Kitaka v Uganda (Criminal Appeal 40 of 2019) [2023] UGSC 71 (6 September 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram; Owiny-Dollo, CJ, Mwondha, Tibatemwa-Ekirikubinza, Tuhaise, Chibita, JJ. SC)

## CRIMINAL APPEAL NO. 40 OF 2019

KITAKA ROBERT NSUBUGA:::::::::::::::::::::::::::::::::::

## **VERSUS**

:::::::::::::::::::::::::::::::::::::: UGANDA:::::::::::::::::::::::

(Arising from the judgment of the Court of Appeal, Criminal Appeal No. 177 of 2016 dated 13th September 2019 before Musoke, Obura & Muhanguzi, JJA)

## JUDGMENT OF THE COURT

This is a second appeal lodged by the appellant aggrieved and dissatisfied with the decision of the Court of Appeal. The memorandum of appeal had two grounds as follows:

- 1. The learned Justices of Appeal erred in law when they upheld the appellant's conviction for the offence of murder basing on the weak, grossly inconsistent and unreliable prosecution evidence of the dying declaration without sufficient corroboration thus occasioning a miscarriage of justice. - 2. The learned Justices of Appeal erred in law when they wrongly rejected the appellant's defense of alibi thus arriving at a wrong decision occasioning a miscarriage of justice.

## Background.

$\mathcal{L}$

The prosecution's case as accepted by the trial court and the Court of Appeal is that on the 14/2/2015 at around 11:00pm, the deceased was heading to the home of PW5, Nyenga Gorretti who was his wife. As he approached the house, the appellant walked to him and threw a bucket containing corrosive liquid substance at him, which burnt his face, neck, scalp, chest, back and upper limbs. He rushed to Mulago Hospital for treatment, but died the following day from those injuries. He told people who visited him at the Hospital, including the appellant that he had recognized the appellant as his assailant whom he had seen at the scene of the crime. The appellant was arrested and charged with murder contrary to section 188 and 189 of the Penal Code Act.

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At the trial, the appellant plcaded not guilty 1o the oll'ence oi murder and put up a delense of alibi. His case was lhat at the time of the said attack. he was home u'atching television and collecting water into the tank rvith his wif'c and that he had no motive of killing the deceased. He told court that he u'as framed by his paternal aunt PW7, Nakazzi Agnes, who hated him tbr causing the imprisonment ol her son.

At the conclusion ol the trial. court tbund the appellant guilty of murder and accordingly convicted and sentenced him to l6 years' imprisonmenl. Being dissatisfied with the decision. hc appealed to thc Court ol'Appeal against conviction. Thc Court Appeal agreed with the learned trialjudge that the appellant had been properly identified by the deceased as stated in his dying declaration.

l'he Court of Appeal also re.jected the appellant's dct'ense of alibi opining that he had been put at the scene of crime. I'le thus appealed to this court against the ftndings of the two courts,

### Representation.

At the hearing of this appeal on2/512023. the appellant was represented by Mr. Emmanuel Muwonge and the respondent by Ms. Happiness Ainebyona. The appellant was present in court by zoom. Both counsel adopted submissions which were already on record.

# Submissions for the appellant. g

### Ground one.

Counsel submitted thal the prosecution evidence ola d1"ing declaration covered under the evidence of PW4. PW5. PW6. PW7 and the CD rccording admitted as PE6A (Luganda version) and PE6B (English version) rvas weak. grossly inconsistent and unreliable and was not conoborated. Counsel addcd that the appcllant u'as not propcrly identified because the attack took place at night and thal it rvas a surprisc atlack and therefore thc conditions for correct identitlcation were unl'avorablc lirr the deceascd to identily him as a person who attacked him.

Counsel argued that the evidence ot'PW5 & PW8 to the cllbct that there was availability of other sources of light at the scene ol'crime was contradictory to the deceased's declaration that the only source of light was that of a torch. Counsel submitted that both PW4 and PW6. during cross examination, testified that the deceased told them that he managed to identity the appcllant bccause he llashed a torch at him. Counsel at'ilrmed that the deceased's declaration pointed to nothing but the t'act that the sccne olcrime was dark and thc only source of light was that of a torch that could not have been sufficient to conectly identity the appellant at the scene ol crime. -Iheretbre. the learned Justices ol Appeal wrongly concluded that they had perused the dying declaration and lbund no part where the deceased said a torch rvas lit in his face.

Further. Counsel submitted that the testimonies of PW5 & PW8 pointing to another source of light at lhe scene of crime were I'ull ol lies. inconsistences and contradictions. Counsel submitted thal PW5 testified that there were lights outside the gate which reflected outside that gate and it was sul'ficient to identily a person. However. hc fu(her testified that when llenry's liiends came at the scene. they did nol switch ol'f the vehicle lights. Counsel therelbre wonders rvhy would thc car lights be lell on or rvhy rvould the assailant need a torch ifthe place rvas well lit and thus concluded that the deccased's declaration offlashing a torch confirms thal the scene ol'crime rvas dark with no other source of light. He added that PW8's evidence cannot be believed due to the lbcl that he visited the scene of crime during the day and did not test the lights to shorv that they rvere working.

Counsel also pointcd out that the evidence of PW5 was contradictory in regard to the voice olthe deceased. Counsel pointed out that PW5 testilied thal towards midnight PW5 heard someone screaming but did not recognize the voice yet she could identily the deceased's voice on the recording. Further. counsel argued that the evidencc of PW5, PW3 & PW9 is contradictory on whether the bucket stated in the deceased's declaralion is the one actually recovered at the scene ol'crime. He pointed out that PW3 testified that he lbund a used bucket of NOMI which rvas suspected to have bcen used by the suspect and a white bumt t-shirt yet PW9 testitied that he received a whitc torn t-shirt that was wet and a white dirty empty OMO detergent tin rvhich rvere never examined to conl'irm the contents therein. Counsel faulted the leamed Justices of Appeal fbr having relied on such evidence and concluded that it was corroborative evidence that the appellant indeed committed the crime of murder.

Counsel submitted f'urrher that the learned Justices olthe Coutt of Appeal erred when they relied on the evidence ol'the CD recording rvhose authenticity rvas questionable. Counsel argued that the time bctrveen PW5 recorded thc deceased's declaration on her phone. transferred it to the CD and the time it rvas playcd in court was a very long time in which the accuracy of the recording could have bcen tampered rvith. Counsel added that the recording played in court had both video and audio and that the video part showed grass in the background yet PW5 testified in court thal the recording took place in the hospital ward. which according to counsel. was an inconsistency whose authenticity ought to have discredited. Counsel submitted that the person (Richard Mbuubi) who transt'erred the recording from thc phone to the CD rvas nevcr called to give evidence on how he managed to transf'er the recording rvhich was bolh video and audio to a CD in audio fbrm only. He submitted that since all this was lacking. the chain of handling exhibits was broken and cannot be considered as reliable evidencc to base a conviction against lhe appellant.

Counsel also thulted the learned Justices of the Court of Appeal lbr upholding the findings of the leamed trial Judge that the recording was the true voice of the deceased which evidence was contested by the appellant in his del-ensc through DW2 & DW3. who were close relatives and knew lhc deceased's voice. Counsel argued that since the learned trial Judge did not know the deceased's voice so it was crroneous tbr her to conclude that there had been a change ofvoicc ofthc deceased because of the acid injuries.

Counsel submitted that the lower court l-ailed to consider the possibility that the deceased could havc been killed by a one Moses Matovu, a boytiiend to PW5 who she dated while she was married to thc deceased.

Counsel submitted that the deceased's declaration rvas weak. inconsistent and contradictory and that it was insufficient to support a conviction of murder without sulficient corroboration. Counsel relied on Tindigwihura Mbahe Vs. Uganda, SCCA No. 9 of 1987. lbr thc preposition that it is unsafe to base a conviction on the dying declaration of a deceased person made in the absence of the accused person and not subiected to cross examination unless there is salis l'actory corroboration.

## Grouni two.

Counsel faulted the leamed Justices of the Courl of Appeal tbr tailure to re-evaluate thc appellant's delbnse of alibi as testil'ied in court by DW4 and the appellant himself. He relied on Bogere Moses Vs. Uganda, SCCA No.l of 1997. where it was stated that, where the appellant raises a detbnse of alibi and adduces evidence showing that he was somewhere else. court is bound to evaluate both versions .judicially and give rcasons why one and not the other should or should not bc bclieved.

Counsel prayed that court allorvs this appeal. quash the conviction and set aside the sentence.

## Submissions for the respondent.

### Ground one.

Counsel opposed the appeal and supported the decision ol both lower courts. Counsel submitted that the leamed Justices olthe Court olAppeal subjected the evidence on record to a fresh scrutiny and came up rvith the right decision that the appellant committed the ofl'ence of murder.

Counsel submitted that there tvere conditions l'avorable tbr correct identification of the appeltant. Counsel argued that it is not correct that the only source of light available was the torch as put by counsel fbr the appellant bul electricity light as well. as testified by PW5 and PW8. Counsel supported the tindings olthe court of Appeal that the dying declaration was not evidence being led such that the deceased could testily about other sources of light' it would be erroneous to conclude that since the deceased did not mention the source of light he used to identily the appellant. the only source of light was the torch.

Counsel submitted that since the sketch map on record showed that there were security lights at the scene del'eats the appellant's argument that PW8 only visited the scene during the day and could not tell whether the electric lights were lunctional or not'

Counsel argued that the allegation by the appellant that the deceased could have been killed by one Moses does not cast doubt on to the prosecution's case because PW5 testified that she ended the relationship with Moses long betbre she married the deceased'

Counsel submitted that corroboration ofa dying declaration is not a legal requirement but. pointed out that the learned Justices ofAppeal wcre alive to the need fbr corroboration of such evidence. Counsel argued that the evidencc of PW4 and PW7 rvhom the deceased had told of the appellant's suspicious behavior in dark spots rvas corroborative evidence as well as the evidence of PW4 and PW5 whom the deceased told on his hospital bed that it was the appellant rvho had poured acid on him. which words rvere repeated in the appellant's presence.

Counsel t'urther submitted that the discovery of an empty bucket ol'detergent at the scene further supported the deceased's utterances in the dying declaration. Counsel argued that although the deceased stated that the bucket resembled that of OMO yet PWB discovered abucket of NOMI, does not discredit the dying declaration but points to the fact that there was sufTicient light at the scene to enable the deceased identily the appellant and what he used to attack him. Counsel contended that this was a minor inconsistence that does not 8o to the root of the matter and should be ignored.

Counsel pointed out that the tearned Juslices of the Court of Appeal considered the issue of reliance or admission of thc CD and judiciously concluded that the CD was authentic because PW5. who recorded the declaration on her phone and later transtbned it to the CD ably testitied to court the whole process and horv thc same was handed over to the police.

As regards the deceased's voice as recorded on the CD, Counsel argued that the doubt that the voice could not have becn that of the deceased was ruled ou1 through the testimony of PW5. who recorded the declaration in the prescnce olPW4 and PW7, which testimony was admitted by court. Counsel submitted that the lower Courts addressed their minds to the

admission of electronic evidence and rightly cvaluated the evidence resulting in the reliance on the dying declaration and prayed that the satne be upheld.

## Groand lwo.

Counsel submitted that leamed Justices ol'thc Courl ol Appeal rightly tbund that the prosecution's evidence placed the appellant at the scene of crime and that it was not true for the appellant to argue that his delense of'alibi was never considered.

Counsel relied on Areet Sam Vs. Uganda, SCCA No. 20 of 2005 and submitted that the lower courts made concurrent llndings oflact which should not be questioned by this court. Counsel submitted t'urther that both courts lullilled their duties of evaluating and reevaluation of the evidence on record. Counsel prayed that this appeal be dismissed and the conviction and sentence of the appellant upheld.

## Consideration of the appeal.

This is a second appeal and the duty of lhe 2nd appellate Court is to determine whether the l,tAppellate Court properly re-evaluated the evidence belbre coming to its own conclusion, except in the clearest ol cases where the lirst appellate Court has not satisfactorily reevaluatcd thc evidence. See Kifamunte Henry Vs. Uganda. SCCA No. l0 of 1997 where it was held: -

"The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge' The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. The Court of Appeal is precluded from questioning the findings ofthe trial Court, provided that there was evidence to support those findings, though it may think it possihle or even probable that it would not have itself come to the same conclusion, it can only interfere where it considers that there was no evidence to support finding of fact".

'fhere is no doubt that this casc dependcd on cvidencc of'the dying declaration and proper identificalion rnade by the dcccased t() lirur rvitncsses namely PW4, PW5. PW6 and PW7. This court in Tindigwihura Mbahe v. Uganda. SCCA No,9 of 1987 hcld among others:

.. Evidence of dying declaration must be received with caution because the test of the cross examination may be wholly wanting; and have occurred under circumstances of confusion and surprise; the deceased may have stated this 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 placo in darkness when identifications ofthe assailant is usually more difficult than day light.

The fact that the deceased told different persons that the appellant was the assailant is evitlence of the consistency of his belief that such was the case. It is not guarantee of accuracy. It is not a rule of law that in order to support a 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 spcaking, very unsafe to base a conviction solely on the dying declaration a deceased person, made in the absence of the deceased and not subject to cross examination unless there is satisfactory corroboration".

On ground one. the appellant disputes his identitication. the inconsistences in the prosecution's evidence particularly: i) thc voicc ol the deceased. ii) the inconsistency on the type of thc bucket used and the clothes discovered at the scene. insul'ticient corroboration of the dying declaration and the authenticity of thc CD.

Regarding wrong or improper identilication. the appellant argued that thc circumstances prevailing at the time of the dal of the attack. did not lavor correct identification. Counsel argued that the incident took place at night and that the only source ol light available was the torch thc assailant lit at the deceased. 'fhc /ocas clus.gicus casc ol'Abdalla Nabulere & Another Vs. Uganda, SCCA No. 9 of 1978. the coufl inter alia held that:

"Where the case substantially depends on identification which the accused disputes, the judge should examine closely the circumstances in which the identification came to be made particularly the length of time, the distance' the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence.

lf the qualitv is sood the danser of a mistaken identity is reduced but the poorer the quality the greater the danger. When the qrualih is sood. as for exam ole. when the identification is made after a lons period of observation or in satisfacto rv conditio ns bv a nerson who knew the accused before a cou rt can safel convict. ( Emphasis of Court)

In dealing with the issue of identit'ication. the Court ol Appeal held "We ourselves have re-evaluated the evidence on record and considered the conditions thal favor correct idenlification as set out in Abdalla Nabulere & Another Vs. Uganda, SCCA No.9 of 1978,

In the instant case, there is no doubt the appellanl and lhe deceased were familiar wilh each other prior to the incident. According to PW5, lhe incident look place al midnight but she said they have enough lights outside which reJlect outside the gate and they were sufiicient to identifi a person. PW8, who drew the sketch plan of the scene stated that the scene is an open space, with trees being a bit distant from the deceased's house. According to him the deceased's house is surrounded by security lights which could flash at the scene tofacilitate easy identification of the appellant. Ll/e have also analyzed the deceased's dying declaration whose excerpts is produced above and we nole that the deceased opryars to have observed the appellant for some minutes as he wolked down the gate towards him

ll/e have perused the dying declaration and we do not see any part where the deceased said a torch was lit in his face. ll/e therefore do not see the basis of counsel's contenlion. Counsel argued that if indeed there was enough light at the scene of crime there would have been no need for the appellant to light a torch as stated by the deceased in the dying declaration. From the dying declaration, lhe deceased said he saw o torch being lit, implying that ot that point he had not seen the person lighting it ond it is possible that the torch was lil at the point where it was dark. However, the deceased also said that he then saw lhe appellant walking down lhe gote and he continued to observe him until he reached where he was and hit him with a bucket. From the norration of the incident by the deceased, we are not persuaded by the argument ofcounsel for the appellant that the place must have had no other source of light and that is why the ossoilant lit a torch. It is noleworthy that this was a dying declaration and not evidence that uras being led such that the deceased could testifi aboul other sources o.[ light. It was iust a naruation of what he saw before he was attacked. It would therefore be o.fallacy to conclude thal simply because he did not mention the source of light he used to identify the appellant it means there wos none olher than the lorch the assailant lit.

On the whole, based on lhe evidence of Pll/5 and PWS, we cannot fauh the trial Judge for finding as she did because our conclusion is that notwithstanding lhe time the incident took place, conditions that favor correct identification were present and the appellant was properly identified by the deceased who knew him very well. "

In upholding the lower court's finding that the appellant was correctly identified. thc court olappeal considered the lbllorving lactors: light fiom the security lights on the deceased's house, the fact that the deceased was lhmiliar rvith the appellant and that the deceased had observed the appellant lbr some minutes while hc rvas walking dou'n fiom the gate towards him.'these coupled with other evidence ruled out any lbrm ol'mistaken identity.

We theretbre find that the identilication evidcnce considered by thc court of appeal met thc test laid out in the Abdalla Nabulele case (supra).

We also tind that failure by the deceased k) mention the source ollight that enabled him to identily the appellant. did not weakcn the ide ntitication evidence. We t'ind no reason to fhutt the court ofappeal's conclusion that thc appellant was correctly idcntil'ied'

'I'he above evidence was corroborated by the evidence ol PW4. PW5 and PW6. l'he three witnesses teslitied in court that thc deceased told them that it was the appellant who attacked him on the l'atetul night. The appellant rcpeated the same statement to the appellant in the presence of them all. PW4 and PW6. lurther testiticd that the deceased had on two dift-erent occasions told them of the appellant's suspicious behavior of hiding in dark sports where he observed the dcceased as he was retuming home.

Further. as a mattcr ofpractice. corroboration must always be sought though corroboration is not necessary as a rule o[ lau'. See: Kazarwa Henry Vs. Uganda, SCCA No. 17 of 2015. where Court held that: "lt is not a rule of law that in order to support a conviction. there must be corroboration of a dying declaration as therc may be circumstances which go to show that the deceased could not have becn mistaken".

We find that the cvidence proved beyond reasonable doubt that thc deceased's dying declaralion was true and correct and l'ind no merit in thc appellant's submission thal the evidence of corroboralion was not sullicicnt enough to sustain his conviclion.

Ir was also submitted lirr the appcllant that the inconsislences in the evidence ol PW3. PW5 and PW8 were major and should have been rulcd in the appellant's f'avor. The inconsistences pointed out were that thc three witnesses testily to dilferent lhcts on whether the bucket recol'ered at the scene ol crime was that ol OMO or NOMI. Also that PW8 testit'ied to have recovered a rvhitc burnt t-shirt yet PW9 slates to have received a white torn t-shirt. We note that these are minor inconsistences that do not go to the root of the matter or in any casc such inconsistences do not cast doubt to the prosecution's case.

The law relating to contradictions and inconsistences was stated in Nasolo Vs. Uganda' SCCA No. 14 of 2000 as lbllows:

"The law governing inconsistences in evidence was stated in Alfred Tajar Vs. Uganda (1969) EACA, Cr. Appeal No. 167 of 1969, to be that minor inconsistency unless the trial judge thinks it points to a deliberate untruthfulness does not result in evidence being rejected. The same case also laid the principle that it is open to a judge to find that a witness has been substantially truthful even though he/she had lied in some particular respect".

Counsel also contended that there were inconsistencies in evidence of PW5 on the deceased's voice and faulted the learned Justices of the Court of Appeal for upholding the findings of the trial Judge that the deceased's voice could have changed due to the injuries he sustained by the attack. We do not find this conclusion in both lower courts erroneous to warrant us hold otherwise. PW5, who recorded the deceased testified that she recorded the dying declaration with her phone in presence of PW4 and PW7, who also stated the same facts in court. There is no doubt therefore, that the voice must have been that of the deceased.

While considering the contention that the evidence of the CD was admitted without ascertaining its authenticity, the learned Justices of the Court of Appeal stated:

"This kind of evidence has to pass the test of relevance and authenticity before it can be admitted. In this case there is no doubt that the evidence contained in the CD recording is relevant to the matter before court. What is left to be determined is its authenticity and in so doing we shall refer to section 7 (2) of the ETA.

S. 7 *authenticity of data message.*

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(2) for the purposes of sub section $1(a)$ , the authenticity of a data message shall be assessed-

(a) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage or display;

(b) in light of the purpose for which the information was generated and

PW5 stated that she used her phone which she produced before court for examination. She testified at the trial that with the help of her brother Muubi she copied the information to a CD which she handed over to PW9, DSGT Nakamya Scovia, a police officer attached to Bulenga police post at the time in the presence of PW|. PW9 on her part said that the CD was brought by PlV5 and handed over to PWB in her presence and upon it being exhibited by PW\, he handed it over to her for storage. Counsel for the appellanl pointed out this contadiclion on lhe evidence of PlV5, PltS and PIlg as to who received the CD from Pll'S. We accept thol there was a contradiction bul we find that il was a minor one that did not go to the root of the case. What is material is that both PW8 and PW9 acknowledged that a CD was brought to the police slation, it was played to know its content and they heard the deceased saying it wos Kitaka who had killed him. After testing the CD, Pll/9 said she labeled it as exhibit "C" andwrote on ir "HENRYS LAST SPEECH"

IJpon our own re-evaluation of the evidence of PW5 on how she recorded the dying declaration ond copied it on lhe CD wirh the help of her brother and the evidence of PWB and PWg on how the CD was received ot the police stalion, tested and slored, we have no reason to doubt its aulhenticity. Our view is even strengthened by the evidence of PWl and PllTv who said lhel' wzr, Orrtent when the deceased made the dying declaration and they witnessed the recording of the deceased's voice by Pll5. Their evidence was consistent with the contenl ofthe CD recording as seen from the transcribed copy (PE6A) \$,hich was presented 4) PWI l.

It is therefore our finding that the leorned trial judge was justified in relying on the evidence ofa CD recordingwhich conlained lhe deceased's dying declaration."

From the above findings of the Court of Appeal. we tjnd that the leamed Justices of the Court of Appeal ably considered the relevant provisions of the [aw with the evidence on record to determine the authenticity olthe recordings on the CD. PW5 who recorded the dying declaration testified how she recorded it and also gave evidence on how she transferred the same on a cD with the help of her brother, Muubi. The appellant's contention that Muubi did not come to court to testily how he was able to do so is immaterial because he was not the one who did the recording. The CD was received by PW8 and PW9 as seen through their testimony in court. Upon testing its contents. it was marked and slored. In our view. the chain ofhandling exhibits was nol broken in any way and we have no doubt that the contents on the CD were authentic and reliable.

In the result, we tlnd no merit in this ground one of the appeal and it lhils.

On ground two, the appellant complained thal the lorver courts failed to consider his defense of alibi. Counsel argued that at the material time. the appellant was not at the scene of crime but at his home watching TV and refilling their waler tank with his wife.

The [aw on alibi is well settled. In Bogere Moses & Another Vs. Uganda. SCCA No. I of 1997. this court held:

"Where the prosecution adduces, evidence showing that the accused person was at the scene of crime, and the defense not only denies it but also adduces evidence showing that the accused person was elsewhere at the material time, it is incumbent on the court to evaluate both versions judicially give reasons why one and not the other version is accepted. It is a misdirection to sccept the one version and then hold that because of that acceptance per se the other version is unsustainable. In the instance case, we have found it very difficult in avoid the conclusion that the learned trial judge considered and accepted the prosecution evidence alone, and then rejected the defense summarily simply because he had accepted the prosecution evidence".

Atler considering the reasons upon which the leamed trial Judge rejected the appellant's defense of alibi. the leamed Justices oflthe Court of Appeal lirund that the defence of alibi was disproved when the appellant was put at the scene of crime according to the evidence on record.

The learned Justices of thc Court of Appeal stated in their judgment as tbllows: -

"ln his testimony the accused told court lhat on the nighl of the incident he was watching Bukedde TV, before going to collect water in the tank with his wife around Il: 00 pm. He recalled all the programs on that TV in fine detail. However, when asked about the TV in cross examination he said it was not his practice to walch Bukedde TV. When llrc same question was put lo him in reexamination he confirmed thal il wos not his proctice to watch Bukedde TV, but he watched it on that day. He rold court in cross examination that he told police that he had been watching Bukedde TV but he does not know whether lhey recorded it. Bul his plain slatement which was recorded after the death of the deceased was tendered as DE2, and his charge and caution statement is DE3. That defense is not re.flecled in any of his 2 stalements-

In DE3 he stated that he had been told about the ollegation that he poured acid on the deceased much earlier while in the hospital on the morning of I 5/2/201 5 before the deceased's death and be.fore his (accused's) arrest. However, his slolements do not menlion thal ot around the material lime he was watching Bukedde TV, yel il wss obvious thal his v,hereabouts and what he was doing on the material evening/night were very importanl if he was to defend himself of the allegations of murder. He confrmed lhe slatements lrue and correct even in court at lhe time they were tendered.

Since he confirmed lhe correctness of whot he had slaled in lhe statements the accused musl have told courl lies that he told police that he had been wotching Bukedde TV. The police olficer who recorded his statement testified as PllS but he tras never cross examined on it. It is my conviction that if the accused had been watching Bukedde TVfrom 8:00 pm until I l:00 o'clock news he would have stated so in his statements. That defense musl have been an afterthought aimed al supporting his alibi to exonerote himself, Although his wife Dll4 stated in her statement that she had been watching TV with the accused, her statement was recorded later afrer she had had time lo fabricote that defense, which is a lie.

The accused told court in his testimony lhal after watching the news on Bukedde TV al I l;00 pm he went outside to collecl water into the tank with his w ife until 3:00 am when they retired to bed. However, even that accotmt of his activities and whereabouts on the night of the incident is not in any of his stalements. In his slatements he only slated that he was al home throughout the day, and he managed to explain several possible causes/molives for the deceased's murder. Il is not believable that the accused could remember to mention all possible motives for the mwder of the deceased in his slotement, bul forgot to disclose the two very imporrant activities of watching Bukedde TV and collecting water into the tank, which constitute his alibi, yet he knew that he was o suspect in that murder. My conclusion is that he never participated in any ofthose activities, and they came up as an afterthought later, for the sole purPose of exonerating himself I therefore reject the accused's evidence lhat on the night/evening of the incident he was at his home watching TV, and collecting water in the tank. "

From the above passage. it was clear that the leamed trial Judge did not just reject the appellant's defense of alibi without evaluating it first. The trial Judge considered both the prosecution's case and the appellant's accounts of alibi, the trial Judge satisfied with the prosecution's case that the appellant was at the scene of crime at the rraterial time hence the rejection of the defense of alibi.

An alibl can be discredited either by:

- (i) Prosecution evidence which squarely places an accused at the scene ofthe crime or - (ii) Prosecution evidence which directly negates or counteracts the accused's testimony that he was in a particular place other than at the scene of the crime. This can be proved by the proseculion presenting witnesses to testiry that they were at the particular place where the accused says he was but he was not present

in the said place. The alibi can also be discredited when witnesses who testify in support of the accused having been in a place other than the scene of the crime are rendered untruthful. See Kazarwa Henry Vs. Uganda, (Supra).

We are satisfied that both the trial Court and the Court of Appeal evaluated and reevaluated respectively the evidence on record as a whole and rightly found that the prosecution's case had proved its case beyond reasonable doubt that the appellant committed the offence as charged. We therefore find no reason to fault the lower Courts in performing their duties. Ground two also fails.

In the result, both grounds of this appeal have failed. We find the appeal with no merit. The appeal is accordingly dismissed. We uphold the decision of the Court of Appeal and the appellant should continue serving his sentence as upheld by the Court of Appeal and confirmed by this Court. So we order.

Dated at Kampala this $\mathcal{L}$ day of $\mathcal{L}$ 2023.

Cen, Owiny-Dollo

**Chief Justice**

Olmender **Mwondha**

In isatemine.

Tibatemwa-Ekirikubinza **Justice of the Supreme Court**

**Justice of the Supreme Court**

Tuhaise **Justice of the Supreme Court**

Chibita

Chibita Justice of the Supreme Court The juvelogment destinated as de by the Hou jushers 14 Has loger 6/9/628.

as dinserved