Babumba & Another v Uganda (Criminal Appeal 46 of 2020) [2023] UGSC 77 (20 September 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

#### CRIMINAL APPEAL NO.46 OF 2020

## (CORAM: MWONDHA; PROF. TIBATEMWA-EKIRIKUBINZA; TUHAISE; MUSOTA; MADRAMA, JJ. S. C)

#### **BETWEEN**

#### 1. MAJOR JOEL BABUMBA

## 2. BAGUMA ALEX:::::::::::::::::::::::::::::::::::: **VERSUS**

#### UGANDA:::::::::::::::::::::::::::::::::::

15 (Appeal from the decision of the Court of Appeal of Uganda at Kampala in Criminal Appeal No.422 of 2016, decided by Alfonse Owiny-Dollo, DCJ, Barishaki Cheborion, JA and Elizabeth Musoke, JA).

#### JUDGMENT OF THE COURT

#### 20

$5$

#### 1.0: Introduction

The Appellants were indicted and tried of murder contrary to section 188 and 189 of the Penal Code Act before the High sitting at Masaka. It was the prosecution's case that on or about the 31st day of July, 2012 at Bwanyi village in Kalungu District, the appellants murdered one Kazungu Moses. 25 Upon trial, Eudes Keitirima J, found the appellants not guilty and acquitted them accordingly. Dissatisfied with the decision of the High Court, the respondent through the office of the Director of Public Prosecutions lodged an appeal with the Court of Appeal and by majority of 2-1, the Court of 30 Appeal set aside the acquittal of both appellants, found them guilty as charged and convicted them accordingly. The court of Appeal then referred the file back to the High court for sentencing of the appellants. The

appellants were each sentenced to Twenty (2O) years in prison which they are currently serving.

### 2. Ot Ssskground

The background to this appeal is that the deceased together with his other family members lived in Bwanyi village Kalungu District, where the deceased and his family owned a huge chunk of land. The siblings to the deceased then sold part of the family land, approximately 154 acres to one Rtd. Major Noel Nuwe who in turn sold the same to the lst appellant. The l"t appellant established a dairy farm comprising majorly of cows and goats on the land. Later, the I st appellant developed misunderstandings with the deceased resulting from the deceased's cattle trespassing on the lirst appellant's farm land whereof, a report was made to police that solved the impasse between the l"t appellant and the deceased, and the two then lived cordially.

On 30th July, 2012, the l't appellant rang the deceased and requested him to transport two of his farm workers to Lukaya to take delivery of a new batch of twelve Frisian cows he was expecting to arrive from Kiruhura. However, on the morning of 3l"t of July 2O12, the deceased was found dead by the roadside, next to his motorcycle Reg. No. UDH 709T whose front lamp assemblage was extensively damaged. The post mortem report attributed the cause of death to severe closed head injury not compatible with life, secondary blunt trauma to the head.

The l"t appellant was then arrested on the allegations that since he had misunderstandings with the deceased and that since he had engaged him a day prior to his death, he could have been one of the killers of the deceased and or masterminded his death. Together with the 2"d appellant, they were charged of murder contrary to section 188 and 189 of the penal Code Act before the High court which found them not guilty and acquitted them.

Aggrieved with the decision of the High Court, the Director of Public Prosecutions appealed to the Court of Appeal on five grounds and by majority of 2-1, the Court of Appeal set aside the linding of the High Court, l5 found the appellants guilty as charged and convicted them accordingly. The

Court of Appeal remitted the file to High Court appellants. Dissatisfied with the finding of the appellants filed the instant appeal. for sentencing of the Court of Appeal, the

# 3. O: The Ingtant Appeal

l0 The appellants now appeals to this court against the finding of the of the Court of Appeal on the following grounds:

- l. The learned Justices of the Court of Appeal erred in law and fact when they reversed the decision of the trial Judge and held that the cause of death of the deceased had been proved, was intentional and not by accident. - 2. The learned Justices of Appeal erred in law and fact when they held that the appellant's failure to attend the deceased's burial was suspicious conduct and thus proof of the ingredient of malice aforethought. - 3. The learned Justices of Appeal erred in law and fact when they reversed the appellantb acquittal thereby convicting them basing on unreliable and uncorroborated evidence of PW4, a single identifying witness. - 4. The learned Justices of Appeal erred in law when they evaluated the evidence of a single identifying witness considering only factors favoring correct identification in isolation and in total disregard of factors which made correct identilication difhcult and thereby arriving at a wrong conclusion. - 5. The learned Justices of Appeal erred in law when they failed in their bounden duty to re-evaluate all the material evidence before court contained in exhibits PEl, PE2, DE6, DE 10 and the evidence of PW7 and PW9 before reaching a conclusion that the l"t appellant's alibi was destroyed by evidence of PWS hence occasioning a miscarriage of justice. - 6. The learned Justices of Appeal erred in law and fact when they dismissed the I st appellant's defense of alibi yet the prosecution did not destroy it by way of evidence in their investigations.

- 7. T}le learned Justices of Appeal erred in law and fact when they shifted the burden of proof to the 2"d appellant to prove his alibi when they held that he failed to account for his whereabouts on the night of the murder hence occasioning a miscarriage of justice. - 8. The learned Justices of Appeal erred in law and fact when they reversed the appellants' acquittal by the trial Judge thereby convicting the appellants of the offence of murder on the basis of unsatisfactory and inconsistent evidence. - 9. The learned Justices of Appeal erred in law when they relied on suspicions as circumstantial evidence to hold that it irresistibly pointed to the guilt of the appellants.

The appellants prayed that the appeal be allowed, the judgment and orders of the Court of Appeal convicting the appellants for murder be set aside and be substituted with the orders of the High Court acquitting the appellants.

### 4. O: Repreeentatlon

20 At the hearing of the appeal, Mr. Ochieng Evans and Mr. l<yazze Joseph represented the appellants while Mr. Andrew Odit appeared jointly with Ms. Namiggadde for the respondent. The appellants were present in court.

### 5. O: Submlssioaa

l5 l0 On 25e May, 2O2l when the appeal came up for hearing, Mr. Ochieng Evans for the appellants informed court that they had filed written submissions and prayed that the same be adopted as arguments for the appellants. The court allowed the request and adopted the submissions as the appellants' arguments. However, Mr. Odit for the respondent indicated that he was not ready to proceed with the appeal as there had been no conferencing. He thus prayed that the appeal be adjourned to the next session. The court did not find it necessary to adjourn the appeal and instead directed that the respondent files her written submissions by 8th June,202l and the court would then proceed to determine the appeal.

The respondent however did not file her submissions on time as directed by court but did so five days later. For the ends of justice to be met, the court

will consider the respondent's submissions in despite the late filing. determining the appeal,

# 5. 1: Submissions.

### Ground 1;

t0 t5 :0 l0 It was submitted for the appellants in respect to ground I that the court of Appeal erred in its finding that the cause of death was intentional and unlawful, and that it was caused by the appellants. Counsel for the appellants submitted that from the testimony of the witnesses, PW2, PW4, PW9 and PWIO, there is a strong indication that the deceased could have died as a result of an accident and that the finding and conclusion drawn by the trial judge was correct in law and fact, and that the same ought to be upheld as the trial court found that there was doubt as to the cause ofdeath. Relying on the authority of Lt, Jonas Ainomugtsha vcraua Uganda, SCCA No. 19 of 2O15, counsel for the appellants invited court to review and analyze the entire evidence in regard to the cause of death arguing that the prosecution did not call the most crucial witness, the Scene of Crime Officer (SOCO) to prove the fact of cause of death. Counsel for the appellants blamed the court of Appeal for not finding fault with the prosecution for its failure to call the SOCO as the court would have made an adverse inference that the failure was due to the fact that his testimony would have been adverse to the prosecution case. It was further submitted for the appellants that the majority Justices of the court of appeal relied on the evidence of a single identifying witness (PW4) and wrongly applied the principles of the law pertaining to the evidence of a single identifying witness and arrived at a wrong finding. Counsel for the appellants however agreed with the dissenting Justice who they argued rightly applied the law regarding evidence of a single identifying witness when she correctly applied the authority of Lt. Alnomigisha, supra. Counsel for the appellants further cited the case of Eogere Moses and Aaother yeraua Uganda, Supreme Court Appeal No. Ol of 1997, where this court observed that it is a well settled principle of the law that, at the end of the prosecution case, and there is doubt in the mind of court, the same should be settled in favour of l5 l5

the accused. Counsel for the appellants thus invited this court to allow ground I of the appeal.

For the respondent, it was submitted that the position of the law as per section 133 of the Evidence Act is that no particular number of witnesses is required to prove a particular fact. To the respondent, the production of the Scene of Crime Officer was rendered moot by the testimony of PW4 who directly heard and witnessed the murder, and that the learned justices of Appeal in the majority judgment properly re-evaluated the evidence of PWl0 and PEXS and rightly came to a conclusion that the absence of any other injuries on the deceased's body apart from the head firmly ruled out any possibility of an accident. The respondent reiterated her position that the cause of death was intentional which fact was established by the prosecution and that this court should equally find so.

### Analysis and Reeolution of the Court

This is a second appeal and this court is mindful of its duty as a second appellate court, to decide whether the first appellate court failed in its duty to re-evaluate the evidence presented before the trial court to reach its own conclusion. Consequently, this court can only interfere with the conclusions of the Court of Appeal if it appears that in consideration of the appeal as the first appellate court, the court of Appeal failed to re-evaluate the evidence as 20

#### a whole. Slee Rwabugaade Moses vcrsuc Uganda, Supreme Court Criminal Appcal I{o.25 of 2O14. t5

Counsel for the appellant faulted the learned justices of the court of Appeal for finding that the cause of death was intentional, unlawful and was caused by the appellants while the respondent maintained the position that the court of Appeal was right to lind so.

3.i

)

t-5

In dealing with this issue, the Court of Appeal made reference to Exhibit PE. S, the Post Mortem report and the testimony of PW10, Dr. Joseph Mut5rogoma who authored Exhibit PE. S, whereof PW 10 testified that the cause of death was severe closed head injury which was not compatible with life and secondary to blunt trauma to the head. When cross examined

5 l0 t5 l0 however, PwlO testihed that he did not establish the cause of death and that he could not tell what caused the trauma but emphasized that any force could cause the death including an accident. The court of Appeal also referred to the evidence of PW2, the wife to the deceased, PW9 the investigating officer who both testified as to the extent of the damage to the deceased's motorcycle. The sum total that can be gathered from the evidence of the above two witnesses is that' the damage to the motorcycle did not suggest that there was an accident. The Court of Appeal also made reference to the testimony of PW4, Babigumira Joseph who testified that at 3. O0am on the night the deceased was allegedly killed, he was going to check on his traps and when he reached the farms belonging to the deceased in Bwanyi, his dogs started barking and he suddenly heard voices of people, with one lamenting that he was being killed. At that stage, PW4 got frightened but stood still and by coincidence, a motorcycle with lights passed by and he saw three people run away from the scene with two of the assailants running in his direction who he identified as the appellants.

Counsel for the appellants disputed the above evidence in totality and emphasized that from the testimony of PW2 who described the extent of the damage on the motorcycle, the deceased ought to have died from an accident and that the court of Appeal erred when it relied on the evidence of a single identifying witness when the conditions of identification were difficult at the time of the alleged identification.

In their l-rnding, the majority Justices of the Court of Appeal concluded on this issue in the following terms;

"....... tlese submissions are mere possibilities and cannot form the basis o/ a finding tlnt tLE cause of death uas eitter bg accident or intentional. The arguments do not water doun the euidence of PW4 who heard and saw the respondents at the scene of crime. We therefore find thrrt the cause of death uas intentional and not by accident".

35 We are alive to the requirement imposed on the court of Appeal when sitting as the first appellate court. The court of Appeal is duty bound to consider all

) material evidence that was before the trial court, while making an allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. In doing so, the court of Appeal as the first appellate court 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. Ref. Kifanunte Henry vereus UgEnda, Supreme Court Criminal Appeal No. O7 of 1997, ll997l LLR 72 lSCUf, Bagume Fred veraua Uganda, SCCA No. O7 of 2@4.

With due respect, we wish to state from the onset that the majority Justices of the Court of Appeal did little in meeting the standard required of them when considering the appeal as the first appellate court. The perusal of the judgment of the majority justices of the Court of Appeal on the question of whether the cause of death of the deceased was intentional leads to the conclusion that the learned Justices did little to re-evaluate the evidence as a whole but rather did so in insolation when they only considered the evidence of the prosecution in assessing the ingredient of intentional cause of death. In arriving at their conclusion, the learned Justices relied on the evidence of PW4, a single identifying who testilied that he was able to identify the assailants as the appellants at 3.0oam, albeit under difficult conditions. t.5 l0 l5

A perusal of the record of appeal at page 153 to 154 is where the evidence of PW4 can be found. The sum total of his testimony points to conditions that would naturally point to difficulty in identification at the time he allegedly identilied the appellants. It was late in the wee hours of the night, to be specific at 3.00am! He did not state whether there was moonlight that would have provided a probability of proper identification. He was in the company of his three dogs that started barking and it is then that he had someone saying, "why are you killing me'? He got frightened but stood still. He then saw a flash light from a motorcycle that came towards the scene and he saw three people. TWo of them ran towards his direction, hid near him and he recognized them as the appellants. PW4 himself was hiding in a shrub but

) was able to notice the colour of the clothes the assailants were putting on. He stated that the l"t appellant was putting on a black checkered shirt and the 2"d appellant was putting on a green checkered shirt. Each assailant was putting on a cap. He however did not state the time he took to observed and identify the assailants. It is inconceivable how PW4, who in the dark, hiding behind a shrub and frightened was able to notice the colour black! By whatever standards, the green colour in the night appears dark and it is surprising that PW4 was able to identify the colour green in the dark! The assailants who were hiding in shrubs just like PW4 were all putting on caps but the witness was able to identify them with a flash of a motorcycle that did not stop but was in motion. The dogs that had earlier barked suddenly went silent and also hid just like their master! t0 l5

It is illogical that the conditions that existed at the time would enable PW4 to identify the assailants. Overall, the conditions at the time, in the circumstances of PW4 rendered proper identification difficult. It is no surprise that the dissenting justice stated in her judgment the following, to which we agree;

"....... tte euidence of PW4 Kabigumira Joseph, the single identifuing witness, was made in conditions that reasonablg rendered correct identification dilficult ".

- This court has dealt at length with the evidence of identification in several decisions with the most prominent being that of Abdalla Nebulere & 2 others veraua Ugan&, Suprene Court Crlnlnel Appeal No. G) of 1978. This decision addresses several principles on identification evidence but we shall highlight the following; 25 - 1. Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of identification. l0 - l 2. The judge should examine closely the circumstances in which the identification was made particularly, the length of time the accused was under observation, the distance, the light and the familiarify of the witness with the accused. - 3. Where the identification depends solely on a fleeting glance or on a long observation made in difficult conditions, the court should look for other evidence that goes to support correct identification before convicting on that evidence alone. - 4. The other evidence required may be corroboration in the legal sense; but it need not be so if the effect of the other evidence available is t<r make the trial court sure that there is no mistaken identification.

From the testimony of PW4, it is not in doubt that the conditions pointing to correct identilication were difficult. What the majority Justices of Appeal did to which we fault them was to consider the factors favoring correct identification but did not look at the factors that did not favour correct identification or that could have adversely affected correct identification.

It is also evident that the majority Justices of Appeal reached their conclusion without warning themselves of the special need for caution before convicting the appellants in reliance on the correctness of identification. In our view, the warning and caution must be explicit and not implied. The convicting court must expressly state so. There was none from the Court of Appeal despite the reliance on the evidence of a single identifying witnesst

Additionally, the appellants raised the defence of alibi (we shall address this defence at length later) which necessitated the court of appeal to re-evaluate that defense in line with the identification evidence of PW4. The court of appeal did not do so but rather considered the evidence of the prosecution in isolation and hence arrived at a wrong conclusion. Had the majorify learned Justices of the court of Appeal done so, it is our considered view that they would have reached a different conclusion. Overall, we agree with the dissenting Justice of the Court of Appeal and the trial Judge that the l0

t-5

prevailing conditions at the time of the alleged identification by PW4 were not conducive for proper identification.

Secondly, there was evidence that related to the damaged motorcycle and no evidence was adduced to determine as to what had extensively caused the damage to motorcycle. PW2 testified as to the extent of the damaged motorcycle just like PW9 but this evidence was left hanging. No prosecution witness testified as to how the motorcycle got damaged.

As to whether the death of the deceased was intentional and unlawful, it is trite law that every homicide is unlawful unless excused by law, but the presumption can also be rebutted by evidence of an accident or that it was permitted in the circumstances. No evidence was adduced to show that the death of the deceased was excused by law. Was the death of the deceased therefore intentional, i.e., was the death caused by malice aforethought?

Section 191 of the Penal Code Act provides for the ingredient of Malice aforethought whereof, is enlisted the elements of Malice aforethought in a murder charge. It is provided under section 191 of the Penal Code Act that malice aforethought shall be deemed to be established by evidence proving either of the following circumstances;

- i) An intention to cause the death of any person, whether such person is the person actually killed or not; - 2-5 ii) Knowledge that the act or omission causing death will probably cause death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused. - i0 This court has previously guided on the evidence required in proof of malice aforethought. In NanyonJo Harriet and Another versus Uganda, Supreme Court Criminal Appeal lto.24 of 2(X)2, this court observed thus;

in a case of homicide, the intention and or knouledge of tte accused person at tLE time of ammitting the offence is rarelg proued by direct euidene. More ofien than not, the coutt finds 35 it

i necessary to deduce the intention of knowledge from the ciranmstances swrounding the killing, including the mode of killing, the weapon used, and the part of the body assailed and injured".

Relying on the post mortem report, Exhibit P.5 and the testimony of PW10, the doctor who authored exhibit P.5, the court of Appeal found that it was the deceased's head, a vulnerable part of the body that was hit and that led to his death. Consequently, the majority justices of the court of Appeal concluded that even in the absence of a weapon, from the nature of injuries sustained as described by PWl0 especially the broken skull bones, the weapon used was lethal. If the weapon that allegedly caused the injury leading to the death of the deceased was never tendered in evidence, then it became convincingly difficult for the court to determine what actually caused the death of the deceased. The weapon used should naturally be the basic exhibit connecting the accused person with the offence committed. None was tendered by the prosecution during the trial and the record does not indicate that any such weapon was ever tendered. It is not explained how the learned Justices of appeal found it necessary to convict the appellants without such important piece of evidence. l0 20 15

What is not in dispute is that the extent of the injuries inflicted on the deceased were indeed severe and it is the extent of the injuries that led to the death of the deceased as confirmed by PWIO. However, PW1O upon cross examination stated that he could not tell what caused the trauma and that any force could cause that including an accident. What remained un answered was how the deceased sustained the injuries or who actually inflicted the injuries upon the deceased. The only probable and most convincing evidence that ought to have proved the fact as to how or who actually inflicted the injuries on the deceased should have been the testimony of the witness who perceived the fact in issue. The only witness with a near version as to the identification of the alleged assailants was PW4, but like we already found, his evidence was unreliable for the reasons we have given. 25 l5 l0

Thirdly, there was a version of a probable accident that might have led to the death of the deceased advanced by counsel for the appellants at crossexamination during the trial but this version was not controverted by any prosecution evidence. It was the testimony of PW2 that she saw the motorcycle extensively damaged but could not explain further how or what actually damaged the motorcycle. Not even the investigating officer, PW9 would give any version as to how the motorcycle got damaged. In his testimony, PW9 simply stated that someone else would talk about the motorcycle! Surprisingly, nobody was called by the prosecution to testify as to how the motorcycle got damaged. That evidence was left hanging. Though the death of the deceased was unlawful, as to what actually caused his death was not answered and was equally left hanging. l0 t5

Overall, we find that the majority Justices of appeal erred in law and fact when they found that the death of the deceased was intentionally caused by the appellants. From the above analysis, we allow ground 1 of appeal.

## Ground 2;

Before we proceed to deal with ground 2 of appeal, we find that grounds 8 and 9 are a replica and, in a way, related to ground 2 as the appellants fault the court of Appeal in relying on suspicion and circumstantial evidence to arrive at the hnding that the appellants were guilty of murder. For purposes of clarity, we shall restate ground 8 and 9 of appeal;

## Ground 8;

The learned Justices of Appeal erred in law and fact when they reversed the appellant's acquittal by the trial judge thereby convicting them of the offence of murder on the basis of unsatisfactory and inconsistent circumstantial evidence, and

## s Ground 9;

The learned Justices of Appeal erred in law when they relied on suspicions as circumstantial evidence to hold that it irresistibly pointed to the guilty of the appellants.

t0 In regard to ground 2 of appeal, it was submitted for the appellants that the court of Appeal premised its linding on mere suspicion when they held that the appellant's failure to attend the deceased's burial was suspicious conduct and thus proof of the ingredients of malice aforethought. Citing the case of Mulludwa James veraua Uganda, Supreme Court Criminal Appcal No.23 of 2O14, counsel for the appellants submitted that Malice aforethought must be proved beyond reasonable doubt if the prosecution is to secure a conviction on a murder charge. That proof of malice aforethought must be beyond mere suspicion and suspicion however strong, is not sufficient to lix a person with criminal responsibility. t5

20 :5 In arriving at its conclusion, the court of appeal relied on the evidence of PWIO, the doctor who carried out the post mortem, P. Exhibit 5 (the Post mortem report) and the evidence of PW2 to conclude that because the l\*t appellant had not attended the deceased's burial, that conduct was suspicious, thus proof of malice aforethought. Counsel for the appellants further submitted that the finding of the court of Appeal was erroneous as mere suspicion without cogent and corroborative evidence is not sufficient to prove the ingredient of malice aforethought. He invited court to allow ground 2 ofappeal.

30 l5 The respondent however supported the finding of the majority Justices of the Court of Appeal arguing that they properly re-evaluated the evidence on malice aforethought and rightly concluded that the lst appellant carried a malicious intention to illegally deprive the deceased of his life. The respondent highlighted the grudge that existed between the deceased and the l"t appellant which she observed had to take the police intervention to settle. Highlight the case of Mumbere versua Uganda, Crfuolnal Appeal lto. Cn Ot4l2OL8, the respondent submitted that the existence of malice

5 aforethought is not a question of opinion but one of fact to be determined from available evidence.

To the respondent, the incessant telephone calls made by the 1"t appellant to the deceased to lure him into the "death trap" was suspicious. Associated with the disappearance of the deceased's worker, it was conclusive that the ingredient of malice aforethought was dully proved the prosecution. The respondent further submitted that it was thus immaterial that the dispute between the deceased and the lstappellant had ceased.

In regard to ground 8 and 9 of appeal, counsel for the appellants submitted that the majority Justices of Appeal failed in the exercise of their duty as the l"t appellant court to re-evaluate all the material evidence before them when they held that the relationship between the deceased's worker one Nabasa Justus and the 1sr appellant and his subsequent disappearance after the murder was suspicious conduct. Counsel also faulted the Court of Appeal when it found that the disappearance of a one Nshija, the l"t appellant's worker shortly after the murder raised more suspicion. That further reliance on suspicion by the court of Appeal is seen from its finding that the lst appellant had returned to Kampala from Arua on 3oth July, engaged the deceased to carry out his assignment but what was surprising, was that although the l"t appellant was in Kampala at the time, he did not attend the deceased's burial. The Court of Appeal concluded that this was suspicious conduct on the part of the l"t appellant. Citing the case of Baitsabuga Francis veraua Uganda, Crlminal apped No. O29 of2015, counsel for the appellants argued that it is trite that suspicion however strong cannot lead to a conviction but only cogent and compelling evidence can. l0 t5 t5

In response, the respondent submitted that these grounds are based on circumstantial evidence that related to the conduct of the I "t appellant, before, during and after the murder of the deceased. The respondent further contended that a thorough analysis of the evidence in regard to the conduct of the appellant shows and confirms without doubt that the l"t respondent participated in the planning, execution of and an attempted cover-up of the murder of the deceased. That the several calls made by the l"t appellant to l0 35

5 the deceased between the 26th to 31st July, 2Ol2 as evidenced in PE1, 2 and 3 together with the testimony of the l"t appellant himself, all confirm to the circumstances leading to the death of the deceased and the argument that the acts of the 1"t appellant were only based on suspicion is very wrong. The respondent also questioned the mysterious disappearance of the 1"( respondent's workers and the failure by the 1 "t appellant to attend the deceased's burial insisting that that was not conduct of an innocent person and that the 1"t appellant's arguments of being too busy do not hold water.

## Analysie and Resolution of the Court

In regard to ground 2 of appeal, counsel for the appellants faulted the majority Justices of Appeal for their finding that the failure by the appellants to attend the deceased's burial was suspicious conduct and thus proof of malice aforethought. l5

We have already dealt with the issue of malice aforethought in ground I of appeal and we do not intend to replicate the same under the 2"d ground. Like we have indicated before, proof of malice aforethought is a statutory requirement under section 191 of the Penal Code Act. The same has been fully discussed under the first ground. We found that the prosecution failed to prove the ingredient of malice aforethought as against the appellants.

In addressing the issue of suspicions and circumstantial evidence linking the appellants to the death of the deceased, the court of Appeal relied on the testimony of PW2, the window to the deceased who testified that she found it strange that the 1"t appellant did not attend the deceased's funeral yet the deceased met his death while helping him (the 1"t appellant) to pick his cows from Lukaya. The Court of Appeal also considered the testimony of the l"t appellant who had testified that on 30th July, he travelled back to Kampala from Arua and called the deceased to help him go with his workers to pick his cows from Lukaya. 25 .30

Making its finding on this issue, the Court of Appeal observed;

) ".........it is therefore surpising that although he uos in Kampala at the time, he did not attend tlte deceased's buial. This uas suspiaous conduct on tle part of A1 (1\* appellant). Ground 2 therefore succeeds".

The I "t appellant however in his testimony gives a version of the circumstances that made him to be in Kampala on 3oth July as he had just travelled from Arua on the same day. When he reached Kampala, he received a call from one Tashobya from Kiruhura who had sold him the cows, and who informed him that he would deliver the cows at Lukaya where the l"t appellant was to pick them. It is then that the l"t appellant called his workers but their phones were off and decided to call the deceased to pick his workers on his motorcycle, take them to Lukaya where they were to receive the cows to which the deceased responded positively. He concluded that there was no disagreement between him and deceased in their conversation. On the assertion that the 1"t appellant and deceased had misunderstandings over the deceased's straying cows to the farm of the 1"t appellant, the l"t appellant testilied that the impasse had long been solved in 2011 when he fenced off his land, and that one Mutahunga had also bought the land between the deceased and the l"t appellant. Mutahunga also fenced the land he bought and that there were no misunderstandings between him (l"t appellant) and the deceased by 2Ol2 when the deceased died. This evidence was not controverted by the prosecution. l0 l5 20 25

On his part, the 2nd respondent in his testimony stated that on 30th July 2012, he went to attend the burial of a village mate, one Nanyonga Elizabeth where he stayed ovemight with the chairman of the area one Sentongo Kamada. The chairman Sentongo Kamada was called as Dwl for the 2"d appellant and he confirmed the 2"d appellant's assertion. The 2nd appellant insisted that the deceased was his friend and didn't know what caused his death, and that he was surprised when he was arrested on 30th June 2015, though the reason for his arrest was not put to him at the time of arrest but only learnt of the reason for his arrest when the indictment was read to him in court. The 2"d appellant's evidence remained unchallenged by the

prosecution.

:r t0 This court has held before that malice aforethought must be proved beyond reasonable doubt if the prosecution is to secure a conviction on a murder charge. That proof must be beyond mere suspicion. Suspicion however strong it may be, is not sufficient to fix a person with criminal responsibility. See Mulindwa James versua Uganda, suprene Court Crimlnal Appe.l Ito.23 of 2O14.

The standard of proof required of the prosecution to prove its case against an accused is one beyond reasonable doubt. That proof however does not have to be beyond a shadow of doubt. See Nalongo l{aziwa Josephlne versua Uganda, aupreme Court Crlmlnal Appeal No.35 of 2014 and

Woolmington veraua DPP [1935] AC 462. l-5

Finding an accused person guilty of committing an offence must be based on cogent evidence that should be beyond reasonable doubt and not on mere suspicion. Like this court observed in the care of Mulindwa Janct (supra), mere suspicion however strong cannot be a ground for hnding an

- accused person guilty. Not everyone who did not attend the deceased's burial participated in causing his death. For the court of Appeal to arrive at the conclusion that because the appellants did not attend the burial of the deceased was suspicious conduct and therefore finding them guilty on the basis of suspicion was in itself erroneous. :0 - The respondent however insisted that the sum total of the evidence of the conduct of the l"t appellant cannot be taken as mere suspicion and that that evidence pointed to circumstances leading to the death of the deceased and not mere suspicion. l5 - l0

Though the respondent argues that the court of Appeal did not find the appellants guilty on what the court termed suspicious conduct, we disagree with the respondent that the majority justices of the court of Appeal found SO

We agree with the dissenting judgment of Lady Justice Elizabeth Musoke when she found, at page 112 ofthe record ofappeal when she stated; 5 for me it is still mere suspicion that hD2 thought that the respondents participated in the murder of the deceased, merelg because the respondents did not attend the deceased's buial. Moreouer, PW2 said in her euidence at page 26 of the record that she saw the 1"t respondent on tlle 2"d August, 2O12, the dag afier the deceased's buial. This in mg uiew could support the 1"t respondent's assertion when he testified tLnt he was au)ag from the area on tle dag when the deceased was murdered. It could also explain whg the 7"t respondent did not attend the burial of tle deceased as Le returned to the area on 2"d August, a day after the deceased's buia\...........................ft is fair to sag in the ciranmstances that the onlg euidence linking tfe 2"d respondent to the murder of the deceased utas tle identification euidence of PWa, the single identifying witness. I must say that the euidence relied on in the leading judgment as being capable of leading to ttre inference that the respondents participated in tle murder of the deccased, so as ,o ltold tLnt such euidence supports the identification euidence of the single identifying witness, which was made in dilfiait conditions, onlg seems to haue raised szspicion specifically against the 1't respondent".

The perusal of the entire record of appeal indeed reveals that the only evidence that points to the participation of the 2"d respondent in the alleged murder is the identification testimony of PW4 which we found could not have been possible owing to the difficult conditions that could not enable correct identification at the time. Similar situation applies to the l"t appellant save for the circumstantial evidence relating to the grudge he had with the late and his none attendance of the burial of the deceased. No cogent evidence was tendered by the prosecution linking the appellant with the death of the deceased. We thus find that the learned Justices of the court of Appeal were erroneous in finding the appellants guilty for the i0 l5

murder of the deceased on evidence which they termed suspicious. Ground $\mathsf{S}$ 2, 8 and 9 of appeal therefore succeed.

## Ground 3 and 4;

Counsel for the appellants submitted that the majority Justices of Appeal misdirected themselves on the principles regarding identification by a single $10$ identifying witness when they failed to subject the evidence of a single identifying witness to thorough scrutiny as required by the law when they only considered factors favoring correct identification in insolation from those which made correct identification difficult. It was further submitted for the appellants that the Court of Appeal relied on weak, false and uncorroborated evidence as circumstantial corroborative evidence to convict 15 the appellants, and that the majority justices failed to warn themselves of the dangers of convicting the appellant on the evidence of a single identifying witness.

Citing the authorities of Roria versus Republic (1987) 1 EA 583, Abdalla Nabulere versus Uganda, Supreme Court Criminal Appeal No.09 of 1978, 20 Uganda versus Simbwa SC. Criminal Appeal No. 37 of 1995 and Moses Bogere versus Uganda, SC. Criminal Appeal No.01 of 1997, counsel for the appellants argued that the principles guiding identification were reinstated by the dissenting Justice in the Nabulere case, thus;

"..................................... 25 substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or 30 identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The Judge should then examine closely the circumstances in which identification came to be made, particularly, the length of time the accused was under observation, the distance, the light, the familiarity of the witness with 35

the accused. All these factors go to tle qnlitg of the identification euidence. If the qtalitg is good, the danger of mistaken identitg is reduced but the poorer the qualitg, the greater the danger".

)

t0 l5 Counsel for the appellants thus faulted the majority Justices of Appeal for relying on the evidence of PW4, Kabigumba Joseph who testified that he had gone to check on his traps at 3. O0am in the company of his dogs when he allegedly made the identification, and that by coincidence, a motorcycle came flashing its lights and that he, PW4 then saw three people he did not recognize at first, but fortunately, two of the three ran towards his direction and he was able to recognize two of the assailants as the appellants. Counsel for the appellants thus argued that 3.00am was a very dark of hour of the night and that as per the testimony of PW4, the whole place was full of shrubs and a thick bush where the witness hid himself, but with the same witness further admitting that he was in great panic. In the opinion of counsel for the appellants, these conditions were very difficult for the Court of Appeal to conclude that the appellants were identified, coupled with the fact that the witness himself (PW4) testified that the assailants were wearing caps to avoid recognition. 20

As regards the time taken for proper identification, it was the argument of counsel for the appellants that the prosecution did not adduce any evidence to show the time under which the witness was able to observe the assailants but the court of appeal found otherwise. Counsel thus maintained the line of argument that the Court of Appeal made an error when it found that PW4 was able to identify the assailants without indicating the time he took to identify the alleged assailants. Counsel further highlighted aspects related to the distance between PW4 and the assailants, lack of light and the familiarity of the witness with the assailants which he observed were difficult and could not enable proper identification. He concluded that the totality of the evidence on identification as analyzed by the court of Appeal was wrong to hold that PW4 was able to identify the appellants. He thus maintained the position that the learned Justices did not only fail to assess and weigh the evidence in regard to identification but equally failed to warn 25 l0 l5

5 themselves of the danger of relying on such evidence for a possibility of mistaken identity.

The respondent submitted that though she agrees with counsel for the appellants on the law in regard to a single identifying witness, she takes exception that PW4's evidence was uncorroborated. She argued that the learned Justices of the Court of Appeal cautioned themselves on the fact of PW4 being a single identifying witness before accepting and upholding his evidence. To the respondent, the court of Appeal properly re-evaluated PW4's evidence particularly factors that facilitated proper identification which included the light that was provided by the incoming motorcycle, the length of time of murder, the fact that the assailants took cover near PW4 and the familiarity to the appellants who were his village mates. That as a consequence, the appellant's alfbi was destroyed and could not stand.

## Analysis and Resolution of the Court

Under grounds 3 and 4, the court of Appeal was faulted for basing the conviction of the appellants on unreliable and uncorroborated evidence of PW4, a single identifying witness when they considered factors favoring correct identihcation in isolation and in total disregard of factors that made correct identification difhcult.

We have dealt at length with questions relating to identification evidence under ground One and we do not intend to dwell on the same here but will only address the issue of a single identifying evidence that was allegedly uncorroborated. 25

It is now settled that subject to well-known exceptions, it is trite that a fact may be proved by the testimony of a single witness though this rule does not lessen the need for testing with the greatest care, the evidence of a single identifying witness especially when it is known that the conditions favoring correct identification, were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a judge can reasonably conclude that the evidence of identilication, although based on the testimony of a single witness, can -10 35

) safely be accepted as free from the possibility of error. See Rorla versua Republic (1967) I EA 583.

What is not in dispute in the instant appeal is that the court of Appeal relied on the evidence of a single identifying witness to convict the appellants. In arriving at its finding, the court of Appeal relied on the evidence of PW4 who allegedly identified the appellants at 3.0oam. PW4 testified that he identified the appellants by use of a flash light of a motorcycle that passed by and it is that flash light that enabled him (PW4) to identify the assailants as the appellants. PW4 also allegedly identified the voices of the assailants to be those of the appellants. On their part, the appellants raised the defence of alibi with the l"t appellant indicating that he was in Kampala on the fateful day while the second respondent stated that he was at a vigil on the night of the alleged murder. It is our view that the prosecution did little to destroy the defence of alibi raised by the appellants.

It is now settled law that where an accused person raises an alibi, the burden lies on the prosecution to disprove it and place the accused at the scene of crime and the accused person has no burden to prove his alibi. No independent evidence was adduced by the prosecution to corroborate that of the single identifying witness PW4, save the circumstantial evidence of the misunderstanding between the l"t appellant and the deceased which the 1"1 appellant disputed when he stated that the alleged grudge with the deceased, at the time of his death had long been settled. The l"t appellant's evidence relating to the mending of relations with the deceased was never disputed as indeed, when he called the deceased to take his workers to Lukaya to pick his cows, the deceased willingly did so. If at all the deceased and the lst appellant still had differences, the deceased could not have taken up that request. 20 ?5 30

The only evidence that the prosecution tried to rely on to dispute the l"t appellant's defense of alibi was that of PW7 Corporal Magoola Brian from CID headquarters data management department, who testified as to the form of the data print outs of the telephone calls between the deceased and the l"t appellant. The sum total of PW7's testimony was that on 30th July,

5 20I 2 when the 1"t appellant called the deceased, the telephone network indicated that he was in Kampala which ruled out the possibility of the l"t appellant being in Bwanyi village, Kalungu District where the deceased met his death.

The above evidence notwithstanding, the Court ofAppeal concluded;

- . . .. . . . . . ..these submissions are mere possibilities and cannot form the basis of finding that the cause of death was either bg accident or intentional. The arguments do not taater dotun tle euidence of Pw4 tuho heard and saw the respondents at the scene of crime". l0 - With due respect, we hold that the l-rnding of the majority Justices of the Court of Appeal was erroneous when they relied on the evidence of a single identifying witness which evidence was not corroborated. PW4 testified that when he approached the alleged scene of crime, he heard somebody asking, "uhg are gou killing me". PW4 did not state that he saw someone being killed. The prosecution alludes to the time the murder took but PW4 did not state that he saw somebody being killed but only heard someone asking as to why he was being killed. PW7 testified to the fact of the location of the lst appellant on the night the deceased met his death. PW7 confirmed that at the time the lst appellant made calls to the deceased, the Network masts placed him (the I "t appellant) in the areas of Arua, Nakasongola and Kampala. PW7's evidence thus ruled out the possibility of the 1"r appellant being at the scene of the alleged murder on the night of 31"t July, 2012. We shall discuss at length on the defence of alibi under grounds 5 & 6. However, from the hnding of the court of Appeal, it is evident the leamed Justices of appeal did not re-evaluate the evidence in regard to the defence of alibi raised by the appellants which defence was not destroyed by any prosecution evidence. We thus find the conclusion of the majority Justices of the Court of Appeal in regard to relying on uncorroborated evidence of a single identifying witness unfounded in law. We accordingly allow ground 3 and 4 of appeal. t5 :0 l5 i0

s Ground 5 and 6:

Regarding ground five of appeal, counsel for the appellants faulted the majority Justices of the Court of Appeal for what he termed their failure to re-evaluate all the material evidence before reaching the conclusion that the 1"t appellant's alibi was destroyed by the evidence of the prosecution. Counsel submitted that the Judicature Act section 11 and rule 30(1) (a) of the Judicature (Court of Appeal rules) Directions S.l. 13-10 enjoins the court of Appeal as the first appellate court to evaluate all the material evidence adduced in the lower court before drawing its own conclusions. To support this argument, counsel cited the case of Bogere Moaea and Anothcr ver8ul Uganda AC. Criataal Appeal IIo. Ol of 1997 where it was observed that as the first appellate court, the Court of Appeal has power to take into consideration evidence lawfully adduced at the trial but overlooked in the judgment of the trial court and to base its own decision on it, and in doing so, the appellate court must bear in mind that it did not have the opportunity to see and hear the witnesses and should where available on

record, be guided by impressions of the trial judge on the manner and demeanor of witnesses. Consequently, counsel for the appeilants argued that the learned Justices of Appeal failed in the exercise of their duty as the l"t appellant court to re-

evaluate all material evidence before it as regards the l't appellant's defence of alibi particularly the evidence contained in PEx1, PEx2, DEx6, DExIO and the evidence of PW7 and PW9, before reaching its conclusion that the defence of alibi was destroyed by the evidence of PW5. He thus submitted that that failure to do so by the Justices of Appeal occasioned a miscarriage ofjustice and prayed that ground 5 and 6 of appeal be allowed. :5 30

Relying on the testimony of PWS, the respondent submitted that PWS testified that he left Arua with the l\*t appellant on 27th July,2OL2 and yet in his first statement, he confirmed that he left Arua together with the l"t appellant on 30th July,2012. Counsel for the respondent attributed to the contradicting testimony of PWs in regard to the actual date of departure from Arua to loss of memory. The respondent further submitted that what is

.\ not in dispute is that the 1"t appellant was in Kampala on the evening of the 30th July, 2Ol2 and the death of the deceased occurred on the wee hours of 3l"t July, 2Ol2 and. not 30th July,2Ol2. He observed that this could have been a grping error. That the disputed evidence of PWS was immaterial in the determination of the appeal before the Justices of Appeal and that whether the l"t appellant left Arua on 27th July, 2Ol2 or on 30th July, 2Ol2 was immaterial but what is important is that the I "t appellant was in Kampala on 30th July, 2012, a day before the murder. The respondent admitted that the testimony of PWS did not tally with other pieces of evidence in respect of when PWS and the l"t appellant left Arua and that the court of Appeal based its finding on he testimony of PWS. l0

## Analysie and Resolution ofthe Court

Under ground 6 of appeal, the appellants fault the court of Appeal for dismissing the l't appellant's defense of Alibi yet the prosecution did not destroy it by way of contrary evidence. We partially extent dealt with the defense of alibi raised by both appellants underground 3 and 4. We found that the majority learned Justices of the Court of Appeal erred in law when they failed to re-evaluate the evidence relating to the defense of alibi hence arriving at a wrong conclusion; convicting the appellants. We shall proceed to deal with the different pieces of evidence relating to the defenc e of alibi raised by the appellants specifically under ground 5. We now proceed to deal with ground 5 of appeal.

\_10

Under ground 5 of appeal, counsel for the appellants faulted the learned Justices of Appeal for their failure to re-evaluate the material evidence contained in exhibits PEl, PE2, DE6, DE1O and the evidence of PWTand PW9 before reaching the conclusion that the I st appellant's Alibi was destroyed by the evidence of PWS hence occasioning a miscarriage of justice. We shall proceed to highlight that evidence briefly.

Exhibit PE1 is the analysis report of the l"t appellant's call data print outs that related to the 1"t appellant's communication with the deceased, based on a period of three months covering the dates before, during and after the

) demise of the deceased. The conclusion that can be derived from exhibit PEI is that the l"t appellant was the owner of telephone numbers 0392840295 and O7OO2t8207 and that telephone number O7OO2|82O7 was used by the 1"t appellant to communicate to the deceased from 26th July, 2O12 to 31"t July,2Ol2. As per the Network Mast l,ocation, the l"t appellant made calls to the deceased while in Nakasongola, Arua, Entebbe and Kampala. l0

From Exhibit PEl, it is evident that the lst appellant between the dates of 26th July, 2072 and 31"t July, 2012, was never in Kalungu but was either in Nakasongola, Arua, Entebbe or Kampala. Exhibit PEI in effect destroys the identification evidence of PW4 who allegedly identified the appellant at the scene of crime on the night of 3 1 "t July, 2012.

Exhibit PE2 is the MTN data print out for the 1"r appellant's telephone number 0392840295. The sum total that can be deduced from exhibit PE2 just like in PEt is that the l"t appellant between the dates 17th July 2Ol2 to l"t August, 2012 made calls while in places of Arua, Kigumba, Nakasongola,

Kampala and Entebbe. It is thus conclusive from Exhibit PE2 that the lst appellant was never in the areas of Kalungu or Lukaya but rather in Arua, Kigumba, Nakasongola, Kampala or Entebbe.

While assessing the evidence relating to the phone print outs, the trial court observed;

.... Indeed tle proseantion exhibits Pl and P2 which are th.e analgsis of the dota pint out of A1's calls indicates that between 28th JulA to 3Oh JulA, he utas in Anta Distict areas. On 3Ah July 2O12, the calls were located at Makerere, State House and Manaanda Road which are all situate in Kampala. On 37"t Julg 2012, A1 calls are located at Kisasi. The data pint outs therefore giue credence to Al's uersion as to tuhere he uas on the said dags". -i0 25

We find the analysis and conclusion of the trial Judge the correct version as to where the l"t appellant was on the dates in question. We do not agree with the finding of the learned Justices of Appeal which in reliance on the 5 evidence of PW4 concluded that the 1\*t appellant was in the areas of Bwanyi village on the night when the deceased allegedly met his death.

Exhibit DE6 is the police statement made by PWS Okuyo Emmanuel on 2nd September, 2Ol2 and in that statement, he stated that it was on 3oth July, 2O12 when he left Arua together with his boss, the l"t appellant and reached

- Kampala at around 17.00 hours. Further, DE6 further reveals that PWS further stated at police, that he spent a night at the 1"t appellant's place and it was on 3l"t July that he was taken to the l"t appellant's farm by a man he heard was being called'afande'. While testifying in court, PWS stated that he travelled to Kampala on 27th July, 2Ol2 and while in Kampala, he was taken to a one Nuwe's home where he spent a night and on 29th July, 2o12, Nuwe took him to Lukaya and specihcally to the l"t appellant's farm at Bwaanyi village. He further stated when he was taken to the house where he was supposed to stay, he wrote on the wall of that house that he had started l0 t5 - Making a finding on DE6 and PWS's testimony, the trial Judge concluded thus; 20

therefore, the euidence PWS gaue in court was false utten he claims he trauelled with A1 to Kampala on the 2Vh Julg, 2O12 and yet tle data pint outs of Al's calls place him in Arua. Ironicallg, PWS claims le met A1 in Arua on 26h Julg 2012 when PW3 stated tlwt le saw A1 talking to the deceased's utorker a one Justus Nabasa on the same date in Lukaaga! What did tle proseantion u)ant the court to belieue? It is clear that PWS made tuo stotements in this case. he was in 2O12 and tle other in 2O14. He conceded in cross examination that what he had stated in his frst statement uas tte truth. This is only logical as PWS's memory was still fresh then than it must lnue been in 2014. It is also euident that PWS made the 2"d statement when he uas arrested and taken to Kampala..........l am persuaded bg counsel for Al's submission that PWS must haue been forced to change his statement while in police anstodg because from

work on 29th July, 2012.

.5 PuS's euidence, he tuas in police custodA bg the time Le recorded his 2"d statement and uas onlA released afier he recorded it".

From the conclusion of the trial Judge, we llnd no other cogent and convincing evidence that can compel us to hold otherwise. It is indeed true that the testimony of PW5 in court contradicts his original statement contained in DE6, he made at police in 2072. The finding by the trial court that PW5 changed his statement while under coercion while in police custody in 2Ol4 cannot be ruled out. We are convinced that the trial Judge reached a correct conclusion when he upheld the appellant's defence of alibi. The prosecution failed to place the appellants at the scene of crime. It would appear that the learned Justices of Appeal didn't take time to re-evaluate this evidence and hence arrived at a wrong conclusion. The appellant's defense of alibi was never destroyed by any prosecution evidence but rather strengthened it through exhibits PEI and PE2 in our view.

We thus hold that the majority Justices of the Court of Appeal erred in law and fact when they found that the l"t appellant's alibi was destroyed by the evidence of PWS. We accordingly allow ground 5 and 6 of the appeal.

#### Ground 7:

l{)

j.s

Counsel for the appellants faulted the Justices of Appeal for shifting the burden of proof to the 2nd appellant to prove his alibi when they held that he had failed to account for his whereabouts on the night of the murder. Counsel instead agreed with the trial Judge's finding when he held that an accused person who raises an alibi does not assume the duty of proving it. That it is the duty of the prosecution to adduce evidence placing the accused persons at the scene of crime, showing that nonetheless, the offence was committed by the accused. In support of this line of submission, counsel for the appellants argued that this principle is well stated in the case of ftckltolelro veraua Ugaada [19681 EA 531. 25 i0

It was further submitted for the appellants that the Justices of Appeal misdirected themselves on the well-established principles in relation to the defence of alibi as they only evaluated the prosecution's version in total

disregard of the 2nd appellant's version but rather, the Justices of Appeal shifted the burden of proof to the 2"d appellant which burden is at all times bestowed on the prosecution to place the accused person at the scene of crime. Counsel concluded his submissions by stating that the finding of the Court of Appeal in this regard was erroneous and thus occasioned a miscarriage of justice and prayed that ground 7 of the appeal be allowed. t0

For the respondent, it was submitted that the statement, ".......... on his part, th.e 2"d respondent's euidence was that Le uas at a uigi\.......... lnueuer, DW1 could not account for his tohereabouts between lo.pm and 5.3oam on ttre night of tle murder", attributed to the justices of the Court of Appeal was not a finding of the court of Appeal but rather a narration in respect to the submissions by both counsel before the court. That as a consequence, there was no shifting of the burden of proof to the 2"d appellant to prove his alibi.

# Analysis and Resolution ofthe Court

- 20 It is trite law that an accused person who raises an alibi does not assume the duty of proving it. It is the duty of the prosecution to adduce evidence placing the accused persons at the scene of crime, showing that nonetheless, the offence was committed by the accused. Sce Sekltoleko verrua Uganda (supral. - 25 In Bogere Moaes & others veraua Uganda, auprcmc Court Criminal Appeal No. Ol of 1997, this court observed that what amounts to putting an accused person at the scene of crime is that the prosecution must prove to the required standard that the accused was at the scene of crime at the material time. To hold that such proof has been achieved, the court must - l0 35 not base itself on the isolated evaluation of the prosecution evidence alone, but must base itself upon the evaluation of the evidence as a whole. Where the prosecution adduces evidence showing that the accused was at the scene of crime, and the defence not only deny it but also adduces evidence showing that the accused person was elsewhere at the material time, it is incumbent upon the court to evaluate both versions judicially and give

f reasons why one and not the other version is accepted. It is a misdirection to accept the one version and hold that because of that acceptance per se, the other version is unsustainable.

In dealing with this issue, the court of Appeal made the following finding;

".........t1,e respondents raised the defence of an alibi. The l"t respondent in particular claimed to haue been in Arua bg the time the death occured on 3Ah Julg, 2O12. Houeuer, PWS (Olatgo Emmanuel) rebutted this euidence and testified that le lefi Arua together uith the 7"t responderut on 2Vh July, 2O12. On his part, the 2"d respondent's euidence LUas that he was at a uigil. Howeuer, DW1 could not account for his uthereabouts between 10pm and 5.3oam on tle night of the murder. Tle tial Judge found ttnt 3. O0am uas dark and one utould need the assistance of light to identifg angthing at that time of the night. Secondlg, that the motorcgcle which prouided light could not haue spent a long time to prouide ample lighting at the scene. Thirdlg, ttnt PW4 hauing realized \*tat there uas somethinq omiss at the scene, he got so frightened and hid himself. He tlerefore concluded that these conditions could not haue been conduciue for proper identification. ............ue rtnd that that PW4 was able to identifg the respondents because they were well knoun to him as uillage mates and also tlw light from tle motorcgcle prouided him with enough light for proper identification. Euen when the motorcgcle uas mouing past, the accused ran and hid near where PW4 was taking couer".

We have already made a finding that that the circumstances that existed at 3.00am in the night could not enable PW4 identify the alleged assailants as the conditions that existed at the time by whatever standards could not enable correct identification. The analysis on that aspect was done under ground 1. Regarding the testimony of PWS, Okuyo Emmanuel, we found that he lied to the trial court when he testified as to the date of his travel from Arua. He told court that he travelled from Arua on 27th July, 2012 and yet in the statement he made at police (DE6), he stated that he travelled to from Arua to Kampala on 30th July, 2Ol2 with the lst appellant. We agreed 30 l5

5 l0 with the trial Judge when he found that PW5 changed his statement after being arrested and detained in Kampala. Secondly, the data prints that were tendered in evidence by the prosecution indicated that the l"t appellant was never in Kalungu on the night of the alleged murder. The 2nd respondent testified that he was at the vigil in the same village on the night of the murder. His evidence was corroborated by that of DWl for the 2nd appellant when he testified that the 2"d appellant was at the vigil until the morning of 3l"t July, 2O12. This evidence was not destroyed by any prosecution witnesses and or evidence.

t5 l0 The learned Justices of Appeal however found otherwise and concluded that the appellants were identified at the scene of crime which we find was a wrong conclusion. By stating that the 2"d appellant did not account for his whereabouts on the night of the murder, they in effect shifted the burden of proof onto ttre 2d respondent which was legally erroneous. Overall, we hnd that the conclusion reached by the majority learned justices of the court of Appeal was not founded in law. The defense of alibi raised by the appellants was not destroyed by any prosecution evidence. Ground 7 of the appeal succeeds.

# 5. O: Ordere of Court

30 Overall, since all the grounds of appeal have been allowed, the appeal succeeds. The finding of the majority Justices of the Court Appeal convicting the appellants of the offence of Murder contrary to section 188 and 189 of the Penal Code Act is set aside. We uphold the finding of the dissenting Justice of the court ofAppeal and that of the trial Judge. The appellants are accordingly acquitted of the offence of murder contrary to section 188 andl89 of the Penal Code Act, unless held on other lawful charges. ?5

''t

We so order. $5$

> $\dots$ day of $\dots$ .........2023 Dated at Kampala this......

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Municipale . . . . . . . . . . . . . . . . . . .

Mwondha

$10$

$15$

## JUSTICE OF THE SUPREME COURT

In isatemia $\ldots$

PROF · Tibatemwa-Ekirikubinza

### JUSTICE OF THE SUPREME COURT

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Tuhaise

### JUSTICE OF THE SUPREME COURT

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**Musota**

JUSTICE OF THE SUPREME COURT

Madrama JUSTICE OF THE SUPREME COURT

$25$