[2004] UGCA 19

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\widowctrl\ftnbj\aenddoc\noxlattoyen\expshrtn\noultrlspc\dntblnsbdb\nospaceforul\formshade\horzdoc\dghspace180\dgvspace180\dghorigin1701\dgvorigin1984\dghshow0\dgvshow0 \jexpand\viewkind1\viewscale100\pgbrdrhead\pgbrdrfoot\nolnhtadjtbl\nojkernpunct\rsidroot4552892 \fet0{\*\ftnsep \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 { \insrsid4552892 \chftnsep \par }}{\*\ftnsepc \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid4552892 \chftnsepc \par }}{\*\aftnsep \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid4552892 \chftnsep \par }}{\*\aftnsepc \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\insrsid4552892 \chftnsepc \par }}\sectd \psz9\linemod5\linex0\endnhere\sectdefaultcl\sftnbj {\footer \pard\plain \s16\ql \li0\ri0\widctlpar\tqc\tx4153\tqr\tx8306\pvpara\phmrg\posxc\posy0\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\field{\*\fldinst {\cs17\insrsid4552892 PAGE }}{\fldrslt {\cs17\lang1024\langfe1024\noproof\insrsid1342054 1}}}{\cs17\insrsid4552892 \par }\pard \s16\ql \li0\ri0\widctlpar\tqc\tx4153\tqr\tx8306\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 {\insrsid4552892 \par }}{\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang {\pntxta )}} {\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl7\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl8 \pnlcltr\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang {\pntxtb (}{\pntxta )}}\pard\plain \s15\qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 \b\fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 THE REPUBLIC OF UGANDA \par }\pard\plain \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs24\insrsid4552892\charrsid4029237 IN THE COURT OF APPEAL OF UGANDA AT KAMPALA \par }\pard \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 \par CORAM\tab HON. MR. JUSTICE S. G. ENGWAU, JA. \par \tab \tab HON. LADY JUSTICE C. N. B. KITUMBA, JA. \par \tab \tab HON. LADY JUSTICE C. K. BYAMUGISHA, JA. \par \par }\pard\plain \s1\qc \li0\ri0\sl360\slmult1\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel0\adjustright\rin0\lin0\itap0\pararsid4029237 \b\fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 CRIMINAL APPEAL NO. 32 OF 2001 \par }\pard\plain \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs24\insrsid4552892\charrsid4029237 \par 1.\tab LUBEGA JOHN BOSCO\tab }{\b\fs24\insrsid4029237\charrsid4029237 ]:}{\b\fs24\insrsid4552892\charrsid4029237 ::::::::::::::::::: APPELLANTS \par 2.\tab MUGERWA GRIVANSIO\tab ] \par \par }\pard\plain \s1\qc \li0\ri0\sl360\slmult1\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel0\adjustright\rin0\lin0\itap0\pararsid4029237 \b\fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 VERSUS \par }\pard\plain \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs24\insrsid4552892\charrsid4029237 \par }{\b\fs24\insrsid1342054\charrsid4029237 UGANDA:}{\b\fs24\insrsid4552892\charrsid4029237 :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT \par }\pard \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\b\i\fs24\insrsid4552892\charrsid4029237 [An appeal from the judgment of the High Court of Uganda \par at Masaka (Okumu-Wengi, J.) dated 15/12/199 in \par Criminal Session Case No. 323 of 1997}{\fs24\insrsid4552892\charrsid4029237 ] \par }\pard \ql \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 \par \par }{\b\fs24\ul\insrsid4552892\charrsid4029237 JUDGMENT OF THE COURT:}{\fs24\insrsid4552892\charrsid4029237 \par \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\fs24\insrsid4552892\charrsid4029237 Lubega John Bosco and Mugerwa Girivansio hereinafter referred to as the first and the second appellants and one Kyaluzi Augustin }{\fs24\insrsid4029237\charrsid4029237 were indicted}{\fs24\insrsid4552892\charrsid4029237 on three counts. Counts I and II were for murder contrary, to sections 188 and 189 of the Penal Code Act and count III was for robbery with aggravation, contrary to sections 285 and 288 (2) of the Penal Code Act. Kyaluzi Augustin was }{ \fs24\insrsid4029237\charrsid4029237 acquitted on}{\fs24\insrsid4552892\charrsid4029237 all the counts. \par The first and the second appellants were convicted as charged and sentenced to death on the three counts. Th}{\fs24\insrsid4029237 e sentence of death on counts }{\fs24\insrsid4552892\charrsid4029237 I and III were suspended. The two appellants have appealed to this court against the convictions. \par \par The following were specified as per particulars of offence. In the fir st count they were charged with the murder of Tereza Nakawesi and in the second count they were charged with the murder of Robert Ssemugenyi. The third count charged them with the robbery of shillings 100,000/- and 3 sacks of coffee from Tereza Nakawesi. It was alleged that at the time of the said robbery a deadly weapon}{\fs24\insrsid4029237\charrsid4029237 , to}{\fs24\insrsid4552892\charrsid4029237 wit, a panga was used on the said Tereza Nakawesi. All the offences were committed on or about the 15}{ \fs24\super\insrsid4552892\charrsid4029237 th}{\fs24\insrsid4552892\charrsid4029237 day of October, 1996 at Bunyuma village, Kyanamukaaka sub-county in Masaka District. \par \par The prosecution case as accepted by the learned trial judge was that Tereza Nakawesi}{\fs24\insrsid4029237\charrsid4029237 , the}{\fs24\insrsid4552892\charrsid4029237 victim in Count I, was an old woman who lived at Kyanamukaaka village. She lived in her house with two grandsons, namely; Robert Ssemugenyi, the victim in Count II and Vicent Katumba, PW1. During the night of 15}{ \fs24\super\insrsid4552892\charrsid4029237 th}{\fs24\insrsid4552892\charrsid4029237 October 1996, the appellants and Kyaruzi broke into her house. They found her and her two grandsons sleeping. They demanded for money that she gave to them. They assaulted her and strangled her to death. The assailants also assaulted Robert Ssemugenyi and cut him to death. They strangled PW1 whom they left for dead but in fact was still alive. As the appellants were flashing their torches inside the house, PW1 saw and recognised the second ap pellant whom he knew before as he was a neighbour. The assailants took from the house dry coffee which was in the bags. After sometime they left the house. PW1 was then lying down on the floor together with the two dead bodies of his relatives.

\par \par In the early morning of the following day at around 6.00 a.m. PW1 made an alarm and went to the home of Emmanuel Lubowa, PW2. PW1 informed PW2 what had happened at their home the previous night. PW1 and PW2 made more alarms, which were answered by many other people, among whom was Peter Sebalongo, PW3. }{\fs24\insrsid4029237\charrsid4029237 The matter}{\fs24\insrsid4552892\charrsid4029237 was reported to the police. Dr. Sekitoleko Jimmy performed postmotem examinations on the two bodies at the scene of crime. This evidence was agreed upon by the prosecution and defence. The doctor found that superficially Nakawesi\rquote s arms and legs were twisted. The cause of death was strangulation. Robert Ssemugenyi\rquote s body had cut wounds on the left side }{\fs24\insrsid4029237\charrsid4029237 of the}{\fs24\insrsid4552892\charrsid4029237 face, and bruises around the abdomen. The cause of death was head injury. PW1 was med ically examined by the same doctor. He found bruises around his neck. He concluded that there was attempted murder by strangulation. The police at the police station arrested Kyaluzi where he had gone to see the appellants. The second appellant was ar rested by the police on the following day while he was together with other villagers mourning the death of the deceased. The first appellant was arrested about a week later. \par \par Both appellants made extra judicial statements in which each one of them implic ated himself as well as his co-appellant. Charles Yetise, Magistrate Grade II, and PW5 recorded the extra judicial statement from the first appellant on 24-10-96. Charles Lutalo Bossa, who testified as PW4, recorded the second appellant\rquote s extra judicial statement on 25-10-96. The statements were admitted in evidence as exhibit P5 and P4 without objection from the defence. \par \par Approximately two weeks after his arrest the second appellant while in police custody told No.17399 DET CPL Nampingo, }{\fs24\insrsid4029237\charrsid4029237 PW6 that}{\fs24\insrsid4552892\charrsid4029237 he to gether with others had participated in the robbery and murder of Tereza Nakawesi. The second appellant led PW6 to the bush where they had hidden the sacks of coffee. The coffee sacks were produced at the trial as exhibits. \par In their defences both appellants and their co-accused denied participation in the offence. The two appellants alleged that the extra judicial statements had been obtained from them through torture. \par \par The learned trial judge believed the prosecution case, rejected the defences of the tw o appellants and convicted them on all the counts and sentenced them to death. He found that the prosecution had failed to prove the charges against Kyaluzi and acquitted him. \par \par Dissatisfied with the learned trial judge\rquote s decision, they have appealed to this court. Each one of the appellants filed a memorandum of appeal. The memorandum of appeal for the first appellant contained the following grounds: \par }{\b\fs24\insrsid4552892\charrsid4029237 \par {\pntext\pard\plain\b\lang2057\langfe1033\langfenp1033\insrsid4552892\charrsid4029237 \hich\af0\dbch\af0\loch\f0 1.\tab}}\pard \qj \fi-720\li1440\ri0\sl360\slmult1\widctlpar\jclisttab\tx1440{\*\pn \pnlvlbody\ilvl0\ls1\pnrnot0 \pndec\pnstart1\pnindent360\pnsp120\pnhang {\pntxta .}}\aspalpha\aspnum\faauto\ls1\adjustright\rin0\lin1440\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 The learned trial judge erred in law and fact when he convicted the appellants on the basis of inconsistent evidence of a single identifying witness in circumstances that made identification difficult. \par {\pntext\pard\plain\b\lang2057\langfe1033\langfenp1033\insrsid4552892\charrsid4029237 \hich\af0\dbch\af0\loch\f0 2.\tab}}\pard \qj \fi-720\li1440\ri0\sl360\slmult1\widctlpar\jclisttab\tx1440{\*\pn \pnlvlbody\ilvl0\ls1\pnrnot0 \pndec\pnstart1\pnindent360\pnsp120\pnhang {\pntxta .}}\aspalpha\aspnum\faauto\ls1\adjustright\rin0\lin1440\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 The learned trial judge misdirected his mind when he failed to apply the correct principle of law and procedure as to the admissibility of extra judicial statements}{\fs24\insrsid4552892\charrsid4029237 . \par {\pntext\pard\plain\b\lang2057\langfe1033\langfenp1033\insrsid4552892\charrsid4029237 \hich\af0\dbch\af0\loch\f0 3.\tab}}\pard \qj \fi-720\li1440\ri0\sl360\slmult1\widctlpar\jclisttab\tx1440{\*\pn \pnlvlbody\ilvl0\ls1\pnrnot0 \pndec\pnstart1\pnindent360\pnsp120\pnhang {\pntxta .}}\aspalpha\aspnum\faauto\ls1\adjustright\rin0\lin1440\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 The learned trial judge erred in law when he allowed or caused the amendment of the Indictment at the end of his judgment contrary to the provisions of law and the procedure as set out in seciton 48 and 49 of the T. I. D. which was prejudicial and th ereby occasioning injustice. \par {\pntext\pard\plain\b\lang2057\langfe1033\langfenp1033\insrsid4552892\charrsid4029237 \hich\af0\dbch\af0\loch\f0 4.\tab}}\pard \qj \fi-720\li1440\ri0\sl360\slmult1\widctlpar\jclisttab\tx1440{\*\pn \pnlvlbody\ilvl0\ls1\pnrnot0 \pndec\pnstart1\pnindent360\pnsp120\pnhang {\pntxta .}}\aspalpha\aspnum\faauto\ls1\adjustright\rin0\lin1440\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 For appellant No.1 the learned trial judge erred in law when he failed to take into account the fact that at the time the}{\fs24\insrsid4552892\charrsid4029237 }{\b\fs24\insrsid4552892\charrsid4029237 appellant committed the offence, he was under 18}{ \fs24\insrsid4552892\charrsid4029237 }{\b\fs24\insrsid4552892\charrsid4029237 years of age and therefore not liable to the death sentence by virtue of section 104 of the T. I. D. 1971\'94 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\fs24\insrsid4552892\charrsid4029237 \par The memorandum of appeal for the second appellant contained two grounds namely: \par }{\b\fs24\insrsid4552892\charrsid4029237 \par }\pard \qj \fi-720\li1440\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin1440\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 \'931,\tab That the learned trial judge erred in relying on insufficient and unreliable evidence regarding the identification of the appellant. \par {\pntext\pard\plain\b\lang2057\langfe1033\langfenp1033\insrsid4552892\charrsid4029237 \hich\af0\dbch\af0\loch\f0 2.\tab}}\pard \qj \fi-360\li1080\ri0\sl360\slmult1\widctlpar\jclisttab\tx1080{\*\pn \pnlvlbody\ilvl0\ls3\pnrnot0 \pndec\pnstart2\pnindent360\pnsp120\pnhang {\pntxta .}}\aspalpha\aspnum\faauto\ls3\adjustright\rin0\lin1080\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 The evidence of the prosecution was mainly based on \par }\pard\plain \s21\qj \li1425\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin1425\itap0\pararsid4029237 \b\fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 suspicion and was so contradictory as to render it unreliable.\'94 \par }\pard\plain \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 \par When the appeal came up for hearing Mr. Andrew Bashaija, learned counsel for the appellant, abandoned all the grounds of appeal for the first appellant. He only argued the fourth ground which was an appeal against sentence. Mr. Anthony Ahimbisibwe, learned counsel for the second appellant, argued the two grounds of appeal separately. In this appeal we shall first deal w ith the appeal for the second appellant. We shall handle the grounds in the order his counsel followed. \par \par On ground 1 Mr. Ahimbisibwe\rquote s complaint was that the learned trial judge was in error to convict the second appellant on the evidence of identification which was inconsistent and unreliable. \par \par Counsel submitted that the evidence of identification was from a single identifying witness, PW1. PW1 was woken up from sleep at around 2.00 a.m. He was frightened. He testified that he was able to recognize the second appellant from the light of the torch which he (the 2}{\fs24\super\insrsid4552892\charrsid4029237 nd}{\fs24\insrsid4552892\charrsid4029237 appellant) was flashing in the room. Counsel argued that with such light the witness could not have seen and recognised the appellant because the appellant was flashing the light away from himself. In counsel\rquote s view, the circumstances were not favourable for correct identification. The learned trial judge should have scrutinised PW1\rquote s evidence with care and looked for corroboration of the same before basing the conviction of the appellant on it. \par \par Mr. Harrison Ahimbisibwe, learned State Attorney, disagreed. He contended that the evidenee of identification was sufficient and reliable. PW1 knew the second appellant before. He argued that PW1 was the last to be attacked in the house and the be droom was small. He was, therefore, near enough to see what was going on during the attack of his relatives. He was also able to recognise the second appellant by voice. \par \par In his judgment the learned trial judge directed himself to the law on identification by a single identifying witness. Relying on the principles in }{\b\fs24\ul\insrsid4552892\charrsid4029237 Abdalla Bin Wendo v Republic [1953] 20 EACA 166}{ \fs24\insrsid4552892\charrsid4029237 he stated that the evidence must be tested with greatest care especially when conditions for correct identification are difficult. He noted t hat in the instant case,, the conditions for correct identification were difficult. However, he found that PW1 was able to recognise the second appellant because of the following reasons. PW1 knew the second appellant before the incident. There was tor ch light and the appellant stayed in the room for a long time. \par \par The learned trial judge warned himself as he has done to the assessors of the dangers of convicting on the evidence of PW1 without corroboration. He found corroboration of his evidence in the fact that after his arrest the second appellant led the police and PW3 to the place where the stolen coffee had been kept. He found further corroboration in the evidence of the extra judicial statement }{\fs24\insrsid4029237\charrsid4029237 which was}{ \fs24\insrsid4552892\charrsid4029237 made by the second appellant. \par \par We observe that according to the evidence on record PW1 admits that he was frightened at the time of the attack. The only light in the room was from the torch which he alleges was being flashed by the second appellant. Besides PW1 testified that he only saw the se cond appellant in the room. However PW2 testified that PW1 told him that the attackers were more than one. PW1 testified thus: - \par }{\b\fs24\insrsid4552892\charrsid4029237 \par }\pard \qj \li720\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 \'93We were sleeping when I suddenly saw a man had entered. He was grabbing my grandmother\rquote s legs. I do not know how the person had entered.}{\fs24\insrsid4552892\charrsid4029237 \par }\pard \qj \fi720\li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\b\fs24\insrsid4552892\charrsid4029237 I saw only one person.\'94 \par }{\fs24\insrsid4552892\charrsid4029237 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\fs24\insrsid4552892\charrsid4029237 Commenting on PW1\rquote s evidence on this point the learned trial judge said that PW1\rquote s testimony to the effect that he saw one person does not indicate that he was confused because of the brutal attack on him. This was merely a matter of perception. With due respect, we do not agree with the learned trial judge\rquote s conclusion on this point. We note that PW1 further testified that he did not tell the people who had answered the alarm who the attacker was out of fear that he would come back for him. The learned trial judge did not comment on this point. On our part, we find it rather strange that PW1 did not reveal the name of his attacker in the morning to people who had answered the alarm. We wonder how the assailant could have come back for him in broad day light when there were other people around. \par \par We are of the considered view that the circumstances were not favourable for correct identification. The above, coupled with the unexplainable gaps in his evidence we are not convinced that PW1 saw and recognised the second appellant. The benefit of doubt should be give to the second appellant. Ground 1, therefore, succeeds. \par \par On ground 2 counsel for the second appellant contented that the evidence of the prosecution was contradictory and was based on suspicions. \par \par Learned counsel submitted that the prosecution evidence was unreliable and contradictory. The arrest of the second appellant was based on suspicion. He argued that the extra judicial statement of the second ap pellant was involuntary. The learned trial judge was wrong to admit it in evidence without first determining whether it was voluntarily made or not. \par \par In reply the learned State Attorney conceded that the extra judicial statement should not have been allow ed in evidence by the learned trial judge without holding a trial within a trial. He submitted that there was nevertheless, sufficient evidence to warrant the conviction of the second appellant. The second appellant was the one who led PW6 to the scene where the stolen coffee was found. \par \par The law is now settled that in cases where the accused pleads not guilty he is entitled to a full trial of all the facts in issue. If incriminating or prejudicial evidence is tendered and is not challenged by counsel the court should not allow it in evidence without ascertaining from the accused person that he or she is aware of the consequences of the reception of such evidence. }{\b\fs24\insrsid4029237\charrsid4029237 See }{\b\fs24\ul\insrsid4029237\charrsid4029237 Kawooya}{\b\fs24\ul\insrsid4552892\charrsid4029237 Joseph v Uganda Criminal Appeal No. 50 of 1999 Supreme Court}{\fs24\insrsid4552892\charrsid4029237 (unreported). }{\b\fs24\ul\insrsid4552892\charrsid4029237 Cha ndria Omaria v Uganda Criminal Appeal No. 23 of 2001 Supreme C}{\fs24\ul\insrsid4552892\charrsid4029237 ourt}{\fs24\insrsid4552892\charrsid4029237 (unreported) \par \par With due respect, the learned trial judge was wrong to admit in evidence the extra judicial statement without ascertaining from the second appellant whether he knew the cons equences of admitting such evidence. The statement was inadmissible evidence. It cannot, therefore, form a basis of his conviction. \par \par The learned trial judge based conviction of the second appellant on the coffee exhibit PI and P2. It is necessary to examine the law and the evidence in issue. Section 29 of the Evidence Act provides:- \par \par }\pard \qj \li1440\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin1440\itap0\pararsid4029237 {\fs24\insrsid4552892\charrsid4029237 \'93}{\b\fs24\insrsid4552892\charrsid4029237 29.\tab Notwithstanding section 23 and 24, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, so much of tha t information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved}{\fs24\insrsid4552892\charrsid4029237 .\'94 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\fs24\insrsid4552892\charrsid4029237 \par In the instant appeal the evidence regarding the discovery of the coffee in the bush is that PW6 was instructed by his superior officer to go with the second appellant to show them where the coffee was hidden. PW6 testified that he contacted the Local Council authorities of Bunyama village. The }{\fs24\insrsid4029237\charrsid4029237 L. C.s mobilised}{ \fs24\insrsid4552892\charrsid4029237 some residents. They searched the bush and recovered 3 sacks contai ning dry coffee. The witness recorded a statement from the owner of the land who stated that he does not keep his dry coffee in the bush, He suspected that coffee to have been stolen coffee. PW1\rquote s testimony is that he was together with the police from M asaka. The second appellant took them to the place where the grass had been cut. The coffee was recovered from the bush next the forest. It is important to note that PW1 does not say that it was the second appellant who showed them the coffee. PW3 testi fied }{\fs24\insrsid4029237\charrsid4029237 that about}{\fs24\insrsid4552892\charrsid4029237 two weeks later, after the murder of the deceased}{\fs24\insrsid4029237\charrsid4029237 , he}{\fs24\insrsid4552892\charrsid4029237 was called by the O/C Kyesige Police Post. They proceeded to the bush where they found police officers from Masaka. He saw dry coffee sacks in the kibanja of Gabdieri. The police req uested him to get some people to help them to carry the coffee. The same witness further testified that the police did not go to his home first before proceeding to the bush. The second appellant denied leading the police to the bush where the coffee wa s. He stated that he remained at the path and the police went to the bush where they recovered the coffee. \par \par In his judgement the learned trial judge stated that the stolen coffee was discovered when the second appellant led the police and Peter Sabalongo the V/Chairman of the area L. C. (PW3) to the exact spot where the coffee had been kept. \par \par However, according to the evidence on record, PW3 was called later by the police after the coffee had been recovered. With due respect the learned trial judge was, t herefore, wrong to hold as he did that the second appellant led the police to the sport where the coffee was. The finding is not supported by evidence. We would like to note that the coffee could have been put in the bush by anybody else other than the second appellant. The coffee found was like any other coffee and did not have distinguishing marks. In the premises the coffee and the part of statement allegedly leading to the discovery of the same were inadmissible in evidence. \par \par We appreciate counsel\rquote s submission that the arrest of the second appellant was based on suspicion. Indeed the evidence on record shows that the youth of Bunyuma village were suspected and arrested. According to PW2\rquote s evidence he was arrested and detained at Masaka Police Station. He was released without any charge having been preferred against him. A boy called Lwasa was arrested and Duniya was}{\fs24\insrsid4029237 also arrested. PW3, Peter Seb}{ \fs24\insrsid4552892\charrsid4029237 alongo, who was the Vice LC 1 Chairman of the village, testified that they went to the homes of all youths because they suspected them to have committed the offence. He stated in cross examination as follows. \par }{\b\fs24\insrsid4552892\charrsid4029237 \par }\pard\plain \s20\qj \li720\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\pararsid4029237 \fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs24\insrsid4552892\charrsid4029237 \'93 We searched the houses of youths as we were of the view that it had to be the youths of the area involved}{\fs24\insrsid4552892\charrsid4029237 . }{\b\fs24\insrsid4552892\charrsid4029237 By then these were also youths. Th e olders persons in the village were not suspected as }{\fs24\insrsid4552892\charrsid4029237 we }{\b\fs24\insrsid4552892\charrsid4029237 had our work as cultivators/fishmongers. They were all busy in their daily work. Mugerwa was a shopkeeper but he was among the youths. Even Bosco, but he just does (leja-leja) and }{\b\fs24\insrsid4029237\charrsid4029237 jobs as}{ \b\fs24\insrsid4552892\charrsid4029237 casual labour}{\fs24\insrsid4552892\charrsid4029237 \par }\pard\plain \qj \li720\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin720\itap0\pararsid4029237 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs24\insrsid4552892\charrsid4029237 \'85\'85\'85\'85\'85\'85\'85\'85\'85 \'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85.\'85\'85\'85\'85\'85\'85..}{\fs24\insrsid4552892\charrsid4029237 \par }{\b\fs24\insrsid4552892\charrsid4029237 \'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85\'85 I gave the }{\b\fs24\insrsid4029237\charrsid4029237 LDU\rquote s the}{ \b\fs24\insrsid4552892\charrsid4029237 }{\b\fs24\insrsid4029237\charrsid4029237 picture that}{\b\fs24\insrsid4552892\charrsid4029237 it was the youths\rquote }{\fs24\insrsid4552892\charrsid4029237 }{\b\fs24\insrsid4552892\charrsid4029237 responsibility for this incident.\'94 \par }\pard \qj \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 {\fs24\insrsid4552892\charrsid4029237 \par Ground 2 has merit and succeeds. \par \par We now turn to the appeal of the first appellant. Counsel for the appellant dropped all grounds of appeal he had filed and only argued ground 4, which was an appeal against sentence. The first appellant was convicted of capital offence. We are duty bound as a first appellate court, to re-evaluate the evidence as a whole, which was adduced against the first appellant and came to our own conclusion. See \endash }{\b\fs24\ul\insrsid4552892\charrsid4029237 Moses Bogere and Another vs Uganda}{\b\fs24\insrsid4552892\charrsid4029237 Supreme Court Criminal Appeal No.1 of 1997}{\fs24\insrsid4552892\charrsid4029237 (unreported) }{\b\fs24\insrsid4552892\charrsid4029237 and Rule 29 of the Court of Appeal Rules, Direction 1996}{\fs24\insrsid4552892\charrsid4029237 . \par \par The first a ppellant was not identified at the scene of crime. The learned trial judge convicted him on the basis of his extra judicial statement and the fact of discovery of the coffee exhibit P1 and P2. As we have already stated, the extra judicial statement was admitted without following the proper procedure. It is, therefore, no evidence against him. The coffee and the statement leading to }{\fs24\insrsid4029237\charrsid4029237 its discovery}{\fs24\insrsid4552892\charrsid4029237 were also improperly admitted in evidence. As we have indicated earlier in this judgment the first appellant like the second appellant was arrested on suspicion because he was a youth. \par \par In the result, we find that there was no evidence to warrant conviction of the first appellant. There is no need to consider the appeal on sentence. \par \par In the result, the appeals of both appellants are allowed and the convictions on all counts are quashed. The sentences are set aside. \par \par The appellants are to be set free forthwith unless they are otherwise lawfully held. \par \par }{\b\fs24\insrsid4552892\charrsid4029237 Dated at Kampala this10th day of June 2004. \par }\pard\plain \s3\qc \li0\ri0\sl360\slmult1\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel2\adjustright\rin0\lin0\itap0\pararsid4029237 \fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 \par S. G. Engwau \par }\pard\plain \s1\qc \li0\ri0\sl360\slmult1\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel0\adjustright\rin0\lin0\itap0\pararsid4029237 \b\fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 JUSTICE OF APPEAL

\par }\pard\plain \qc \li0\ri0\sl360\slmult1\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid4029237 \fs20\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\b\fs24\insrsid4552892\charrsid4029237 \par }\pard\plain \s3\qc \li0\ri0\sl360\slmult1\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel2\adjustright\rin0\lin0\itap0\pararsid4029237 \fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 C. N. B. Kitumba \par JUSTICE OF APPEAL \par \par C. K. Byamugisha \par }\pard\plain \s1\qj \fi720\li2160\ri0\sl360\slmult1\keepn\widctlpar\aspalpha\aspnum\faauto\outlinelevel0\adjustright\rin0\lin2160\itap0\pararsid4029237 \b\fs28\lang2057\langfe1033\cgrid\langnp2057\langfenp1033 {\fs24\insrsid4552892\charrsid4029237 JUSTICE OF APPEAL \par }}