Uganda v Tindarwesire & Another (Criminal Session Case 87 of 1991) [1992] UGHC 68 (21 January 1992)

Full Case Text

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA HOLDEN\* AT KABALE CRIMINAL SESSION CASE NO. 8? OF 1991.

UGANDA PROSECUTOR, VERSUS

I. MEDADI TINDARWESIRE { ==========m====================== ACCUSED. 2. WILLIAM GURIKACHA J

BEFORE:- THE HONOURABLE MR. JUSTICE J. W. N. TSEKOOKO:

## JUDGMENT:

Medadi Tindarwesire and William Gurikacha (hereinafter referred to as Al and A2 respectively) are jointly indicted for the offence of murder c/s 183 of the Penal Code Act.

The particulars of offence allege that the two accused persons and others still at large on or about 20th December, 1988 at Kasherero, Kaharo, Ndorwa in Kabale District murdered one Israel Rwabutoga.

During the preliminary hearing under Section 64 of TID,I971> the evidence of the doctor who performed the autopsy was admitted. The doctor, Dr. Biryabarema is PWI for convenience. His evidence shows that the deceased sustained deep cut wounds all over the scalp, deep cut wounds and fractures of both arms and both legs.

The five witnesses who gave oral evidence for the prosecution are Keduresi Rwabutoga (wife of the deceased) (PW2); Hope Night Jackline (daughter of the deceased)(PW3)• Mwesigwa Justus (son of the deceased)(PW1), RA NO.35522 Sgt. Baryaguma Michael (son of the deceased)(PW5), and Allan Turasingwire (daughterin-law of the deceased) PW6.

Both accused persons testified on oath. No other witness testified on behalf of Al. While Everine Tukaheirwo (wife of A2) testified as DWI^ On behalf of A2.

The death of the deceased on 20th December, 1988 is not disputed. Nor is it disputed that the killing took place during day time in the morning.

Another matter upon which the prosecution and the defence testified in agreement is that there existed a land dispute between the deceased and one Rwantare. That Rwantare is the father of A2 and clan relative of Al. The deceased appears to here won the land dispute somehow\* There is clear evidence that the deceased had the land in dispute handed to him on 19th December, 1983 most probably by a court broker who was accompanied by policemen alone or with military men some of whom were armed. It is the prosecution case that the deceased was killed because of the land dispute.

As submitted by Mr. Zagyenda, learned counsel for the accused persons and accepted by Mr. Kikomeko, the learned Resident State Attorney, the most important aspect of this ca e is the identity of the killers of the deceased. According to the prosecutions case the eye witnesses to the killing are PW2 and PVJJ. Both accused persons set up the defence of alibi, that is that they were not present out at the scene when the deceased was killed. It should be pointecy that by setting up alibis, neither of them thereby assumed the burden of proving the truth of the alibi.

In her testimony PW2 stated that a court broker and two policemen handed land to the deceased on 19th December, 1988. The/^arriid out the handing over between 10.00 a.m and 2.00 p.m when they left. A2 substantially supports this point. At 5\*00 p.m "the two accused persons together with other persons attacked the homestead of the deceased and destroyed property and houses. It is not very clear but PW2 appears to suggest that she and PW3 fled home on 19th December, 1988 at some stage during the attack. According to hur Rusasana was arrested and taken to road block by the court broker. The same court broker and policemen had removed a door from Rusasana's house during the exorcise. (Rusasana is a senior son of Rwantare). According to PVJ2 the house of A2 was neither damaged on 19th December, 1988 nor on any other day.

PW2's evidence is some what mixed up-for 19/12/1988 and for 20/12/1983 but in her testimony she generally states that the accused together with others returned to the scene on 20th December,1908.

(The mixup relates to the order of the occurrence of events). 20/12/88 is the day she claims to have seen the two accused persons and many other persons kill the deceased in his house. First she said Karyeija hit the deceased with a big stick in the ribs. During cross-examination she testified and insisted that actually deceased was hit with a stone before he was pulled by the two accused to the door way where he was cut to death by the accused persons and other persons some of whom she named. She maintained that the killing was due to land because the attack followed land hand over.

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She emphatically denied destruction of A2's house oth?r than removal of doors from Husasana's house.

PW3 testified that the first attack took place on 19th December, 1989 and that the next attack and the killing of the deceased occurred on 20th December, 1989. It is obvious from the evidence of PW2, PWs and 6 and the evidence of A2 and Dvil that the year is 1988.

The version of the story of the events on both dates as given by PW3 differs in certain aspects from the version given by PW2. I shall deal with aspects of defferences later in this judgment. However PVI3 supports PW2 about the land hand over on 19th December, and the time of the attack on the same day as being about 5.00 p.m. According to her the attack was launched by the throwing of stones onto house/2n the homestead which were damaged in the process as the homestead was under seige. The looting of property and destruction of houses went on till 2.00 a.m. It is not clear whether she was in the house where the crusading attack forced her into finally. On the instructions of the deceased and before the attack of 20th December, she checked and realised that no property had been left. At about 7-00 a.m on 20th December, 1988 the two accused and many other people attacked and started demolishing the house where she and the deceased had taken refuge. In the process her (PW3's) mother (irone Biragwire) was cut. Cut too, was Allen Tusingwire (PW6). She was very close to her further during those qruelling moments. According to her after the door and the walls of the house wall had been hit, apparently exposing deceased and PW3, Karyeija hit the deceased with a stone.

In conflict / '"'V'j?., PWJ claimed that the- stone hit the face/chtek of the deceased who fell down on his face.

.with Again in conflict/ PU2, PW3 stated that the 2 accused together with Karyeija and many named oth;r persons then either started stoning or wanted to stone and beat the deceased with pangas. Many people entered the house. Thereafter the two accused pulled the decease?\*, to the outside of the door of the house. The two accused and the others then each cut the deceased on different parts of the body. She had also been held and was saved from being cut by Baryayanga ''because a girl does not revenge1\*. Many people ran away from the scene\* The two accused ordered her to go away like the others.

PW4 testified that he returned home from a visit at about 5\*00 p.m on 19th December, 1938 and found thjir homestead apparently under seige. As the deceased was narrating the land hand over by court broker, he (PW4) saw the two accused armed with spears and pangas. There were other people he named. Behind his father's house were people throwing stones and some were destroying bananas by cutting the same. By then his mother's (Irene's) house had been demolished and the attackers were taking away mattresses. He therefore f ''nd into the hills being pursued by the attackers. He spent the night at ^abimbiri. His cut mother joined him late on 20th December,1988 after he had learnt of the killing of the deceased. He got Kabale Police who visited the scene at 4\*00 p.m on the same day.

PW5 reached home about 3.00 p.m. and saw the dead body of deceased with many cut wounds all over the- body. He together with PW4 and other brothers removed the body at about 4\*00 p.m. House had boon destroyed\* So were matooke plantations\* He saw dead cows. He took photographs thereof which were ruled inadmissible because .s of non compliance with Section 78 of the Trial On Indictment/Decree 1971 as amended. He wasn't cross-examined on his evidence\*

PH6, sister-in-law of PV-JS 4 and 5 mentioned the seigo of 19th December,1988 and subsequent stoning of houses. She claimel that by 10.00 p.m. she and ?W3 fled into the bush because of th.: continuing iostruction and mob actions, According to her she and PW3 returned to whsre ieceas-.d was on 20th D-jcember, 1988 at about 7.00 a.m and saw cut cattle.

A lot of property had been looted.

Then at about 9-00 a.m. there was fresh attack by very many people. Among people of the deceased's family who ware attacked were herself and her mother-inlaw. Both were cut. In cross-ecamination she emphasized she certainly saw A2 fact to face at the scon before she fled leaving the deceased and PW3 inside the house PW3 and PW6 defer on the time of the attack that morning.

The testimonies of PWS 2,3,4 and 6 show that the events of 19th December,198^ must have been gruelling and t^Sfifying. Equally the same 'was the case on the morning/20th December, 1938 as shown by the evidence of PW2, PW3 and PW6. This is clear not withstanding some conflicts within their evidence- Which conflicts I shall deal with later in this judgment.

The first accused in his testimony denied the offence stating that on 20th December, 1988 he was 20 miles away in ^amwezi at the home of Jane Mukacha where he had gone on 10th December, 1988 to cultivate for money. He returned home at noon on 26th December, 1988 and learnt of deceased's murder from his wife. At and 1.00 p.m. , he went to deceased's home where he allegedly found PW2/Ephraim a son of deceased among others and greeted them. Ephraim answered the greeting. PW2 did not. Ephraim in an unhappy mood told Al that Al's clans brother killed the deceased. Then PW2 addressed (either Al or the air) that " Those are the people who killed my husband". Defence counsel challenged this interpretation of her statement whereupon defence counsel, the Resident State Attorney and the two asse agreed that the effect of her statement could be that ''those are the people who caused misery by killing my husband". Al claimed to have told PW2's group." I had not been present when the incident happened". xle then returned home. I should here point out that this story about Al's visit to the home of the deceased and his address to PW2 and other members of deceased's family was not put to PW2 in any form during her cross-examination in the witness box. At that time the first accused did not see most of deceased's homestead on 26th December, 1988 since he had approached it from the front. But the fore-house where he allegedlly found PW2 had been partially damaged. Banana plantation had been cut, too.

Be that as it may, Al claimed that next Jay 2 police men in the company of two sons of the deceased arrested him after. Ngabirano, one of the two sons of the

"This is the one". By then the police had also arrested Baker Turyagyanda. After being charged he was remanded in prison where he found Turyasingura and Babigamba on same charge.

AI claimed his father was a blood friend of the deceased; so AI could not harm the deceased. He further testified that PW4 implicated him in the murder because in Jure 1988, AI had testified before villagers against PW4 because PW4 had attempted to rape a girl. In fact at first he claimed that PW1 had raped the girl. AI agreed PWS 2 and 3 had no problem with him before and that apart from PW2, the other witnesses had known him since childhood.

A2 in his testimony first gave/lineage of his clan and family. He denied the charge and raised an alibithat on 20th December, 1988 when deceased was murdered he was 5 miles away.

According to his testimony, on 19th December, 1988, at about 10.00 a.m. 8 policemen and army men together with 7 sons of the deceased and the deceased himself arrested Rusasana handcuffed him and gathered all the children and grand children of Mwantare in Rwantare's compound. They had demolished whole houses of Rwantare family and thrown out property. The deceased's group carried away peas, beans and sorghum from those houses. According to this accused, the military men allegedly fired towards his group because the group was running away from the place where the group had been gathered initially. It sounds strange that A2's group begun running away from where they had been gathered without explanation, I say so because if RCI Chairman, the Gombolola Chief and his askar plus other village mates were in attendance the meeting or the hand over of the land appears to have had all the necessary authority present. There must therefor have been more than what A2 has cared to tell court which precipitated the alleged running away by his clansman and family leading to shooting. In fact A2 stated tha his group was dispersing peacefully. So why shoot ?

Anyway A2 claimed he fled to Ibumba on 19th December, 1988 and never returned home till after 5 months (May, 1989) and the assurance by the District Administrate that the home was okey for them to settle.

At some stage A2 claimed that PVI2 and PW3 had implicated him in the murder of the deceased because they had seen him in the dock. A2 threreafter claimed that PW2 implicated him because she had in 1967 thrown stones at him while he was weeding his banana plantation. a2 further claimed that PW3 implicated him because she used to abuse him whenever she fount him and his oil father (Rwantare) cultivating the disputed land.

DWI supported her husband (A2) that on 20th December, 1938 she and A2 were ir. Ibumba away from the scene of crime. But she contradicted him about gathering in Rwantare's home on 19th December, 1988 the time when she fled the scene. She clai snooting took place at 11.00 a.m. whereas A2 sail this happjned at 2.00p.m. She testified that Rusasana was tied with banana fibres whereas A2 claimed he was hand cuffed. I shall revert to the evidence of this witness later on.

However the evidence of the prosecution and of A2 and DWI leaves no doubt in my mind that following the hand over of land to the deceased on 19th December, 1988, there was considerable tension on same day between family of Rwantare and of the deceased.

As Mr. Zagyenda rightly pointed out, under our Criminal Law the burden of proving the guilt of the accused is on the prosecution. This burden never shifts See the cases of O. Okale Vs. Republic (1965) EA 555 J Obar s/o Nyarongo Vs. R (1955) 22 EAGA 422 and Manyara s/o &alakoni Vs. R (1955) EACA 502. Mr. Zagyenda referred to R. Cross's Outlines of Law of Evidence (1964) page 33. The same pas is now on page 141 of 6th edition of Cross on Evidence.

It is also trite lav/ that in cases where accused persons, as in this case, raise alibi, the burden of proof of the guilt of the accused still remains throug /no ne out on the prosecution. As I said earlier / of the accused assumes any burden of proving the truth of the alibi: See L. Aniseth Vs. Rep.(l963) EA.206, Sekitolek Vs. Uganda (1967) EA-531; Uganda Vs. Sebyala (1969) EA 204. The burden is on the prosecution always See Woolmington Vs. D. P. P. (1935) A. C.462.

Learned defence counsel vigorously attacked the evidence of PW2, PW3 and PW4. He submitted that as the killing of the deceased took place during broad day light apparently in the presence of many people, the fact that only close relative

Counsel wondered whether the two accused were properly identified and whethe: there is no probability that the two are suspected as killers because they are relatives cf Rusasana, 'who had been arrested; learned counsel then pointed out th\* flaws in the evidence cf PV-JS 2,3 and 4 and submitted that prosecution evidence is suspect. In my considered view the passage from the judgment of Denning J.applies when all the evidence for prosecution and defence is fully evaluated and a final decision is being male by court.

For his part Mr. Kikomeko submitted on behalf of the prosecution that prosecution evidence placed the two accused at the scene of crime. That if it were true that the two accused are being prosecuted because of being relatives of Rwantare. Rusasana who had been arrested should also have been prosecuted. He further submitted that the evidence of PW2 and PW3 was accurate and contained no material contradictions and that any minor inconsistancios in this case are expected but they do not affect the evidence of the two witnesses about the identification of the two accused persons.

He further referred to the doctrine of common Intention and submitted that on the authority of the case of Ugania Vs. Wakhasa and 2 others, (1984) HCB 2% the two accused are associated with whatever was done at the home of the deceased. There would be no problem in the application of the doctrine of common intention here if the evidence proves that either or both accused participated in the killii

I directed the assessors on the issue of the burden of proof in a criminal trial.

I further directed them, as I now direct myself that the evidence of the prosecution particularly that of PW2, PW3, and PW6 during the attack and the killing of the deceased on 20th December, I988 must be carefully scrutinized. This is because the atmosphere must have been tense. There was a lot of terror all around as evidence by the destruction of hous^ and crops; the cutting of the deceased virtually all over his body, the cutting of mother of PVJ3; the cutting of PW6, the hiding of PW4« Terror and mob justice must have reigned supreme at the time of the killing.

I further directed the assessors as:- I now direct myself that while it is possible that the persons who beseigned the home steaded of the deceased on 19th December, 1986 may be- the seme or among those- who attacked the deceased, that that may net be\* what actually happened unless satisafied that the available evidence supports that conclusion\* Besides apart from PWj's evidence the evidence of PWS 2,3 and 6 loos not show that the accused persons were in the group that attacked homes of deceased on 19th December, 1988. PVi'4 did now witness the killing.

About conflicts in evidence of PW2 and PW3, there is in my considered view no substantial crucial difference between the story of PW2 and PVI3 about the events of 19th December, 1988 except for the lute which I have already dealt with. PVi2 obviously mixed the events of 19th December, 1983 and those of 20th December, 1988. PVJ2 mentioned the removal of the door of Rusasana's house which PW3 did not mention obviously because she was not asked about it. PW2 named the two accused along with other persons not before the court. DW3 named more people because she knew more and had stayed in village longer than PW2. From the evidence of these two witnesses, it is clear that PVI2 had observed the events of 19th December,1988 for a much longer time,i.e., since 10.00 a.m when she was at home, f.i her evidence it is not ^uite clear where PW3 spent the night. PW2 appears to suggest in her evidence-in-Chief that she and PW2 could not ran away from the houses because of the seige. It is PW6 who actually testified that she and PW3 fled into the bush at about lO. OO.p.m. and stayed there till morning. She further stated she and PW2, returned to the deceased at about 7.-00 a.m. In a way she contradicted PWS 2 and 3 when she stated that the attack on 20th December, 1988 started at about 9-00 a.m. But I don't consider the time when the attack on deceased started very material here. About 7«00 a.m. and 9-00 a.m to ordinary people is nearly the same time.

There was confusion- Time must be justan estimate as none of the witnesses says she had a watch or clock to go by. In cross-examination PW3 contended herself by saying that ''some members of our home fled the home and sp:nt the night in the bush."

As to staying in bush PW6 was not asked specifically abokt the whereabouts of PV'2. PW6 was asked specifically about the whereabouts of PW2 with reference to as to when the attack commenced on 20th December, 1988. PW6 stated she could not remember where PW2 was by then. Since PW6 stated that by 10.00 p.m on 19th December, 1983 when she fled it was dark, probably nobody would know exactly where the others were in the darkness. However PW2, PW3 and PW6 arc all agreed that as from about 5-00 p.m. the attack on the home stead caused them to move from place to place. In any case PW3 and PW6 do not implicate the accused persons about events of evening of 19th December, 1988. Even PW2 in/^ew appears to implicate them by mere inference. As I said she (PW2) narrated events of both dates. In all these circumstances the inconsistency or conflict is minor and is not in my view deliberate untruthfulness on the part of either PW2, or PW3 or PW6. In any case A2 suggests he was by the scene on 19th December, 1988. He (A2) was at Rwantare's home Perhaps at this stage it is proper that I point out that apart from the arrest of Rusasana, the removal of door from or alleged damage to Rusasana's house and alleged damage to houses or to A2's house, all the rest of the version of events given by A2 as having taken place during day time on 19th December, 1988 either at Rwantare's home or the entire homestead or at Rwabutoga's home were not put to Ph'2 nor to PW3 nor to PW6 when each of them was being cross-examined by defence counsel. Obviously each accused has the right to conduct his defence in the manner he prefers. But I would expect the defence to put to prosecution witnesses in the witness box the version of defence case about which the prosecution witnesses are to be challenged.

In these circumstances on consideration of all the evidence available I hold that A2 and DWI wholly exaggerated what must have taken place before 5\*00 p.m on 19th December, 1988. It is apparent that A2 ;nd DV.'I were not together on 19th December, 1988 as stated by both. I accept the version given by PW2 about the hand over of the land and the arrest of Hasasana on that day. This is in consonance with the fact that it was Rusasana who was actually litgating on behalf of Rwantare. Apari from his arrest, handcuffing and escort to road block nothing severe happened to him. I also accept PW2's evidence that A2's house was not damaged as he claims. The version of events on lyth December, 1938, except for Rusasana's incident, as given by A2 and DWI differs from the prosecution case version in material respect? One wonders whether A2 and DWI are not referring to events of 20th December,1988.

Let me now consider the evidence with regard to 20th December, 1988 which is in fact most crucial to the decision in this case. I have to consider the case against each accused separately.

As already state?-! the two accused testified tnat they were not at the scene of crime on that lay. On the other hand PW2, PW3(and PW6 a^ou12) testified that each of them saw the accused at the scene and defence counsel urged court to reject evidence of these prosecution witness because of conflicts and inconsistencies. I include PW6's evidence though defence counsel did not comment on it. I have in fact pointed out some of the conflicts earlier in the course of the judgment.

In her testimony apart from naming the two accused as being present and participating in the attack on deceased, PW2 also named other persons. These are Canada, Baryayanga, Bushushuba, Karyeija, Bahireira, Matana, Rutandakyeire. On the other hand PW3 named the two accused and those mentioned by PW2 except Rutandekyei P'I3 further named additional people who sne claimed to have identified. These are Akankwasa, Ruyobya, Wilber, Kapero, Mubonehe, Rwenkaza, Kyiterankumba, Nafutal Banker, Ruhira, Mbabazi and Bononi. The deference in the number of people named is explained on the unchallenged claim by PW3 that she was born on that village. By simple arithimetic, she was aged 16 years at th- time of the incident.

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As for PW6, she claimed to have recognized the second accused in addition to Karabareme, Akankwasa, Banada and Ruzoora. In this case Ruzoora was not named by PW2 and PW3j Farther PW6 did not name Al. Her explanation for not recognizing many attackers was that she lives in Kampala and only visits t^ village once in a year or two years but that whenever in the village she stayed there for one month. She assorted that A2 is a neighbour on the village and that she saw him face to face. She denied in cross-examination that in her police statement she had merely stated she knew the attackers only/face and not by name The police statement was however not produced in evidence. As such her assertion that she named the people she was able to name as named in court, can't be contradicted by the police statement. Her evidence shows that she was set upon and cut soon after she exclaimed in horror because of the cutting of her motherin-law. She had a child. So she had to flee. Those added to her explanation that she did not live in the village contir/Aisly for long periods explains why she possibly couldn't name more than what she did. She did not even say that she saw A2 cut the deceased

I note that neither PW2, nor PW3 nor PW6 named Rusasana and or Rwantare amor the attackers and yet these two were at the centre of the land/iSspute. This must be because both were not at the scene of crime. Rusasana had been arrested and taken away on 19th December, 1988. And according to A2, Rwantare was an old man probablytdo weak to have participated in the mob justice that took place.

It is PW2 and PW3 who claim to have seen the cutting and stoning of the deceased.

According to PW2, Al cut deceased with panga on forehead and participated in pulling the deceased. She claims she saw A2 cut the deceased on the occiput .0 and aly pulled deceased with Al. Other persons she specifically named as having cut deceased arc Rutandekyeirc who cut neck Banada cut both arms, Karyeija cut legs. As for PW3, she claims she saw Al cut deceased on ccsj put and lower parts of legs.

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She saw *a?.* cut :c - . .. scalp (top) of head, in the ribs and wrist of left arm. She also names tne following as having participated in cutting and. beating; Karyeija, Barada, Baryayar.ga, Rufena and the rest of those she named above as being at the scene.

The discrepancy bci-ween the two witnesses is that whereas PW2 states Al cut on foreh-ial and A2 cut on occiput, PW3 states Al cut inter alia, occiput and A2 cut top of The head among other parts. In my considered view this discrepancy is minor since occiput, scalp and forehead uro basically one and the same part of body. Mureov.r medical evidence shows there were cut wounds all ever scalp the and the ether parts of the body referred by PW3. It is only /alleged neck cut inflicted by Rutande kyeire according to PW2 which is not supported by medical evidence.

Besides in the circumstances obtaining when there were apparently many more people participating in cutting nearly at the same time it would not be easy for each witness to pin down precisely the exact point on the head Jhich was cut by who without a viJao camera. In the circumstances of this case the crucial point in my considered view is whether court can or can not believe the evidence of either PW2 or PW3 or both about the participation of any of the accused in the cutting of the deceased.

PW2 and PVI6 stated that PW3 was with the deceased at the time of the attack. She drew close to the father possible in the belief he would offer parternal protection at that terrifying time.

I have noted that PW6 stated she never knew where PW2 was at the time of her (PW6's)flight. I have noted that by the time the deceased was being cut PW2 was hiding in a cribbe or grannary which according to assessor's experience could afford vision through it since its walls were not smeared (covered) with with substance. There is the evidence of PW3 that when she was running away after the cutting, Kc-duresi (PVI2) beckoned her from a raised ground.- PW2 appears to support this because she left the grannary and fled at last. And earlier in crosses xamini natic n PVI3 stat >. ft.

''When wc entered whore father was I and Keduresi were in sitting room. I joined father in one room while Kedresi went to another room as the attackers were breaking the doors". In answer to a question of the first assessor, PW3 replie ''the, room where Kodrossi went had a grannary". It Joes appea" that in the area where the deceased was killed grannaries are kept in houses.

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Bearing all the factors prevailing at the time, I believe that each of PWS': 3 and 6 were at the scene of crime on the morning of 20th December, 1988. I believe that by the time of the attack that morning PW2, PW3 and PW6 wore at the scene. The circumstances wore berrying. But I have no doubt in my mind that each of PWS 2,3 and 6 was in a position to observe what was taking place\* The manner each witness has described the events shows no deliberate lying.

PW2 anl PW3 testified that the attackers demolished the walls of the house in which they and the deceased were seiged before attackers decending on the deceased I have considered the possibility that in the process of demolition of walls of a rural house some dust could have been raised and perhaps obscure sight of 'witnesses whilst in the house. This was however not raised at any stage when the witnesses were testifying. There is no evidence that there was such dust; or if there would be any, that it had effect on observation of witnesses. That may explain why deceased was sighted by attackers and then pulled out of the house. And in any case the cutting appears to have taken place mostly in the door way and not inside the house.

As earlier stated the two accused raised alibis and the burden is upon the prosecution to discharge that burden by proving, if it can, that the alibis are not true. There is evidence that PW2, PW3 and PW6 knew A2 vory well. There is also evidence that PW2 and PW3 knew Al very well. That evidence is unchallen^ and I accept it. As a matter of fact both PW3 and PW6 knew A2 as {fetcusha Curija showing that PW6 knew him well.

As regards Al he testified that he went to Kamwezi on 10th December,1988 to work and returned home on 26th December,1933.

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The r. is no suggestion from all the evidence available on record that he was in the habit of ing away in search of jobs before. This is not shifting the burien of prof him but I consider it is a legitimate point to take into consideration in assessing his alibi's weight.

Furthermore Al claimel he had a wife. And so ho went to work during the-Christmas month of December and returned home to his wife actually immediately after Christmas hay. According to him (Al) ho is a clristian. It seems to me odd that Al, a Christian, coull in normal cireamstancus/rc?ma^a'1v?6rking in Kamwezi immediately be-fere ani luring Christmas time and only choose to return home on boxing day (26th Doc j; ibc r , 19 38) . Kamwazi v only 20 miles away. Nothing like transport problem is given. This still remains oil even if Al was not a practising Christian. Then on his own admission there is the evidence that ho was arrested one day aftar he returned home. And a part from PWz|, there was no grade between him and PW2 and PW3- As pointed out PW4 <lii not incriminate Al in the murder of the deceased on 20/12/1938. It is those without a grudge who have incrimnated him ' . .» .

It is those without

grade who have incriminated him. As I said earlier, Al's claim of visiting PW2 on 26/12/88 was never put to her -while in witness box. In all these circumstances I hold that the prosecution evidence has placed Al at the scene of crime on 20/12/1988. I hold that both PW2 and PW3 were telling the truth 'when each state that each of th- m saw Al participate in attack, pulling and cutting of the deceased on 20/12/1938. I reject the version of evidence given by Al. I find as a fact that Al participated in the savage killing of th?. deceased. He must have been in hilling before 27/12/88, the lay when he Was arrested. His alibi is false. Be it noted that in cross-ecamination Al agreed he was not happy about the fact that Rwantare lost dispute to deceased. What of A2's alibi? As pointed out earlier A2 an! his wifo (DWl) a-Imit that on 19/12/83 they were in the area (i. •: ? ne ar whe re the c rime. was c emmi11 c>1 0 n 20/12/1983).

And that both of them and th^ir children fled the area on 19/12/1983.. A2 stated that he never returned to the seen until much much later in 1'939 and even then after the District Administrator had assured A2's family luring a meeting of the whole sub-county that it was safe for a2 to return home.

However as I pointed out earlier, th2 re are serious conflicts between the story as given by both A2 and DWI. They have contradicted each other to such a degree that the conclusion that none of them is giving a truo account of what took place on 19/12/1938 is inescapable. I have point out some of the conflicts and contradictions already. For instance while A2 stated Rusasana was handcuf.toc DWI testified he was tied with banana fibrc-s. While A2 says shooting was at about 3.00 p.rn DWI testified it was at 11.00 a.rn. While A2 testified that Rasas: was kept at Rwantarc's home after which he was taken to Kabalo Police, DWI claimed Rusasana was taken to Rwabutoga's home. While A2 testified that the who'. of his family (Rwuntare off spring) including A2's wife /. Ind children were ill ... herded in the home of Rwantare all the time till dispersal, DWI claimed she was busy first cultivating, then later ferrying their property on and of from A2's home to safety.

While A2 testified that ho fled alone and found DWI and children at Ibumba valley, DWI at some stage in examination in-chicf claimed she fled from the scene at 5-00 p.m. in the company of the 2nd accused which is in part conflictin and in part a contradiction. In all these circumstanc -s I hold that both A2 and .vWI are not telling the truth about what took place on 19/12/1983. In my view this affect A2's alibi. I am very much aware that even if accused or aefenc witness tells lies, the burden of proof on the prosecution is not thereby made less. The prosecution has to prove in this case first that the alibi is false and second that 2nd accused committed the offence with which he is now charged. See Raphal Vs. Republic (1973) EA 473 anebAniseth vs. Republic (1963) EA 206.

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In this case A2 was well known to PW2, PW3 and PW6. Each of them has asserted tiiat she saw A2 at the scene of crime on 20/12/1993. The reasons which A2 adduced as grudges that induced PWS 2 and 3 tc testify against him are in my considered view far fetched and untrue. It appears to me most probable that the escape described by A2 and DWI relate to 20/12/1983. And that the escape was undertaken after the murdc-r of the deceased. I do not understand how policemen and or military men could on 19/12/1938 herd A2's Kinsmen so peacefully ( apart from the alleged damage tc the property which damage is questionable in my view) and then after the exercise of handover of the land suddenly shoot at A2 and his Kinsmen at the last moment. After all according to what A2 stated there appears to have been no provocation by A2's Kinsmen (Rwantare farmily) to justify the shooting by the police a2 merely stated his group had just loft whore they were sitting. Moreover according to A2 an RCI official, the Gomborora Chief and his askari's were present making the handover exercise quite official. I saw and w^.'-ched PWS 2, 3, and 6 testify. I also saw and watched A2 and DWI testify. Both A2 and DWI were unimpressive in their leameanour. They were both shifty. I don't believe A2. Nor do I believe DWI. I believe that each of the 2 prosecution witnesses (PW2 and PW3) told truth when each testified that A2 was at the scene participating in killing the deceased and I so find as a fact. I believe PWd that she aaw A2 at the scene. I believe PW2 that A2 and other relatives of his went into hiding after the murder of the deceased. I don't believe A2's story that his house was demolished. The prosecution has disproved A2's alibi. The D. A. could have held a meeting about the security of the area because of the problems and this killing arising from the land dispute. Such meetings by DAs are not uncommon in Uganda. The court was informed, by Resident State Attorney from the bar that the DA's office was involved in this case. From the evidence of PW2 concerning the recording of her first statement this appears to be the case. PW2 stated that oven some of the- suspects are still in hiding. She was not challanged about this. I find as a fact that A2 went into hiding after the killing of the deceased, A2 was guilt conscious.

That is why he was in hiding. Court record shows some suspects and Al were charged in court in the course of December 1938. This is confirmed by Al's evidence . Thus police were active.

It was submitted for the accused that some co-accused were release! and that this shows that evidence was not sufficient against the accused. The first assess< appears to have accepted this view.

I am afraid I don't agree. Withdrawal of charges against an accused person under S. II9 (a) of the Magistrates Court Act, 197d could be for any reason. Sometimes it may be based on matters in police statements which were not made on oath. And moreover withdraw/3, of the charges is not an acquittal. Nor is it ipse facto proof that there is no evidence against any other accused. Anyway as a court I have to decide this case on the evidence available on record. Not on extraneous matte rs.

On the evidence available I find no defence of which either of the two accused could benefit. None was raised. And none is available.

The manner of the killing is evidence of malice afore thaught-cutting up the deceased on vital parts-head and chest with panga.

Further more whoever participated in the acts of killing the deceased is equally responsible for the death whether he used a panga, an axe, a stone; or a stick. The doctrine of common intention would apply.

Bearing all what I have state 1 above and taking into account conflicts in the evidence, contradictions and the horrying and terrifying circumstances under which the key prosecution witnesses were luring the commission of the offence I am fully satisfied that the prosecution has proved the guilt of each of the accused persons beyond reasonable doubt. The first assessor was half hearted in giving his opinion. He advised acquittal unless evidence of PW3 is confirmed. I think there is confirmation, if needed, in conduct of each accused.

For the reasons I have endeavoured to give above and in disagreement with the first assessor but in agreement with ths secuni. assessor, I find both accused persons guilty of the murder of the deceased 1sreal Rwabutoga. I accordingly convict each of thorn of the offence of murder c/s. 183 of the P;mal Cole Act. 21/01/1992 at 9.35 a.m

Both accused present.

Zagycnia for both accusjJ (State Brief).

Ki kome ko; Roside nt State attorney.

Both Assessors present.

Mpririrwe interpreter.

Judgment delivered in open court. . i z.- ,

*s* 1 J.-vJ. N . Tsokooko, JUDGE,

21/01/1992.

Kikomeko: Nothing.

Accused: Al: Since I was born I have never committed any offence. While on remand I lost mother, children and may wife. I never comitted this offence. I should bo set free. A2: Although I have boon convicted, I never committed the offence. I lost my father and my elder brother while in prison. I have 7 children schooling in Sec. And primary schools, I pray for a lenient sentence.

Sentence: There is only one sentence provided by law when ?.n a accused is convicted of murder. Each of the two acqusud persu,ns is sentenced to suffer death , i in the manner authorised by law. 'A &lt; . .. /

•W Ar-- .3 . " ' 1 -

... \* :

J. W. N.^sekooko/ '

J. Vi. N-. Tsekooko,

JUDGE,

## 21/01/1992.

Court: Each accused has a right of appeal both against conviction and sentence. This should be within 14 days from the date hereof.

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