ HON. JUSTICE CHRISTOPHER MADRAMA **JUSTICE OF APPEAL** $10$ HON. LADY JUSTICE EVA K. LUSWATA $15\\$ JUSTICE OF APPEAL