THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA
HOLDEN AT KAMPALA
CORAM: HON. MR JUSTICE G.M. OKELLO, J.A.
HON. MR JUSTICE J.P. BERKO, JA. AND
HON. LADY JUSTICE C.B.N. KITUMBA, J.A.
CRIMINAL APPEAL NO.68 OF 1998
HABYARIMANA RONARD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
(Appeal arising from the decision of the High
Court (Bossa J.) sitting at Mubende on 23/11/98
in Criminal Session Case No. 103 of 1998).
JUDGMENT OF THE COURT
The facts giving rise to this appeal are brief: The appellant was a timber cutter and resident at Rwamivubo village, Kasambya sub-county in Mubende District. On the 8th of June 1995, he went to the home of Mr. and Mrs. Kasakya seeking for dodoo (vegetables). Mrs. Kasakya (PW4) instructed her granddaughter, the victim (PW2), together with Nakasawe Madelena, (PW3) another small daughter of hers, to show the appellant where he could pick the vegetables. After picking the vegetables, the appellant requested the victim to show him the way to the home of one Mulumba. Nakasawe Madelena (PW3) had already returned home as her mother had called her. The victim obliged, but on the way, the appellant defiled her and gave her 100/= not to reveal to anybody what had happened.
When the victim returned home, PW4 noticed that she was uneasy and her dress was wet. When she asked her what had happened to her, the victim could not talk and PW4 beat her. Thereafter, the victim told her that the appellant had defiled her and had given her 100/=. She handed the money to PW4. PW4 examined the victim and found that there was semen on her private part and that she was also wet. The victim was taken to a Hospital for medical examination. The doctor (PW1) who examined her found that there was penetration as her hymen was recently raptured. He also found that the victim was 11 years old.
The appellant was arrested and eventually indicted for defiling the victim. He denied the offence and set up an alibi as his defence. He also claimed that he was framed as a result of a grudge that existed between him and PW5, the grandfather of the victim.
The trial judge rejected his defence, convicted him of the offence, and sentenced him as stated above. Hence this appeal.
insufficient and contradictory evidence”
Mr. Byarugaba, learned counsel for the appellant, criticised the trial Judge for finding that the case against the appellant had been proved beyond reasonable doubt when there was no sufficient and credible evidence to prove: -
[b] that there was penetration.
Secondly, that the medical evidence of PW1 and his report Exh. P2, which found the victim (PW2) to be 11 years old at the time of her defilement also, could not corroborate the unsworn evidence of the victim. His argument was that PW1 told court that he examined the victim on 14/4/95 on the day she was brought to him, yet the Indictment and the evidence of other witnesses for the prosecution show that the offence was committed on 8/6/95 which is over one month after the victim had been examined by PW1. In counsel’s view, that evidence of PW1 and the report Exh. P2 are not credible. He argued that the evidence shows that either the person who was examined by PW1 was not the victim in this case since the examination took place before the alleged offence was committed, or the offence was not committed and the appellant was merely being framed. He submitted that such incredible evidence couldn’t corroborate the unsworn evidence of the victim.
As regards the issue of penetration, Mr. Byarugaba contended that the unsworn evidence of the victim that she was penetrated also requires corroboration, it being the unsworn testimony of a child of tender age. He argued that the evidence of PW4, the grandmother of the victim that she examined the victim and found semen on her private part and that she was also wet could not corroborate that evidence of penetration. In counsel’s view to show penetration, the semen should have been found inside the vagina.
Learned counsel further discarded the medical evidence of PW1 who found that there was penetration as in his observation the victim’s hymen was recently raptured. His reason for discarding that evidence is that the doctor was un reliable because of the contradiction shown above.
On his part, Mr. Wamasebu, Principal State Attorney, who appeared for the respondent responded that there was overwhelming evidence to support the appellant’s conviction. He explained that the contradiction in the date when the doctor (PWI) examined the victim was caused by the failure of the doctor to date his report after signing it. The date that he gave in his evidence was the date shown on the Medical Report form that was a format made and pre-dated by the Police. Mr. Wamasebu pointed out that the discrepancy was considered by the trial Judge who found that it was a negligent omission by PW1 in failing to date his report rather than a frame up.
It is now an established principle by numerous case authorities that a first appellate court has a duty to subject the entire evidence on record to a fresh and exhaustive scrutiny and to make its own findings of facts on the issues while giving allowance for the fact that it had no opportunity to see the witnesses as they testified. See: Pandya Vs R  EA 336; Okeno Vs R  EA 32.
This is a first appellate court and with the above principle in mind, we shall now proceed to consider the issues raised in the presentation of that sole ground of appeal.
The complaints raised by counsel for the appellant were firstly that there was no sufficient and credible evidence to prove the age of the victim. He argued that the unsworn testimony of the victim (PW3) requires corroboration. We agree with that submission, as this is the law. See: The proviso to Section 38(3) of The Trial on Indictment Decree which reads:-
Provided that where evidence admitted by virtue of this subsection is given on behalf of the prosecution, the accused shall not be liable to be convicted unless such evidence is corroborated by some other material evidence in support thereof implicating him.”
That statement that the defence did not contest the age of the victim at the trial is supported by the submission of counsel for the appellant at the trial where he said:-
this was not proved at all...”
“When she was defiled, she was about 11 years. She is now 14 years, she was born
about 1984.” (P.19 first two lines on top).
Then under cross-examination the witness was recorded as having said:
“She was born at Rwemivubo in my home. I do not remember the date when she was born. I was present when she was born. She is 14 years now.” (Same page).
Evidence which counsel for the appellant complained about was the evidence of PW1, the doctor who examined the victim, and his report Exh. P2. He found that the victim was aged 11 years when he examined her and that there was penetration as her hymen was recently raptured. The complaint was about the date when the doctor examined the victim. The doctor (PW1) testified that he examined the victim on 14/4/95 on the day she was brought to him. This was clearly a discrepancy as the Indictment and the evidence of other witnesses for the prosecution indicated that the offence was committed on 8/6/9 5, over one month after the date when PW1 said he examined the victim.
The trial Judge dealt with that discrepancy in her judgment in this way:-
Finally, counsel for the appellant complained about the evidence of PW4 the grandmother of the victim who testified that she examined the victim and found semen all over her private part. She further testified that the victim was also wet. Mr. Byarugaba criticised the trial Judge for finding that the above evidence corroborated the unsworn evidence of PW2 that she was penetrated.
“I find further corroboration of the fact of defilement in the evidence of PW4 Winfilda
Nakafeero who examined PW2 Nakisitu soon after her defilement. She found her wet and all
her clothes were wet. She examined PW2 Nakisitu and found semen all over her private part.”
The evidence of PW1 who found that the hymen of the victim was recently raptured provided further corroboration to the unsworn evidence of PW2 that she was penetrated. For the reasons given above, we find no merits in the appeal.
In the result, the appeal is dismissed and the conviction and sentence imposed by the lower court are upheld.
Dated at Kampala this 12th day of May 1999.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL.