[1992] UGSC 14

THE SUPRENE COURT OF UGANDA $TN$

AT MENGO

(CORAM: MANYINDO D. C. J., ODER J. S. C. & PLATT/J

CRIMINAL APPEAL NO. 7 OF 1991

**BETWEEN**

1111111111111111111111111111111111 SULEIMAN KATUSABE APPELLANT

AND

**UGANDA**

RESPONDENT

(Appeal from conviction and sentence by the High Court at Kabale (Mrs. Justice L. E. M. Mukasa-Kikonyoga, J.) dated 15.11.1990)

IN

## High Court Criminal Session Case No. 106 Of 1990

## JUDGMENT OF THE COURT:

The Appellant was indicted and tried for murder which was alleged to have taken place on 26/10/1987. He was convicted of manslaughter and sentenced to 15 years imprisonment. He has now appealed against both the conviction and sentence.

The prosecution case was that on the night of 26th/27th October, 1987 the deceased, Sepiriya Kabuyanga, an elderly man of about oO years of age, lost his way while returning home drunk, and strayed to Appellant's house near the road side. The Appellant savagely assaulted him, iflicting severe injuries from which he died in hospital during the morning of $27/10/1987$ . The evidence against the Appellant was mostly circumstantial, no witness having seen the Appellant actually assault the deceased. The prosecution relied on the evidence of Milton Mwirumbi (PW3), as neighbour of the Appellant's and nephew of the deceased, who on receipt of information. allegedly went to the scene early in the morning and found the deceased already injured about 19 meters from the Appellant's house; on the evidence of Oliva Kabarwani (PW4), a woman who was cohabiting with the Appellant and claimed to $h_{\mbox{\scriptsize a}}ve$ been with him in the same room when he went outside the house and beat up the deceased with a stick within her hearing;

$2/\ldots$

whom the Appellant allegedly made deceased already injured^near his house and who together with Milton and others recovered from the Appellant's house a stick which the Appellant had allegedly used to beat the deceased. a report of having discovered the and on the evidence of Yowana TinKasimire (PW5)> an K. C. 1. Chairman to

At his trial, the Appellant denied having assaulted the deceased, saying that during the night in question, he slept in his house throughout. It was when he was going to work early in the morning that he found the deceased on the foot-path in front of his (Appellant's) house. The deceased was still alive but had injuries on his body. He made an alarm which was answered by R. C.l Chairman (PW5)« He was later arrested the same morning from his murder. place of work and later charged with the deceased's

The learned trial Judge rejected the Appellant's denial and alibi and relying on the prosecution evidence convicted and sentenced the Appellant as stated at the beginning of this judgment.

Three grounds of appeal acre set out in the memorandum. We . shall deal with them in the same order.

Ground one is that the learned trial Judge erred in law to believe and convict the Appellant on the evidence of (PW4) and (PW5) in view of the serious discrepancies in their evidence.

and should have resulted in the Appellant's acquittal. What the learned counsel regards as contradictions and discrepancies concerned the stick with which the Appellant allegedly assaulted the deceased and a trail of blood which tended to show that the deceased where he was found lying already injured. contended that the contradictions and discrepancies were so serious j^as to raise doubts on the credibility of the prosecution witnesses concerned, In his submission, Mr. Akampu^ira, learned counsel for the Appellant, was dragged to the spot

5/

*k* close examination of the relevant evidence does, indeed, reveal that Milton (PW3)> Oliva (PV/4) and Yowana (PW\$) did not agree in certain aspects regarding the stick and derail of blood. The crucial question, therefore, is whether tne differences in their evidence pointed to deliberate •. untruthfulness on part of tach or all of them, in accordance with the No. 167 of 1969 (Unreported). ' \he learned counsel for Respondent, Okwanga contended that they did not. principles laid down in the case of Alfred Tajar vs. Uganda, E. A. C. A. Cr. App

Regarding the stick, Oliva's (PW4) evidence was that, at midnight she heard the deceased ask that the door be opened for him; he had lost his way. The Appellant opened the door, went out with a stick and returned inside While the Appellant was outside she heard what On returning from outside the Appellant informed her that he had been beating the deceased because he (the Appellant) did not know the reason for the deceased's presence at the house. The Appelant put the stick in the bed room. blood stained and had hair in a crack where it was split. Next morning Oliva (>W4) saw the stick. In one part of her evidence she said that she gave the stick to tne Police. But in another she said that sue gave it to Yowana (PV/5). scene, he asked Oliva (PW4) about tne stick. one got it out. It was about 1>2 inches in diameter and long, resembling sticks used for chasing cattle. Oliva (PWH) surrendered tne stick before tne deceased was removed for taking to the hosp taken along with the deceased. Milton (PW5) also testified Appellant's bedroom. The stick measured about an inch in diameter and had blood and hair on it. but later in his testimony he contradicted himself was brought from outside. **4** Yowana (PW\$) testified tnat/tne with it two hours later. sounded like beatings® and said that he did not know exactly who picked up the stick and that it about the stick, saying at first that it was found in a corner in the ital and it was The stick was about One inch in diameter, was

*5*

V

given - the police or the R. C.l Chairman (PW5) ~ and by who. They do not affect tne essential issue that the Appellant apparently used a stick in assaulting' tne deceased. Though the stick was not produced at the trial, it was descriDed in detail by the witnesses concerned, suffi-' not an invention and that it was the sort of weapon that could have caused the injuries that the doctor(PWl) found on the body of the deceased. Therefore we think that the evidence of the three prosecution witnesses is more remarkable for what they agree than for what they differ on. cient proof that it was The discrepancies ana contradictions which appeared in the evidence view, are minor matters, namely where the stick was found, to whom it was of thse three prosecutions about tne stick relate only to what, in our

Regarding the alleged trail of blood or track along which the deceased appeared to have been dragged, Milton (PW5) testifies that at the Appellant's home there was a kind of track indicating that there had been a dragging from the road to the house. In crass examination, he confirmed that he track of dragging for road to the spot where the deceased was lying, which was about 15 yards from the house. Oliva (PWH) only mentioned blood having been seen in tne She did not elaborate, or refer to any track or trail of blood. It was Yowana (PW5) who said He testified chat they saw a track along which the deceased had Deen dragged ana a trail of blood. ^he tracK was running from tne Appellant's house througn the courtyard to the bush where the deceased was found lying; it was about 20 .yards long and appeared as if someone had been pulled, not carried. Further in his evidence Yowana (PW5) said (at page 10): a distance of 50 yards from the saw a compound where the deceased was lying although it had rained. a lot more.

> n "... Wnen ^I found Sipirjiya in the bush he could not speak. He was too weak.•• At the scene I saw a trail of blood was flowing (sic) along wni.ch the deceased had been pulled. It was long from the deceased's house to wnere Sipiya was lying. Tne courtyard was very small...

> > 5/

**i** 1

- if

In cross examination he said this;-

it ii The court-yard had blood along the track. It was dragging from the varanuah to the bush. If someone said that tne dragging was from tne road to the house may be he saw that, out I did not. Before I went to PW5's house I first Caw the victim and the track" (sic;

- 5 -

It was contended by Mr. Akampulira for the Appellant tnat the prosecution evidence as referred to aoove concerning the track a doubt as to wnere the assault took place - on the road, can be any doubt regarding where the assault took place. The evidence of OlivaCPW^), who impressed the learned trial Judge as a truthful witness, was quite definite about where the Appellant assaulted the deceased. The Appellant himself informed her what he had done on returning from outside. She was consistent to Yowana the first person to arrive at the scene. The learned trial Judge, in our opinion, properly accepted her evidence in this regard. We think that the evidence of Milton (PW5) about seing a track indicating dragging from the road towards tne house cannot be taken seriously. His was an impression of what nad already happened an so inconsistent with wnat, according to Oliva (PW4), nappened that we would discount it With respect^ on the compound (PW5) who was as untrue. Oliva (PW4) allegedly informed Yowana (PW5), in sice tne house, we do not think th&Xihere or, as or trail of blood created

We are satisfied that the learned trial Judge properly considered the alleged contradictions ana discrepancies and found that tney were minor and did not affect the substance of the prosecution case. As we have already indicated aboVC tne prosecution evidence essential}' proving the issues of whether the Appellant used, inter alia, assault took place outside tne Appellant's house were unaffected by the disagreements between the witnesses. concerned. fail. a stick for assaulting the deceased and whether the Such differences were, in our view minor and In the circumstances, we think that ground one of the appeal should did not tend to show deliberate untrutnfulness on the part of the witnesses

6/ ¹

Grouna two is that ^learnec trial Juare erred in law in considering tne prosecution case first, accenting tne prosecution case and convicting tne Appellant before considering tne defences available to tne Appellant® Tne basis of tnis complains against tne learned trial Judge are two passages in her judgment. After examining the evidence of tne prosecution witnesses the learned Judge said this:

> ner beaten, either. "... Having believed PW4's evidence the irresistable inference draw from it is that it was the accused who assaulted deceased as sie told the Court. In his un sworn statement he made no attempt to dispute her evidence although tne onus was on the prosecution to prove his guilt. Silence where an explanation is required amounts to an admission (PW4) told tne court chat when the accused returned to the house after two hours he told that he had recognised che man he had He did not deny that statement She must nave spoken the truth. The accused only avoided that part of her evidence..."

Then later in the judgment there is che following passage:

"... I heard the plea by the defence, lhe Accused in nis unsworn statement carefully avoided the time the incident took place. For nim the story started at 6.45 a.m. wnen ne discovered the deceased sitting on a path near his house dying. The prosecution evidence examined above puts :ne accused squarely at the scene of chime at tne material time I find that tne prosecution beyond reasonable doubt proved tnat tne accused participated in the assault on the deceased wnicn eventually resulted in his death."

that the trial Judge first accepted the prosecution evidence and then proceeded to consider and then reject the Appellant's defence, including-The learned Counsel submitted that the two passages referred to show his alibi, which was an error.

to more than one possible interpretations. Firstly the learned trial judge may have meant that the appellant should have given an explanation As we understand it, the first of tne two passages is open

in his defence. •4!

I

7/

.•is

If that was so the learned trial Juage enviously infringed'tne principle stated in tne case of Okoth Okale k others vs, Republic (196?) E»A. 555 and followed by this Court in subsequent cases, such as Sam Lutaaya fatal error. vs. Uganda; Cr. App. No. 10 of 1936 (Unreported), ana amounted to

exceptions the burden of proof is tnroughout on the prosecution. It is also the duty of tne trial judge both wnen he sums up to the assessors and when he gives judgment, to Iook at It is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider wnetner or not tne case for tne defence rebuts or casts douot on it. Indeed, no single piece of evidence should be weighed of tne evidence. except in relation to all tne rest tne evidence as a whole. Tne Priciple is that in Criminal Cases apart from certain limited

The passage under consideration could also mean that the evidence of Oliva (PW4) not Having been challenged in crossexamination, as was the case, then tne Appellant must be regarded to nave accepted it; in which case no error was committed by tne learned trial Judge.

learned trial judge considered a wnole reaching the conclusion tnat the prosecution nad proved its case against tne Appellant. Her summing Tne relevant notes show clearly put to tne assessors. trial Judge must review and consider tne prosecution and defence evidence in any particular order. handles tne matter depends on nis/ner style. In the instant case, we think tnat tne impression giving rise to tne learned counsel's critism under this ground may have learned trial Juage wnich, Kith respect, oeen cue to bhe style of the the aefence and tne prosecution evidence as that the Appellant's defence of alioi was Turning to the second passage referred to from the judgment of the up to the assessors would support this view. No fixec rule can be laid, How a trial Judge could nave been better. trial Court, we thinn it shows tnat tne The rule in Okale's case (supra) does not, we think, mean that a

8/

7 -

are unable to agree with tne learned counsel's contentions under this ground which, consequently, must also fail. In tne circumstances we

Ground three is that tne learned trial Judge erred to hold that there was strong circumstantial evidence to convict the appellant. It was submitted that it was the application to tne facts of this case, not the Judge's direction on^the law thtt was wrong. The first leg of the complaint was that the evidence of Oliva (PWH) and Yowana (PW5) having had serious discrepancies ought not to have been relied on.

the disappearance of tne Appellant from the scene. We have already dealt with the issue of contradictions and discrepancies when considering will not repeat our views on the same, except only to aac that tne evidence of Oliva (PW^) and Yowana (PW5) which accepted by the learned trial Judge constituted a sound basis of circumstantial evidence from which the Appellant's guilt for the offence of which ne was convictea was properly inferred. The second one was tnht tne learned trial judge placed an undue weight on ground one of tne appeal and, so, was(rightly . in our view)

With regard to tne Appellant's alleged disappearance from the scene, evidence from Yowana (PWp) incicates that he did no leaving Yowana which was half a mile from Yowana's home • The appellant nad to oe arrested later from his place of work at the Abbotoir, some distance away. In his defence, tne Appellant said that after making an alarm which Yowana (PV/5) and others answered, he himself left for work. The learned trial Judge rejected the defence counsel's contention that the Appellant's absence from tne scene was innocent. We agree with the conclusions expressed in tne following passage of her judgment (at page 38): ana otner persons still at tne scene,

> "... I concede that an inference of guilt drawn from conduct or behaviour must be incapable of any otner explanation tha® that of of guilt of accused. In tne instant case, tne deceased Having been beaten ana left dead at tne accused's home, tne rtccusec should not nave left before knowing 9/

We would point out that even if the donduct of the Appellant reffered to in the above passage was disregarded there would still be ample evidence to connect the Appellant with the crime in this case.

$-9$

1970 HCB, 175"

For the reasons given we are satisfied that the Appellant was properly convicted of manslaughter. His Appeal against conviction must, therefore, fail and is accordingly dismissed.

We now turn to the appeal against sentence. In this regard the learned counsel for the Appellant complained that the learned trial judge did not consider the mitigating factors and that the sentence, though legal, was excessively harsh. In his view it should have been 12 years. *invitived* The learned State Attorney contened; this, and said that all the mitigating factors appeared to have been considered before the sentence in was passed. However, ne agreed that 12 years would have been a more appropriate sentence.

We think that the critism of the learned trial Judge by the Appellant's learned counsel was ratner unfair, because she did take into account one mitigating factor, namely the fact that the Appellant had been $G$ n · 新聞社會生產學院 ilid will van remand for three years. What weighed more in ner idea of balancing factors appears to have been the severe brutality with which the Appellant assaulted the deceased, causing multiple injuries which included injury of the skull, brain injury, complete fracture of the spine, which led to his death. Sentencing is a discreationary matter for the trial court, Unless it is shown that it is based on a wrong principles or is manifestly severe this Court would not usually interfere in a sentence passed by the trial Court.

In the instant case the offence of manslaughter for which the \* ppellant was convicted carries a maximum sentence of life imprisonment waich, in practice, usually means about $1\frac{c}{c}$ vesus. $\sim$ we think, therefore, that the sentence actually passed with legal but manifestly severe.

we accordingly reduce the sentence to 12 years consequently the appeal is allowed to that extent. In the result, the appellant's sentence of 15 years is set aside and is substituted by one of 12 years imprisonment.

$20th$ ..... dey of february 1992. Dated at Mengo this

**MANYINDO D. C. J.**

A. H. Outen J. S. C.

H. G. PLATF J. S. C.