Tindigwihura v Uganda (Criminal Appeal 9 of 1987) [1990] UGSC 19 (8 January 1990)

IN THE SUPREMB-CoOrT OF UGANDA

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AND **PLATT** juimNDO d.c\<sup>i</sup>., oder j.s.<sup>c</sup>

»/ \*S£kXnal appeal no. 9 of 1987

BETWEEN

TINDIGWIHURA MBAHE- APPELLANT

'AND

UGANDA RESPONDENT

(Appeal from the -judgement and conviction of the High Court of Uganda at Hoima (HON.' MRS. Ag. Justice L. E. M. Mukasa-Kikcnyogo) on JOth April, 1987\*

CriminalSe\$gjor) Case Not^57,of 1987\*

JUDGEMENT €t? THE COURT

The Appellant was convicted of murder and sentenced to death by the High Cour-t sitting in ApX'U^ He has appealed against the conviction.

The Appellant lived for several years with Teopista Ndihambusa (PW2), a sister of the deceased, as husband and wife and had two children with her. The family lived in Teopista\*s house built on the deceased's land and which was only about 200 yards from the house of the deceased. On Christmas Eve 198^, as was normal practice every year, the deceased invited his sister, Teopista *\*(PW2) at about 7.00 p.m. and gave her goat meat. She took the meat home. Shortly **thereafter she had a fight with the Appeallant at their house# The former raised alarms which were responded to by the deeeaaed, his** Another the alarms but they were not called as witnesses. When the deceased arrived there, he entered his sister's house, intending to talk to the couple, to find out the cause of the fight. Teopista and the daughter Seforoza Mande (PW£) and son Joseph Irymba 4PW\$)• daughter Beatrice Nyamahuge and son Francis Mugish also answbred

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Appellant were then inside the house the former trying to light a candle to provide light# The deceased cried out that the Appellant hhd stabbed him as the latter ran out of the house# He sustained severe cut wounds on the abdomen and died at his home at 7.00 a.m. the following morning. The Appeallant disappeared from the village 29/12/1984<sup>t</sup> where he was arrested and charged with the present offence# and gave himself up at hoima police Station on

the body of the deceased on 28/12/5984. Externally he found a large stab wouM on the right side of the abdomen and small and large intestines protruding out through that wound; internally there was damage of the large vessels of the large vessels of the abdomen, oarta and interior vanacava ( a large vein that takes blood from the lower part of the body to the right of the heart). These were severe cuts and could have been caused by Considering the nature of the cuts and the internal injuries of those soft tissues, any force could have caused them, The injuries, consisting of penetrating woadtds leading to the vessels at the back of the abdomen, were very severe• Cause of death was bleeding massively from those vessels. It was contended by the defence at the Appellant's trial that the deceased died due to negligence by his relatives because they did not take him to the hospital for medical treatment. The learned Trial Judge, rightly in our view, rejected that contention and found that his death was unlawfully caused in accordance with the provisions of section 189 (b) of the Penal Code. On the basis of the medical evidence from Nkwenge we are satisfied that the deceased died at the a sharp weapon or implement, anything like a knife, spear, or panga. Dr. Aston Nkwenge (PV/4) performed a post mortem examination on

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hands of inflicted the injuries described by the doctor\*

The case against the Appellant was based on partly direct and partly evidence circum&tantials depending as it did on the evidence of Teopista (PV/2) , Soforoza (PWJ), Joseph (PW5)• There were also the dying declarations which the deceased was alleged to have made to various witnesses before he died. We agree with Mr. Nkurunziza, learned Counsel for the Appellant, that the learned Trial Judge properly directed herself and the Assessors on the law regarding circumstantial evidence in accordance with the principles stated in the cases of R. V. Mwango (1956) EACA 29; Simon Musoke V R (1958 EA 715; Yowana Serwadda V Uganda UCA Cr. App. No. 11/77; and Amj-<sup>S</sup>A Dhatemwa alias Waibi V. Uganda (19?8) UCA Judgements part Briefly the law is thatcircumstantial evidence must be kind can easily be fabricated. It is therefore necessary before drawing an infrerence of the accused's guild from circumstantial which would weaken or destroy the inference. It is the learned Trial Judge's finding of facts in this regard that is criticised in ground one of this appeal, which is that she erred in finding that the death of the deceased was caused by the Appeallant. Arguing this gi'ound Mr. Nkurunziza referred to what he said were conflicts in material particulars between the evidence of Teopista (PW2) and that of other witnesses namely Seforoza (PW?) and Joseph (PV/5) . For reasons of such conflicts, therefore, the learned Trial Judge ought not to have the basis for finding that nobody else but the appellant stabbed the deceased. The evidence of Teopista, so far as it is relevant to the learned Counsel's Vi treated with caution and narrowly examined because evidence of this relied on the evidence of Teopista (PW2) as arguments here, is that on the evening in question, she was at her

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part of the season's festivities. The Appellant, how ever, opposed her intention to go to the deceased and she did not go. He started beating her and the child whom the deceased had sent to call her raised an alarm, which the deceased and his other children answered. Teopista explained to him the cause of the fight. By then the Appellant was inside the house. The deceased that he would see the Appellant when talking to him. When she was trying to light a candle, the deceased went and stood by the door leading to the bedroom. **At** that moment she saw the Appellant come out of the bedroom, finding the deceased standing at the door. The Appellant got hold of both hands of the deceased and asked him tohat he wanted. She then about *V/z* to 2 yards away from the deceased. The deceased did not answer to the Appelant\* s question but instead cried out that ''TindigwihuraII has finished me". She did not see the Appellant stab the deceased, but soon after the deceased had cried out the Appellant ran away and was not seen again that night. Teopista did not notice whether the Appellant was armed with a knife light in the room was dim. After the deceased had cried out she notice a wound on his abdomen and intestines were exposed. supper as or any other weapon because fire asked her to light a candle so home when at about 7-00 p.m. the deceased sent for her to have

The decesed's children who followed the deceased to Teopista1s house found the deceased already injured. Seforoza (PV/J) testified that at about 7\*00 p.m. she heard Teopista making an alarm, saying that she and the Appellant were fighting. She (PV/J) was then at her own house 100 yards away. Herself, father, (The deceased) brothers and sisters responded to the alarm, separated Teopista (PV/2) and the Appellant, and returned home. Thereafter she heard another

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alarm by Teopista (PW2), to which they responded. When she arrived on this occasion, she found the deceased calling .'-inside the house with the Appellant. The deceased then asked Teopista why they were fighting. He moved that he could settle their problems. Teopista started lighting the fire. Seforoza (PWJ) was then about six yards from the house. Before Teopista lit the fire, the deceased entered the house, and the Appellant asked Immediately the deceased cried out <sup>H</sup> Tindigwihura has already stabbed me'". Soforoza (PWJ) did not see the Appellant stab the deceased. Before she entered to find out what had happened to the deceased she met the Appellant running out of the house, apparently not carrying any weapon. The Appellant stabbed Beatrice Nyamahuge on the right arm as he ran out. The decease was subsequently carried to his house where Seforoza (PWJ) noticed a cut wound on the stomach- The deceased spoke to her the•Appellant. Joseph (PW5) also testified that there fight between Teopista and the Appellant after stopping which lie and his brothers and sisters returned home. After a short time and before supper there was another fight. When he responded to Teopista'<sup>s</sup> second alarm he found that the deceased hhd already been injured on the abdomen, his intestines protuding out. The Deceased informed him and the Appellant, the latter stabbed him. was a first Teopista (PW2) while he was (PW5) that while he was standing inside trying to recouncilo Teopista towards the door and asked Teopista to light fire so before he died, saying that he had been stabbed on the abdomen by him "What do you want?"

There were indeed, several apparent discrepancies or conflicts in the evidence of these witnesses. For example thenumber of fights Teopista (PW2) and the Appellant had that evening. While Teopista'<sup>s</sup> evidence mentioned only one fight, Seforeoza (PWJ) and Joseph (PW5) said that they responded to two fights. The silence in Teopista's

evidence on whether there were two fights does not, in our view, point to any conflict in this regard\* She does not appear to have been asked during her testimony whether there were two lights It is clear from the record that her evidence fouusod only on the cne incident which preceded the death of her brother. In view of the fact that fights between her and the appellant were common it was not surprising if this one important incident ever apparently was not done. or one. shadowed all others, unless her attention was drawn to them which

The second apparent discrepancy was about the words spoken by the deceased in his dying declaration. According to Teopista (PW2) he said, "He has finished me! **it** or But Sefcroza (PWJ) said that the words were "Tindigwihura has already Joseph (\*PW5) did not render the exact words the decesed said to him, but gave the declaration in a reported form. Peter Eribankya, the Mutongole Chief (PW6) testified that the deceased told him "1 am telling you as a Chief. I have been killed by Tindigwihura'". Teopista was not apparently asked in cross-examination to explain her two versions of the dying declaration, Nor were Seforoza (PW?), Joseph (PW5) , and peter (PV/6) ehallanged in cross examination about their respective version and of the dying declaration as against the versions of the other witnesses. Further the learned defence counsel at the trial did not apparently see it fit to take up this point in his address to the Court. The Appellant cannot therefore be heard to complain that there were dicre\*ancies in the prosecution evidence about the dying declaration. Above all, as the learned Trial Judge said about this and other apparent 'di crepancies, they were minor and did not point to deliberate untruthfulness on the part of Teopista (PVJ2) and other witnesses. stabbed me!1' "Tindigwihura has finished mo!"

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Regarding the apparent discrepancies the learned trial Judge had a correct approach when in her judgement she said;

> ''The general approach to inconsistencies and contradiction teis that where the court finds them grave unless resolved the evidence must be rejected. If they are min or they would not normally have that effect except whex-c they are found to be pointing to a deliberate lie. See; Alfred Tajar V Uganda EACA Cr. Apr\* No. 69 of 19^9\* Uganda V Bikamikire and Another C. S. C No. 6j of 1979 (1972) HCB} 144. In the instant case in my view the inconsistencies and the contradictions complained of do not go tc tne root of the prosecution evidence. They are minor. I find the evidence of the prosecution witnesses to be basically true. It is very rare fore more than one witness to give exactly the same account of an event especially where there is lapse of time. It is now coming to 21/s years since the incident occurred, it is unreasonable not tc expect discrepancies in the evidence".

He submitted that since no knofe was seen with the appellant or at the scene of the incident, nor produced in court, evidence that the Appellant used to knife and that the knife disappeared after the incident shoud not have been regarded as corroboration of the evidence that the deceased had been stabbed with a knife by the Appellant. According to the evidence which was accepted by the learned trial Judge, the injuries which caused the deceased's death were consistent with the use of a sharp weapon such as a knife, knife in his pocket and keep it in their bedroom. The knife was about 7 inches to 10 inches long. The wife of the Appellant, Teopista (PV/2) did not see the knife again after the incident. V.'hen the deccaoed arrived at Teopista's house that fateful evening, the Appellant who was beating Teopist with his bare hands stopped doing so and entered their bedroom. When he emerged therefrom five minutes later he asked the and as he released them the deceased had a large out wound in his abdomen. , Hr. Nkurunziza mext criticised what the learned trial Judge found to be corroborative evidence of Teopista's evidence. own a The Appellant used to carry a deceased what he wanted, got hold of both his (th deceased's) hrzls

- 7 - Taken together, we find that these were pieces of circumstantial evidence leading inevitably to the irresistable inference that the appallant stabbed the deceased with his (appellant's) knife which he used to keep in the bedroom, although the knife was not seen with him at the material time. There were only three adult persons in Teopista's house at the material time.. There is no evidence to suggest that any body else could have emerge out of the blue and stabbed the deceased. We accept the learned trial Judge's conclusion that although the light in the fire place was dim the circumstances were such that Teopist could not have been mistaken about the Appellant's voice which she must have known very well. The learned trial Judge did, refer to the alleged stabbing of Beatrice Nyamahunge as evidence connecting the appellant with stabbing the deceased. called as a witness. Evidence from Seforoza (PWJ) and Joseph (PW5) that she was stabbed was not supported. In the light of other of justice. available evidence, we do not think such an error caused a failure This was an error, because Beatrice was not

Mr. Mkurunziza also criticised the learned trial Judge for finding that the evidence of Seforoza (PWJ) and Joseph Irumba (PW5) corroborated the evidence of Teopist (PW2)• This criticism is correct only so far as the evidence of Joseph (PV75) is concerned, he having arrived at the scene after the deceased had already been stabbed. the ocher hand was different. She was only six yards from the house when she heard the Appellant ask the deceased what he wanted and the deceased cry out that the appellant had stabbed him. The Appellant met her at the door as he ran out. We find, therefore, that her evidence corroborated that of Teopist (P©2). Seforoza1s evidence on

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Mr. Nkurunziza further criticised the learned trial Jud3© for having accepted the dying declaration of the deceased as corroborative of theer prosecution evidence. In the learned counsel's view, the deceased might have been injured during the attack which the appellant him(the appellant) during the fateful evening. The deceased might have mistaken the appellant for the real persons who actually injured him. V/e find no merit in his criticism. In our view the learned trial Judge properly directed herself and the assessors on the law concerning dying declarations which briefly is that evidence of dying declaration must be received with caution because the test of cross examination may be wholly wanting; and the particulars of the violence may have occurred under circumstances of confusion and surprise; the deceased may have stated his inferences from facts concerning which he may have oihmitted important particulars, for not having his attention called to them. Particular caution must be exercised when an attack takes place in darkness when identification of the assailant is usually, more difficult that in daylight. The fact that the deceased told different persons that the appellant was the assailant's is evidence of the consistency of his belief that such was the case; it is no 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 speaking, very unsafe to base declaration of a deeeased person, made in the absence of the accused and not subject to cross examination unless there is satisfactory corroboration: See okethi Qkale and Others V Republic (196.5)aA 555 said in his testimony was made on a conviction solely on the dying

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In the instant case available evidence supported the learned trial Judgefcs finding of facts that the appellant was well known to the deceased• The appellant had lived with the deceased's sister as The deceased made the declaration in the presence of Teopista (P«2) immediately after the assualt on him and repeated it to his children Seforoza (PW3) and Joseph Irumba (PW5). The following morning he repeated it to the Mutongole Chief (PW6) when he (the deceased) was still able to talk sensibly. number of witnesses was evidence of the consistency of his belief that it was the appellant who attacked him. The learned trial Judge mistaken as to the appellant's identification as his assailant. in the circumstances we are satisfied that the learned trial JucV.e properly relied on the deceased's dying declaration as pointing to the appellant as his assailant, particularly as it was corroborated by the evidence of Teopista (PW2)• and Tomasi Qmukon & Another V Uganda CAU (1973) Judgements part I 105\* Repitition of the dying declaration to a his wife on the deceased's land for over five years. also found, as he was entitled to do, that the deceased was not

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Finally under ground one the learned counsel attacked the learned trial Judge's rejection of the appellant's explanation of the events. He submitted that the appellant's version of events was plausible and indicatied that the circumstances in which the deceased met his death were capable of other explanation, especially as the appellant was not liked by the family of deceased• The appellant's version breifly was that Teopist-\*. (1W?-) long time at her brother's (deceases) home. On her return, he asked her why she- had delayed. She resented it, saying that she did not want to be bossed. She pushed him (the appellant) and made alarms. Joseph Irumba He, was carrying a pectie. went and delayed for a

the appellant went to sleep in his bed, leaving Teopista cooking. At about 10.00p.m. he heard the deceased saying that a candle should be brought to enable him see the appellant who was always proud. He then felt a blow inflicted on his thighs and sat up on the bed. The first was followed by two more blows. He cried out to Teopista, asking who was killing him. There was a lot of struggle• Olt was dark; he did not know who were assualting him or what weapons they used, one of which was used to pierce his left shoulder; He got out of his bed and ran away. After reviewing t.\*« the appellant's evidence, the learned trial Judge rejected his version and found that he was not attacked or threatened and injured during the incident. The learned trial Judge was entitled to reach such conclusions on the evidence, and we cannot say that ho was wrong The version of events given by the appellant in his testimony may have been possible, but the learned trial Judge found that it was net compatible with his innocence. It must also be borne in mind that that appellant's version was never put to the prosecution witnesses.

The next two grounds of appeal were that;

- 2. Thd learned trial Judge erred in failing to give to the appellant the benefit of the doubt raised by the appellant's defence. - 3. The learned trial Judge erred in shifting the burden of proof from the posecution to the appellant.

Mr. Nkurunziza, rightly so in our view, abandoned ground three. In ground two he submitted that the learned trial judge erred in finding that the appellant's story that he was attacked by unknown people was made up. The error arouse because the learned trial Judge appears to have understood the appellant as having said was not the case. The appellant's evidence was that he did not that he was attacked by Joseph Irurnba (PW5) with a pestle, ;.'iiich

see the weapon used on him. The passage of the learned trial Judge's judgement against which Mr. Mkurunziza complained rur.ds as follows;-

> ''The first corroborative piece of evidence is the knife apparently used in the assualt; and the injuries sustained by the deceased. Assuming that the story (PW5), Irumba, went to the scene arrived with a pestle, which story is, of course a concoction, the type of injuries sustained by the deceased and which caused his death were consistent with the use of a sharp weapon like a knife or spear of Panga and not a pestle 'which is a blunt weapon".

As we understand it the learned trial Judge was here considering what weapon injured the deceased, not what weapon injured the appeallant. In his evidence the appellant did not suggest what weapon injured the deceased, but one of the inferences which could be gathered from his version of events as he told it was that the deceased was injured in a pestle, could have been possibly used. He said this; the attack which was made on him, and the only weapon he mentioned,

> "As it was dark I felt a blow inflicted on my thighs, I got up sat on the bed. Then another was inflicted on the right arm. It was dark I did not know who had hit me but the deceased must have been present".

Later on he said;

told that Topi'<sup>s</sup> person who was attacked ''When I returned to my aunt's I was where I had run from there was a and had eventually died".

find that the flearned counsel's critism of the learned trial judge in this regard is not justified. ln the circumstances we

We are satisfied that in this case the learned trial Judge, in a careful judgement, evaluated the prosecution and defence evidence the appellant. There was ovcrshelming evidence against the appellant. His conviction was therefore justified. as a whole, properly directed herself and the assessors and convicted

In the result, we have nodoubt that this appeal must fail, and is accordingly dismissed.

DATED AT Mengo this .... $\overset{\text{8th}}{\ldots}$ ....... day of $\overset{\text{7}}{\text{J}}_{\text{anudry}}$ , 1990.

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S. T. MANYINDO DEPUTY CHIEF JUSTICE

**.** . . . . . . . . . . . . . . . . . . A. H. O. ODER JUSTICE OF THE SUPREME COURT

. . . . . . . . . . . . . . . . . . . H. E. PLATT JUSTICE OF THE SUFREME COURT.

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I certify that this is a true copy of the original.

$\cdots$ B. W. J. BABIGUMIRA RAMISTRAR SUPREME COURT

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