Byaruhanga v Uganda (Criminal Appeal 7 of 1990) [1990] UGSC 17 (2 November 1990)

## IN THE SUPREME COURT OF UGANDA

## AT MENGO

BETWEEN FRANKEEN BYARUHANGA: APPELLANT UGANDA: RESPONDENT (Appeal from the Conviction/Sentence and Judgment of the H/C of Uganda at Kampala (Mr. Justice Okello) dated 19-1-8? in H. C. CR . Ss. CASE NO. 71/85). ^CORAM: MANYINDO - D. C. J., ODOKI - J. S. C., FLATT - J. S,C.) CRIMINAL APPEAL NO. 7 OF 1990

## JUDGEMENT OF THE COURT:

cted by the High Court at Fort Portal of the murder of the deceased Pio Nyakatura on 28-5-8^, contrary to Section 185 of the Penal Code. He was sentenced to death. He now appeals against the convic tion. On 19-1-87, the appellant, Frankeen Byaruhanga, was convi-

The deceased was 45 years old at the time of his death. On the fateful day at about 8.00 p.m., he was in the sitting room of his house when he was attacked and brutally cut on the head with a panga by a single assailant. The deceased screamed as he ?/as being attacked. His wife Kabatooro (p'''I) who was in the nearby kitchen went to his aid. In the sitting room she found the attacker hiding behind the open dooV^ Kabatooro was a brave woman for she pushed the attacker back into the sitting room and there she struggled with him apparently for the spear and panga which he was holding.

The deceased lay on the ground with the cut wound on his head.

During the scuffle PWI was injured by the attacker's spear on the right arm. Shortly afterwards PV/I was joined in the sitting room by her two young sons Sanyu (P'. V2) and Kyaligonza (PW?) • The boys came in with a wick lamp. It wa^ then that P'J1'^ PW2 and PW? were able to recob,.lse the attacker as the appellant with the aid of the lamp. The appellant finally over-powered PW1 and ascaped. PV;1 then raised an alarm which was answered by the father of the deceased; Mutabazi (PW4) and Baituababo PW5> a neighbour of the deaceased was then rushed to the Government Hospital at Fort Portal and later to Kilembe Mines Hospital where he died on 1-6-8?. He died of brain depressed compound fracture of the left pavietal bone. damage as a result of a

At his trial the appellant denied the charge and pleaded an alibi that at the material he was at the home of one Sabiti with Girigoli (DW2) until at about 8.00 p.m. v/hen they went to the home of one Baguma where they stayed up to 9.?0 p.m when they parted company for their respective homes. Neither Sabiti nor Baguma testified. ternal uncle, was killed, time when the deceased, who was his pa-

The trial judge believed the evidence of P'V1, PW2 and PW? regarding their identification incident or recognition of the appellant during the

He rejected the appellant's alibi as untrue in view of that evidence. He found corroboration of the evidence of the prosecution withnesses from the fact that after the murder of the deceased the appellant had fled his home and gone to hide in arrested about a month later. Before this incident the appellant and the deceased were on bad terms as the appellant had admittedly sided wit h his own father in a land dispute between the latter and the deceased. The trial judge found that provided the motive for the deceased's murder. a place called Ntoroko where he was

Six grounds of appeal were filed and argued by Mrs. Bossa who represented the appellant in this appeal. They are;-

- n 1. That the learned trial judge erred . in law and in fact in fining that there was sufficient light and time to enable correct identification of the assailant. - 2. The learned trial judge erred in law and infact when he failed to find that the identifying evidence was of a sole identifying withness and could only be convicted on after ruling out honest mistake by the identifying 'withness. - 3- The learned trial judge erred in failing to address himself to contradictions in the prosecution case which were major and weakened the whole prosecution case. - 4, The learned trial judge erred in law when he decided to disbelieve the accused's alibi. - 5. The learned trial judge erred in law when he failed to find that the accused's conduct after the incident was exhaustively and satisfactorily explained. - 6. The learned trial judge erred in law when he coruluded that because the accused sided with his father in the land dispute therefore he was guilty of murder. "

claimed in the second ground of appeal. The ground was thus misconceived and should have been abandoned. At the hearing of the appeal Mrs. Bossa conceded the fact that there were three idenctifying withness and not a single withness as

It is not clear how long the attack lasted but it was by no means a fleeting attack beacause PW1, PW2 and FWJ who went into the sitting room separately found the attacker still there. All the three withnesses knew the appellant very well before the incident. PW2 and PWJ were in fact his cousins while PW1 was the wife of his uncle. These withnesses claimed to have recognised the appellant with the assistance of the wick lamp. They described his attire in quite similar terms and they even mentioned his name to PW4 and PW? when they answered PV'1 ' s alarm night. Like the trial judge but unlike the Assessors, we have no doubt that p'71, PW2 were in a position to recognise the appellant and did in fact recognise him. This dispose. of the first ground of appeal.

With regard to the appellant's defence, the trial judge quite rightly observed that it was incumbent on the prosecution to disprove the alibi which they had done by placing the appellant at the scene of crime at the material time. In our judgment the appellant's claim that he was with DV/2 the whole day and up to about 9-30 *I* sejr. <sup>a</sup> ted at 8.00 p.m. It is even doubtful i when they separated was contradicted by the appellant himself -when he stated that on that day he did not partake of any intoxicating stuff at all. Clearly the alibi was false and trial judge. We therefore see no merit in the fourth ground of appeal. / p.m was not borne out by DW2'<sup>s</sup> evidence which was that they had *^the two* men were together that night since the claim by DV/2 that the appellant was rather drunk was rightly rejected by the

We will consider the 5th and 6th grounds together. We think these two grounds were well taken. The appellant's explanation for his family was already suspected in the matter as was evidenced by the murder of his father Ndoleriire on 1-6-8J, by the relatives of of the deceased. The Assessors appreciated this point, but the trial judge did not. On our part we see nothing sinister in appellant's action. We cannot agree with the trial judge's conclusion that this was not innocent conduct. That may be cannot be the only one. <sup>a</sup> passible inference but it

It follows that the conduct of the appellant in fleeing his village did not enhance the prosecutions's case and did not have to in view] of the clear evidence of identification of the appellant by PW1, PW2 and PWJ. Motive is not necessary in law although it is useful in explaining why an accused person did what he did. In this case we think that the trial judge went a bit too far in looking for motive in the land dispute between the deceased and the appellant\* s father. It is not clear what role the appellant played in the dispute apart from siding with his father.

The judge's finding that:

it The accused's strange conducts before and after the incident more than raised grave suspicions on him as the assailant. "

was therefore not supported by the evidence.

Finally, we turn to the Jrd ground of appeal. We must say we have not been able to find any serious discrepancies in the evidence of the State withnesses and Mrs. Bossa did not show us any. are satisfied that the appellant was properly convicted. His appeal is dismissed. 2nd November, DATED at Mengo #his day of 1990. In the result we

SIGNED:

S. T. MANYINDO DEPUTY CHIEF JUSTICE

## B. J. ODOKI JUSTICE CF THE SUPREME COURT

H. G. PLATT

JUSTICE OF ''HE SUPREME COURT

**TXKERTIXEXES**

**I CEPSTIFIED** THAT THIS IS A TRUE COPY OF THS ORIGINAL

B. F. B . BABIGUMIRA REGISTRAR SUPREME COURT