[1990] UGSC 16

# IN THE SUPREME COURT OF UGANDA

### aT MENGO

(CORAM: WAMBUZI C. J., ODER J. S. C., aND PLaTT J. S. G.)

## CRIMINAL APPEAL NO, 7 OF 198?

### B E T W E £ N

KALISITI SEBUGWAWO .. APPELLANT AND UGANDA RESPONDENT

> E. A. Oteng) (Appeal from the Judgement'" and conviction of the High Court at Hoima (Hon. Mr. Justice on 8th February, 1987)

#### I N

### Criminal Session Case No\* ^7 of 1986

### JUDGEMENT OF THE COURT

The appellant Kalisiti Sebugwawo was convicted of murder and sentenced to death by the High Court sitting in Hoima on 8th February 1987\* He has appealed against the conviction.

The prosecution case against the appellant was based on circumstantial evidence and the dying declaration which the deceased was alleged to have made to various persons before he died. Briefly it was that on PRnd the deceased Emmanuel Kawesa, already injured arrived and collapsed at the door of his mother-in-law and Parish Chief Sefurosa Kabatemba (PWI), crying that he has been killed. He had what appeared to be spear wounds from the back througn the mouth to the other cheek. The intestines were protruding through the front wound of tiie abdomen. Sefurosa, who was in her kitchen at the time, responded to the deceased who then informed her that he ha& been speared by the appellant. June, 1985 at about 10.00 a.m.

..... /2>.

Sefurosa and Topista Nsungwa (PW5)^f the latter had also rushed to the -cene in response to an alarm by the former. The deceased also .nformed PW1t PW5, and others who had responded to the alarm that tne ppellant had killed him because of his (tne deceased's) wife. Sefurosa •W1 also said that later the s^me day, she aaw the appellant washing is spear in a pool of water. The deceased died at tne scene on the saw the appellant running ame evening at about 10.00 p.m. .way from the scene, carrying a spear and a panga.

In an unsworn statement at his trial, the appellant said that he as at his home digging when he heard an alarm from the direction of efurosa's home. He went there and found the deceased lying by the oorway. Many other people had already gathered at tne scene. They ried to nurse the deceased, but he died and was buried on 25th June 985. The appellant attended the burial. On 9th February, 1986, he as arrested at his home. Other people including some of the proseation witnesses were also arrested as suspects for the offence.

The learned trial Judge accepted the evidence of the prosecution Ltnesses, rejected the appellant's version of events and convicted ae appellant as indicted.

Five grounds were stated in the Memorandum of this Appeal. ^j his submission, Mr. Kateeba, learned counsel for the appellant four and five together. jvered grounds one, two,

As stated in the Memorandum, these grounds were that:-

- The learned trial Judge erred in law in basing the conviction of the appellant on a dying declaration which was not corroborated. The learned trial Judge erred in law in relying on the evidence - of PW1, PW2, having heard the dying declaration PW5j Pw4, and PW5i on

*2*

as evidence of corroboration of the dying declaration as to who killed the deceased.

- 4. The learned trial Judge erred in law in believing the evidence to the identification of the appellant as the person who actually ''speared'¹ the deceased in the absence of any eye witness. of PW1, PW3, as - 5. The learned trial Judge erred in law in holding that therewas ample circumstantial evidence establishing that it was the i.i appellant who speared the deceased.

Mr. Kateeba criticised the learned trial Judge for having relied on the deceased's dying declaration to convict the appellant, and said that it was a misdirection foi' the learned trial Judge to have held that because the dying declaration was repeated to PW1, and PW2 such repetition amounted to corroboration of the truthfulness of that dying declaration. independent corroboration of the dying declaration. The evidence of PW1 that she saw the appellant running away from the scene itself being circumstantial it could not provide the necessary corroboration because it was capable of several explanations/ According to the learned counsel, there was no

The law regarding dying declarations has been restated by this Court in several cases. In a recent case, Tindigwihura V. Uganda Cr. App. No. 9 of 1987^j this court said the^following:-

> . evidence of a dying declaration must be received with caution, because the test of crossexamination may be wholly wanting; and the particulars of violence may have occurred under circumstances of confusion and surprise; the deceased may have stated his inference from facts concerning which he may have omitted important particulars, for not having his attention called them. Particular caution must be exercised.when an attack takes place in darkeness, when identification of the assailant is usually more difficult than in day light. The fact that the deceased told

> > ... A..

different persons that the appellant was the assailant 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 a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject to cross examination unless there is satisfactory corroboration. See Qkethi Okale and Others V, Republic (1965) EA. 555; and Tomasi Qmukono and ^notner V, Uganda CaU judgements part I Page 105".

In the instant case, Sefurosa (PW1) was the first person ie deceased spoke to after he was injured. according to her (PW1) ie deceased had told her that he had been speared by Kalisti id added that "He has speared me because of his wife. me Elizabeth Kahinju (PW2) the wife of the son of Sefurosa (PV/1) of those who responded, to the alarm. iceased as ked her to write down what he said was to be his will and ^> convey the same to his wives. She wrote it down as follows: ls one According to her, trie

> "1 am Emmanuel Kawesa, Kalisiti has speared me three times first through the back passing through the body, through the right hand side and then the head through the cheek up to the mouth; and that was around 10,00 a.m. and that I have removed the spear and panga from him, but he overpowered me."

ie deceased also told other persons at the scene that it was ie appellant who had speared or injured him. These were his inner wife with whom he had separated, Topista Nsungwa (PW3); jtero Byabagire (PW^) and Edward Kainogo (PW5)\* When referring ^> the various versions of the dyinr declaration given by the ^ceased to these witnesses, the learned trial Judge made remarks iat has been the object of one of Mr. Kateeba's criticisms. ^j said:

> "In this connection it is to be observed that the dying declaration is testified to by not only a single witness. PW1 in a shorter version but also by PW2 in a longer version. Thus the evidence of the two witnesses is corroboration of each other."

> > .... /5...

We agree with Mr. Kateeba that this was technically a misdirection in law by the learned trial Judge. Repetition of a dying declaration by different witnesses is not corroboration-. But as will appear later the misdirection is not fatal.

In considering the evidential value of the dying declaration, hoaever, the learned trial Judge had this to say:

> "As for the dying declaration, it is now trite law that a conviction founded on it alone may be good, provided that the Court warns itself of the inherent danger of convicting the accused on the dying declaration of a deceased person not subjected to cross examination. nkumu V. R, (1952\*) EACA P. 33^\* It is unsafe to base a conviction solely on it unless there is corroboration. In the instant case, because of the abundance of corroboration, that fear is nonexistent. *h.* conviction, therefore, based on such dying declaration may be safe. Such a conviction is based on the principle that a dying man, settled to see his God, is likely to tell the truth.

ymw, the tests for the truth or falsehood of a dying declaration are the circumstances favouring or not favouring correct identification by the deceased of the assailant of the deceased. In the present circumstances, the broad day light identification at 10.00 a.m. of the accused by both PW1 and PW3 favours correct identification of the accused: Terikabi V. Uganda, Criminal Session Case 12^/7^ supported this view. There the deceased was heard to say 'Terikabi has killed me". It was found the attack was in broad day light by tne accused, who was well known to the deceased. It was held the identification was good.

Secondly, the accused, being a village-mate of the deceased was, prior to the day in question, known to the deceased, so that of him, as quoted PW\*1, the deceased could declare:

It is clear from this passage that the learned trial Judge the evidential value of the dying laration particularly as to the need to ensure trutnfulness ⁰¹' the ected himself properly on 'He had speared me because of my wife!"

I

The learned trial Judge was satisfied that the conditiur favoured correct identification by the deceased and by the two other witnesses, ^P',V1 and PWJ, who claimed to have seen the appellant running away from the scene. It was broad day light and the appellant was Again the learned trial Judge did not say so except perhaps by implication but the evidence of what these witnesses saw is corroboration of the dying declaration, namely that one of the witnesses saw the appellant running away with a spear and a panga and the other witness saw him with a panga. The deceased had mentioned both weapons in his statement. In addition Sefurosa saw the appellant washing his blood stained spear in dying declaration. a pool of water. a villagemate of the witnesses.

There were other pieces of evidence which tended to support the deceased's dying declaration. Such evidence the learned trial Judge found, included the accused's absence from the scene inspite of the alarms - the learned trial Judge having rejected the appellant's unsworn statement in this regard; his disappearance from the village for a week. Then there was the accused's love affair with the deceased's former wife, being motive for the killing as mentioned by the deceased in his dying declaration. All these pieces of evidence, taken together show that the dying declaration was true and on this basis the conviction was sound.

Concerning ground all we need say now is that as the evidence supported the dying declaration, it is not necessary for us to consider it in the light of circumstantial evidence.

In the circumstances we consider that grounds one, two and four of the appeal must fail and ground five is irrelevant.

Ground three was that:

"3. The learned trial Judge erred in law in Holding that a spear was used to inflict

the fatal injuries on the deceased when the spear was not exhibited and there was no expert medical evidence as to the cause and nature of injuries."

Arguing this ground Mr. Kateeba submitted that there evidence that a spear was used. In his opinion, as no weapon was produced in court, evidence of the type of injuries and the cause of ieath ought to have been given. was no

Indeed no weapon was produced in this case, but there was ample evidence to justify the learned trial Judge's finding that a spear /as used. lature of the injuries and the cause of death, lay witnesses described ;he nature of the deceased's injuries in detail. Sefurosa (PW1) (escribed them as spear injuries. spear wound from the Left of the abdomen to the right, and from part of the mouth to the )ther. Further, though no medical evidence was led regarding the There was a

Jane (PW2) also described the injuries. She observed injuries >n the right back through to the right front and the instestines )rotruding from the front wound; then anotherwound from below the 'ight through to the right cheek. So did Topista (PW3), who said ;hat she observed three wounds one on the right side ana another on ;he left side. The intestines were protruding from the left side /ound. There was a lot of blood. The description of the wounds similar to that of PW1 , PW2 and PV/J. All four /itnesses testified that the deceased died on the spot the same night it about 10.00 p.m. apparenttly from the injuries inflicted on him jarlier in the day. We have noted that there was evidence of a trail )f blood which appears to have been evidence of an indeterminate nature. >y Petero (Ptf4) was

On the evidence available to him, therefore we have no doubt that ;he learned trial Judge reached the correct conclusion, as he was entitled ;o do, that the injuries which the prosecution witnesses described

^rere caused by a spear and that the deceased didd from those injuries. In the circumstances, we think that ground three should also fail.

In the result, we are satisfied that the appelant was properly :onvicted and that this appeal must fail. It is accordingly dismissed.

DATED At Mengo this 3^st day Of January, 1990

SIGNED:

S. W. W. WAMBUZI CHIEF JUSTICE

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

H. G. PLaTT JUSTICE OF THE SUPREME COURT.

^I CERTIFY THAT THIS IS ^A TRUE JOPY OF THE ORIGINAL.

*r*

3. F. B. BABIGUMIRA REGISTRAR SUPREME COURT.