IN THE SUPREME COURT OF UGANDA AT MENGO
CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA JJ.S.C.
CRIMINAL APPEAL NO. 7 OF 2004
(Appeal from judgment of the Court of Appeal (Okello, Engwau and Kitumba JJ.A) at Kampala, in Criminal Appeal No.29 of 2003 dated 5th October 2004).
JUDGMENT OF THE COURT.
This appeal arises from the judgment of the Court of Appeal upholding a High Court decision in which Baguma Fred, the appellant, was convicted for defilement of Agnes Nalusiba, a girl below the age of 18 years. The case against the appellant was that on 16 April 2001 he took Agnes to his house and had sexual intercourse with her. The appellant denied the allegations and called evidence in defence. The trial turned on the credibility of Agnes and the appellant. The learned trial judge was satisfied that Agnes told the truth and believed her. He rejected the appellant's defence and convicted him as indicted. The appellant unsuccessfully appealed to the Court of Appeal, hence this second appeal.
Initially, the appeal to this Court was against both conviction and sentence. However, in the written submissions filed under r.63 of the Rules of this Court, Mr. Tumwiine, counsel for the appellant, expressly abandoned the appeal against the sentence and pursued one ground of appeal to the effect that
"the Court of Appeal erred in failing to re-evaluate the appellant's evidence and in confirming the conviction."
In the written submissions, learned counsel pointed out that at the trial the appellant had set up the defence of alibi and although he did not thereby assume any obligation to prove it, he called his wife to testify in its support. He criticized the trial judge for believing the uncorroborated evidence of Agnes in preference to the defence evidence. He also criticized the Court of Appeal for endorsing that preference without re-evaluating the defence evidence. Secondly, learned counsel submitted that the Court of Appeal erred in upholding the finding by the trial court that the fact of sexual intercourse had been proved when the medical evidence did not support that finding. Learned counsel stressed that if the Court of Appeal had properly re-evaluated the medical evidence it would have concluded that penetration, which is an essential ingredient of the offence of defilement, had not been proved beyond reasonable doubt.
In a written reply for the respondent, Ms Alice Komuhangi, Senior State Attorney, submitted that the Justices of Appeal had correctly re-evaluated the prosecution evidence and rightly concluded, in agreement with the trial judge, that sexual intercourse was proved, notwithstanding medical evidence that no injuries were found on the victim. She however, conceded that the Justices of Appeal did not re-evaluate the appellant's evidence but argued that this was because counsel for the appellant had not raised the issue before them. In the alternative, she submitted that the failure to re-evaluate that evidence did not occasion any miscarriage of justice because the trial court had adequately evaluated the evidence.
In the Court of Appeal, the ground of appeal against conviction was -"The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence on record thereby coming to a wrong conclusion which led to a miscarriage of justice. " However, the record shows that at the hearing, counsel for the appellant addressed only one aspect of the evidence; namely, the apparent discrepancy between Agnes' evidence that she had sex with the appellant and the medical evidence that there was no sign that penetration had occurred. He did not point to any other evidence that was not evaluated. In dealing with this ground of appeal in their judgment, the learned Justices of Appeal similarly confined themselves to the question whether sexual intercourse had been proved. They first noted that in the trial of sexual offences the court should not act on uncorroborated evidence of the victim, but that after warning itself of the dangers of doing so, it may convict on it if it is satisfied that her evidence is truthful. They also observed that proof of sexual intercourse need not be by medical evidence. They went on to say -
" The learned trial judge found the victim a truthful witness and believed her evidence. We think that even without corroboration, the trial judge was justified to convict the appellant on the sole testimony of the prosecutrix whom he found to be truthful Mr. Kafuko-Ntuyo criticized the trial judge for failure to give reason for preferring the evidence of the victim to the medical evidence. We think that this criticism is unfounded. The trial judge found the medical evidence not credible because the opinion of the doctor that there was no sign of penetration was based on his finding that there were no injuries in her private parts. The trial judge dismissed that opinion when he said that "injuries are not an essential ingredient of a sexual offence." We agree. It is not necessary to establish injuries in or around the victim's private parts to prove penetration. The slightest penetration suffices to prove sexual intercourse. The trial judge, therefore, gave reason for preferring the victim's evidence to the medical report. We find no merit on this ground. It therefore fails"
The appeal was thus decided solely on the narrow point that the medical evidence did not necessarily disprove sexual penetration and that therefore, the trial judge was justified to convict solely on the evidence of Agnes whom he found to be truthful. We agree that the medical evidence did not necessarily discredit Agnes' evidence. Its import was that no evidence of recent forced sexual intercourse was found on her body. Her hymen had been ruptured a long time earlier. However, the ground of appeal was much wider, and the appellant was entitled to the decision of the Court of Appeal on the material evidence as a whole including the defence evidence. We do not accept the submission by Ms Komuhangi that the Court of Appeal was justified or entitled to omit re-evaluation of the defence evidence because the appellant's counsel did not advert to it. First, it is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court. [See Pandya vs. R (1957) EA 336, Ruwala vs. R (1957) EA 570, Bogere Moses vs. Uganda Cr. App. No.1/97(SC), and Okethi Okale vs. Republic (1965) EA 555]. Lastly, having regard to the judgment of the trial court, we are also unable to accept Ms Komuhangi's alternative submission that the omission by the Court of Appeal did not occasion a miscarriage of justice. It is evident from the judgment of the learned trial judge that he relied virtually exclusively on the demeanours of witnesses to determine the credibility of the evidence. He said —
"I have carefully considered all the evidence on record and I have critically analysed the demeanours of all the prosecution witnesses and that of the accused and that of his wife, DW1.1 am satisfied that the victim told court the truth. She was straightforward and consistent. She never contradicted herself materially, if at all. The accused person and his wife however, never impressed me as truthful people. They struck me instead as mere liars, trying to protect each other. They were both shaky and kept shifting while testifying."
The learned trial judge went on to note that the appellant's wife testified that she had been sickly and that she had not seen who arrested her husband; and surmised
"This shows that her sickness must have been serious and she could not have known whatever was happening in their home. Therefore she was not in a position to vouch for her husband's actions."
With due respect, we think that the trial judge's evaluation of the evidence was not balanced. There were other material aspects of the evidence bearing on its credibility, which he should have taken into consideration but did not. In our view, on the principle enunciated in case of Bogere Moses vs. Uganda (supra), this is a proper case where the failure of the Court of Appeal to re-evaluate evidence makes it incumbent on this Court to reevaluate it.
The evidence in this case is in three segments. The first is Agnes' testimony on which the case against the appellant solely rests, as there was no other evidence to corroborate hers on any material fact. The second concerns the lead-up to the appellant's arrest, and the third is the defence evidence. Agnes who used to reside with her elder sister, Nanziri Nastanzia, testified that she met the appellant at about 6 p.m., on 16.4.01, after she failed to get a taxi to take her to the village to visit her mother. The appellant invited her to go with him, which she accepted to do but waited till nighttime. She explained that she decided to go with him, rather than return to her sister's home about one mile away, because darkness was approaching. But that explanation seems to be questionable because Nanziri testified that their home was less than a mile from the main road and that Agnes could not have failed to return home at around 7 p.m. Furthermore, Agnes testified at first that she knew the appellant as a friend and later she said that though she used to see the appellant at the (taxi) stage, she did not know him personally before 16.4.01. The two versions cannot both be true. If she meant that they became friends from 16.4.01, then it does not seem credible to us that because of the approaching darkness alone she would have accepted an invitation to spend a night with a man unknown to her. Be that as it may, she testified further that she went with the appellant to a film hall at Bulenga first where they stayed till 10 p.m., and then went to his home on a boda boda. At the house they went to bed, had sex twice and slept. She left at 6 a.m. and took a taxi to her mother's home. After some days, she returned to her sister's home.
Three prosecution witnesses; namely, Nanziri, Jumba Walusimbi and P/C Wakeda, testified on the lead-up to the arrest. We are unable to ascertain from their evidence the date of the appellant's arrest. Nanziri said it was the day after Agnes disappeared from her home. The arresting officer, P/C Wakeda, said it was on the day after he received a report from Nanziri on 19.4.01. The appellant said he was arrested two days after he met Agnes on 16.4.01.What is certain, however, is that the arrest was at Nanziri's initiative prior to receiving any information, let alone complaint from Agnes. Nanziri testified that on the date of the incident she sent Agnes to fetch water with one Nakyejwe but the latter returned without Agnes. She was informed by one Jumba that he saw Agnes at Mityana taxi stage, and by school children that they saw Agnes at the appellant's home. As she was anxious about the disappearance of her young sister, she reported to the LC Chairman who sent her to Bulenga Police Post with a letter. There, she was given policemen who came and arrested the appellant at his home. They searched for Agnes in the house but did not find her. After about three days, Agnes returned home and said that she had been with "Nakibuuka's aunt" but said nothing about staying a night with the appellant. Furthermore, Nanziri testified that she did not know the appellant before the case. P/C Wakeda testified that on 19.4.01 at 9.30 p.m., he received a report of defilement from Nanziri. The following day he went with two LDU's to arrest the appellant. Nanziri and the area chairman led him to the appellant's home. They found the appellant in his house at about 6.30 a.m., and arrested him. He never saw the victim. The third witness was Jumba Walusimbi, an LC V Councilor. This witness does not appear to be the Jumba who saw Agnes at the taxi stage and/or the LC Chairman who gave Nanziri the letter to the police, since in his evidence he did not refer to either incident. He testified that the police came to his home with Nanziri and informed him that they wanted to arrest the appellant for illegally keeping a girl whose name he did not know. He took them to the appellant's home where they found the appellant but not the girl.
For his part the appellant testified that on 16.4.01, at about 6 p.m., while returning from Kampala, he saw Agnes with one Robert at Kasasi stage. He greeted them and went home. Later he went to play ludo at the trading center and returned home at 8.30 p.m. That night he stayed with his wife and two children. Two days later at about 6.30 a.m., a policeman accompanied by LDU and Nanziri, arrested him at his house and took him to the police post. Subsequently, he was told that he was arrested for Agnes' disappearance. He denied that Agnes ever slept at his house and/or that he defiled her. There was no grudge between him and Agnes. However, he had previously broken-up a love relationship with Nanziri, which did not please her. He thought Nanziri framed him up for that reason. The appellant's wife, Brenda Naluyinda, testified that throughout the month of April 2001 she was at home all the time as she was three months pregnant and sickly. She said that the appellant had not brought Agnes to their home on 16.4.01.
Several features in the evidence are unsatisfactory. First, the circumstances surrounding the appellant's arrest raise a number of unanswered questions. The day after Agnes disappeared from home, Nanziri went to report to the LC Chairman and the police. What she said to the former is not on record, but according to P/C Wakeda she reported to the police a case of defilement. Yet, according to Nanziri's own evidence, the only information she had at that juncture was that Jumba had seen Agnes at a taxi stage, and school children had seen her at the appellant's home. Neither Jumba nor the school children testified. Their information to Nanziri, therefore, was hearsay. In particular, the information of the school children was not admissible to prove that Agnes had been at the appellant's house. More significantly, however, two questions arise. One is: at what time could the children have seen Agnes at the appellant's house, if at all, since Agnes said she went there in the night at 10 p.m., and left early morning at 6 a.m.? The other question is: why did Nanziri rush to accuse the appellant of defiling or keeping Agnes before she had information of the defilement from the victim, or before attempting to verify that she was confined? At best she appears to have acted on mere suspicion, and at worst to have acted on "a preconceived idea"!
Secondly, it appears to us extraordinary that after she returned, Agnes did not report to her elder sister what had befallen her at the hands of the appellant, which would be expected of a normal victim of such offence. She testified that she later went to make a statement to the police. She probably did this on 25.4.01, the day when the police sent her for medical examination. Even if it were assumed therefore, that Agnes was shy or unwilling to disclose the incident to her elder sister because she had been a willing participant, that would not explain who or what persuaded her about ten days later to disclose the incident to the police and eventually to the court. Equally, it is odd that having caused the appellant's arrest on suspicion that he had seduced her young sister, Nanziri did not seek to confirm her suspicion from the supposed victim when she returned or thereafter till the trial. She testified -
"When I asked PW1 where (she) had been, she told me that she had been with Nakibuuka's aunt. I never asked her about staving with accused. I have never asked her about accused up to now. PW1 has never told me about Baguma (accused) and herself." (Emphasis is added). In our view, this apparent indifference is, to put it mildly, inconsistent with the anxiety to which she claimed Agnes' disappearance put her. It rather adds to our concern that her rush to make the unverified report appears to be suspicious. The other unsatisfactory feature in the evidence is Nanziri's insistence that she did not know the appellant before the case. She claimed -"I had never known accused before this case. I was shown accused by other people and I did not know whether he knew me or not. It is not true that he was my lover..." P/C Wakeda, however, got a different impression. He testified
"It was the complainant who led me to the house of accused. Her name was one Nanziri. The door for accused was open. It was
around 6.30 a.m., and I saw accused in his house. The people
with whom I went to arrest him did not know him. It was Nanziri who pointed accused to me (Baguma). She identified him while we were inside the house. I asked Nanziri how she knew Baguma - it appeared she knew Baguma before." (Emphasis added). This evidence tends to show that Nanziri lied when she denied knowledge of, and relationship with the appellant prior to the incident.
Taking into consideration all the observations we have set out, we are inclined to the view that the assessment by the learned trial judge of the credibility of the evidence was wrong. We are mindful of the fact that the trial judge had the advantage of seeing and hearing the witnesses, which we did not. However, we reiterate the legal position, which was upheld by the East African Court of Appeal in Pandya vs. R (supra) and has been applied over time in other decisions of this Court and its predecessors, that -
" When the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on credibility of witnesses whom the court has not seen."
In such circumstances the appellate court should not shrink from overruling the decision of the trial court, if upon carefully considering the judgment it concludes that it is wrong. In our view, the totality of the improbabilities, inconsistencies and apparent falsehoods in the evidence of the two sisters, as well as the unanswered questions, in the instant case, portrays the defence evidence in more plausible light than the learned trial judge viewed it when he said in his judgment -
"I do not see why the victim should frame the accused over the alleged lost love between her elder sister and the accused." Considering the deficiencies we have highlighted in the sisters' testimonies, we are not able to share the confidence of the learned trial judge that Agnes could not participate in a frame-up if there was one. While we would not go so far as to hold that the appellant's claim of a frame-up was proved, we are of the firm view that it was not ruled out. We therefore hold that at the very least, the matters we have pointed out raised reasonable doubt in the prosecution case, and the appellant ought to have been given the benefit of that doubt. In the result, we think that it is not safe to uphold the conviction of the appellant. We allow the appeal, quash the conviction and set aside the sentence imposed on him.
Before taking leave of this case, we are constrained to comment on a tendency of some trial judges to short-circuit evaluation of evidence by stereo-type lauding of the manner and demeanour of witnesses for the party that the trial judge has decided should win and damning those of the opposite party. An observation in the judgment that the witnesses were straightforward, unshaken and/or consistent, or were shaky, evasive, and/or shifty, to illustrate the manner and demeanour of the witnesses, is hardly impressive where it appears to be a mere recollection of what transpired during the hearing. It is more reliable and carries more weight with the appellate court, when it is accompanied by corresponding notes that the trial judge made contemporaneously with the recording of evidence as he/she heard and observed the witnesses.
DATED at Mengo the 1st day of November 2005
A.HO. Oder, Justice of the Supreme Court
J.W.N. Tsekooko, Justice of the Supreme Court
Justice of the Supreme Court
Justice of the Supreme Court
G.W. Kanyeihamba Justice of the Supreme Court.
THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO
(CORAM: ODOKI, CJ; ODER; TSEKOOKO; KAROKORA;
AND KANYEIHAMBA; JJSC.)
CRIMINAL APPEAL NO. 3 OF 2004 BETWEEN
NUUHU ASUMAN KIBUUKA: :::::::::: :::::::::: APPELLANT
UGANDA: :::::::::: :::::::::: RESPONDENT
(An appeal from the decision of the Court of Appeal at Kampala (Hon. Justices S. G. Engwau, C. M. B. Kitumba and C. K. Byamugisha) dated 10th June 2004, in Criminal Appeal No. 23 of 2000).
JUDGMENT OF THE COURT ...
This is an appeal against the decision of the Court of Appeal which dismissed the appellant's appeal against the conviction by the High Court for the offence of kidnapping with intent to murder contrary to section 235 (l)(a) of the Penal Code Act and sentence of 20 years imprisonment.
The brief facts of the case were as follows:
The appellant and Aida Nankya, PW1 lived in his home at Kazo as husband and wife despite the fact that they were related as uncle and niece, PW1 being a daughter of the appellant's brother. They eventually produced a baby boy, Ibrahim Kibuka, who was aged 6 months at the time he was kidnapped.
Mariam Nansubuga, PW4 who was the sister to PW1. knew about the love affairs between the appellant and PW1 because when the appellant and PW1 were still in love, the appellant used to send money to PW1 through her (PW4). However, in 1998, PW1 left the appellant's home and went to live at Natete with her brother, Asumani Mukasa, PW3.
On the night of 24th October 1998, at 8.00 p.m., the appellant sent for PW1 to go and meet him. PW1 left her brother's home and went to meet the appellant, but she returned to her brother that same night. Later the same night at 11.00 p.m. the appellant sent for her again. However, her brother, PW3, this time requested PW1 to take her child with her which was crying. PW1 took her child with her when she went to meet the appellant. On reaching where the appellant was, the appellant requested to be allowed to hold the child as he used to do in the past. PW1 handed the child to the appellant. The appellant did not return the child to PW1. He, instead, entered a stationary special hire vehicle which he entered and was driven away together with the child. PW1 returned to PW3, crying saying that her child had been taken away by the appellant. PW3 advised her to report to the authorities on the following day. On the following day, PW1 reported the matter to her mother who advised that she should report to the authorities. PW1 tried to trace the appellant at his home but could not find him. She reported to authorities and later to a Police Station. The appellant was later arrested. The child, Ibrahim Kibuka, has never been seen alive again. The appellant was indicted with kidnapping with intent to murder.
In his defence, the appellant denied the charge and pleaded the defence of alibi to the effect that at the material time he was at the Mosque between 7.00 p.m. and 10.00 p.m. praying. He stated that after his prayer, he went to the home of Yusuf Kurumba DW2, and later went to his own home and slept till the following day. He denied having indulged in an incestuous relationship with PW1. He called DW2 to support his alibi.
The learned trial judge believed the prosecution evidence, rejected the defence of alibi, convicted and sentenced him as already stated.
His appeal to the Court of Appeal was dismissed and hence this appeal. The appellant has filed the following four grounds of appeal.
(7) That the learned Justices of Appeal erred in law and fact when they found that it is the appellant who kidnapped pw1's child;
||That the learned Justices of Appeal erred in law and fact when they failed to properly re-evaluate all the evidence before it and thereby erroneously confirmed the conviction of the appellant;
||That the learned Justices of Appeal erred in law and fact on the issue of alibi and as a result arrived at a wrong decision;
||That the sentence of 20 years was harsh and excessive in the circumstances.
Mr. Ojokol, counsel for the appellant, in written submissions argued grounds 1 and 2 together. He submitted that the offence of kidnapping with intent to murder comprises of two elements; namely, the prohibited conduct of or taking away by force or fraud and secondly the specific intent to commit an offence of murder. He cited the cases of Mukoome Moses Bulo - vs - Uganda Cr. Appeal No. 12 of 1995 (SC) and Ibrahim Bilal - vs - Uganda, Cr. Appeal No. 5 of 1995 (SC) (unreported) for the above proposition.
Counsel submitted that although the Court of Appeal after reviewing the evidence on record concluded that the learned trial judge properly evaluated the evidence and came to the right conclusion that it was the appellant who kidnapped PW1's child, it was his contention that the Justices of Appeal never properly directed themselves on the law and evidence in respect of the charge of kidnapping with intent to murder. He cited the cases of Abbasi & Anor - vs -Uganda, Cr. Appeal No. 10 of 1995 (SC) and Bogere Charles - vs -Uganda, Cr. Appeal No. 10 of 1997 (SC) (unreported) for the proposition that the first appellate Court has a duty to properly scrutinise and re-evaluate the evidence of both the prosecution and the defence. He concluded that if it had done so, it would have found that the evidence of identification of the appellant by PW1 did not rule out the possibility of mistaken identity or even of a frame-up. Counsel cited section 6(1)(a) of the Judicature Act and the cases of Kifamunte Henry - vs - Uganda, Cr. Appeal No. 10 of 1997 (SC) and Bogere Moses & Kamba - vs - Uganda Cr. Appeal No. 1 of 1997, (SC) (unreported), for the proposition that except in the clearest of cases, this Court as a second appellate court, is not required to re-evaluate the evidence like a first appellate court. Counsel contended that the instant case was one of the clearest of cases which makes it incumbent upon this Court to re-evaluate the evidence. He submitted that in the instant case PW1 was a single identifying witness who claimed to have identified the appellant when the appellant took away the child from her (PW1) and therefore, her evidence required corroboration.
Counsel submitted that there was no witness who corroborated PW1's evidence to the effect that the appellant kidnapped the child. He submitted that PW3's evidence to the effect that when she went away at night with the child and returned without it, crying that the appellant had taken it from her could not corroborate PW1's evidence on reliance on section 155 of the Evidence Act, since no Police reports were produced to court in evidence.
On the issue of specific intent to have the victim murdered, counsel submitted that it was essential for prosecution to prove the intention of the appellant to murder. Counsel contended that the appellant was not placed in a position whereby he had to rebut the presumption. He further contended that the intention could be presumed if the victim had not been seen or heard of within a period of six months or more. This presumption is provided for under section 235(2) of the Penal Code Act as follows:
"Where a person so kidnapped or detained is thereafter not seen or heard of within a period of six months or more, the accused person shall be presumed to have had the intention and knowledge stipulated in paragraph (a) and (b) of subsection (1)."
Counsel cited the case of Godfrey Tinkamarirwe & Anor - vs - Uganda, Cr. Appeal No. 5 of 1986 (SC) for the proposition that in law on a charge of kidnapping with intent to murder, it is necessary for the prosecution to establish that at the time of kidnapping there was a contemporaneous intent that the victim be murdered or put in danger of being murdered.
Counsel submitted that in the case of Mukombe Moses Bulo (supra) the court held that sub-section (2) of section 235 of the Penal Code Act casts a burden on the appellant to prove that he did not have that intention. The appellant in that case failed to rebut the presumption. Counsel submitted that in that case the charge had made reference to sub-section (2) of section 235 of the Penal Code Act, unlike in the instant case where sub-section (2) was omitted in the charge.
In conclusion, counsel submitted that the offence of kidnapping with intent to murder was not proved and therefore the Court of Appeal erred to confirm the conviction and sentence against the appellant. Therefore, he prayed that grounds 1 and 2 should succeed.
Ms. Alice Komuhangi, Senior State Attorney supported the Court of Appeal's decision to confirm the appellant's conviction and sentence for the offence of kidnapping with intent to murder.
She submitted that the Justices of Appeal properly directed their minds to the law and evidence in respect of the charge of kidnapping with intent to murder contrary to section 235 (l)(a) of the Penal Code Act. She was in agreement with counsel for appellant regarding the ingredients which constitute the offence charged. Counsel also agreed with counsel for the appellant that the Court of Appeal as a first appellate court had a duty to re-evaluate the evidence for both the prosecution and the defence but contended that the Court of Appeal in the instant case had properly evaluated the evidence and arrived at the right conclusion.
Turning to the evidence of PW3, the learned Senior State Attorney submitted that the prosecution evidence was not that he saw the appellant take the child, but that he saw PW1 leave his house with the child going outside where she had been called and only saw her coming back, crying and reporting that the appellant had taken away the child from her.
Learned Senior State Attorney submitted that the Justices of Appeal rightly applied section 155 of the Evidence Act when they held that PW3's evidence corroborated PW1's evidence in as far as identification of the appellant was concerned. She submitted that since PW3 was in court and gave evidence on oath and was cross-examined, the production of police report was not necessary. Counsel submitted that throughout the trial, the learned trial judge found and the Justices of Appeal agreed that although PW1 was a single identifying witness, she was truthful and credible whose evidence was corroborated by other pieces of evidence.
On the issue of specific intent to cause the victim to be murdered, and omission of sub-section 2 of section 235, the Senior State Attorney's reply was that it was not necessary to include that sub-section in the Indictment. She cited section 22 of the Trial on Indictment Decree (TID) which clearly stipulate what should be contained in the Indictment.
She submitted that whatever was contained in the particulars of the offence was good enough to sufficiently explain to the appellant of what he was charged with. She submitted that sub-section (2) of section 235 of the Penal Code Act is an explanation of how the intention in sub-section (1) thereof can be presumed. She submitted that in the instant case it was rightly presumed.
We agree with the submissions of counsel for the appellant that the 1st appellate court has a duty to properly scrutinise and re-evaluate the evidence of both the prosecution and defence. See Abasi & Anor -vs - Uganda, (supra) and Bogere Charles - vs - Uganda, (supra).
However, we do not agree with counsel's submission that the Justices of Appeal never properly scrutinised and re-evaluated the evidence of both the prosecution and the defence.
The learned justices of Appeal scrutinised and re-evaluated the evidence of both sides and considered how the learned trial judge had treated the evidence of PW1 as a single identifying witness during conditions which were not favourable for correct identification. They never faulted her finding that she was satisfied that PW1 knew the appellant before as they were related and as she had met him (appellant) that night. They did not fault her finding of her observation as to her demeanour and truthfulness.
In our view, the Justices of Appeal rightly found that PW3's evidence corroborated PW1's evidence that it was the appellant who kidnapped the child. They found that PW1's statement to PW3 that it was the appellant who kidnapped the child was made at about the time the fact of kidnapping the child took place and therefore satisfied the provisions of section 155 of the Evidence Act, which provides as follows:
"155. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."
We reiterate what we stated in the case of Ndaula John - vs - Uganda (SC) Cr. Appeal No. 22 of 2000 that -
"In Uganda, a former statement made by a witness, which satisfies the conditions stipulated in section 155 of the Evidence Act, is provable as corroboration of the testimony of that witness. The conditions stipulated in the section are that the former statement must have been made either (a) at or about the time when the fact took place or (b) before any authority legally competent to investigate the fact. The statement made by the complainant in the instant case to witnesses who answered her alarm should have been viewed in that context."
Therefore, we agree with the Justices of Appeal that in the instant case the report by PW1 when she returned soon after the time the child was taken away from her, crying and reported to PW3 that her child had been taken away by the appellant, satisfies the provisions of section 155 of the Evidence Act is provable against the appellant.
The Justices of Appeal further and rightly in our opinion found that the evidence that PW4 was substantially truthful. They rightly, upheld the findings of the learned trial judge that PW4 knew about the love affairs that existed between the appellant and PW1 as she (PW4) was the conduit through whom the appellant sent money to assist PW1.
The issue of specific intent to cause the victim to be murdered was seriously argued by Mr. Ojakol in his submissions. The learned trial judge had addressed the issue in her judgment in the following passage thus:
"The fact that the accused was the father of the abducted child was neither here nor there particularly because section 235(2) of the Penal Code Act stipulates that the intention to murder at the time of taking away, can be implied if the victim remains unaccounted for, for six months or over. It is not in dispute therefore that the accused had a contemporaneous intent to murder since all evidence indicate that the victim has never been recovered to-date. Reliance on section 235(2) of the Penal Code Act does not burden the prosecution with any further need to prove the intention for the offence. Relying on section 235(2) of the Penal Code Act, the accused is assumed to have had the desired intention to commit the offence."
The learned trial judge found the accused guilty and convicted him for kidnapping with intent to murder contrary to section 235(1 )(2) of the Penal Code Act.
We think that although the prosecution omitted to mention sub-section (2) of section 235 of the Penal Code Act (supra) in the statement of the offence ,the omission did not occasion a miscarriage of justice nor did it prejudice the appellant. The particulars of the offence must have conveyed to the appellant the offence for which he was tried. The particulars of the offence in this case took care of that omission when it stated:
"Nuuhu Asumani on the night of 24th/25th of October 1998, at Natete in Kampala District forcefully took away Ibrahim Kibuka aged about 6 months from its mother against her will, with intent that such a child may be murdered or may be so disposed of as to be in danger of being murdered."
Be that as it may, we do not agree with the submission of the learned Senior State Attorney that it was not necessary to include sub-section (2) of section 235 of the Penal Code Act in the statement of the offence. In our view, the inclusion of the sub-section is necessary for the purpose of informing the appellant the relevant ingredient which the prosecution must prove in order to secure a conviction against the accused.
We think that sub-section (2) of section 235 of the Penal Code Act is an explanation of how the intention in sub-section (1) thereof, can be presumed. In our view, the prosecution evidence, brought out the fact that since its kidnap in October 1998, the child has never been seen or heard of. Therefore, the intention to murder was rightly presumed and proved.
Consequently, we cannot fault the Justices of Appeal for confirming the findings of the learned trial judge. In the result, we find no merit in grounds 1 and 2.
Ground 3 raised the issue of whether the Justices of Appeal erred in law and fact on the defence of alibi. The law on the defence of alibi is well settled and is that — "An accused person who raises a defence of alibi does not have a burden of proving it. " See Sekitoleko -vs - Uganda 1967 EA 531, R -vs -Johnson  ALLER 967, Leonard Aniseth - vs - Republic [1963 EA 206.
The mode of evaluation of evidence in case where the accused raises an alibi in his defence was settled by this court in the case of Moses Bogere & Another -vs - Uganda (SC) Cr. Appeal No. 1 of 1997. There we stated:
"Where the prosecution adduces evidence showing that the accused person was at the scene of crime, and the defence not only denies it, but adduces the evidence, showing that the accused person was elsewhere at the material time, it is incumbent on the court to evaluate both versions judicially and give reasons why one and not the other version is accepted."
The learned Justices of Appeal reviewed all the evidence both for the prosecution and the appellant and concurred with the learned trial judge in rejecting the appellant's alibi. We agree with the conclusion of the two courts. Mr. Ojakol, counsel for the appellant has not persuaded us that either court erred.
Therefore, grounds 3 fails.
Ground 4 raised the issue of right of Appeal against severity of sentence of imprisonment to this Court.
Section 5 of the Judicature Act deals with appeals to the Supreme Court in Criminal matters. Its sub-section 3 specifically debars appeals to this Court against severity of sentence. It provides that:
"In the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order, on a matter of law, not including the severity of the sentence."
The sentence of 20 years imprisonment is not unlawful. The ground must therefore fail.
All in all, we find no merit in this appeal. It is accordingly dismissed.
Dated at Mengo this: 4th day of: November, 2005.
A. O. ODER
JUSTICE OF THE SUPREME COURT
J.W. N. TSEKOOKO
JUSTICE OF THE SUPREME COURT
A. N. KAROKORA
JUSTICE OF THE SUPREME COURT
G. W. KANYEIHAMBA
JUSTICE OF THE SUPREME COURT