[2011] UGCA 12

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

#### AT MBALE

#### CORAM HON. JUSTICE S. B. K KAVUMA, JA $\mathsf{S}$ HON. JUSTICE A. S. NSHIMYE, JA HON. JUSTICE REMMY KASULE, JA

# CRIMINAL APPEAL NO.25/2007

# EGARU BONNY AND ANOTHER :::::::::::::::::::APPELLANTS

#### **VS**

**UGANDA :::::::::::::::::::::::::::::::::::**

(Arising from the judgment of the High Court of 15 Uganda at Soroti (Katutsi,J) dated 20/04/2007 in Criminal Session Case No.4 of 2005)

## JUDGMENT OF THE COURT

#### **Introduction**

This appeal is against the judgment of the High Court, (J. B. A Katutsi J.), sitting at Mbale in High Court Criminal Session Case No. 04 of 2005 whereby the appellants were each convicted of Murder contrary to Sections 188 and 189 o of the Penal Code Act and sentenced to death on the 24th April 2007.

### Background

s The background to the appeal is, that in the night of 3.d October 20O1 at Mailo Mukaga village, Kamod parish, Bogondo Sub-county in Soroti District, Otala John, Alias ! Obote, A.1 and Egaru Bonny, A.2, together with others still at large, murdered Apiding Mary (deceased). That night, 10 the deceased entered her hut to sleep at around 11p.m. Before she fell asleep, she was attacked by A.1 and A.2 together with others still at large. She screamed begging the attackers not to kill her. As she screamed, she mentioned the names of A.l and A.2, among others, as her 1s attackers. The deceased tried to run away but was followed by her assailants who beat her up and cut her neck thereby killing her.

20 The Deceased's mother in-law, Ilemu Grace, as well as Esther Lucy Alujo and Deke Betty heard the deceased mention the names of A.1 and A,2 and others as her attackers. They feared going out to the rescue of the deceased at night. The following morning they went to the

deceased's hut. The deceased was not inside the hut. They continued searching for the deceased and found her body in a nearby bush.

s During the night of the murder, the appellants and others still at large disappeared from the village. The two appellants were later traced, arrested and charged with the j murder of the deceased. They denied the charges and each set up an alibi. The trial judge disbelieved the evidence in 10 their defence, convicted each of them as charged and sentenced each to death, hence this appeal.

# Grounds ofAppeal

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15 There are 4 grounds of appeal set out in the Memorandum Of Appeal thus:

- l)The learned Trial Judge erred in Law and fact when he failed to judiclouslg eualuate the euidence on record wherebg he reached a wrong decision bg conuicting the appellant of rnurder, - 2)The learned Trial Judge eted in laut and fact when he failed to properlg applg the Laut relating to uoice identift.cation euidence.

- 3) The learned Trial Judge erred in Law and fact when he rejected the alibi of the appellant which if believed would have destroyed the whole prosecution case as he was never at the scene of crime. - 4) The learned Trial Judge erred in law and fact when he imposed a harsh sentence on the appellant thereby occasioning a miscarriage of justice.

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#### **Representation**

At the hearing of the appeal, the appellants were represented by Mr. Opedo Deogratius (counsel for the appellants), on State brief while Ms. Alice Komuhangi Khauka, Principal State Attorney (counsel for the respondent), represented the respondent.

### Appellants' case

At the beginning of his submissions, counsel for the appellants abandoned ground 2. He then, in effect, argued grounds 1 and 3 together first and ground 4 separately and last.

o 5 o 10 Arguing grounds 1 and 3, counsel submitted that although Akello Harriet, P. W.i, testified that she was able to identify the appellants by their voices, she never saw them cut the deceased. According to him, she was not in a position to identify the appellants. She was frightened and in hiding 15 metres away in the bush. He criticized the learned Trial Judge for having lightly taken and accepted the dying declaration by the deceased as this witness just said what she heard the deceased say. He further criticized the learned trial Judge for failing to observe the guidelines on identification as laid down in Abudalla Nabulere and Two others vs Uganda CR. Appl. No 9 of L97a.

As for Hellen Abuo, P. W.2, counsel maintained the same criticisms as he had for the evidence of PW. 1. He further submitted that when PW.2 testified that she saw the appellants kill her daughter, she did not say how she was able to recognize them. According to him, P. W.2 contradicted herself on distances when she testifies about the 50 and then 7 metres. He dismissed the evidence of PW.3 as mere story telling and that of PW.4 as hearsay. 15 20

o On the appellants'alibi, counsel submitted that the learned trial Judge had discarded it depending on PW.4's hearsay evidence. He contended the judge should have believed the appellants' alibi. According to counsel, had the learned trial Judge properly evaluated all the evidence on record, he would have come to a different conclusion. In counsel's view, a miscarriage of justice was occasioned to the appellants. He invited court to allow these grounds. o 5

- On Ground 4, counsel for the appellants submitted that the death sentences handed down by the trial Judge to the appellants were uncalled for considering the evidence on record. Pleading in mitigation for the two, counsel submitted that A.1 is 48 years old and has 12 children to care for. He is reformed and even preaches the Gospel. A.2 is only 28 years old now, a young man starting a family. The two have been in custody for 8 years. A.2, too, is reformed and a relative to the deceased. 10 15 - Counsel prayed court to allow the appeal, quash the convictions and set aside the death sentences, or in the alternative, reduce them to 8 and 6 years imprisonment for A.1 and A.2 respectively. 20

# Respondent's Case

Counsel for the respondent supported the conviction and sentence in respect of each of the two appellants.

Arguing ground one, counsel submitted that both A.1 and $5$ A.2 were properly identified by PW.1, PW.2 and the deceased in her dying declaration. She contended that there were conditions favouring their correct identification.

Counsel contended. further that there were no contradictions worth considering in the evidence of PW.2. 10

As for the dying declaration, counsel submitted that the learned trial Judge directed himself correctly on the law and evidence on the matter. There was sufficient evidence from PW.1, PW.2 and PW.4 to corroborate the same.

She cited Uganda vs George Wilson Simbwa SCCA No. 37 15 **of 1995** to court in support of her submissions.

Counsel submitted that there was further corroboration of the evidence of PW.1 and PW.2 and the dying declaration in the appellants' conduct in running away from their village after the commission of the offence. Again counsel relied on **Uganda vs George Wilson Simbwa** (supra).

Further corroboration was in the fact that pw.1 and pw.2, being truthful killers at the matter. witnesses, reported A. 1 and A.2 as first opportunity they had to report the the

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She submitted, further, that Al and 42, together with the others still at large had a common intention to kill the O deceased and each of the appellants is, therefore, responsible for that death. she cited to court the case of 10 sabahashi v. ug. sccR. App. No.2B of 1993. she prayed court to find that this ground of appeal also fails.

15 2A Arguing ground 3 on the appellant,s alibi, counsel for the respondent submitted that the learned trial Judge considered and properly rejected them. At any rate the appellants, raised the defences belatedly. She contended that there was already sufficient evidence before court placing each of the appellants at the scene of crime and proving each's participation in the murder. she contended, further, that the appellants did not give a clue as to with whom they were at the material time to enable the prosecution to cross-check on their alibi. she relied on Alfred and Others vs Uganda, SCCA No. 28 of 1994. She invited court to disallow this ground.

On ground 4, counsel for respondent submitted that the death sentences handed down to the appellants by the trial $\mathsf{S}$ Judge were lawful and justified in the circumstances. The appellants attacked and brutally killed an innocent person putting an end to a young and productive life at only 35 years of age in total disregard of the deceased's pleas for mercy. He submitted that the appellants, being relatives of the deceased, would ordinarily be expected to respect and protect her. Counsel invited court to uphold the sentences. She finally prayed court to dismiss the appeal, uphold both the conviction and sentence of each of the appellants.

## Duty of Court

It is the duty of this Court, being a first appellate court to subject the evidence on record to a fresh review and scrutiny and come to its own conclusions bearing in mind, however, that it did not see the witnesses testify.

See Rule 30 of the Judicature (Court of Appeal Rules) Directions S. I. 13-10. Pandya VR [1957] EA 336, Okeno

V Republic [1972] E. A 32 and Kifamunte Henry V Uganda SCCA No.10 of 1997 (Unreported).

Court's consideration of the grounds of appeal.

We shall consider the grounds of appeal argued before us in the same order as counsel for the appellants submitted $\mathsf{S}$ on them.

## Grounds I and 3

The gist in these grounds is the appellants' complaint that the learned trial Judge failed to properly evaluate the 10 evidence before him and erroneously rejected the appellant's alibi.

Our re-appraisal of the evidence on record shows that both PW.1 and PW.2 testified that they each saw the appellants 15 cut the deceased from the witnesses' hiding places within comfortable distances from the scene of the murder. PW.2 was hiding just 7 metres away while PW.1was hiding in a short nearby bush. The two witnesses knew the appellants as relatives and villagemates. PW.1 and PW.2 were aided 20 in their visual identification of each of the two appellants by the light of the torch the appellants flashed all over the

places where each of the witnesses saw the appellants. The appellants' attack on the deceased took a somewhat long time during which there was a chasing of the deceased as she tried to run away from them. It is true, the attack was at night and this could have been a negative aspect of $\mathsf{S}$ the identification evidence on record but, according to P. W.1 and P. W.2, there was enough light to enable them see and correctly identify the appellants. That positive evidence greatly outweighed the negative.

The dying declaration, though ought to be treated with caution, was, in the instant case, sufficiently corroborated by the evidence of PW. I and PW.2. That dying declaration has also an element of identification of the appellants by the deceased. See Uganda and George Wilson Simba CR. App No. 37 of 1995. SC.

Further evidence of PW1 and PW2 is very clear and telling. PW1 heard the deceased calling out the names of the appellants as her attackers among others. She heard the 20 killers tell the deceased they were killing her because her father had destroyed their house. She knew the appellants voices and she identified the two by their voices.

PW2 too heard the appellants ask the deceased why her father had brought court brokers who demolished their house. She, too, knew the appellants' voices.

Further, the appellants and all the other members of the group which attacked the deceased that fateful night, ran $5$ away from their village and went into hiding. This is not conduct of innocent people. The appellants' conduct supports the inference of their guilt.

The learned trial judge analyzed all this evidence and applied the relevant law to it properly and came to the 10 correct conclusion that each of the appellants participated in the killing of the deceased and each was responsible for the same.

The evidence on record also brings the appellants within the ambit of S20 of the Penal Code Act as joint offenders 15 with a common intention to prosecute an unlawful act there-by rendering each of them guilt of the murder which resulted from their acts. The common intention was to avenge the destruction of the appellants family house. The unlawful acts the group chose were to assault by beating 20 and cutting the deceased. These acts, as confirmed by the medical evidence on record, resulted in the death of deceased.

On the appellants' alibi, each of them denied participating in the killing of the deceased. A1 claimed that he had gone to market to buy commodities while A2 alleged he was at a fishing village at Bugando. Where an accused raises an alibi in his/her defence, he/she does not, thereby $\mathsf{S}$ assume the burden of proving it. It remains for the prosecution to adduce credible evidence not only placing the accused on the scene of crime but also proving that he/she participated in the commission of the offence. But where, however, as is the case in the instant appeal, the 10 prosecution adduces evidence positively identifying the accused at the commission of the offence charged, then the accused person's alibi crumbles and is effectively destroyed by the prosecution.

- We have, hereinabove, during our re-appraisal of the 15 evidence on the participation of the appellants in the murder of the deceased shown there was such evidence. That evidence came from PW1, PW2 and the deceased's dying declaration. - That evidence, therefore, squarely placed the appellants on 20 the scene of crime and destroyed their alibi. The learned trial judge was not in error to so find.

o 5 o 10 Further, each of the appellants clearly told lies about each one's whereabouts at the time of the commission of the offence they were convicted of. Where an accused is proved to have told lies, those lies support the inference of that accused persons' guilt and can be corroboration of the other evidence pinning him down as guilty. See Moses Kasana vs Uganda SCCA No. L2 of 1991 (ureported). Nabugo vs Uganda [1963] EA 7L, Nestoli Francisco Tibamwenda vs Uganda, Court of Appeal Cr. Appeal No. 177 of 2OO2, Kibale Isrna vs Uganda SCC No. 21 of L982, Aharizire Silverio vs Uganda Court of Appeal, Cr. App. No. 129 of 2OO2.(unreported)

We are, therefore, unable to fault the learned trial judge on his findings that the appellants were guilty of murdering 1s the deceased. We disallow grounds i and 3.

## Ground 4

The appellants contend under this ground that the sentence of death handed down to each of them by the learned trial judge is harsh.

We have carefully considered the submissions of both counsel on mitigation of sentence' The death sentence is

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o 5 O 10 15 lawfut in this country. The circumstances under which the deceased was murdered clearly call for a stiff and deterrent sentence. However, such a sentence should not only befit the crime but should also benefit the appellants. The appellants are related not only to each other but also to the other relatives who testified before court. Their 'family' has, therefore, already lost a member, the deceased' Adding two deaths to it may serve no useful purpose' However, ending a human life extra-judicially is a grave crime. The urge to some people to resort to unlawful and fatal means to settle disputes between individuals must be effectively curtailed by law. A custodial sentence that will express society,s disapproval of the deplorable behavior of the appellants while sparing them the wrath of the hang man is, therefore, called for. In all the circumstances of this case, we consider a term of (fourty) 40 years, imprisonment to each of the appellants appropriate'

In the final result, therefore, we dismiss the appeal, against the convictions but allow that against the death sentence handed down to each of the appellants by the trial court and substitute it with a term of (fourty) 40, years imprisonment without remission to each of the appellants. The term shall run from the date the appellants were first convicted.

We so order.

Dated at Mbale this $\ldots$ j. ..day of... $\mathfrak{M}$ 2011.


A. S. Nshimye JUSTICE OF APPEAL

lleg R **JUSTICE OF APPEAL**

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