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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI, CJ., TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA, JJ.S.C.)
CRIMINAL APPEAL. 40 OF
2003
BETWEEN
BASHIR
SSALI APPELLANT
AND
UGANDA RESPONDENT
[Appeal from the decision of the Court of Appeal at Kampala (Mukasa-Kikonyogo, DCJ., Kitumba and Byamugisha, JJ.A) dated 19th November, 2003 in Criminal Appeal No.86 of 2001]
JUDGMENT OF THE COURT: This is a second appeal against the
decision of the Court of Appeal which upheld the conviction of the appellant by
the High Court,
(Maitum, J), for defilement. He was sentenced to 16 years
imprisonment.
The facts of the case are simple.
In 1997, a young girl called Shamim
Semugabi (PW1) was in Primary 3, where she was a class monitor in Kabowa Hidayat
Primary School,
in Kampala District. There was a mosque at the school. Shamim
and the appellant, Bashiri Ssali, used to pray in that mosque. So she
knew
him.
On 13/3/1997, at 4.00 p.m, Shamim's class teacher asked her to collect
mathematics exercise books from her classmates. In the process
of collecting the
exercise books, she realised that her own mathematics exercise book was missing.
As her classmates went home, Shamim
remained behind searching for the book. At
about 5.00 p.m, the appellant appeared at the door of the classroom and called
her. She
recognised him because he used to frequent the mosque where she also
prayed. Shamim greeted the appellant. He invited her to go to
him. She refused.
He then held her by the hand, gagged her with a handkerchief in her mouth to
prevent her from making an alarm,
and pulled her into the girls' toilet room. He
put her supine on the floor where he defiled her. The incident lasted for about
30
minutes. She felt a lot of pain. Upon realising that the defilement had
caused her to bleed from her private parts, he went to a
nearby shop, bought
cotton wool and a bottle of soda and returned to where Shamim was. Using the
cotton wool, the appellant wiped
the private parts of Shamim to remove blood. He
gave her the soda to drink and shs 200/=. He warned her not to disclose what had
occurred to any body including her parents and teachers. He also threatened her
with death if she ever disclosed the defilement to
anybody in her school. Shamim
went home.
The following morning, Shamim disclosed the defilement to her siblings one of
whom informed their mother, Saula Semugabi (PW2). Because
Shamim refused to
disclose the name of the defiler to the mother, the latter gave Shamim five
strokes of the cane. Consequently,
Shamim was forced to disclose the name of the
appellant to the mother and explained that she feared to disclose it earlier
because
of the appellant's threat to kill her. The mother reported the matter to
the father, Hamad PW.4, who reported the defilement to the
police and to a
teacher (one Lukwago Yahaya Ahamed) (PW4). Shamim was taken to a clinic where
she was examined by Dr. Barungi Tadoe
(PW8). He noted that Shamim's hymen had
been raptured less than 5 days earlier. She had sustained quite a big tear
between the vagina
and the anus. The appellant was arrested on 17/3/1997, and
was also examined by the same doctor, Barungi. The appellant appears to
have
claimed to the doctor that he was impotent. So the doctor examined him and
established that the appellant was not impotent.
He was charged and prosecuted
for the offence of defilement.
During his trial, the appellant denied the offence and raised an alibi to the
effect that he had gone to Rakai on 28/2/1997 and stayed
there till 17/3/1997
when he returned home. The trial judge believed the prosecution witnesses,
disbelieved the appellant and his
only witness both of whom the judge found to
be liars. The learned judge convicted the appellant and sentenced him to 16
years imprisonment.
The appellant appealed to the Court of Appeal on four grounds. He abandoned the second ground which raised a complaint of lack of corroboration. The remaining three grounds were argued in that court. The first was couched in general terms to the effect that the trial judge erred when she held that the appellant was guilty of defilement.
In the third ground the complaint was that the trial judge ignored major
discrepancies and contradictions in the prosecution case.
Finally, in the last
and fourth ground, the complaint was that the judge failed to evaluate the
evidence as a whole.
The Court of Appeal considered the three
grounds, the submissions of counsel for the two sides and dismissed the appeal.
The appellant
has now appealed from that decision and the appeal was originally
based on four grounds. The fourth ground which was in the alternative
was
abandoned.
The remaining three grounds of appeal which are virtually similar to those argued in the Court of Appeal were framed this way: -
1. The learned trial Justices of Appeal erred in law and fact to hold that the offence of defilement was prove beyond reasonable doubt.
2. The learned Trial Justices of Appeal erred in law when they failed to take cognisance of major discrepancies and contradictions and as a result confirmed the erroneous decision by the trial court that the appellant had been properly identified.
3. The learned Trial Justices of Appeal erred in fact and law to reject the defences of alibi and impotence.
We note that the
reference in these grounds to the Justices of Appeal as "Trial Justices"
is not correct. Ms. E. Luswata Kawuma appeared for the appellant. She argued
grounds 1 and 2 together and ground 3 separately. Ms.
Betty Khisa, Senior
Principal State Attorney, represented the respondent.
On grounds 1 and 2, learned counsel for the appellant contended that the fact
of defilement was not proved beyond reasonable doubt.
(This matter was raised
and argued in the trial court which rejected it). Learned counsel also argued
that the identification of
the appellant as the defiler was not properly proved.
Counsel further contended that there were inconsistencies in the prosecution
case and that the evidence of Shamim and of her mother, Saula Semugabi,
contradicted each other. She again contended that Shamim's
evidence was
unreliable since initially she did not name the appellant as her defiler until
she was caned by her mother. Counsel
again contended that the evidence of Hamad
Sengabi (PW4) the father of the complainant, and of Birungi Marriam (PW.6) is
hearsay.
For the respondent, Ms Betty Khisa, supported the decisions
of both the Court of Appeal and of the trial judge. She submitted, and
we agree
with her, that Shamim knew the appellant very well since both regularly prayed
in the same mosque at the school where Shamim
was a pupil. The learned Senior
Principal State Attorney also argued that since defilement lasted 30 minutes,
during daytime, Shamim
was able to identify the appellant. The learned Senior
Principal State Attorney, urged us to accept the fact that Shamim reported
the
appellant to her siblings and later to her mother (PW2).
With respect
to Ms. Luswata Kawuma, we do not accept her contention that defilement was not
proved beyond reasonable doubt. Firstly
there is the unchallenged evidence of
Shamim herself whom the trial judge found truthful. This is what she said on
oath:
"He removed my pants and started having sexual intercourse with
me..... ........................ I saw his penis and he had a lot of
hairs. He put it in my virgina (sic). I felt pain and I felt very bad. After
that he went to the
shop and bought some cotton wool. He was on top of me for 30
minutes. J was bleeding and he wiped the blood with the cotton
wool."
In cross-examination, she does not appear to have been
challenged on the act of sexual intercourse. She was asked about the cotton
wool
which she mentioned. There can therefore be no doubt that her evidence
established the act of defilement which was fully corroborated
by the evidence
of Dr. Barungi Tadeo (PW8). In his evidence Dr. Barungi who examined Shamim on
17/3/1988, nearly four days after
the defilement, and found her aged 8 years
testified that Shamim's private parts showed an inflamed tear involving the
haymen and
fourchette and that the tear was compatible with penetration. That
the injury was less than five days old. Certainly this evidence
proved beyond
doubt that Shamim had been defiled.
On the evidence reflected on the record, we have no doubt that both the
appellant and Shamim regularly prayed in the same mosque situated
at the school,
where Shamim used to see the appellant. The conclusion that Shamim correctly
identified the appellant is irresistible
since the defilement took place during
daytime at 5.00 p.m and there were only the appellant and Shamim present at the
scene of crime.
Therefore the question of identification of the appellant does
not arise. Both the trial judge and the Court of Appeal were entitled
to
conclude, as they did, that Shamim recognised the appellant as the person who
caught her at school, dragged her into the girls
toilet room and defiled her
there, after which he warned her not to report him to her teachers, her parents
or to any body or else
he would kill her or cause her to be marked down in her
class work. We appreciate that at the time of the defilement Shamim was a
young
child, aged only 8 years. It does not surprise us that she heeded the threat of
the appellant by not reporting the defilement
or disclosing the name of the
defiler to her parents immediately she reached home. Any way she disclosed the
defilement to her mother
the following morning after she was caned.
Occasionally, the failure by a victim of a crime to disclose the offender at the
earliest
available opportunity would lead to the drawing of adverse inference
against that victim's testimony but this is not a general rule
and certainly
would not apply in this case. A court faced with such situation which affects
the credibility of a witness has to consider
all the surrounding material
circumstances before drawing any such adverse inference about the credibility of
the victim of the crime
as a witness: See R. Vs. Mange S/o Mulebi (1948) 15
EACA 69. In the case before us, the victim of the defilement was a young
girl, aged 8 years. She was badly ravished. She was threatened with
death if she
disclosed the name of her defiler whom she knew very well.
In any event, the period of silence was a matter of hours. In the morning
when her brother saw her she was so afraid that she was
trembling. The threat to
kill her was operating. Her initial reluctance to name the appellant as her
defiler must have been influenced
by the threat and nothing else. As to the
identity of the appellant as the defiler, we have no hesitation in rejecting the
submissions
of Ms. Luswata Kawuma. The appellant was very well known to Shamim.
She used to see him in the mosque at school and especially on
Fridays during
prayer time. The appellant was therefore no stranger to her. Before he defiled
her, he held her and dragged her for
some distance to the toilet room where he
ravished her which means he was very close to her. He was probably facing her
face to face
having first put her down on her back.
After the defilement he went away, bought a soda and cotton wool returned to
the scene, wiped blood from her bleeding private parts,
gave her the soda to
drink and shs 200/=. All these activities took place during broad
daytime. We notice from the record of proceedings that Shamim was subjected to
what must
have been rigorous cross-examination as a result of which she repeated
all that she had stated in examination-in-chief, implicating
the appellant. She
appears to have been very consistent throughout the giving of her evidence both
in examination-in-chief and in
cross-examination. In these circumstances we
agree with the concurrent findings of the two Courts below that Shamim was a
reliable
witness and a witness of nothing but the truth.
Ms. Luswata Kawuma contended that there were contradictions in the evidence
of Shamim and her mother. Learned counsel did not point
out such contradictions
and we find none that is of material importance. The Court of Appeal considered
this matter and found no
material contradictions. Learned counsel contended that
evidence of Hamad Semugabi (PW4) as well as that of Birungi Mariam (PW6)
is
hearsay and contradictory. The information which Semugabi heard from his wife
and children is hearsay. But what Shamim told him
is evidence of Shamim's
consistency. Otherwise Semugabi described what he actually did in relation to
tracing and having the appellant
arrested. That is not hearsay evidence at
all.
Birungi Mariam's evidence regarding what Shamim told her about the defilement
and what happened thereafter would be hearsay in as
much as Shamim did not say
in her testimony that she reported the defilement to Mariam. However, much of
what would be hearsay was
actually introduced through cross-examination. In the
process the evidence supported Shamim's testimony as to the defilement, the
giving of the soda and money (though of a different amount). As a matter of fact
Mariam eventually corroborates Shamim to the effect
that the appellant was
well-known to the two, that he defiled her and that she bled after the
defilement. Even if the hearsay part
of the evidence of these two witnesses was
ignored, in our opinion, the evidence of Shamim, her mother, and that of Dr.
Barungi was
sufficient to establish defilement, and that of Shamim is sufficient
to establish the identity of the appellant. The trial judge
properly cautioned
herself against relying on evidence of a single identifying witness before she
believed Shamim. We find no fault
in her conclusions. Accordingly both grounds 1
and 2 must fail.
When arguing the third ground, Ms. Luswata Kawuma
contended in effect that the prosecution did not disprove the appellant's alibi
that he was in Rakai on the day he is alleged to have committed the offence. For
the respondent Ms. Khissa submitted that once the
prosecution evidence was
believed, the trial court was entitled to reject the alibi. In matter of fact
our discussion and conclusions
on grounds one and two dispose of the third
ground. However, in our opinion, the prosecution evidence placed the appellant
at the
scene of crime. There is no reasonable doubt about the fact that the
appellant was properly identified at the scene of crime by
Shamim, the victim,
and therefore the judge was entitled to reject his alibi. The Court of Appeal
correctly concurred with that
finding. Ground three must fail. There is a matter
connected with this question of alibi. Apparently, the appellant made a charge
and caution statement to police in which he denied the offence and never said he
was in Rakai. The prosecution did
not tender that statement in evidence but instead used it to cross-examine
the appellant after he gave his defence. During the cross-examination,
the
appellant disowned the statement. The prosecution made no attempt to prove it
and produce it in evidence.
In her judgment the learned judge held that the alibi of the accused person
was a fabrication especially since he had all the opportunity
to have given it
to the police during his arrest and did not. The judge made this conclusion
after she had considered the appellant's
answers during his cross-examination on
the alleged charge and caution statement to police. She concluded "that it
transpired during the cross-examination of the appellant that he had given the
police at the time of his arrest a different
alibi".
While the trial judge was entitled to adversely comment on the appellant's failure to disclose his alleged alibi to the police at the earliest opportunity, it was irregular for her to reject the alibi on ground that he gave a different alibi in a statement to the police which statement was not proved in evidence. The judge should not have relied on the contents of a statement which was not part of the evidence before her. If we had not been satisfied that the appellant had been properly identified at the scene of crime by Shamim, the judge's rejection of the appellants alibi on the basis of evidence not before her would have affected our conclusion on the issue of the alibi and indeed the whole case.
We must also advert to the holding of the identification parade. It appears
that the police held an identification parade at which
the appellant was picked
by Shamim. Yet apart from asking Shamim during the giving of her testimony about
that parade, the prosecution
did not adduce any evidence in respect of the
parade. Therefore the learned judge quite properly and correctly ignored that
bit of
the evidence. In any case, we are puzzled as to what led the police to
hold the identification parade which is normally held in cases
where a witness
claims he or she can identify a suspect who committed an offence in the presence
of a witness who did not know the
suspect previously. In this case, as Shamim
knew the appellant very well, the identification parade was unnecessary and
superfluous.
There is a matter which was not raised and argued by Counsel. This is the legality of the sentence. By virtue of clause (8) of Article 23 of the Constitution, a trial court when sentencing a convicted person is required to take into account, any period the person spent in lawful custody. In this case the trial judge does not show that she took into account the period of four years between 17/3/1997 and 18/7/2001 spent by the appellant in lawful custody before he was convicted. In a series of decisions in similar circumstances, we have on our own motion corrected the sentence. See Sebide Vs Uganda (Criminal Appeal No.22 of 2002 (SC) (Unreported) and Kabwiso Issa Vs Uganda - Criminal Appeal No.7 of 2002 (SC) (Unreported). It is the duty of this Court to correct this error.
Having taken into account the period of four years which the appellant spent
on remand, and the serious injury to the victim Shamim,
we reduce the sentence
of 16 years to 14 years imprisonment.
For the reasons we have given
we find no merit in the appeal except as to sentence. The appeal as to
conviction is dismissed. The
sentence of imprisonment is reduced to 14
years.
Delivered at Mengo this 1st day of September 2005.
B. J. Odoki
CHIEF JUSTICE
J. W. N. Tsekooko
JUSTICE OF THE SUPREME
COURT
A.N. Karokora
JUSTICE OF THE SUPREME
COURT
J. N. Mulenga
JUSTICE OF THE SUPREME
COURT
G.W. Kanyeihamba
JUSTICE OF THE SUPREME COURT
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