[1995] UGSC 33

$\sim$ manon LEO MWEBAZE

**UGANDA**

TN THE SUPREME COURT OF UGANDA

AT HENGO

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

CRIMINAL APPEAL NO.28 OF 1993

BETVEEN

.... APPELLANT

A N D

.... RESPONDENT

(Appeal against conviction of the High Court of Uganda at Mbarara (Rajasingham, J) dated 15.1.1993,

TN

Criminal Session Case No. 172 of 1992)

## JUDGMENT OF THE COURT

The appellant LEO MWEBAZE, alias TURYOMURUGYENO, was convicted on 15.12.1993 of murder, contrary to section 183 of the Fenal Code, and sentenced to death. The indictment consisted of three counts of murder, on all of which the appellant was convicted, but sentences were suspended in respect of two of the counts.

The offences were alleged to have been committed during a single incident. The particulars were that on 10.12.1988 at Namirima village, Isingiro county in Mbarara District, the appellant murdered Kashamba, Mkuba and Kazirwe. The killings of the three deceased persons formed the subject matter of the first second, and the third counts respectively of the indictment.

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The prosecution case was that on the night of the 10.12.1988, the appellant and the three deceased persons disagreed about sharing of money which they had apparently robbed from one Alfusi Kyakumutaho (FW3). As a result of the dispute the appellant turned a gum on and shot his three companions; killing two of them instantly, and critically injuring the third, Kazirwe, the subject matter of the third count. Kazirwe was subsequently taken to Mbarara Hospital for medical treatment, where he later died.

To prove its case, the prosecution relied on first, statements made by Kazirwe to policemen who visited the scene of the crime; secondly medical evidence which clearly indicated that the three deceased died of gum shot wounds; and third, an extra judicial statement made by the appellant before a magistrate to the effect that he fired a gun at the three deceased persons when he realised that they were planning to kill him.

The appellant denied killing the deceased. In an unsworn statement made in his defence he went on about how he was arrested in Bushenyi and tortured there, transferred to Mbarara police station, where he was again tortured and threatened to admit before a magistrate of having killed the deceased or else he (the appellant) would be killed.

## didnisacupi Itas

The learned trial Judge rejected that the statements, made by Kazirwe to the policemen before he died, amounted to a dying declaration. He accepted the

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the appellant's extra judicial statement as proving that he had shot the deceased persons and found that he had not done so in self defence. The learned trial judge also rejected the appellant's denial made in his unsworn statement. He concluded that the appellant had shot the deceased persons in circumstances amounting to murder, and convicted him accordingly. Hence this appeal.

Six grounds were set out in the memorandum of appeal, of which two, namely grounds two and three, were abandoned; only two, namely grounds one and four, were argued. by the learned counsel for the appellant, Mr. Edward Muguluma. We think, with respect that grounds six and seven which, though not abandoned, were not argued by the learned counsel, were completely devoid of any substance. It is not surprising, therefore, that not a word was said about them by the learned counsel. No more, we think, needs to be said about those two grounds.

The two grounds argued by the learned counsel were $that :-$

- $1.$ The learned trial judge failed to evaluate evidence for each count and hence erred in law in making a finding of guilt on the appellant in the absence of direct evidence. - $4.$ The learned trial judge erred when he based his findings on the extra judicial statement.

In our view, the two grounds of appeal are interrelated and, so, shall be considered together.

In his submissions on the two grounds, the learned firstly that the three counts on which the counsel said / appellant had been indicted were independent of each other and each had to be proved to the required standard. But this is not what the prosecution did. It adduced evidence from the same witnesses to try to prove the three counts of the indictment, and the learned trial judge relied of the same prosecution witnesses to convict the appellant as charged.

Secondly the appellant was not identified by any of the prosecution witnesses at the scene. Thirdly the gun allegedly found in his possession when he was arrested し in Bushenyi was not tested to connect with the empty cartridges that were recovered from the scene.

Fourthly having rejected what Kazirwe, deceased, said to the police investigating officers as being a dying declaration, the learned trial judge relied only on the appellant's extra judicial statement to convict him of the charges in all the three counts.

Regarding the statements made by Kazirwe, deceased, to the police witnesses, the learned counsel conceded that they were wrongly rejected as not being dying we agree On the contrary, the statements should declarations. have been accepted as such under section 30 (a) of the Evidence Act (Cap. 43 of the Laws of Ugenda). The Laws in Aganda is different as in East Office generally, in different to the law in England On this point. $.../5$

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As regards the appellant's extra-judicial statement. the learned counsel said that it raised the defence of self defence. In the circumstances the learned trial judge ought to have either acquitted the appellant or, at worst, convicted him of manslaughter.

With respect we are unable to accept the learned counsel's arguements under these grounds of appeal which, in our view, have no merit. Mr. Muguluma, we think, made a spirited attempt to salvage what was clearly a difficult case for him. In our view there was ample evidence against the appellant to support his conviction on all three counts of murder.

The offences were committed during a single incident. So the contention that they should have been proved by seperate pieces of evidence does not, with respect, hold water. The same evidence adduced by the prosecution was sufficient to prove all the offences in the indictment. These were, first what Kazirwe, deceased, told the police officers at the scene and in the hospital after he had been critically injured. This, in our view, amounted to a dying declaration which was relevant to the cause of the maker's death.

According to the evidence of KIZZA JOHN DAVIES I/P (PW1) and DET CPL GEOFFREY KAYEMBA (PW4), both of Mbarara Police station at the material time, what happened is this, on 11.12.1988, IP Davies (PWI) received a report that there were three dead bodies with gun shot wounds lying at Namirima village. He went to the scene, accompanied by D/Cpl Kayemba (FW4). Arriving at the scene FW1 and FW4 found two dead bodies of adult males. The third person wes still alive, but in a critical condition. The dead were Kashamba and Nkuba, the subject matter of counts

one and two respectively. Kasirwe, the subject matter of count three, was still alive, mentally alert, and able to talk, but with difficulty. He was bleeding from a leg wound. All his clothes were soaked in blood. He identified himself to I/P Davies as Elly Kazirwe and the two dead men as Nkuba and Kashamba.

The relevant part of IF Davies (PW1) evidence reads as follows:-

> "As he was appealing to be taken for medical attention, he knew his condition was worsening. As I was searching the scene I ordered my detectives to put the injured man in the motor vehicle. After<br>examining the scene, I put the two<br>dead bodies also in the same vehicle. This was after noting what was at the scene and making a sketch plan. I<br>then rushed them to hospital. At the scene the injured man, Kazirwe, told $me-$

"We failed to share the money we robbed Leo Mwebaze shot us all and he disappeared with the money".

I asked him how he could be treated.... when we reached the hospital the two dead bodies were put in the mortuary, and Elly Kazirwe was admitted to hospital. By the time his condition<br>had wormened. I accordingly detailed Det Const. Kayemba to monitor him in<br>hospital Mbarara. On 13th December, 1988,<br>I received information from D/C Kayemba that Elly Kazirwe had died. A post-<br>mortem was done on the three bodies. A<br>the police station I placed three empty $At$ cartridge shells or exhibit which I had found at the scene."

Thereafter, I/P Davies mounted r search for that the appellant. On 1.2.1989 he received information that the a pellant had been arrested in Dushenyi. He sent D/Cpl Kayemba (TWA) for him, and Kayemba brought the

$...7$ appellant with a gum he had been reportedly arrested with.

D/CPL Kayemba (PW4) also testified about what the deceased Kazirwe said at the scene to the effect that he (deceased) had been shot by the appellant. Later at the hospital Kazirve informed Kayemba (PW4) that he was badly off, and Kayemba recorded what he said as follows:

> "Iam badly off and I was shot by Leo Mwebase and I can die any time."

In his judgment the learned trial judge... rejected, these statements as dying declarations made by be the deceased, Kazirwe in the following terms:

> " I do not accept the evidence of statement made by the deceased to this witness because the deceased was not<br>labouring under a helpless expection of death. He said 'Iam badly off' and<br>again 'I can die any time!'.<br>Numerous authorities have laid down the principles governing dying declaration<br>not the least of which is that they should almost always not be admitted if the court had any doubt as to their admission. One such guideline is the absolute necessity that the accused (Sic.) should believe<br>he had no hope at all and was dying. It<br>is owful and solemn hopelessness of the moment that is considered to be equivalent to an oath in court. Hence althought I was<br>impressed with this police officer and<br>believe he may have heard the deceased say<br>these words. I do not accept the words<br>themselves in evidence and shall totally disregard them in my deliberations".

With respect, we are unable to agree with the Jüdge learned trial/in what he said in the passage above as the test for admission of a statement as a dying declaration. The learned trial judge appears to have had in mind the principles or tests which apply to dying declarations in the English jurisdiction, which are more stringent. In our law the provisions of section 30 (a) of the Ividence Act, which govern such statements,

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"30 statements, written or verbal, of<br>relevant facts made by a person who<br>is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves relevant in the following cases-

(a) When the statement is made by a person as to the circumstances of the transaction which resulted in his death. In cases in which the cause of that person's death comes into question and such statements are relevant whether the person who made them was or was not, at the time when they were made under the expectation of death, and whatever<br>may be the nature of the proceedings in which the cause of his death comes into question,"

Under these provisions we think that the statement made by Kazirwe to I/P Davies (FW1) and repeated to D/CPL Kayemba (PW4) was admissable as a dying declaration. The second statement to Kayemba (PW4) was indicative of consistency by Kazirwe on the matter. The dying declaration was, therefore, admissable as evidence of proof of the circumstances of the transaction which resulted in his death. Corroboration of the dying declaration was provided by the medical evidence given by Dr. Mathias Kiryowa, who carried out post-mortem examinations of the bodies of the deceased.

Regarding Kashamba, deceased, the doctor said that he found a penetrating gun shot wound on the left side of the chest and another one on the right side of the chest. These were external wounds. Internally, both lungs were badly torm and the chest cavity full of blood.

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Cause of death was internal and external bleeding. On the body of Kazirwe, deceased, the doctor found external gun shot wounds on the left thigh. The muscles of the thigh were badly torm ; the deceased had obviously bled a lot. There were no other injuries, cause of death was extensive external hoemorrhage and shock. On the body of Nkuba, deceased the doctor found a penetrating wound on the forehead about two centimeters in diameter, and another wound at the back of the head penetrating the skull; which was larger than the first. The first was the penetrating wound, and one on the back of the head the exit wound. Both must have been caused by a bullet. Cause of death was brain damage and cerebral haemorrhage.

The gun shot wounds causing the deaths of the deceased tally with Kazirwe's dying declaration that he and the other two deceased were shot.

Kazirwe's dying declaration was also corroborated by the appellant's extra judicial statement, which was another important piece of evidence against him. It was recorded on 3.2.1989 by a Grode III Magistrate, Cyril Mbaluira (PW5) who was stationed at Mbarara at the material time. The Magistrate testified regarding how he recorded the statement and he tendered it in evidence without objection by the defence. This is what the appellant was recorded as having said in the statement.

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"..................................... wanted to kill me, when I realised that they were planning to kill me,<br>I also got hold of the gun fired them. They were in front of me, they<br>fell down, I left them there. All this happened in the area between Kabenebene T. C. and Nsiikye area. killed them around 9.20 at night. They wanted to kill me because of the money which I had. That is all I have to state."

On being interrogated by IP Davies (FW1) the also appellant told the police officer that he killed the three deceased in self defence.

This extra judicial statement and the statement to the police was not a confession. It was an admission of killing of the deceased by the appellant but in an act of self defence. The learned trial judge considered the defence of self defence and rejected it. We agree with him for the following reasons.

First, the appellant was silent in his unsworm statement about the alleged plan by the deceased person to kill him which he mentioned in the extra judicial statement. If he shot the deceased in self defence, he would have been expected to have said so at his trial. Secondly there is no evidence, either from the police witnesses or from the appellant's extra judicial statement that any other weapon, another gun or a stick, was found at the scene. Moreover no sign of a struggle was found. From the appellent's extra judicial statement it appears that there was only one gun with him and his other two companions. If that was the case, there would have been no need for the appellant to shoot his two companions after he had got hold of the gun. It would appear that he shot them when his own life was not in danger. In the extra judicial statement, he said that he fired at them when they were in front of him and they fell down. In these circumstances it is apparent that he would not have shot the deceased in self defence. That defence in our view was, therefore, rightly rejected by the learned trial judge.

Another relevant piece of evidence, which is circumstantial, came from Alfusi Kyakumutaho (PW3). who said that money and other articles of property were robbed from him during the night in question by men who appeared to be armed. The following morning, he found the stolen money and articles at the scene where the bodies of the deceased were discovered. In view of the other evidence already referred to this points to the appellant and as having been robbers. It would also support the Kazirwe's dying declaration that the appellant killed him and the others because they failed to share stolen money. The appellant also said in his extra judicial statement that the deceased wanted to kill him because of the money which he had.

As regards the gun which was allegedly found in the appellant's possession when he was arrested, we think that it would have been prudent to have it and the empty cartridges recovered from the scene tested to determine whether there was any connection between the gun, the appellant and the killing of the deceased. But no such tests were carried, and explanation was given for this failure. When cross-examined on the point, I/P Davies (PW1) admitted that "Not sending the gun to the chemist fails to strengthen my case". But we do not think that the ommission to test the run and the cartridges

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was fatal to the appellant's conviction, as there was other ample evidence on which the learned trial judge was entitled to act as he did.

For the reasons given, our view is that the appellant was properly convicted as indicted. In the result, we find no merit in this appeal. The conviction is up held and the appeal is accordingly dismissed.

Dated at Mengo this $\cdot$ . $\cdot$ ...... day of $\cdot$ ....................................

## S. T. MANYINDO<br>DEPUTY CHIEF JUSTICE

A. H. O. ODER<br>JUSTICE OF THE SUPELI $\mathbf{E}$ COUTT

H. G. FLATT<br>JUSTICE OF THE SUPPLIED COUPT

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