Court name
Court of Appeal of Uganda
Case number
Criminal Appeal-2002/7
Judgment date
2 August 2004

Masiki Sosan & Anor v Uganda (Criminal Appeal-2002/7) [2004] UGCA 18 (02 August 2004);

Cite this case
[2004] UGCA 18
Short summary:
Criminal law

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA


CORAM:   HON. JUSTICE G. M. OKELLO, JA.
                  HON. JUSTICE A. TWINOMUJUNI, JA.
                  HON. JUSTICE C.N.B. KITUMBA, JA.

 

CRIMINAL APPEAL NO.126 OF 2001


KALIGIJO JOHN ::::::::::::::::::::::::::::::::::: APPELLANT

 

VERSUS

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

 

[Appeal against the judgment of the High Court at
Masaka (Wangutusi, Ag. J. as he then was) dated
13/12/200- in High Court Criminal Session
Case No. 0017 of 2000].



JUDGMENT OF THE COURT

 

 

The appellant, Kaligijo John, was indicted for defilement contrary to sections 129 (1) of the Penal Code Act. He was convicted and sentenced to eight years imprisonment He has appealed to this court against the conviction.

The following are the facts of the case. The complainant PW2, was a young girl aged sixteen years and lived with her parents at Kitoro Rwantale in Masaka District. Miro Edirisa, PW1, was his father and had a restaurant business in which he employed one Annet. The appellant was a resident of a neighbouring village. Sometime in June 1999 the appellant sent messages and gifts to the complainant seeking for sex. The complainant first refused but eventually agreed and had sex with the appellant twice. On 14th July 1999 at around 9.00 a.m. the appellant went to the home of PW1. The appellant took with him sodas which the complainant shared with her young sisters who included Namiiro Joweria PW2. The complainant left her young sisters in the sitting room . She went to the bedroom with the appellant and had sex. The appellant was still in the bedroom conversing with the complainant when PW1 returned home at around 11.00 p.m. The appellant hid himself under the bed. At around 1.00 a.m. the complainant opened for him and he left. PW1 who had heard the appellant getting out asked his children who had been in their room. As he flashed a torch around, he saw a used condom in a basin. He beat up the complainant. PW3 revealed that the appellant had been in the house. The complainant also admitted that he had played sex with the appellant.

On the following day PW1 reported the matter to the police. The appellant was arrested. The complainant was medically examined. According to the medical report, exhibit P1, the complainant’s hymen had been ruptured at some unknown date.

In his defence the appellant totally denied the offence . He alleged that PW1 had a grudge against him. He stated that the grudge arose from the fact that PW1 had been forced to pay for the injury he had caused to the cattle belonging to the appellant’s mother.

The learned trial judge believed the prosecution evidence, rejected the defence and convicted the appellant.

 

 

 
The appeal to this court is on three grounds namely:
 
1,       That the learned trial judge erred in law and fact to hold that the appellant had canal knowledge of the
complainant on the 14/7/1999.

2.      
The learned trial judge erred in law to dismiss the appellant’s defence of alibi.

3.      
The learned trial judge did not properly evaluate evidence on record and as a result wrongly convicted the appellant.
 
Mr. Cranimer Tayebwa, learned counsel for the appellant, abandoned ground 2 and argued grounds one and three together. We shall also handle the grounds in the same manner.

The thrust of counsel’s arguments centred on the evaluation of evidence. He contended that the learned trial judge erred in fact and in law when he held that the appellant had penetrative sex with the complainant on the material day. He submitted that the evidence of the complainant needed corroboration. According to counsel PW2’s evidence had been obtained under duress by the father. He further argued that the medical report and the presence of the used condom in the basin did not prove that the complainant had had penetrative sex with the appellant. Similarly, the evidence of PW3 could not and did not provide the required corroboration. He prayed court to allow the appeal because penetrative sex had not been proved beyond reasonable doubt.
 
Mrs. Susan Nafula Bukenya, learned State Attorney, supported the conviction. She contended that in law there was no need to corroborate PW2’s evidence. However, she hesitated to add that there was ample evidence on record which corroborated PW2’s evidence.

The law on uncorroborated evidence in sexual offence is well settled. In a case where the judge is satisfied that the complainant is a truthful witness, he may convict on the uncorroborated evidence of the complainant after warning himself and the assessors of the dangers of convicting on such evidence. See Chila and Another vs Republic [1967] EA 722.

In the instant appeal the learned trial judge was alive to that requirement. This is evident from his summing up notes to the assessors. The learned trial judge believed the testimony of PW2. The witness stated that the appellant first sent presents to her asking for her love. He sent her a letter and a gift of five thousand shillings. PW2 at first resisted but later succumbed to the appellant’s advances. She had penetrative sex with the appellant thrice. The first and the second time they had the affair outside the house in the grass. On the first occasion she felt pain. On the material day they had sex inside her father’s house. The learned trial judge found that the complainant’s evidence was corroborated by PW1 who found a used condom in the basin soon after the appellant had gone out of his house. He also found that the complainant’s evidence was corroborated by medical evidence, which was to the effect that the complainant’s hymen had been ruptured sometime back. The learned trial judge further found corroboration in the evidence of PW3 who pertook of the soda on the material day. She had seen the appellant twice in her father’s house. On the day in question she saw the appellant retreat with the complainant in the bedroom.

The learned trial judge dismissed the appellant’s defence of frame up because of the alleged grudge between his mother and PW1. He found that the appellant was seen and identified by the complainant and PW3. \par He was well known to the witnesses. The two witnesses had no grudge at all and PW3 was beneficiary of the gift of soda which appellant brought. The judge observed that both witnesses were truthful and remained firm inspite of the cross-examination.
 
Mr. Tayebwa’s argument that PW2 testified against the appellant because of fear is not tenable. We observe that she was only threatened by PW1 on 14/7/1999 to tell him the person who had been in his house. PW2 gave her evidence in court without duress from anybody. We note that the complainant had had sex with the appellant on two occasions prior to 14/7/1999. When she testified that she had sex with the appellant on the material day she knew what she was talking about as she had had prior experience.
 
We, therefore, agree with the learned trial judge’s finding. Grounds 1 and 3 are devoid of merit and therefore, fail.
 
In the result this appeal is dismissed.
 
Dated at Kampala this 1st day of June 2004.
 

G. M. Okello

JUSTICE OF APPEAL


A. Twinomujuni
JUSTICE OF APPEAL

 

C.N.B. Kitumba

JUSTICE OF APPEAL