[1993] UGSC 54

IN THE SUPREME COURT OF UGANDA

## AT MENGO

MANYINDO. D. C. J. ODER, J. S. C. & PLATT, J. S. C. COR_LM.

### CRIMINAL AFFEAL NO. 10 OF 1992

BETWEEN

LEO. NYENDWOHA $x$ : : : : : : : : : : : : : : : : : AFFELIANT $\Lambda$ N D $\sim$ $\sim$

$\cdots\cdots\cdots\cdots$

$\mathcal{L}^{\mathcal{L}}$

$\cdots, \cdots$

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

(Appeal against conviction and sentence of the High Court decision holden at Hoima (Hon. MR. Justice C. M. Kato) dated $12/1/2/1991$ )

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## HIGH COURT CR. SS. CASE NO. 253/91

# JUDGMENT OF THE COURT

This appeal emanates from the Appellant's conviction of murder contrary to Section 183 of the Fanal Code Act and sentence of death. It is argued that the trial Court did not evaluate the ovidence carefully, which did not support the conviction. In so doing the Court rejected the defence wrongly which caused a miscarriage of Justice.

We cannot think that these arguments are sound. It is an appeal on the facts, no question having arisen on the approach to the law.

The case for the prosecution depended upon the evidence of Kabihirwa's account of what happened (P. W.4). No other witness was called who saw what happened; but Kabihiryo's immediate report to her husband Angonio (P. W.6) illustrated her consistency. Kabihirwa's husband Antonio is the brother of the Appellant. On 28th May 1990 at about 10 s.m. she saw the deceased Amosi Mugisa passing by her home. She had known Amosi Mugisa and they had a conversation in which Amosi Mugisa said that he had come from demanding his money. As Amosi was leaging Kabihirwa's compound, the Appellant appeared armed with

The latter started chasing Amosi Mugisa who ^a spear and. ^a sickle. was unarmed. The Appellant's son Kyotomanya joined his father in chasing Amosi Mvgiaa, and Kyotomanya was armed with a small hoc.

Kabihirwa followed the chase. The Appellant and Kyotomanya had caught Amosi Mugisa in the bush. Amosi was lying on his back and the appellant was sitting on top of Amosi twisting the latter's hands. Kyotomanya was standing by Kabihirwa asked what the Appellant was doing. He replied;-

"Get out of my sight."

But Amosi pleaded with her not to leave him. Kabihirwa moved four paces away and raised the alarm. She then saw Kyotomanya hit Amosi's head with the back of his hoe many times. As Kabihirwa continued to raise the alarm the Appellant got up saying to Kyotomanya:-

"We have finished him let us go to the Policy"

The Appellant then started hitting Amosi with the sickle on his head. Kabihirwa now moved back to her home raising the alarm. Her husband Antonio appeared, and hearing what had happened, they went together to the scene which was estimated as being about 30 yards away. The--Appellant and -Kyotomanya .were no longer there. ' Kabihirwa thought that Amosi had died at that time. But her husband thought that Amosi was on the point of dying. He rushed to the Police and reported the matter to the Police.' H'c then returned with a policeman and the. Doctor who carried out a field post mortem examination on Amosi's dead body.

but he denied an ill-feeling between hdm«elf and the Appellant or between the Appellant and the deceased Amosi. He nniod that there was a land dispute. Antonio confirmed that the Appellant lived nearby in the same village.

As this Court has said on several occasions recently, the first report to the authorities should be in evidence. The report to the ../3

Police not brought before the was Court• It is clear that some Policemen must have come with Dr. Komakech to carry out the post mortem.

near the left were consistent -with a shar-p instrument such as a spear, or sword. There was also a depressed fracture of the skull and jaw bones, which wounds were consistent with a blunt object. Amosi met his death, according to the Doctor, because. of cerebral laceration and haemorrhage• The Doctor also confirmed that the body was about 20 - 30 yards from the nearest home. a fracture of the left eye, the frontal regions of the head and on the ear, which The Doctor (P. W. J) confirmed that there were penetrating wounds

Altogether it seemed to the trial Court that the weapons described by Ksbihirwa, the sickle and the back of a hoe were consistent with the wounds observed by the Doctor. Unfortunately that was not put to the Doctor. It is not clear to us why medical opinion on this type of evidence is nearly always missing. It is so often the case that medical evidence is admitted under Section 64 of Trial on Indictments Decree. But at least the investigations could inquire whether the prosecution second statement from the Doctor, when the investigation is complete on this point. If prosecution has possession of the alleged weapons they should be shown to the Doctor and his opinion elicited. obtained, he should bo called as a witness. as matters stand, a sickle is a sharp penerating instrument and the hack of a" hoe'\* a blunt instrument, so that these instruments cannot be said to have been of the wrong type, and in general they would seem to be consistent. case is consistent, if necessary, by taking a Otherwise, if the Doctor's opinion cannot be

As against tki« atcfcaat of what happened, the Appellant's defence was, as the learned Judge remarked, rather contradictory. It should perhaps be quoted exactly:-

• •A

*3*

"I did in fact kill Amosi, but he attacked me he came with his weapons. On that day he came with a piece of timber and a hee and he attacked me at my home. He came with Kabihirwa, the woman who was in Court this morning and about 6 other people. They found me pruning my coffee the deceased said "you have been running away but this time you are caught." Amosi Mugisha then started chasing me. As I was trying to get into the bush he caught me and I caught a prece of timer which he was holding. I fell down and he also fell and his colleagues started beating him (thinking) that they were beating me although it was 11.00 a.m. Is I was trying to run away Kabihirwa beat me at the back because I had a land dispute with her husband, Antonio. I managed to run away from Kabihirwa. I ran towards Kikwatamigo area. When I reached Kikwatamigo I was arrested on suspicion that I had killed somebody.

Before I started running , I left when those people had stopped beating the deceased but he had not died. On that day Kyotomanya my son was not present.

Bef re this incident Antonio my brother had hired Amosi Mugisa to attack me and I had taken the matter before RCI committee who sent me to Buhanika RCIII. When they went to arrest Mugisha he ran and hid himself at the home of Antonio. Even now it would seem Antonio is already encroaching on my land.

The truth of the matter is that when I was struggling with the leceased the piece of wood with which he came hit him and his colleagues started beating him."

It is the right of the Appellant to have this Court consider the evidence again in the light of the findings of the trial Court. (Pandya V R (1957) E. A. 336). We have done so and borne in mind what learned Counsel for the Appellant has argued before us. But it cannot be contended that mush sense can be made out of the defence. Did he kil the deceased or did he not? Is it not remarkable that six people should beat the deceased in mistake for the Appellant at 11. a.m.?

Weighing the avidence of the prosecution with the Appellant's unsworn statement, we can well appreciate that the trial judge and the assessors preferred the evidence for the prosecution.

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Having made that decision there was also evidence that the Appellant and his son, acting with common intention unlawfully killed Amosi Mugisa with the intent to kill him\* The wounds aaused-.were not or all consistent with ^a piece of wood. The cause of the penetrating wound was something else. Kabihirwa said it was ^a sickle. The Allellant remarked to his son

"We have finished him let us go to the Police."

That indicated a satisfaction that Amcsi Mugisa had been killed. It is clear beyond doubt that the Appellant and his son murdered Amosi Mugisa. It seems from the defence that they harboured grudges against the Appellant's brother Antonio. Although these matters were not accepted by Antonio, they aay well have inflamed the Appellant and his son, to attack the deceased.

The sentence of death was mandatory for a man of the Appellant's age, 52 years.

Consequently we dismiss the appeal.

January Delivered at Mengo this day of 1993 14th

> S. T. MANYINDO DEPUTY 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 . COPY OF THE ORIGINAL

B. F. B^ BaSiGUMIRA REGISTRAR SUPREME COURT.