[1992] UGSC 13

IN THE SUPREME COURT GF UGANDA

## AT MENGO

(CORAM: WAMBUZI C. J., ODER J. S. C. & PLATT J. S. C.)

CRIMINAL APPEAL NO. 6 OF 1991

## B E T W E E N

DAVID KAMUGISHA APPELLANT

## AND

UGANDA RESPONDENT

(Appeal from the conviction and sentence of the High Court of Uganda at Kabale (Tsekoko, J.) dated 20.12.1990 in High Court Criminal Session Case No. 29 of 1989) c

## REASONS FOR ORDERS OF THE COURT

The Appellant, David Kamugisha fes. Al) was jointly indicted with 24.7.1986 of the deceased Fred s/O Ntarurunga at Butobere Kabale District. The High Court sitting at Kabale acquitted (A2) and convicted the Appellant of causing grevious harm contrary to section 212 of the Penel Code Act and sentenced him to imprisonment for five years. This was after a full trial on indictment. The Appellant appealed against conviction only. We heard and dismissed the Appeal and now give our reasons. Emanuel Byarugaba (a2) for the alleged murder on

The salient facts of the case were that the appellant and A. R were traders at Kabale market. They also lived in the same compound in Omukyingi village, Butobere Kabale. The deceased was related to AR and lived with him in the same room. He also assisted the latter in his business.

On 24th July, 1986 when the Appellant was away, his house was broken into and property stolen. The deceased was suspected to have been the was arrested, apparently in Kabale town. thief; for which reasons he

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and taken by the Appellant and (A2) to the former's house\* He was assaulted during the journey to, and at, the house, and sustained injuries from which he later died the same night at Kabale Hospital.

doctor at the hospital the right eye brow, bleeding left ear, multiple longitudinal bruises of arms, fracture of the right upper tibia, and a cut in tne mid aspect and Cause and associated intrathcracic bleeding. A post mortem examination carried out by a revealed external injuries on the'jdeceased to h\_<ve been deep cut wound over of the foot. Internal injuries were intracranial hsamorr^g^e, intrathoracic bleeding of the left chest with lung collapsed. of death was intracranial he^iorrt^ge

material particulars; and differed only in minor aspects. These witnesses were: James Byamukama (PW5)t Annet Twebaze (PW6), and Agnes Tuherirwe (PUT\* )• According to James (PW5) and Annet (PW6), both of whom lived in the same neighbourhood as did the Appellant and A.2, it was the Appellant who assaulted the deceased several times with a hoe and kicked him when he was in a weak condition due to assaults. Agnes (PW7), also a resident of the same area, testified, on the other hand, that the Appellant and a2 assaulted the deceased together, the former using a hoe and the latter a stick. Evidence of the gey prosecution witnesses tallied with each other in

The Appellant's testimony in his defence was a denial of the allegation that he had assaulted the deceased. He accused James (PW5) and others, including soldiers at the road-block, of assaulting the deceased.

The learned trial judge rejected tne Appellant's version of the events and accepted the prosecution evidence implicating the Appellant as the assailant of the deceased. But in disagreement with both the assessors, the learned trial Judge found that the Appellant did not cause the death of the deceased. Further, contrary to the assessors' opinion that the Appellant should oe convicted of manslaughter, he concluded Appellant was guilty of causing grievious harm. that having inflicted the injury which factured tne leg of the deceased, the

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the learned Counsel for the Appellant, abandoned the first two grounds, which complained against sentence imposed on the Appellant. This, in to take as no prior leave to appeal against sentence had been obtained under Section 1J1 of the ^rial on Indictment Decree, 1971. In the event, the learned counsel argued the remaining three grounds, taking them together. They were:- Five grounds were set out in the memorandum of Appeal, but iM/s^JBossa, our view, was a proper course

- 3. That the learned trial Judge erred in law when he attributed the breaking of the deceased's leg to the Appellant when it was clear that the deceased had been beaten by soldiers and other people around - 4. That the learned trial Judge erred in law when he held that the attack on the deceased by the accused ammounted to causing grievous bodily harm when at most it would only have amounted to simple assault. - 5. defence thus coming to wrong conclusion. That the trial Judge erred in law when he completely ignored A.l/s

As we understood them, the thrust^ of the learned counsel's submissions on these grounds amounted to two main critisms of the learned trial Judge's findings and conclusions. The first one related to his acceptance conviction was founded. The second one concerned the apparent discrepancy the learned trial judge's finding that the the legs of the deceased and, on the other, the medical evidence of multiple injuries as were stated in the post mortem report and the numerous assaults on the deceased which, according to the evidence of prosecution witnesses, several persons including the soldiers appear to have participated in inflicting. of the evidence of James (PW5), Annet (PW6), on whose evidence the Appellant's Appellant inflicted the injuries on between, on the one hand,

Beginning with the evidence of James (P.»5)» the learned counsel gave several reasons for her contention that the evidence of that witness ought to have been discredited as incredible.

after the deceased had already been beaten and looked weak was accepted by . the learned trial Judge, the evidence of James (PW5) to the effect that the Appellant struck the deceased witn a hoe on both legs in the presence of A.2 ought not to have been accepted as true. Secondly the evidence of James (PW5) hid not tally with that of A.2 regarding what transpired at the military road-block, where the deceased was apparently taken from the scene at the Appellant's house. While according to the evidence of James (PW5) the Appellant who explained to the soldiers that the deceased had been soldiers that they had arrested the deceased and had beaten him until the latter because the deceased was allegedly having custody of the stolen money and property in his house. Thirdly, James (PW5) was implicated by the Appellant as having been one of those who assaulted the deceased. He was, therefore, not an innocent person in the matter, and ought to have been treated as an accomplice whose evidence implicating the Appellant should have been treated with caution. a guest in the house and, Firstly as the evidence of a2 to the effect that he arrived at the scene it was dark and, so, ne could not see what was happening there, and it was hand, was that at the road-block it was James (PW5) who reported to the he (the deceased) had confessed to have stolen the Appellant's money and property; as a result of which information, the soldiers beat upland A2 therefore, Z» arrested for stealing his (the Appellant) money, A.2's evidence, on the other

With regard to the learned Counsel's attack on the evidence of James (PW\$) about assault' .on the deceased in relation to that of a2 this is what the learned trial Judge said (at Page 6) in his judgment,

> — CM— ".... There is overwhelming evidence that the first accused assaulted the deceased because the deceased was suspected to have stolen Al's property. The evidence of PW5»^ accused support this. Each of PWs 5, 6 and 7 and the second accused arrived at the scene

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at different stages of the drama. AnAthough PW7 certainly exagerated her observations especially as it relates to A2's participation in the beating the deceased I agree with the assessors that Al severely beat the deceased, at the scene at different times in no way diminishes the role of Al in the assault PW5 and 6 had observed the assault and declaration of Al and near Al'^s residence where the property had been stolen I accept the evidence of a2 he reached the scene late. But he supports the testimony of PWs 5 and 6 that by the time the deceased was taken away he was in a very bad condition and was close to Al'^s residence and virtually a prisoner of Al. A2\*s evidence that by the time the deceased taken from the scene he could not walk and that from thereto road block the deceased was just thrown onto a military vehicle contradict and destroy the version of the events as given by Al, being entirely untrue and made up story ..."

In so far as the evidence of A2 implicates thiS Appellant, the learned trial Judge should have approached that evidence with caut -.ion as it was accomplice evidence. Clearly the learned trial Judge accepted the evidence of (PW5) and (PV/6) and in so far as it was at • variance with that of A2 the latter was rejected. The evidence of A2 in certain respects lends support to that of the prosecution witnesses. We are unable to agree to the suggestion of learned Counsel for the Appellant that if the evidence of (PW5) and that of a2 does not tally there is a discrepancy which calls for resolution. A2 was not a witness for the prosecution. In these circumstances it is open to a court to accept either version and we are unable to fault the learned trial Judge for accepting the prosecution evidence and rejecting the defence.

We also find no merit in the argument that (PW5) ought to have been the allegations of the defence in the lower court whose evidence was clearly rejected. treated as an accomplice on

We are also unable to find any grounds to throw doubt on the guilt of the Appellant regarding what happened at the road block. Any assault on the victim at the road block does not seem to have been of such a nature as to have caused the injuries attributed to the Appellant.

Finally, learned Counsel suggested a grudge between the Appellant and James, (PW5)> as a reason for the latter's evidence against the former.

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With respect we see no basis for such Not only not raised by the defence Counsel at the trial. In the circumstances we think that learned Counsel's criticism of the learned trial Judge for accepting the evidence of James (PW5) against the Appellant was not justified. a suggestion. was the Appellant's evidence silent on the matter but the point was

Counsel also attacked the evidence of Annet (PW6) against the Appellant Counsel's grounds for such a dim view of Annet's evidence were that it was dark when she allegedly saw the Appellant . a crowd of people at?the scene at the material time. She therefore could not have seen what transpired. With respect we think this criticism also lacks merit. Admittedly the evidence of (j?w6) as presented did not appear to follow see the Appellant as being unrelieable. as they happened but there strike the deceased with a hoe, and that there was commotion due to a chronological or sensible sequence of events appears to be no doubt that she was able to^and did?n^t assault the deceased when it was not jiet dark.

With regard to the evidence of Agnes (PW7) Counsel's complaint was similar to that made against the evidence of James (PW5) and Annet (PW6). It was submitted that her evidence was unreliable and therefore ought not to have been accepted especially when the trial Judge noted in his judgment that the witness had exaggerated her evidence and contradicted herself. In learned Counsel's opinion, Agnes, (PW7)t lied when she claimed that the Appellant struck the deceased with a hoe when the deceased was lying down and that A2 struck the deceased wit)¹¹ a fencing stick.

It is, indeed, correct that the learned trial Judge noted twice in his judgment (on pages 7 S 8) that Agnes (PW7) had exaggerated her evidence. But he did so in relation to her allegations against A2, not those against the Appellant. finding to that effect appears to have been limitted to her claim that the deceased was lying down when he was struck. As to contradictions in her evidence, the learned trial Judge's

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struck by the Appellant and A2 when the deceased was lying down, the witnesses went on to say that she was not certain aoout which side the deceased was lying down when this happened. The apparent exagerations and contradictions referred to by the learned counsel were, in our view, not relevant to the role in this matter\* Appellant and in any case,^so minor that they did not indicate, we think, that Agnes (PW7) lied to the trial Court about the Appellantls The apparent dontradiction was that having said that the deceased was

In the circumstances, we thought that the learned trial Judge made Agnes (PW7) and reached the correct conclusion, that their evidence and by inference that of A2 prosecution case against the appellant that he assaulted the deceased. a proper valuation of the evidence of nam^ely James (PW5), Annet (PW6) and

learned trial Judge's finding concerning the Appellant's responsibility for the injuries inflicted on the deceased. According to the learned Counsel, A2'^s evidence indicated tnat the soldiers beat the deceased at the road block, where the party spent half an hour. A military truck then arrived, on to which the deceased was thrown. The soldiers' action could have caused the deceased some injuries. of the lack of explanation as to how several injuries on the deceased were caused, it was doubtful that the Appellant caused the injuries for which the learned trial Judge held him responsible. Next, we considered the learned counsel's submissions regarding the In view, therefore,

This is yet another case in which medical evidence relating to the injuries sustained by the deceased as stated in admitted in evidence under section 64 of the Trial On Indictment Decree. The doctor who carried out the post mortem examination and compiled the relevant report was not called to give evidence. Consequently, neither the trial Court nor ourselves have had the benefit of the doctor's explanation of the injuries sustained by the deceased in relation to tne method or a post mortem report was

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weapon by which, according to the eye witnesses, the deceased was assaulted. The learned trial Judge, therefore, had a dilemma in deciding how the injury on the head combined with intrathoric bleeding which caused death of the deceased was inflicted and who did it. In the circumstances he had no alternative but to find, rightly so in our view, that the Appellant did not cause the death of the deceased.

In previous decisions, this court has expressed the view that in appropriate cases medical evidence may be admitted under and that where it appears necessary such a Witness should be called. In the case of Fabiano Qlukuudo Vs. Uganda, Court ^f Appeal for Uganda Criminal Appeal No. *2k* of 1977 (Un reported) the court said this: s. 64 of the T. I. D., without oval evidence from the relavant doctor, or medical personnel concerned,

> "... It has been said in Juma Tabani alias Lokora and another vs. Uganda E. A. C. A. Criminal Appeal 100/7\*+ that s.64 of the Trial on Indictment Decree should only be used as a means for putting on record formal evidence, and only in exceptional cases medical evidence. With respect, we should take this opportunity of reiterating emphatically what was said in that case. It cannot be said that evidence of post mortem examination is of a formal nature; it is of vital importance and we should urge that such medical evidence be given in court. The importance of so doing is apparent also from Batala vs. Uganda (197^) E. A. \*+02 where the Court expressed in terms what is expected in the post-mortem report•.."

Cr. App. No.5 of 1987 (un reported), tne court referred to the case of Fabiano Olukuudo (supra) with approval and said this:- In a more recent case of Aramani Kampayani vs. Uganda, Supreme Court

> H... Whether an admitted or agreed evidence under section 64 should also be proved depends on the nature of the evidence or documents and the case in question, normally the section should be applied only to formal or non-contentious evidence or documents. See Fabiano OluKuudo vs. Uganda controversial or vital, they should give evidence to enable their evidence to be tested in cross-examination and the trial Judge to observe their demeanour •.

In the instant case, the learned trial Judge lamented the r.' non-calling of the Doctor concerned, to explain whether the injuries on the head and chest could each have caused death independtly of each other.

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Hence, his conclusion that it was doubtful whether the Appellant caused death of the deceased.

However, with regard to injuries for which he convicted the Appellant for causing the grieveous harm the trial Judge had this to say:-

> "... In my view there is overwhelming evidence that Al caused injuries on the legs and trank of the deceased. The deceased sustained fractured right tibia (bone of the leg). When Al assaulted the deceased on the legs the deceased fell on the ground. He never got up again ne was carried from the scene to the road block. In my view the injury on the legs falls within the definition of griveous harm given by the Penel Code as ''any harm which amounts to main or dangerous harm or seriously or permanently injuries health or which is likely to injure health or any permanent or serious injury to any external or internal organ, membrane or sense 'There can be no doubt that Al caused the fracture of the deceased's legs ..."

> > day of

We think that there was ample evidence to support the learned trial Judge's finding and with respect, do pot accept tne learned Counsel's critism of the learned trial Judge in this regard. The three key prosecution witnesses James (PW5) Annet (PW6) and Agnes (\$W7) corroborated each other to the effect that the Appellant struck the deceased with a hoe. According to James (PW5) the Appellant struck the deceased with a hoe on the back in between the shoulders.and on both legs, and the deceased fell down. Annet (PW6) said that she saw the Appellant holding a small hoe and strike the deceased on the head. And, according to Agnes (PW7) the Appellant struck with a hoe on the left side of the face near the ear. The hoe was small with short handle. The Appellant use.d the blunt end.

In the result wo are Satisfied that the Appellant was properly convicted of causing grieveous harm, contrary to section 212 of the Penel Code; and accordingly dismissed his Appeal.

DATED at Mengo this ....*fa*

H. G. PLaTT JUSTICE OF TH\* SUPREME COURT S.'tfT\* WAMBtll CHIEF JUSTICE WVw.. A. H. O ODER JUSTICE SUPRSM^ CGUx^T

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