[2019] UGHC 101

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA**

**HOLDEN AT MBALE**

**CRIMINAL APPEAL NO. 0010 OF 2017**

**(ARISING FROM CRIMINAL CASE NO. 0426 OF 2015)**

**MUGUMBA SIRAJI :::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

**VERSUS**

**UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE HON JUSTICE SUSAN OKALANY**

**JUDGMENT**

**INTRODUCTION**

1. This is an Appeal from the Judgment of Her Worship Esther L. Nakadama Mubiru delivered at the Chief Magistrate’s Court of Tororo in Criminal Case No. 0426 of 2015 on 12th April, 2017 wherein the Appellant was charged with the offence of attempted murder contrary to section 204(a) of the Penal Code Act Cap 120 against one No/29297 Corporal Masereka Francis. He was convicted and sentenced to serve four (4) years imprisonment.

**BACKGROUND**

1. The brief facts of the case were that the Complainant was on the 12th day of May 2015 issued with a warrant of arrest by the High Court Mbale for CRB/76/2015. At 4: 00 am, together with other nine police officers, the Complainant proceeded to the Appellant’s home in Doho Village to effect arrest. Upon reaching the Appellant’s home, they experienced some difficulties in accessing it but when they finally entered, the Appellant armed with a panga attacked the Complainant/Victim, and cut him on the face with a panga. The Appellant was consequently arrested. In his defence, the Appellant stated that the police officers accessed his house through the roof and attacked both his wife and him. The learned Trial Magistrate, while giving her judgment largely based on the identification process at the scene of the crime, which she stated was free from error or any form of mistaken identity as the accused was arrested thereafter without leaving his house. She rejected the Appellant’s defence of self defence and convicted the appellant. 2. The Appellant, being dissatisfied with said decision filed this Appeal against it on the following grounds: 3. The Learned Trial Chief Magistrate erred in law and fact when she failed to take into account the various inconsistences and contradictions in prosecution’s case. 4. The Learned Trial Chief Magistrate convicted the Appellant when there was no evidence proving the ingredients of the count of attempted murder contrary to section 204 (a) of the Penal Code Act Cap 120. 5. The Learned Trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence on record as a whole thus arriving to a wrong conclusion that the Appellant was guilty as charged. 6. The Learned Trial Chief Magistrate erred in law and fact when she formed an unbalanced view of the case by preferring and accepting the case for the prosecution without testing it against the case for the defence and was in the circumstances obliged to reject the Appellant’s case.

**REPRESENTATION**

1. The Appellant was represented by Mr. Obedo while the Respondent was unrepresented. When the matter came up for hearing on 22/5/2019, the court ordered that counsel for the Appellant and the State, file submissions by 29/5/2019 and 12/6/2019 respectively. However Counsel for State did not file any submissions.

**SUBMISSIONS OF THE APPELLANT.**

1. Mr. Obedo stated that he would discuss the grounds of the appeal as a whole, and reminded this court of its duty to subject the evidence on record as a whole to fresh, and exhaustive scrutiny, and draw its own conclusions of fact. He prayed that the court bear in mind that it neither saw nor heard the witnesses give evidence in the case. See; ***Pandya Vs R [1959] EA 336***; ***Bogere & Another vs Uganda Criminal Appeal No 1 /97 (S. C) (Unreported)*** when considering the facts of this appeal. 2. In regard to identification, Counsel submitted that the court had over the years laid down conditions that favored correct identification in the cases of ***Abdalla Bin Wendo & Anor vs R [ 1953] 20EACA 166***, ***Rorta vs R [1967] EA 583 Abdalla Nabulere & 2 Ors vs Uganda [1979] HCB 77*** and ***Wassajja Vs Uganda [1975]EA 181***. He stated that these conditions were; the familiarity of the accused to the witness at the time of the offence, the conditions of the lighting, the distance between the witness and the accused, when the latter was under observation, and the length of time the witness observed the accused. 3. Mr. Obedo stated that after considering the evidence of the three Prosecution Witnesses PW1, Pw2, and PW3 who testified about the identity of the Appellant, the Learned Trial Chief Magistrate concluded as follows: “I find that the identification process at the scene of the crime was free from error or any form of mistaken identity as accused was arrested thereafter without leaving his house. 4. Counsel submitted that all the prosecution witnesses except PW1 did not see the Appellant being cut but only noticed that he was bleeding. Furthermore, it was stated in PW1’s testimony, that when he went to effect the arrest at 4:00 am, he had a small rechargeable torch with him, and there was no evidence on record that the other officers had torches. None, of the witnesses as derived from their testimonies had ever seen the accused before the incident, PW1 had further testified that the Appellant was not even on the arrest warrant. Therefore, given the circumstances, none of the witnesses was familiar with the Appellant before the incident. Counsel questioned where the torch went during the attack, and how the other officers were able to identify the Appellant as the attacker without the only available torch. He argued that the complainant was whisked away, and hence did not have the opportunity to look at the Appellant, his attacker. He concluded that there was no overwhelming evidence to show that the appellant was correctly identified. The conditions of identification were not favorable with a single small torch besides, the witnesses were not able to explain how they were able to see after the appellant was attacked, which puts the participation of the accused in question as to whether it was him who attacked the accused or his colleagues. 5. Therefore the Trial Magistrate erred by not properly evaluating the evidence on record and reached a decision that the appellant was properly identified. 6. In respect to the exhibits tendered in court, Counsel stated that the chain of police exhibits is so crucial that if any doubt is created as to the source of the exhibits or that there is a break in the chain of handling, then the evidential value of the exhibit could be challenged. The prosecution witnesses testified that the Appellant used a panga to attack the complainant. PW2 and 3 testified that they disarmed the Appellant of the said panga. PW4, the Investigating Officer (IO) stated that the exhibits which included the panga were brought by the officers who made statements he, however did not state who brought the said panga. Counsel argued that the chain in handing the said exhibits had been broken, and there was no doubt as to whether the panga was actually used. To make matters worse, when the same exhibit was tendered in court, it had no blood stain on it. DW1 and DW2 further testified that they did not keep pangas in the house but the Learned Chief Magistrate did not consider this aspect at all. In fact, defence counsel objected to the tendering in of the exhibit but said objection was ignored. For that reason, counsel believed that the Trial Magistrate erred in ignoring the handling of the said exhibit which was a major inconsistence. 7. Lastly, Counsel Obedo stated that where there are contradictions or inconsistences in the prosecution case, they should be resolved in favor of the accused if they are major and go to the root of the case, but if they are minor and can be explained away they should be ignored. See: ***Uganda Vs Dusman Sabuni (1981) HCB 1***. He further stated that the police sketch plan which was intended to be part of evidence was not produced in court by the Investigating Officer (PW4), who admitted to not taking any photos of the scene despite claiming to have visited the scene. PW4 did not tender in his sketch plan and admitted that the exhibits were brought to him. Counsel faulted the Investigating Officer for not investigating the defence of the accused when he testified that the police officers entered through the roof of his house, and neither did he testify against this evidence to disapprove it. He asked that the court does not allow sloppy police work to be left unchallenged. 8. He further submitted that the Complainant in his testimony stated that he introduced himself and was dressed in police uniform however among the exhibits produced was a blood stained t-shirt that PW1 was putting on that day and appeared to have more blood stains than the police uniform, which proved that the police officer had a civilian shirt on top of his uniform ultimately explaining the testimony of DW1 and DW2 who testified that the said officers were in uniform. To buttress his argument, Counsel referred court to the evidence of PW6 during cross examination on Page 6. 9. The other inconsistency pointed out by counsel was that PW1 testified that he went to the bedroom and was attacked from behind by the Appellant with a panga, he saw that it was the Appellant because he flashed his torch at him before he was attacked. He was contradicted by PW2 who claimed to have seen the Appellant behind the door, saw the Complainant flash a torch at him and ordered him to come out. Counsel argued that this showed that the whole prosecution testimony was a complete fabrication by his team who were illegally carrying out arrests and in the process badly assaulted the accused. 10. In conclusion, counsel faulted the Trial Magistrate for completely ignoring the evidence of the accused, when he submitted that he did not carry a panga and considered the submissions of counsel who claimed it was self defence was not a defence therefore occasioning to a miscarriage of justice. 11. Counsel therefore stated that the Learned Trial Chief Magistrate erred when she did not evaluate the evidence on record properly and reached a decision that was not supported by evidence at all. The evidence on record clearly indicates that the prosecution did not prove the ingredients of manslaughter beyond reasonable doubt because of the gaps in evidence. There should not be any room for doubt that the accused committed the offence.

**DETERMINATION**

1. I have read through the submissions by both Counsel and agree with them that it is the duty of the first Appellate Court to re-evaluate all the evidence, and come to its own conclusion bearing in mind that it did not see the witnesses testify in the Court of first instance (See: ***Kifamunte Henry vs. Uganda Supreme Court Criminal Appeal No. 1 Of 1997)* and that this being the first** appeal, the duty of this Court is to re-evaluate the evidence and subject it to a fresh appraisal so as to reach fresh findings thereon (*See:* ***Pandya v R [1957] EA 336****).* 2. I have studied the lower court’s record and judgment. I have also considered the written Submissions of Counsel and the authorities cited for my guidance. I shall scrutinize grounds 1 and 4 separately, and grounds 2 and 3 will handled together given that they are interconnected in regard to proper evaluation of evidence. 3. In respect of Ground 1, it is trite that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point to deliberate untruthfulness will be ignored (see ***Alfred Tajar v. Uganda, EACA Cr. Appeal No.167 of 1969****,* ***Uganda v. F. Ssembatya and another [1974] HCB 278****,* ***Sarapio Tinkamalirwe v. Uganda, S. C. Criminal Appeal No. 27 of 1989****,* ***Twinomugisha Alex and two others v. Uganda, S. C. Criminal Appeal No. 35 of 2002*** and ***Uganda v. Abdallah Nassur [1982] HCB***). 4. In the record of the lower court proceedings on page 6, PW1 stated that when he entered the bedroom, the accused attacked him from behind the door armed with a panga and cut his face. He then stated in his cross examination that he was cut when facing the Accused and grabbed him in an embrace like manner after he was cut. It is my view that the evidence that this evidence is highly contradictory, my understanding of the PW1’s evidence is that he was attacked from the back, how then was it possible for the appellant to access his face? He contradicted himself further when he said he was facing the Appellant at the time of the attack. Furthermore, PW1’s evidence was that he had decided to physically search for the Appellant again when it was reported by the police officers who first searched for him that the Appellant could not be found in the house, which search led him to Appellant’s bedroom however this evidence was contradicted with PW3’s testimony where he mentioned that when the four officers entered the house, the Complainant inclusive, the appellant was seen hiding behind the door. He stated that PW1 flashed the torch in the Appellant’s face and ordered him to get out at which point the Appellant was attacked. The testimonies are inconsistent in a way that it gives the court two narratives, one where the Complainant was attacked from the back and the other where the Complainant was identified by the other three officers at the time of the attack. This is a major inconsistency that the trial court should have looked into so as to ascertain whether to disregard PW1’s or PW3’s testimony. 5. Also, it was PW3’s testimony that the Accused wanted to cut the accused a second time but he stopped him. This was inconsistent with PW1’s narrative where he stated that after he was cut by the Accused he held him an embrace. This makes one wonder how the Accused/appellant could exercise his hand given the circumstances to attack the complainant twice. 6. Furthermore, it was PW1’s testimony that 15/5/2015, he had gone to effect arrest at the Appellant’s home in Doho Village however in his cross examination, he stated that the arrest warrant was not in respect of the Accused although the Accused/Appellant appeared thereafter in the amended charge sheet. Section 10 of the Criminal Procedure Code Act only requires police officers to arrest any person, who is suspected upon reasonable grounds for committing a cognizable offence without a warrant. In the above circumstances, the purpose of arresting the Accused was not given by any of the officers in their testimony. PW1 only stated that he was led to that Accused’s home by the sons of the complainant in CRB 76/2015. I noted that the prosecution did not produce any of the said sons as witnesses to corroborate PW1’s assertion. I find this behavior highly suspicious, which makes one wonder why the Appellant, who was not originally mentioned in the warrant was been pursued. 7. According to PW2’s evidence, he stated that the police officers were dressed in police uniform. This was also corroborated by PW5, the medical officer at Busolwe hospital who stated that the Complainant was wearing a police uniform. However, PW6 No. 27635 D/Cpl Mutebi Patrick who was the store keeper of Busia Police Station at the time stated that he received a cream checkered T-shirt stained with blood which he kept as an exhibit. This corroborates DW1’s testimony where he stated that the Complainant was not dressed in police uniform but rather civilian clothes. 8. In conclusion, these are all major contradictory pieces of evidence, which when examined in totality ought to have been decided in favor of the Appellant basing on the law on inconsistences. 9. In respect of ground 4, the Supreme Court in ***Mumbere Julius Vs Uganda Criminal Appeal No.15 Of 2014*** stated that it is the duty of an appellate court to consider the totality of evidence to determine whether the essential elements of the crime have been proved beyond reasonable doubt. To buttress their opinion, they cited the case of ***Dpp vs Oscar Lenoard Carl Pistoruis Appeal No. 96 of 2015*** in which they maintained that the test was well stated, it provided:

*“The proper test is that an accused is bound to be convicted if the evidence establishes his [her] guilt beyond reasonable doubt, and the logical corollary is that he [she] must be acquitted if it is reasonably possible that he [she] might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be false; some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.*

1. The Appellant/DW1 testified that he was attacked on 12/08/2015 at about 2am. Both DW1 and DW2 narrated that the Complainant passed through the roof. DW2 opened the door, other men entered their house and beat the accused/appellant who was later arrested. DW3 corroborated part of DW1’s evidence when he mentioned that upon examining the Appellant, he found that he was in pain and had difficulty in walking, his right eye was red and he had wounds on the track and both limps. The learned Trial Magistrate in her judgment did not evaluate his evidence at all but only mentioned that in the submissions of counsel of the appellant, a human rights violation was reported against the police officers however, she could rely on that evidence since the police officers under investigation were not mentioned. 2. The law is that is that the court is required to investigate all the circumstances of the case including any possible defenses even though they were not duly raised by the Accused for as long as there is some evidence before the court to suggest such a defense ***(See: Okello Okidi vs. Uganda SCCA No. 3 of 1995)***. The defense witnesses in the lower court gave their version of what had transpired that night but during her deliberations, the learned Trial Magistrate did not take their story into account. She stated that the police officers were not mentioned, yet DW1 and his wife (DW2) testified that it was the Complainant who assaulted him among others. This was sufficient identifying the police officers, his assailants. The Trial Magistrate instead relied on the possibility of the Accused/Appellant attacking the Complainant as an act of self-defense as submitted by counsel. It is trite that submissions are not evidence, the trial court should have relied on the evidence presented before it. I therefore agree with the Appellant’s counsel that the learned Trial Magistrate formed an unbalanced view of the case by preferring and accepting the case for the prosecution without testing it against the case for the defense. In any case, it has been stated that the burden of proof does not shift, and the accused can only be convicted on the strength of the prosecution case and not because of any weaknesses in his defence (See: ***Ssekitoleko v. Uganda [1967] EA 531***). 3. In regard to Grounds 2 and 3, the burden of proving that the Appellant committed the offence lies on the prosecution. Section 204 (a) of the Penal code act proves: “Any person who attempts unlawfully to cause the death of another; or with intent unlawfully to cause the death of another, does any act or omits to do any act, which it is his or her duty to do, such act or omission being of such a nature as to be likely to endanger human life, commits a felony and is liable to imprisonment for life”. The Trial Magistrate held, that all ingredients were established beyond reasonable doubt, subsequently convicting the Appellant. 4. However, in order to establish a conviction, one has to show that the Accused/ Appellant is the one who committed the act with the intent to cause death. Most of the Trial Magistrate’s conviction was based on the identification of the Appellant by PW1, PW2, and PW3 at the scene of the crime basing her decision on their proximity with the Appellant on the said date. She ***cited Abdulla Bin Wendo versus Republic [1953] 20 EACA*** and ***Uganda Omasat Tom and 4 others HC 01422/2013***.

In ***Ainomugisha vs Uganda Criminal Appeal No. 19 of 2015***, the Supreme Court stated: “… the guidelines on the approach to be taken in dealing with evidence of identification by eyewitnesses in criminal cases. The starting point is that the court ought to satisfy itself from the evidence whether the conditions under which identification is claimed to have been made were or were not difficult, and to warn itself of the possibility of the mistaken identity**.** The Court should then proceed to evaluate the evidence cautiously so that it does not convict or uphold a conviction, unless it is satisfied that mistaken identity is ruled out. In so doing the Court must consider the evidence as a whole, namely the evidence if any, of factors favoring correct identification together with those rendering if difficult. It is trite law that no piece of evidence should be weighed except in relation to the rest of the evidence. (See ***Suleman Katusabe Vs Uganda SC Cr. App. No. 7 of 1991***) (***unreported***)”

In that case the Supreme Court also cited a passage from ***Abdala Nabulele & Another Vs Uganda, Supreme Court Cr. App. No. 1978 reported in (1979) HCB 77*** which held:

“where the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defense disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one, and even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good the danger of mistaken identity is reduced but the poorer the quality the greater the danger.... When the quality is good, for example, when the identification is made after a long period of observation or in satisfactory conditions by a person who knew the accused before, a Court can safely convict even though there is no other evidence to support the identification evidence, provided the Court adequately warns itself of the special need for caution”

1. The prosecution led evidence through its witnesses’ PW1, PW2 and PW3, who stated that although they arrested the Appellant at night, they were able to identify him because the Complainant was holding the touch. PW2 stated that he was outside and only heard the Complainant shouting that he had been attacked however he did not state that he physically saw the Appellant assault the Complainant. PW3 stated that PW1 flashed the torch in the face of the accused and that he was able to identify him because he was known to him. However, this statement contradicts PW1’s testimony on page 6 of the record of the proceedings where he stressed that he was attacked from the behind as he entered the Appellant’s bedroom. PW1 further averred that with his torch, he was able to identify the Appellant whom he saw with the panga immediately before his attack. However, he had previously indicated that he had been attacked from behind by the appellant. He also stated that after the attack, he immediately grabbed the accused/appellant an embrace like fashion. Upon examining the above facts, I find it highly improbable for the Complainant to have had the time to hold the torch while in pain from the attack, struggle with the Accused/Appellant and identify him in those circumstances. Therefore, all the conditions favoring correct identification were not met for PW1 to properly identify the Accused/Appellant. I have also considered the following:

* It was dark. Most of the prosecution witnesses and even the Appellant testified that they could not see clearly at that material time. * When the Complainant was attacked, I highly doubt that his flash light provided stable sufficient light to identify the assailant because he was in physical pain when he held the Appellant in an embrace fashion. * It was also stated that many officers entered the house, and therefore there was a high possibility that the Complainant might have been assaulted by another person other than the Accused/Appellant. * The inconsistences between PW1 and PW3 as to when the Accused/Appellant was seen.

1. Secondly in regard to exhibits, PW6 stated that he did not handle recover the exhibits but received them from Tudde Titus (Corporal) and other police officers, he was not specific PW2 in his examination in chief stated that he concentrated on saving PW1 but not on the panga. No specific person was named in handing over the panga. When the State was tendering in exhibits to be admitted in the court, the Appellant’s counsel objected because there were no blood stains on the panga which was contrary to PW1 and PW6’s testimony. The Trial Magistrate relied on the exhibits tendered in court which did not give a clear history of how they were handled. In ***Sekatawa vs Uganda criminal appeal no.37 of 2014***, court rejected the exhibits adduced in the lower court because it showed a clear break in the chain of evidence in respect of the exhibit. That is, how is was recovered, who did so, how it was handled and the store man was not available to verify and confirm that the trousers was the one recovered at the accused’s home. In the instant case there was no clear chain of evidence given by the prosecution on how the exhibits were handled. Therefore, the Trial Magistrate with due respect should not have relied on that evidence, 2. Lastly, I find that without the other pieces of evidence, the Trial Magistrate used circumstantial evidence to place the Appellant at the scene of the crime. I find that the trial magistrate based largely on circumstantial evidence in believing the testimonies of PW1, PW2 and PW3 given that she stated that the identification process was free from error or any form of mistaken identity as the accused was arrested thereafter without leaving his house. It is settled law that a conviction based on circumstantial evidence to hold, the exculpatory facts must point to the guilt of the accused person to the exclusion of any other reasonable hypothesis. See: ***Alluyi Versus Republic (1975) EA 218***. As explained above, there are many other factors that question the Appellant’s involvement in the commission of the assault on PW1 therefore, this court cannot base on that circumstantial evidence to uphold his conviction. 3. I accordingly allow this appeal. The judgment of the lower court is set aside and the conviction and sentences quashed. It is ordered that the Appellant be set free immediately.

I so order.

**Susan Okalany**

**JUDGE**

**24/09/2019**