Byaruhanga & 2 Ors Vs Uganda (Criminal Appeal No. 125 of 2011) [2018] UGCA 104 (2 October 2018)

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT MBARARA

### CRIMINAL APPEAL NO.0215 OF 2011

#### 1. BYARUHANGA JULIUS

#### 2. KATO GODFREY

$\mathsf{S}$

3. KESANDE GRACE:::::::::::::::::::::::::::::::::::: 10

#### **VERSUS**

$UGANDA \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \$

(Appeal from the decision of the High Court of Uganda sitting at Kabale delivered by the Hon. Mr. Justice J. W Kwesiga on 6<sup>th</sup> September, 2011 in Criminal Session Case No. 224 of 2010)

HON. LADY JUSTICE ELIZABETH MUSOKE, JA CORAM:

## HON. MR. JUSTICE CHEBORION BARISHAKI, JA

# HON. MR. JUSTICE CHRISTOPHER IZAMA MADRAMA, JA

#### **JUDGMENT**

This appeal is against both conviction and sentence arising from the decision 20 of Kwesiga, J wherein the appellants were convicted of the offence of murder contrary to sections 188 and 189 of the Penal Code Act and each sentenced to 40 years imprisonment. A4 and A5 were acquitted. Being dissatisfied with the decision of the trial Judge, the appellants appealed to this Court on the 25 following grounds:-

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- 1. The learned trial Judge erred both in law and fact when he convicted the appellants without evaluating the evidence properly. - 2. The learned trial Judge erred both in law and fact when he did not consider the defence evidence hence reaching at a wrong decision. - 3. That the sentence of 40 years was harsh and manifestly excessive.

At the hearing of this appeal, Mr. Bwatota James appeared for the appellants while Ms. Ampaire Jennifer, Principal State Attorney represented the respondent.

On ground 1 of the appeal, counsel for the appellant submitted that the trial Judge convicted the appellants without properly evaluating the evidence. Counsel stated that the prosecution evidence was based on a single identifying witness, PW2, Asiimwe Scovia. Further that the conditions of identification were unfavourable as it was at night with only light of a torch that was being held by the attackers, and the time taken to identify the attackers was short since it was PW2 who met the attackers in the sitting

room as she was getting out. Counsel added that PW2 was scared because she was also assaulted and injured by the attackers and her evidence as a single identifying witness needed to be corroborated which was not done. 25

Counsel invited Court to look at the evidence of PW3, John Kahima, who testified that he heard Scovia making an alarm naming Mazuli and Kato as the attackers. He added that it was clear that this alarm had also been heard

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by the deceased who was inside the house because the alarm was made from $\overline{5}$ outside the house and this could have influenced his dying declaration because it was not mentioned anywhere in the prosecution evidence that the deceased had seen the attackers but only stated that he had been attacked by his children. Counsel pointed out PW2, Asiimwe Scovia had testified that she raised an alarm and Kahima, PW3 who was the neighbour came and ran 10 after the assailants. However Kahima did not state anywhere in his evidence that he had ran after the assailants. Counsel further submitted that the evidence of a dying declaration needed to be corroborated, which was not done in this case. He relied on Kazarwa Henry V Uganda, Supreme Court Criminal Appeal No.17 of 2015 for the proposition that evidence of a dying 15

declaration must be corroborated.

On ground 2 of the appeal, counsel submitted that the appellants raised an alibi and the onus was on the prosecution to disprove it since none of the appellants was placed at the scene of crime. Counsel submitted that in his

dying declaration, the deceased mentioned the 3<sup>rd</sup> appellant, Kesande Grace 20 yet PW3 and the 3<sup>rd</sup> appellant herself maintained she was at her home.

Further, although the trial Judge observed that the conduct of the 3rd appellant, Kesande Grace pointed to her guilt because she did not respond to the alarm that came from her step-mother yet her house was just an extension

of the deceased's homestead, this was in fact confirmation that the 3<sup>rd</sup> 25 appellant was at her place and not at the crime scene. Counsel added that the trial Judge was wrong to solely rely on the evidence of PW2; Scovia Asiimwe who testified that she had heard the 3<sup>rd</sup> appellant shouting that they

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- should finish him off yet the 3<sup>rd</sup> appellant was at her place. He relied on $\mathsf{S}$ Watete alias Wakhoka and 3 ors V Uganda, Supreme Court Criminal Appeal No.10 of 2000 for the proposition that an accused person who puts forward an alibi as an answer to the charge against him does not assume any burden of proving that answer. - On ground 3 of the appeal, counsel faulted the learned trial Judge for 10 imposing a harsh and excessive sentence of 40 years. He submitted that considering the facts of the case, the appellants were young people who would be useful to society and, they were first offenders. The learned trial Judge did not also take into account the period that the appellants had spent on remand. Counsel added that in the event that this Court maintains the 15 conviction, it be pleased to reduce the sentence to 17 years.

Counsel for the respondent opposed the appeal. She argued grounds 1 and 2 together and submitted that PW2 was a step-mother to the accused persons and they were well known to her. She further submitted that PW2 had seen

- the appellants on that fateful day at around 8pm while removing her clothes 20 from outside and on the night when the offence was committed, there was bright moonlight that enabled her to identify the appellants while they were in the 3<sup>rd</sup> appellant's house which was about 50 meters from PW2's house, the scene of crime. Further that at the time of the attack and upon hearing 25 - the bang, PW2 met the 2<sup>nd</sup> appellant, Kato Godfrey and 1<sup>st</sup> appellant, Byaruhanga Julius in the sitting room with another person who was holding a torch. Counsel added that there were favourable conditions that enabled proper identification and PW2's evidence was corroborated by the deceased's

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dying declaration. Counsel relied on Kazwara Henry V Uganda, Supreme $\mathsf{S}$ Court Criminal Appeal No.17 of 2015 for the proposition that Court can convict on a dying declaration if it is satisfied that there was corroboration.

Regarding the alibi, counsel submitted that the appellant's alibi was destroyed by PW2's testimony and the learned trial judge observed this at page 44 of the Record of Appeal where he stated that the accused persons had set up the

- defence of alibi and Court had considered the defence as a whole. According to counsel, the trial Judge considered the alibi alongside the evidence of PW2, Asiimwe Scovia, PW3, John Kahima and PW4, Turinawe Wensi, and had rejected the defence of alibi. - Regarding sentence, counsel conceded to the fact that the period spent on 15 remand had not been taken into account by the learned trial Judge hence rendering the sentence illegal. She added that the appellants had roughly spent 1 year in lawful custody but considering the circumstances of this case, the sentence of 40 years was neither harsh nor excessive because the appellants killed their father in a cruel manner as the post-mortem report 20 - indicated that the deceased sustained very grave injuries, cut wounds on the back, abdomen and ribs. She prayed that Court maintains the sentence of 40 years.

The facts as admitted by the Learned trial Judge were that the deceased, one Tibugyemwa Francis then aged 60 years was a resident of Nyakijumba, 25 Rugarama, Kyanamira Sub- County in Kabale District and was staying with Asiimwe Scovia, second wife to him and a step mother to the five accused persons who were all biological children of the deceased.

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- At the time of the incident, A1, A2, A4 and A5 were all residents of Omurutojo $\mathsf{S}$ Village, Katokye Parish in Kabale District whereas A3, Kasande Grace was residing at Nyakijumba Cell, Kyanamira in Kabale District in the same homestead with the deceased. The accused persons and their mother had been having a long standing disagreement over land with the deceased, and the fact that the deceased had married a second wife. Prior to the incident, 10 the second appellant, Kato Godfrey, the 2<sup>nd</sup> appellant had sold a piece of land belonging to the deceased together with the 1<sup>st</sup> appellant, Byaruhanga Julius which sale the deceased had protested and vowed to recover the land. - At one time, the 2<sup>nd</sup> appellant, Kato Godfrey stole the deceased's cows and sold them. The deceased went and recovered the cows. The 2<sup>nd</sup> appellant was 15 threatening to kill the deceased and a few days later, the deceased met his death. Further the 3<sup>rd</sup> appellant, Kesande Grace had earlier on stolen the deceased's bunch of matooke and was sued by the deceased before the village council which fined the $3^{rd}$ appellant 25,000/=. This created bitterness between the 3<sup>rd</sup> appellant and the deceased thereafter. 20

On the fateful evening of 7<sup>th</sup>/2/2010 at about 7:00pm, all the 5 accused persons gathered at the house of the 3rd appellant; Kesande Grace and planned to attack the deceased. The 3<sup>rd</sup> appellant was heard telling the rest of the accused persons that if they feared to shed blood, they would not share in the land. On the same night, 7<sup>th</sup>/2/2010 at about 12:30am, as the deceased and his wife, Asiimwe Scovia were sleeping in their house, they heard a bang on their door. The deceased and his wife woke up and raised an alarm. They managed to identify the 2<sup>nd</sup> appellant, Kato Godfrey who was

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holding a panga and the 1<sup>st</sup> appellant, Byaruhanga Julius, the 2<sup>nd</sup> appellant $\overline{5}$ used the panga to cut the deceased several times and also cut Asiimwe Scovia in the hand and the back.

The alarm attracted neighbours who came to their rescue. After the attack, the accused persons run away from the house leaving the deceased lying in a pool of blood and the 2<sup>nd</sup> appellant, Kato Godfrey was still holding a panga 10 leading the rest. They threatened the witness who saw them and told him not to interfere in their family matters. The deceased and his wife told their rescuers that their assailants were his children naming the accused persons. The rescuers knocked on the 3<sup>rd</sup> appellant's door, Kesande Grace to inform her that her father had been attacked but she looked less concerned. The 15 deceased was taken to Kabale Police Station to report the attack and at police;

the deceased maintained that his assailants were his children. He requested police to arrest the 3<sup>rd</sup> appellant before she could escape. The third appellant was arrested and the following morning the rest of the accused persons were

arrested. The deceased and his wife were taken to Kabale Hospital where they 20 were admitted as the deceased's condition was very critical. He died in Kabale hospital the following day.

A post mortem examination was carried out which revealed the cause of death as excessive bleeding and septicaemia. Asiimwe Scovia, the second victim was also medically examined and was found with a blunt injury at the back and 25 her 3<sup>rd</sup>, 4<sup>th</sup> and 5<sup>th</sup> fingers had been cut through. Each of the accused persons was examined and found to be of normal mental status.

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- We have carefully studied the Court record and listened to the submissions $\mathsf{S}$ of both counsel. The duty of this Court as the first appellant Court is to reappraise the evidence adduced at trial and make our own inferences on all issues of law and fact. See rule 30(1) of the Rules of this Court, Pandya V R (1957) EA 336 and Oryem Richard V Uganda, Supreme Court Criminal Appeal No.22 of 2014. We are alive to the standard of proof in criminal cases 10 being beyond reasonable doubt and the principle that an accused person should be convicted on the strength of the prosecution case, and not on the weakness of the defence. See Kooky Sharma and another V U, Supreme Court Criminal Appeal No. 44 of 2000. - On ground 1 of the appeal, the learned trial Judge is faulted for convicting the 15 appellants without properly evaluating the evidence on record. First, the appellants criticized the learned trial Judge for relying on evidence of a single identifying witness PW2, Asiimwe Scovia when the circumstances she claimed to have identified the appellants were not favourable. Secondly, he also had

issue with the deceased's dying declaration because it was not indicated in 20 the prosecution evidence that the deceased had seen the attackers but only mentioned that he had been attacked by his children and the dying declaration was not corroborated.

It was submitted for the appellants that the conviction was based on identification by a single witness in difficult conditions to wit poor lighting 25 and short period taken to identify the perpetrators.

In finding that the appellants had been properly identified, the trial Judge stated that;

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Berig "Asiimwe Scovia knew each of the accused persons, she had seen them before the attack. The torch light helped her to see the attackers. She was close enough; A1 Kato struggled with her, put her down and cut her arm in the process. She was close enough to know who cut her. She was well conversant with Kesande's voice. The conduct of Kesande that night corroborated the prosecution evidence in pointing at her guilt. Her house was just an extension of the deceased's homestead, she did not respond to the alarm that came from her step-mother and immediate and close neighbour. She instead disappeared until the time after the deceased was taken to hospital. Her conduct following her calling that the victims be finished off legally puts her in association with the actual attackers that killed the deceased."

The Supreme Court has in Bogere Moses and another V Uganda, Criminal Appeal No.1 of 1997 given guidelines on the approach to be taken in dealing with evidence of identification by eye witnesses in criminal cases as follows;

"The starting point is that a Court ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were or were not difficult, and to warn itself of the possibility of mistaken identity. The Court should then proceed to evaluate the evidence cautiously so that it does not convict or uphold a conviction, unless it is satisfied that mistaken identity is ruled out. In so doing the Court must consider the evidence as a whole, namely the evidence if any of factors favouring correct identification together with those rendering it difficult."

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- In Abdullah Nabulere & Anor V Uganda, Criminal Appeal No.9 of 1978; $\mathsf{S}$ Court laid down the following conditions for proper identification:- - 1. Whether the accused was known to the witness at the time of the offence - 2. The conditions of lighting - 10

- 3. The distance between the accused and the witness at the time of identification and - 4. The length of time the witness took to observe the accused.

This Court has in Okwang Peter V Uganda, Court of Appeal Criminal Appeal No.104 of 1999, considered the law relating to a conviction based on the evidence of a single identifying witness where it was held that:-15

"Subject to certain well known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness in respect to identification especially when it is known that the conditions favoring correct identification were difficult. In such circumstances what is needed is other evidence, whether it is circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from *possibility of error.*"

As to whether the appellants where known to the witness at the time of the offence, PW2, Asiimwe Scovia testified that the appellants were well known to

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her as they were her step- children and further the 3<sup>rd</sup> appellant's house, $5$ Kesande Grace, was just an extension of hers.

On whether the conditions of lighting were favourable, PW2 testified that she was sleeping and at around 12:30 am, she saw light through the ventilators. She heard a loud bang on the door and on reaching the sitting room, she identified Kato, Mazuli and the third person was holding a torch. PW2 testified as follows:

"I know the accused persons; A1 is Kato Godfrey, A2 Byaruhanga Julius Mazuli, Kesande Grace, Elias Mugyenyi, and Saturday. I except Saturday. I am a step wife of their father. On 7/2/2010, I was at home with Francis Tibugyemwa at 8:00pm, I was getting clothes from outside. Kato, Byaruhanga Julius and Saturday went to Kesande's place which was a bar. I entered the house, my husband was Tibugyema, we went to bed. At 12:30am I saw light coming from the ventilators. The deceased told me it was a car light. I heard a big bang on the door. The door broke. On reaching the sitting room I met Kato and Majiri. The third one was holding a torch. Their torch had lit the whole room so I saw them. I told them to take whatever was in the house and leave us. Kato held me by the throat I fell down. He swang a panga, I held my hand and he cut the hand. I escaped and ran away. I left them cutting my husband, Kesande was shouting that they should finish him. I told them I had recognized them. My neighbours were Kesande, Johyn, Turinawe Owensi. Kesande's house was just an extension of mine, which was built for use as a commercial house. Kahima was in a house, separated by a hedge.


Meni

Turinawe's house was about 30 metres apart. I jumped, I entered Kahima's place, a panga was shown at me, it hit me in the back. I reported to Kahima, I told Kahima the names. Kahima chased after the attackers. He called other people. They found Francis crying saying he had been killed by his children he named Kesande, Juri and Saturday. A vehicle was brought, the intestines were out, he was tied up with a piece of cloth. We reported at Kabale Police. The deceased said he had been killed by his children Kato, Majuri and Kesande and others. I have not seen the Police directed that the victim be taken to Hospital. The doctor was taken to the theatre he died the next day, 8/2/2010. Kesande was not one of the neighbours who gathered. Kesande had been in a dispute over a banana she cut."

From the above evidence, the incident took place in the middle of the night at 12:30am in darkness. There was no light in the house when the attackers broke the door, PW2, the only identifying witness moved from the bedroom to the sitting room where the only light was a torch carried by one of the attackers.

We find that while the torch may have favoured correct identification, if it was being held by PW2 and pointing at the attackers. In this case, however, the torch was held by the attackers and there is no evidence that it was pointed at them. The fact that the attackers had the torch made it difficult for PW2 to identify them because of the flash from the torch which would ordinarily be pointed directly at her hence affecting her sight.

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PW2 further testified that at around 8:00pm on that day, as she was getting $\mathsf{S}$ her clothes from outside, she identified Kato, Byaruhanga Julius and Saturday inside Kesande's bar with the help of the moonlight. We find that this evidence was weak as the light from the moon could only enable one to recognize people who were outside but not inside the house. Therefore PW2 could not have identified the people in Kesande's bar in the night using only 10 moonlight in the absence of other source of light.

Regarding the proximity between the appellants and the witness at the time of the identification, PW2, Asiimwe Scovia testified that when the attackers entered the house, Kato held her by the throat and she fell down, and he swang a panga, held her hand and cut her. She then escaped and run away. We find that the distance although between the witness and her attackers was very short since her attacker was able to hold her hand, the pain and shock accompanied with the bang at the door must have negatively affected her ability to properly identify the attackers.

It was not shown in the evidence how long PW2 took to observe the assailants; 20 she merely stated in cross examination that she was able to escape and it took her 5 minutes to return from calling people to rescue them. She added that she did not look back but heard them cutting. We find that the duration of the encounter with the assailants could not be established so as to support a finding of proper identification in darkness by a single witness. 25

PW2 further testified that when she reached the sitting room she met Kato, Majiri and a third person who was holding a torch. She further stated that

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she escaped, ran away and left them cutting her husband while Kesande was $\mathsf{S}$ shouting that they should finish him off.

We note that the witness did not identify who the third person holding the torch was neither did she state where Kesande was when uttering the words 'finish him off '. She further testified that PW3's house, John Kahima was separated from her house by a hedge which she jumped and entered Kahima's place. A panga was showed to her and it hit her in the back. She reported to Kahima who ran after the attackers however in his testimony, PW3, John Kahima testified that he heard Scovia making an alarm that they had been attacked by Majuri and Kato. He found the deceased injured saying his children had killed him so he proceeded to call people.

We find that PW2's testimony contradicted that of PW3 because according to PW2 she went and called Kahima who ran after the assailants while PW3 stated he heard an alarm by PW2 that they had been attacked by Majuri and Kato. He found the deceased injured and proceeded to call other people. She further stated that a panga was showed to her and it hit her in the back as 20 she was going to call PW3, John Kahima which took her 5 minutes. There was no evidence that there were more than one panga during the attack. It is doubtful that the same panga could have been used to injure the deceased and at the same time cut PW2 who was on the run to Kahima's house. We find so because the witness testified that as she ran away, she did not look back but heard them cutting him.

The law is now well settled that inconsistencies or contradictions in the prosecution evidence which are major and go to the root of the case must be

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resolved in favour of the accused. However, where they are minor, they should $\mathsf{S}$ be ignored if they do not affect the main substance of the prosecution's case, save where there is a perception that they were deliberate untruths. See Alfred Tajar V Uganda, EACA Crim. App. No.167 of 1969 and Sarapio Tinkamalire V Uganda, Supreme Court Criminal Appeal No.027 of $10$ 1989.

We find that the inconsistency on the use of the panga was major as it related to the identification of the 2<sup>nd</sup> appellant, Kato Godfrey who was identified as having held the panga which was used to cut PW2, Asiimwe Scovia.

We are of the considered view that this being evidence of a single identifying

witness, there was need to treat her evidence with the greatest care to ensure 15 that such evidence is free from any possibility of error. See Abdalla Nabulere and Anor V Uganda (supra).

Prosecution alleged that the appellants had been having a long standing dispute over land and stolen cows with the deceased and also because the deceased had married a second wife. Further that the 3<sup>rd</sup> appellant, Kesande Grace had a dispute with the deceased over stolen matooke. Counsel submitted that because of all these disputes, there was animosity between the appellants and the deceased which formed the motive for the attack.

All the appellants denied ever having any grudge with the deceased nor their step-mother. A3 testified in cross examination that she had never cut the 25 deceased matooke but learnt of the banana accusations at police when she was arrested.

In Waihi and anor V Uganda (1968) E. A 278, Spry J held at page 280 thus:

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"Evidence of a prior threat or of an announced intention to kill is always admissible evidence against a person accused of Murder, but its probative value varies greatly and may be very small or even amount to nothing. Regard must be had to the manner in which a threat is uttered, whether it is spoken bitterly or impulsively in sudden anger or jokingly, and the reason for the threat, if given and the length of time between the threat and the killing are also material. Being admissible and being evidence tending to connect the accused person with the offence charged, a prior threat is we think capable of corroborating a confession."

In other words evidence of a prior threat cannot stand on its own. It can only 15 corroborate other evidence for example had PW2, Asiimwe Scovia properly identified the appellants, then her evidence would have been corroborated. It is not in evidence when the threats were made to the deceased and there is no evidence that threats from the 2<sup>nd</sup> appellant, Kato Godfrey where ever reported to police. For this reason, we cannot rely on mere allegations by the 20 prosecution.

Regarding the evidence of the dying declaration, counsel for the appellant further invited this Court to look at the evidence of PW3, John Kahima who testified that he heard Scovia making an alarm that they had been attacked

by Majuri and Kato. According to counsel, it was clear that this alarm had 25 also been heard by the deceased who was inside the house because the alarm was made from outside the house and this could have influenced his dying declaration.

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 The law regarding dying declaration was stated by the Supreme Court in $\mathsf{S}$ Tindigwihura Mbahe V Uganda Cr. App. NO.9 of 1987. Court stated that:-

"Evidence of dying declaration must be received with caution because the test of cross examination may be wholly wanting; and particulars of violence may have occurred under circumstances of confusion and surprise, the deceased may have stated his inference from facts concerning which he may have omitted important particulars for not having his attention called to them. Particular caution must be exercised when an attack takes place in the darkness when identification of the assailant is usually more difficult than in daylight. The fact that the deceased told different persons that the appellant was the assailant is no guarantee of accuracy. It is not a rule of law that in order to support conviction, there must be corroboration of a dying declaration as there may be circumstances which go to show that the deceased could not have been mistaken. But it is generally speaking very unsafe to base conviction sorely on the dying declaration of a deceased person made in the absence of the accused and not subjected to cross examination unless there is satisfactory corroboration"

## Further section 30 of the Evidence Act Cap 6 states that;

"Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of


Penn


delay or expense which in the circumstances of the case appears to the Court unreasonable, are themselves relevant in the following cases-

(a) when the statement is made by a person as to the cause of his or her death, or as to any circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person's death comes into question and the statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation in which the cause of his or her death comes into question."

The learned trial Judge stated that:-

"PW2, Asiimwe's evidence is adequately corroborated by the deceased's dying declaration. PW3, John Kahima's evidence comfirms that Asiimwe at the earliest opportunity mentioned the attackers. He was the first person to answer the alarm which he heard at 12:00 midnight and Scovia Asiimwe was saying "Kato and Majuri have attacked us" Separately the deceased told him that "Julius, Kato and Kesande have killed me" The deceased repeated this to PW4 Turinawe and to the Policeman who testified, PW5, D/CPL, Mushabe."

PW2, Asiimwe Scovia stated that when PW3, Kahima arrived at the scene of crime, he found the deceased crying that he had been killed by his children namely Kesande, Juri and Saturday. She further testified that the deceased stated that he had been killed by his children Kato, Majuri and Kesande. PW 3, John Kahima, testified that he found the deceased injured and he stated that his children namely Julius, Kato and Kesande had killed him. During 18 | Page


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crossing examination, PW3 stated that Asiimwe Scovia, PW2 had told him $\mathsf{S}$ that they had been attacked by Kato and Majuri.

We note that PW2, Asiimwe Scovia and PW3, John Kahima contradict themselves in what the deceased stated in his dying declaration. First, PW2 mentions Kesande, Juri and Saturday as the people the deceased had mentioned to PW3 then she testified that the deceased had mentioned Kato,

Majuri and Kesande.

of the prosecution case.

We do not agree with the learned trial Judge's finding that the evidence of PW2, Asiimwe Scovia corroborated the deceased's dying declaration. We find that the contradiction in the deceased's dying declaration regarding the names of his own children was major and the learned trial Judge should have taken it into account and thus not relied on the dying declaration in support

In so finding, we are mindful of the principle in *Mdiu Mande V R (1965) EA* 193, that a dying declaration does not specifically require more than one

witness since repetition to different witnesses is not a guarantee of the 20 accuracy of a dying declaration as it may amount to consistency on the part of the deceased.

According to the testimony of PW2, when she heard a loud bang at the door, she went to the sitting room and found the assailants who attacked her. She

made an alarm and ran to Kahima's place to inform him of the attackers. 25

We agree with counsel for the appellant's submission that the deceased's dying declaration must have been influenced by the alarm made by PW2,

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Asiimwe Scovia that Kato and Majuri had attacked them. This is because the $\mathsf{S}$ deceased did not identify the attackers as he was in darkness in the bedroom.

We are of the considered view that it was unsafe for the learned trial Judge to convict the appellants on the evidence of the dying declaration yet the evidence on record shows that the deceased did not even identify his

- attackers. The Supreme Court in Mibulo Edward V Uganda, Criminal Appeal No.017 of 1995 held that a Court may convict on the evidence of a dying declaration, if circumstances exist that show that the deceased was not mistaken. As we have pointed out earlier, the circumstances in the instant case point to the possibility of the deceased having been mistaken. His dying - declaration must have been influenced by the alarm that was made by PW2, 15 Asiimwe Scovia that they had been attacked by Kato and Majuri.

Further as indicated by PW2, Asiimwe Scovia that when PW3, Kahima arrived at the scene of crime, he found the deceased crying that he had been killed by his children namely Kesande, Juri and Saturday. We note that the trial

Judge stated that he had not found any evidence throughout the trial that 20 incriminated Mugyenyi Erias and Saturday Javilla and after acquitted them. However, he went ahead to find that PW2's evidence, Asiimwe Scovia corroborated the dying declaration.

Having carefully examined the dying declaration together with the evidence of the single identifying witness, we find that the said evidence was too weak to 25 sustain a conviction on its own. It was not sufficiently corroborated and neither could it corroborate the evidence of PW2, Asiimwe Scovia.

Therefore ground 1 of the appeal succeeds.


On ground 2 of the appeal, counsel for the appellant faulted the learned trial 5 Judge for not considering the appellants alibi and yet the onus was on the prosecution to disprove the alibi.

In dealing with the alibi raised by the appellants, the learned trial Judge had this to say;

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"Accused persons have set up alibi in defence and the defence as a whole has been considered. I have not found any evidence throughout the trial that incriminates Mugyenyi Erias and Saturday Javilla. They were not identified at the scene of crime. I find that the alibi of A4 and A5 above mentioned remained intact because they were not placed at the scene of crime by the prosecution evidence or any other evidence in the case. A1 Kato, A2 Byaruhanga Julius and A3 Kesande Grace were properly identified at the scene as I have analyzed above the defence of alibi is not available to any of the three accused persons."

It is a general rule of law that if an accused puts forward an alibi as an answer to a criminal charge, he does not thereby assume the burden of proving the 20 defence, and that the burden of proving his guilt remains throughout with the prosecution. See Sekitoleko V U (1967) 1 EA 531 and R V Johnson (1961) 3 ALLER 969.

From the record, the 1<sup>st</sup> appellant, Byaruhanga Julius stated that on the material date at 7:00pm he was at home and he heard people waking him up 25 at 6:30am the next morning. He stated that it was John Kahima who told him that his father had been attacked and injured and he had not been at Kesande's home

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- The 2<sup>nd</sup> appellant, Kato Godfrey stated that on that fateful day, he spent the $\mathsf{S}$ night at his home and at 6:00am he heard people demanding that he opens his door and on 7<sup>th</sup> January, 2001 at 7pm, he was at home working in a shop. He added that he did not go to Kasende's house that night. - The 3<sup>rd</sup> appellant, Kesande Grace stated that on that day she had been selling local brew. She finished at 6pm, stayed home, cooked and they slept at 8pm. 10 At midnight she heard John Kahima calling her that her father had been attacked. She added that her brothers never came to her bar that day.

Apart from rejecting the appellants alibi, the learned trial Judge also considered the 3<sup>rd</sup> appellant's conduct. He stated that the conduct of Kesande that night corroborated the prosecution evidence pointing to her guilt. That 15 although her house was just an extension of the deceased homestead, she did not respond to her step mother's alarm. She instead disappeared until the deceased was taken to hospital.

- We have already found that the evidence of PW2 was weak and required corroboration from other witnesses in order to rule out the possibility of $20$ mistaken identity. Had the learned trial Judge warned himself of this, he would have found the identification evidence inadequate. We find that none of the appellants was placed at the scene of crime. The defence of alibi succeeds - 25 Ground 2 succeeds.

We note that in the summary of the case, prosecution alleged that a panga was recovered from the deceased's compound which was believed to have been

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Burn,

used by the appellants to cut the deceased and the complainant. The Post- $\mathsf{S}$ Mortem report revealed that the deceased suffered a cut wound on the face, the deep cut wound on the back, a cut wound into ribs and abdomen among others. However, there was no evidence of blood or injurious struggles established against the appellants. Medical form (PF 24) on examination of the appellants did not reveal anything. Further, there was no explanation as 10 to why what was found in the deceased's compound was not subjected to forensic examination.

In their joint opinion, the assessors found that PW2's evidence was not corroborated. Further that the dying declaration may have been influenced by

- a grudge that existed before and there was no evidence of proper identification 15 of the appellants. They advised the trial Judge to acquit the accused persons. In conclusion and for the reasons advanced above, this appeal succeeds. We accordingly quash the sentence of 40 years imprisonment imposed by the learned trial Judge. We find no reason to resolve ground 3. - We hereby order for the immediate release of the appellants unless they are 20 being detained for some other lawful charges.

## We so order

| Dated at Mbarara this | | |-----------------------|--------------------------------------------------------------------------------------------------| | | $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ |

$\mathcal{O}$

HON. LADY JUSTICE ELIZABETH MUSOKE **JUSTICE OF APPEAL**

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HON. MR. JUSTICE CHEBORION BARISHAKI **JUSTICE OF APPEAL**

HON. MR. JUSTICE CHRISTOPHER IZAMA MADRAMA **JUSTICE OF APPEAL**

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$\mathsf{S}$