Tibagwa v Regina (Criminal Appeal No. 223 of 1952) [1952] EACA 268 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and SIR HECTOR HEARNE, C. J. (Kenya)

> KASAJA s/o TIBAGWA, Appellant (Original Accused) . v.

> > REGINA, Respondent (Original Prosecutrix) Criminal Appeal No. 223 of 1952

(Appeal from the decision of H. M. High Court of Uganda—Pearson, J.) -Murder—Circumstantial evidence—Reasonable doubt.

The appellant was convicted of murder before the High Court of Uganda. It was proved that a spear found lying near the deceased's body belonged to the appellant and that he did not answer the alarm raised in the village shortly after the murder was discovered. No evidence of arrest was given.

*Held* (10-12-52).—The evidence implicating the accused was not sufficient to establish guilt beyond reasonable doubt.

Appeal allowed.

Appellant served, absent.

Starforth, Crown Counsel (Uganda), for Crown.

JUDGMENT.—This is an appeal from a conviction of murder by the High Court of Uganda. The case against the appellant rested entirely on circumstantial evidence. It was proved to the satisfaction of the learned trial Judge that a spear found lying near the body of the deceased belonged to the appellant and that he did not answer the alarm raised in the village shortly after the murder was discovered. This is the sum total of the evidence implicating the appellant and the question for this Court is whether these two factors provide a sufficient basis for the conviction of whether this case must be regarded as coming into the category of those where although suspicion may strongly point to the accused the quantum of evidence is not enough to establish guilt beyond reasonable doubt. The appellant neither gave nor made a statement at his trial other than saying that he did not wish to add anything to his former statements. In his statement to the police when charged, he denied killing anyone and said that he had been accused solely because he had not gone to the scene of the killing. To the committing Magistrate he repeated his denial that he had killed anyone and gave as his reason for not answering the alarm the fact that he was too intoxicated to do so. He said that he had been told about the killing on the following afternoon when he was at another village drinking with a friend and that on learning that his two children had been taken to Mubenda Police Station for inquiries he himself proceeded to Mubenda, meeting the police van on the way. With respect to the learned Judge it is a defect in his judgment that in his consideration of the appellant's statements he makes no mention of this part of the second statement which if true, indicates that the appellant instead of absconding went himself to the police on his own volition. We have no means of testing its truth but we do observe, that there is nothing in the evidence of the police witnesses which negatives it. As is so often the case in prosecutions conducted in Uganda the quality of the police evidence leaves much to be desired. There could have been, and should have been, evidence of the appellant's arrest; if he was arrested; or of his voluntary arrival at the police station, if that indeed is what occurred. There is none whatsoever. It is really astonishing that the prosecution neglected to produce this evidence. The indictment alleged that the deceased was killed on or about the 1st June. On that day the police visited the village and found the dead body of the deceased lying where he had been speared. The appellant's house was visited but he was not in it. The appellant was not charged with the murder until 25th June; when a statement was taken from him at Mubende Police Station. Where was the appellant between the 1st June and the 25th? Did he appear voluntarily at the police station on the 2nd or 3rd as his statement to the committing Magistrate suggests? If so, was he then arrested or allowed to go away? These questions cannot be answered because of the lacunae in the police evidence. On this state of the evidence we cannot exclude the possibility that the appellant himself voluntarily went to the police at Mubende to find out what was against him, and to note that this possibility which if true, is strongly in the appellant's favour, was entirely overlooked by the learned Judge.

We now come to the evidence as to the spear. It should be noted that the appellant did not deny that the spear produced at the trial was his, although in his memorandum of appeal he has criticised the evidence as to its identification.

Since it was proved that the deceased died from a spear wound, the learned Judge thought that the presumption was a strong one that the spear found near the body by the police on the morning following the crime was the weapon used by the deceased's assailant. We do not quarrel with this but we should feel more content had the learned Judge noted that the prosecution had failed to prove $(a)$ that the weapon when found had traces of blood on it, and $(b)$ that on expert examination there were stains on the blade of the spear which were found positive for human blood by a serological test. It matters not that we know from our study of the record of the preliminary investigation that such evidence was in fact available to the prosecution. For what reason we know not it was not led at the trial. It may be that prosecuting counsel realized that he was not in a position to prove that the spear referred to in the Government pathologist's report was in fact the spear found by the deceased's body. Certainly we cannot find clear evidence of this in the depositions taken from the police officers by the committing Magistrate. Again we are bound to point out that the absence of this evidence reflects greatly on the efficiency of the police investigation in this case. When an exhibit is taken from the scene of a crime and sent to a Government pathologist for examination, evidence must always be called to show clearly how it reaches that official and through what hands it passes on route. Otherwise the time spent in the examination of and the report on the exhibit is entirely wasted.

We are left then in the present case with this fact that a spear belonging to the appellant was found some hours after the commission of the crime lying by the deceased. We have said that we do not quarrel with the Judge's view that this *a priori* raises a presumption that it is most likely that the spear found was the spear used by the assailant but we cannot go so far as the learned Judge did and conclude also that the presumption is also a strong one that the owner of the spear must have been a slayer. A weapon may be taken from an innocent owner and used by another to commit a crime. We do not suppose that the trial Judge would have convicted on this presumption alone had he not inferred guilt from the appellant's failure to answer the alarm. The trial Judge is a Judge who has had long experience in Uganda and we do not blame him for taking judicial notice of the fact that it is the duty of all villagers to turn out on the sounding of an alarm and that not to do so is regarded as culpable. What we think he overlooked, however, is this, that again the prosecution failed to prove certain most material facts—what was the distance from the spot where the deceased was speared to the appellant's house? Beyond the fact that the appellant lived in the same village, there is no evidence. The African police sergeant who visited the scene on 1st June and went to the appellant's house could have answered this question, but he did not, or if he did, the Judge did not record it. We do not know then how far away from the alarm the appellant's house lay, it might have been ten yards, a 100 yards, a mile or even farther. On this state of the evidence then, we are not prepared to assume as the trial Judge apparently did, that the appellant heard the alarm and because of his guilty mind deliberately. ignored it. The appellant has said that he did not go because he was at his house drunk. This may be untrue but we cannot regard this explanation as so inherently improbable, that in the absence of evidence pointing to its falsity, it can be safely rejected. It is true, as the Judge has pointed out that the defence witness Auguste. does not establish that the appellant became intoxicated drinking with him, but this witness did at least corroborate that part of the appellant's statement to the Magistrate when he said that at about 2 p.m. he went to Auguste's house and drank beer there.

In our opinion then, the twin props of the prosecution cast, the spear and the failure to answer the alarm turn out to be, on analysis, too fragile to support the conviction in the absence of other evidence. A strong motive might have swung the balance the other way, but as the learned Judge most correctly pointed out, on the issue of motive, the evidence would suggest that the deceased's family had more reason to be suspicious of the appellant than for him to be annoyed with the deceased. There was no direct evidence that they had ever quarrelled. On the night of the crime the deceased had attended a beer party and left it late in the evening. Every Judge with any experience in these Territories knows that at such parties quarrels over trifles frequently break out and often end in tragedy. Had the appellant attended that beer party the fact that he had not quarrelled previously with the deceased might have little significance but he was not at the party. The evidence is quite clear on this point.

For the above reasons then we have come to the conclusion that it will be unsafe to allow this conviction to stand. The appellant may well be the guilty man and had more care been taken with both the investigation and the prosecution, his guilt might have been proved. As it is, we consider that the learned Judge did not adequately appreciate the infirmities in the Crown evidence and assumed too readily inferences against the appellant, which on examination, cannot be said to have a sufficiently solid basis to establish his guilt beyond reasonable doubt. We accordingly quash his conviction of murder, set aside the sentence of death passed on him, and order that he be released forthwith.

G. P. K. $949 - 650 - 4/53$