[2023] UGCA 31

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBALE cRtMtNAL APPEAL N0. 158/2016 AND 116 0F 2018 (Coram:1bura, Bamugemereire & fi4adrama, JJA) OON\tJ SIMON} APPELLANT VERSUS

## UGANDA).... RESPONDENT

(Appeal from the decision of the High Court of Uganda at Soroti in Criminal Sesslon Case No 020 of 2013 before Wotayo, J detivered on //h May, 20/6)

## JUDGMENT OF COURT

- The Appetl.ant and another were charged with murder contrary to sections lBB and 189 of the Penal Code Act. lt was al. Leged that the appeLl.ant and 0kurut Sam with others at Large on the 18th of March 2012 at Jebet vitlage in Serere District murdered Areu Richard. The appeltant was tried and convicted as charged whil.e 0kurut Sam was acquitted. 15 - The appel.tant being aggrieved by the conviction and sentence appeaLed to this court on the fotlowing grounds: 20 - 1. That the learned triaL judge erred in Law and fact when she faited to evatuate the entire evidence on record and convicted the appeLtant on wrongfuI identification hence occasioning a miscarriage of justice. - 2. That the learned trial. .1udge erred in law and fact when she totaLty ignored the appeLl.ant's defence of aLibi which was ptausibte. - 3. Without prejudice to the former, the sentence of 32 years was deemed harsh and excessive in the circumstances given the remorsefuLness of the a ppeLl.a nt.

The appetlant prays that the appeal. is allowed and the conviction be quashed or atternativety the sentence be varied or set aside.

At the hearing of the appeaL, the appetLant was represented by learned counseL Ms Agnes Wazemwa whil.e the respondent was represented by the learned Chief State Attorney Halat Fatinah Nakafeero hoLding brief

⁵ for the learned Chief State Attorney Mr. Joseph Kyomuhendo. The appellant was present in court.

The court was addressed in written submissions and both counsel prayed that the court considers the written submissions which had been filed on court record and detiver Judgment after considering them.

#### The appettant's written submissions: 10

The appetlant's counsel submitted that on 22nd March 2016, the appeltant was produced in court for triaL and he denied the charges and a ful.t triat was conducted. To prove the attegations against the appeLl.ant, the prosecution adduced evidence of five witnesses. The appe[[ant on the other hand denied the offence and Led evidence of one witness. Upon conducting the hearing, the Learned trial. judge convicted the appetlant and sentenced him to 22 years' imprisonment. The appel.tant appeats against conviction and sentence on the grounds set out before.

Ground l.

- ²⁰ The appellant's counsel submitted that ground t hinges on the evaLuation of evidence on record. PWl testified that she did not see the appel. Lant assautting her husband (the deceased) simiLarl.y PW2 stated that she did not see the appetlant assauLting the deceased (her father). ln cross examination, PWl stated that she made two separate statements - concerning the murder of her husband.0n one occasion, she cLaimed to have seen four people and in another she ctaimed to have seen seven eight months after the murder. This inconsistency appears in the statement of PW2 in her initiat statement, where she stated that four peopte were invotved in the assautt but later on indicated that there were 25 - seven in another statement recorded at a later date. The appellant's counseI reLied on Batuku Samuel. and Another Vs Uganda (2018) UGSC 26 where the Supreme Court found that in assessing the evidence of ^a witness and where it is to be reLied on, his or her consistency is ^a retevant consideration. The appel[ant's counsel contended that PWl 30 - accepted she did change her statement in as far as the number of peopte invoLved in the murder of the deceased were concerned. When she was asked about her reasons for changing the statement she made to the poLice, she aLl.eged that she feared for her Life. CounseL submitted that 35

⁵ this speaks to the question as to the truthfutness of PWl and the tearned trial judge by not putting much consideration on this issue erred both in taw and fact.

The appetlant's counsel also retied on the decision of this court in Sseremba Dennis Vs Uganda; Criminat Appeat No 480 of 2017 where the court hetd that inconsistency in identification of an accused is not minor as it is at the centre of the prosecution case. By ignoring such inconsistency, the tearned trialjudge occasioned a miscarriage ofjustice. 10

The appettant's counseI submitted that the appeLtant woke up upon hearing peopte and a person scream from nearby. This fact is corroborated by the evidence of DW 2 who testified that she was awake when she heard a person scream. She states that her husband woke up a tittte after she did and went to help the person who was screaming. The appettant testified that he was apprehended by two men who stapped and ordered him to sit down. Further that the statement is corroborated by DW2 who heard a person being stapped. 15 20

The appel.tant's counseI contended that court is faced with an issue deating with conviction of a man who reported a crime in his community to the potice and set an exampte to every person that if he or she sees danger, it is better to try and hetp.

The appettant's counsel pointed out that the learned triat judge white estabtishing that the appel'[ant participated in kitting the deceased retied on the fact that the accused reported his ox pl.ough stolen and that PW2 was totd by her cousin that her father was the suspect. Counsel submitted that this amounted to hearsay evidence which was not corroborated. No other account shows that indeed the appetlant accused the deceased of theft. Further the matter was before the LCl court and not potice as PWz stated. lt was therefore fatat to reiy on the statement of PW2. 25 30

The appellant's counsel prayed that given the retuctance of the tearned trial judge to correctty evatuate the evidence, this court shoutd take it upon itsel'f in exercise of its jurisdiction under section 1'] of the Judicature Act to evatuate the evidence and come with an appropriate verdict and quash the conviction and set aside the sentence. 35

- ⁵ Secondly, the appeltant's counsel submitted that there was wrongful identification. That it is trite [aw that when deating with evidence of identification by eyewitnesses in criminal cases, the court ought to satisfy itsetf from the evidence that the conditions under which the identification is ctaimed to be made were not difficutt and would not lend - itsetf to the possibitity of mistaken identity. The court sha[l then proceed to evatuate the evidence cautiousty so that it does not convict or upho[d the conviction unless it is satisfied that the mistaken identity is ruled out. The court must consider the evidence as a whote, the evidentiaI factors favouring correct identification together with those rendering it difficutt. 10 - Counse t retied on Abdattah Nabutere & Another Vs Uganda (1979) HCB 77 for the appticable principles to identification evidence. The appetLant's counsel submitted that the learned triaI judge correctiy found that the circumstances were not favourabte for the prosecution witnesses' No's PWl and PW2 to recognise the assail'ants of the deceased. She contended 15 - that this woutd have raised doubts in favour of the appettant on the ground that the witnesses had attempted to iie on oath but the tearned triat judge wrongly conciuded that PW1 and PW2 rightly recognised the appettant's voice and this occasioned a miscarriage of justice. 20 - Counset rel.ied on Sharma Kooky & Anor Vs Uganda [2002] 2 EA 589 on the question of identification by voice. CounseI submitted that the Supreme Court hetd that identification becomes a cruciaI issue if the identifying witness is unabte to physicatty see the speaker whose voice she ctaims to identify and therefore it is necessary for the triaI court to consider such identification with the greatest caution. 25 - The appettant's counset submitted that the testimony of PW2 was the smoking gun in convicting the appeltant yet she gave contradictory statements to the potice regarding identification of the kil.l.ers. ln the first statement, she alteged that she had seen four peopLe whereas in the second statement she atteged to have seen seven peopte. She contended 30 - that this speaks votumes about the character of PW2. Moreover, in her evidence in chief she tisted the peopte she identified as 0kurut, Oma[ia, Agwedo, Egau, and Oketto. She did not testify that she identified the appettant. Further PW'l in cross examination gave contradictory statements as to the identity of the assaitants to the potice yet this is the 35

time when her memory was fresh. ln the first statement PWl stated that she did not know the kitters of her husband. Thirdty in the entire crossexamination, the tearned trial judge was biased and interfered with the cross examination of the prosecution witnesses and gave them unnecessary protection in the course of cross examination and were asked questions about thear contradictory statements. She submitted that it is not in dispute that the witnesses wrote anitiaI statements at the potice in April 20'12 and tater on gave additional and contradictory information in December 2012. ln the premises there was no evidence to incriminate the appel.tant. lt was counsel's contention that the prosecution witnesses made additionat statements as an afterthought srmpty to pin the appeLLant down. 10 15

The appetlant's counset pointed out that whereas PWl testified that she heard an alarm made by her husband in which he mentioned the appettant's name. She then went and woke up PW2 and told her that her father is making an atarm from that direction. "haven't you heard him

mentioning okurut and 0onyu's name? She submitted that contrary to this PW2 testified that PWI totd her that it appears the appellant was beating his wife and she did not mention the name of her father. Counsel contended that this contradiction was major in that the Learned trialjudge

- ignored it and wrongty convicted the appel.tant thereby occasioning ^a miscarriage of justice. PW2 further contradicted herself and contradicted the evidence of PWl when she testified that whitst in the house, she heard the appellant ask her father outside that: "Richard, where have you been the whote night? My father did not reply him but was crying': Counsel 25 - further relied on R0. 0875 Pte Wepukhutu Vs Uganda [2018] UGSC ¹⁴ where the Supreme Court hetd that minor inconsistencies, untess they point to detiberate untruthfutness on the part of the prosecution witnesses, should be ignored and major inconsistencies which go to the root of the case, should be resotved in favour of the accused. ln 30 - conclusion the appettant's counsel submitted that the evidence of PW2 corroborates the appetlant's evidence because he testified that he heard a person crying and came out and asked as he was going towards the crying person, when he was apprehended by two men who stapped him. She contended that this is exactty what the witness heard white at their 35

- home and thought that the appellant was beating his wife. Thereafter $\mathsf{S}$ PW2 changed her statements to claim that she heard the appellant beating the deceased. In the premises, the appellant's counsel submitted that the appellant was a victim of circumstances when he moved out to rescue his neighbour only to be set upon by the assailants. The appellant - was consistent and his strong evidence was not broken down by the 10 prosecution. Counsel contended that in the premises the learned trial judge erroneously relied on the testimony of PW1 and PW2 to convict the appellant.

Ground 2.

- The appellant's counsel submitted that the learned trial judge erred in 15 law and fact when she totally ignored the appellant's defence of alibi which was plausible. He submitted that once an accused raises the defence of alibi, it is the duty of the state to water it down and place the accused at the scene of the crime (see Kamya Johnson Wavamunno Vs - Uganda; SCCA 16 of 2002). The appellant in this cross examination 20 testimony stated that he was with his wife DW2 with whom he shared a bed on the fateful night of the murder of the deceased. He stated that he heard the persons screaming a short distance away from his home and after a brief interaction with his wife, he decided to follow the direction - from where the noise came. He could not however properly ascertain the 25 events that were going on because he was caught by two men who slapped him and ordered him to sit down. The appellant testified that when he got a chance to do so, he escaped and ran to the police to report what had happened in his community and requested for help. He led the - police to the scene of the incident and they called the LC1 chairperson. 30 The LC 1 did not deny being called by the police and gave sworn testimony of the fact that he was called by a police officer. The prosecution did not undertake any step to water down the alibi and this occasioned a miscarriage of justice.

#### ⁵ The submissions of the Respondent's counse[.

ln repty the respondent's counset merged grounds l and 2 and submitted that the ground on evatuation of evidence had the potentiat to resotve the ground on the atibi of the appettant.

The respondent's counsel. submitted that there was proper identitication of the appel.tant by PW] and PW2 and as correctty pointed out by the appettant's counset, but the appettant's counseI did not correctly appl'y the facts. The respondents counsel submitted that PWz did identify the appettant positively through his voice although the conditions were difficutt, the appettant was positivety identified and p[aced at the scene of 10

- the crime. He retied on Abdutla Bin Wendo and another Vs R 0953) 20 EACA 166 where the East African Court of Appeat considered welt-known exceptions to facts proved by the testimony of a sing[e identifying witness. They hetd that in such circumstances, "what is needed is other evidence whether circumstantiaI or direct pointing to the guitt from 15 - which a judge or jury can reasonab(y conctude that the evidence of identification, atthough based on the testimony of a singte witness, can safe[y be accepted as free from the possibitity of error." CounseI atso retied on Abdullah Nabulere and Another Vs Uganda [970 HCB 77 for the same proposition of law. The Court shoutd take special caution where 20 - there is evadence of a singte identifying witnesses and that before convicting in re[iance of it, speciatcaution shoutd be taken to ensure that there was no possibitity of mistaken identity. A judge shoutd examine ctosely the circumstances in which the identification came to be made and particutarty the length of time the accused was under observation, 25 - the distance, the tight, the famitiarity of the witness with the accused which atl go to the issue of quatity of identification evidence. 30

The respondent's counsei submitted that the learned trial judge evatuated the evidence on record and correctly apptied the law to the facts and evidence with regard to identification and contradictions, as

we[[ as the atibi and arrived at the correct decision convicting the appettant. 35

As far as identification evidence is concerned, PW'l and PW2 testified that they knew the appettant and that he was their neighbour. The witnesses

told court that they had known the appellant for a very long time. PW1 $\mathsf{S}$ testified that she heard an alarm from a voice that was mentioning the name of the appellant and one Okurut. She later established that the voice was that of her husband the deceased, one Richard Areu.

The deceased was asking "why he and some other persons were killing him. PW1 woke up PW2 her daughter. PW1 told the court how she crawled $10$ and saw the appellant, Mr Okurut and five other people assaulting her husband. PW1 was in a position to identify the assailants with the help of the moonlight and light from phones. Further PW2 confirmed that PW1 had indeed on the fateful night called her and woke her up and told her

- that someone was making an alarm. She also informed the court that she 15 heard the voice of the appellant because for him he had a very bold and loud voice. She further testified that when she moved closer, the appellant said "Richard can you keep quiet"? That is when she recognised that the person being assaulted was her father. The witness also told - court that she crawled together with her mother towards the scene of 20 the crime and there were about 50 feet from the assailants although the place was bushy.

In the premises, counsel submitted that the learned trial judge properly evaluated the evidence with regard to identification though she disallowed the evidence of PW1 because the conditions were 25 unfavourable for identification. The learned trial judge found that of the two witnesses. PW1 and PW2 could not have identified the assailants with their eyes because they were at a distance and were watching from a bushy place that impaired their vision. On the other hand, the learned trial judge accepted the evidence of PW2 whom she considered a credible

30 witness with regard to identification of the appellant though she rejected the evidence of identification of Mr Okurut.

Further, the respondents counsel submitted that PW2 relied on the familiarity with the appellant to identify him. She had known the appellant

for a long time since they were neighbours. She knew his deep voice and 35 used the same to identify him. Counsel submitted that a person can rely on a voice to identify another if the two people are acquaintances. In the premises, PW2 properly identified the appellant and there was no mistaken identity. - ⁵ The deceased was heard asking the appetlant and his accomplices why they were kittang him. The respondent's counset submitted that this amounted to a dying dectaration that corroborated the prosecution case that the appettant was invotved in the assault of the deceased. Further that the deceased aLso knew that the appeltant took some time with him and the two exchanged some woTds. Counsel submitted that with this - kind of corroboration, the triat judge did not have to warn hersetF For retying on the evidence of a singte identifying witness to convict the appettant. 10 - Further, the respondent's counseI addressed the court on the contradictory evidence of PWI and PW2 and submitted that the learned triat judge apptied the law correctly and arrived at the right decision. CounseI pointed out that it is trite taw that major inconsistencies pointed to a detiberate falsehood and this shoutd lead to the rejection of the evidence. However, the law attows for the severance of evidence of ^a witness that may have some truth and ties at the same time. The respondents retied on Kato Kajubi Godfrey Vs Uganda; Criminat Appeat No 20 of 20Ur which cited with approvat Atfred Tajar Vs Uganda where the Supreme Court hel.d that in assessing the evidence of a witness, it is open to a trial judge to find that a witness has been substantia[[y truthfut even though he tied in some particutar respect. 15 20 25

The respondent's counseI submitted that the tearned trial judge evatuated the evidence of both PWl and PW2 and found that the two witnesses had totd some [ies. The evidence that contained ties was rejected but the truthful. part was admitted. ln the premises, the respondent's counset submitted that the learned triat judge dad not reject the entire evidence of PWl and PW2. Instead she severed the truthfut parts of the testimonies from the fatsehood. He contended that the credibte evidence that the tearned triat]udge betieved was sufficient to prove the ingredient of participation of the appettant in the murder of the

^decea sed. 35

## Resolution of the appeat

We have carefutly considered counset for the appetlant's submissions against the appetlant's conviction in grounds l and 2 of the appeat. Ground

- 5 'l retates to participation evidence whi[e ground 2 retates to the defence of alibi. We have stayed resotution of ground 3 which is on severity ot sentence because its resotution depends on the outcome of grounds ¹ and 2. We have also considered the submissions of Counsel and the taw referred to genera [y. - This is a first appeal against the decision of the High Court issued in the exercise of its originaL jurisdiction and this court has discretionary powers to reappraise the typed record of evidence in the record of appeal by subjecting it to fresh scrutiny and coming to its own conclusions on matters of fact. ln reappraisal of evidence the court is required to caution 10 - itsetf on its disadvantage of not having seen or heaTd the witnesses testify and to treat with deFerence the observations of the triat iudge on matters of credibitity of witnesses (See the hotding of the East African Court of Appeat on the duty of a first appettate court in Pandya v R [957] EA 336, Sette and Another v Associated Motor Boat Company n968] EA 15 - 123, and the decision of the Supreme Court of Uganda in Kifamunte Henry v Uganda; SCCA No. 10 of 1997). Apart from the case law, the duty of this court is stiputated under rute 30 ('l) (a) of the Judicature (Court ofAppeat Rutes) Directions, S.l No. 1310, which provides that on appeat from the decision of the High Court in the exercise of its originat lurisdiction, the court may reappraise the evidence and draw inferences of fact. 2A 25

The grounds appeal.ing against conviction are:

- '1. That the learned triat judge erred in law and fact when she faited to evatuate the entire evidence on Tecord and convicted the appetlant on wrongfuI identification hence occasioning a miscarriage of lustice. - 2. That the learned trial judge erred in law and fact when she totally ignored the appettant's defence of atibi which was ptausibte.

We agree with the respondent's counsel that this ground retates to the issue of participation of the appell.ant in the commission of the offence. ln the premises, we have subjected the evidence to exhaustive scrutiny. We have carefutty considered the decision of the Learned triat judge which was supported by the respondent's counset as he made no attempt to support the decision on other grounds other than that retied on by the

- 5 learned triaL judge. The learned triat judge found that the prosecution relied on the testimonies of PWl and PW2 after the other ingredients that the death was untawfutly caused and that the deceased had been kitLed with maLice aforethought had been established. The [earned trial. judge atso considered the contradiction between the first statement of PWl and - 10 PW2 which they made to the potice immediatety after the murder of the deceased and a statement that they made about 9 months later. We shaL[ in due course, refer to these contradictions. The learned trial. judge indeed found contradictions between the two statements made to the potice about 9 months apart and she observed as foltows;

20 "l have examined the two statements by Angida and see no material contradiction with respect to what she heard that night. ln the statement recorded on 1.1t.2012, she mentioned that she heard 0onyu order her father who was catled Richard, to keep quiet. She mentions the same information in her statement dated i9.12.2012. There is no contradiction with respect to identification of 41 0onyu by voice. 15

With respect to the other people whom she states she saw, in the first statement she said she saw four peopte beating the deceased inctuding the two accused persons whi[e in the second statement she mentions seven names including the two accused persons.... The tegat position on poLice statements is that these are not under oath and therefore cannot be the basis for determining credibitity of a witness. Neverthe[ess, they are reLevant in estabtishing consistency of relevant facts as attested in court under oath.

ALthough PW2 Angida cited fear as the reason for not naming 42 Okurut in the initiat police statement, she categoricatty stated that she heard the voice of A1 Oonyu ordering her father to keep quiet.

Both lbiara and Angida confirmed that Oonyu was their close neighbour who tived 100 feet away from their home. Angida specificatty described 0onyu as having a loud unmistakabte voice and hence she quickty recognised it that night when their mother woke (her) up."

35 The Learned triat judge found that PWl corroborated this story but found that with respect to 0kurut, both women's testimony is suspect because the name of Okurut emerged months after the incidents. She found considerabte doubt about the participation of Okurut in the crime.

40 The learned trial. judge atso considered a sworn statement of the appetlant and other witnesses and found that the appetlant was

positively placed at the scene of crime both by the prosecution witnesses $\mathsf{S}$ and by his own account. She found that the identification of other suspects by the two witnesses in the night of 18^th of March 2012 is suspect because of the circumstances. That the two witnesses were not close enough to visually identify the assailants whether by sight or by their voices. Most importantly the learned trial judge found as follows: 10

> "with respect to following the group until 5 am in the morning, this was by tracking bloodspots until they found the body. Therefore, the two did not follow them close enough to identify the culprits. This explains why the identity of the other assailants apart from Oonyu were not disclosed initially to the police. In the initial police statements, both witnesses said they saw four people assaulting the deceased while in the second statements, both said they saw seven people. These are grave inconsistencies that cannot be ignored. This leaves the only credible evidence being whether Angida was awoken by Ibiara and when she listened, she heard Oonyu ordering her father to keep quiet. The other credible evidence is when Ibiara was awoken by the crying of her husband. That in fact her husband was found dead the next morning is strong circumstantial evidence that A1 Oonyu participated in his death.

> With respect to malice aforethought, the fact that Oonyu admits that he reported his stolen ox plough to the authorities and during the day, Angida had received information that her father the deceased had been suspected of theft of Oonyu's ox are relevant facts. These facts coupled with the death of the deceased at night at the hands of A1 and unidentified others is evidence that A1 intended the death and had the mens rea or intention to kill on account of his stolen ox plough."

The learned trial judge held that malice aforethought can be proved 30 through circumstantial evidence.

We find that the issue of identification of the appellant is crucial in this case. The question of whether the appellant was properly identified forms the foundation of his conviction and will be considered first. Further this is tied up with whether he participated in the assault.

PW1 Ibiara Rose widow of the deceased testified about the incident in that she heard an alarm at around 3 AM in the morning where she stated that the person making the alarm mentioned the names of Oonyu and Okurut. She further stated that she heard the deceased making an alarm again saying "Okurut why are you people killing me for nothing?". She testified

- that the deceased was ctose to their garden or in the direction of or behind the kitchen. She went and woke up PW2, Angida Lucy, her daughter. PW2 then stated that she wanted to go to the toitets and they went together. PWI thereafter went and hjd as the accused persons were assautting the deceased untit the time " 2kurut told the deceased that he - gets up and we gd' and the deceased repl.ied that he could not get up. She did not know where her daughter was hiding. She testifaed that seven peopte were assautting the deceased and she was able to recognise them and named them as 0onyu, Okurut, 0matia, 0ngodia, Egowu, Agwetu and Oketto. She heard the appettant and okurut saying "that if he 10 - survives today then we shatl know that he is a man and they said tet us ca[ry him away." She stated that after kitting the deceased. they carried him up to the main road. Att atong she was hiding under a shrub and she did not know where her daughter was hiding. Significantty she testified that the assail.ants carried the deceased for about hatf a mite and dumped him thereafter on the main road where they ptaced him on the ground. 15

ln her cross examination testimony, she said that the hands of the deceased were tied with a rubber band when they found him eventuatty. There was also an ox ptough which had been put a bit ahead of him some distance from where he tay. That the appettant had a dispute with the

- deceased about a year before about [and boundaries but otherw]se they had no probtems. That morning the deceased had teft home riding ^a bicycte and never came back. PW'l was cross examined about her statement recorded at the potice where she indicated that she had identified four men who kil.l.ed her husband and not seven as appeared in 25 - her testimony. Her exptanation for the disparity was the fear of reprisals in reveating their names. ln the potice statement which she made initiatty she did not identify the four men. ln the first statement, she did not mention the appel.l.ant at the time she heard her husband making an a[arm. She testified that she did not mention this because of fear. 5he 30 - also did not know that the appell.ant had reported to the potice about the incident. The testimony of PWl was discredited and the Learned trial. judge disregarded it in arriving at her verdict and we have no grounds to rel'y on it. 35

- ⁵ Nonetheless, we have considered the potice statements and particu[arty the first statement of PWl which was made on l9th of March 2012. She wrote that late in the evening on the fatefut day, her daughter PW2 totd her that she got information that her father (the deceased) was taking atcohol at a certain trading centre. When they went to bed, he had not yet - come back. Deep in the night on'18th March 2012 at around 3.00 am while in bed and asleep, she heard the voice of a man crying in the garden near their home and came outside and woke her children. Peop[e were beating him. He was titeratty crying: "my mother" "my mother". At that time, she did not know the person being beaten until one of them said "Rtchard you 10 - get ul' lhal is the time she knew that they were beating her husband. She moved nearer and saw 4 men beating a man. She did not identify the men since it was dark. Later she testified in court that the person who said Richard you gel up was Okurut. Further she testified that then they carried the victim into the main road. ln the morning they fottowed the 15 - btood trait from where they had started beating the deceased and discovered where they had put him on the side of the road. She then stated inter aUa "but we had a land dispute with Oonyu and stay was bad with him being our ctosest neighbour." She a[so stated that near the body was an ox ptough and a bicycte (the bicycle of the deceased). Further she 20 - stated that on'l7th March 2012, the appettant had reported the theft of his ox plough and at night the deceased was kitted meaning that he planned to kitt the deceased. 25

ln her additional statement made on 19ih December 2012 she added that she woke her chitdren and totd them that she had heard someone making an ataTm and it sounded [ike her husband. Then further she stated that she overheard the voice of one 0onyu Simon who is their neighbour shouting that "Richard why did you steal my ox ptough" the deceased answered that he did not steat. They were making fatse al.l.egations against him and wanted to kili him for nothing. Further she identified seven peopte who she named. She remembered that the deceased fought the appel.l.ant in relation to a [and boundary sometime back. 30 35

We compared the testimony of PWl with that of PW2, a daughter of PWl. The testimony of PW2 about the invotvement of the appettant was much more detail.ed. She testified in Enqtish and stated that at around the ¹⁰

- AI,,1 in the morning her dad left home and said he was going to Serere. At around 4 PM she went to the trading centre (Amakiyo Trading centre) and that whi[e there her cousin one 0gunya Martin informed her that the appe[[ant had reported to the potice that her dad had stoten his ox plough. Further she saw that the appettant was moving together with the LCl - chairperson around midday that day. That night as they were steeping, her mum came and knocked at her door and catted her out whereupon she was informed that someone is making an atarm that is when she heard the voice of the appettant. She further stated that the appettant had a botd voice and can talk very toudty. She thought that the appetlant was 10 - beating his wife with whom he usuatly had quarrets. Further, when she moved a littte distance ahead, she heard the appettant saying "Rtchard can you keep quie,"and that is when she recognised that it was her dad who was being beaten. She crawted towards the scene of the crime in the grass which was a bit bushy. She stated that there were many peopte 15 - tatking confidentty and were bragging that today was the day of the deceased when he woutd be kitted. Att of them were just uttering words. The time was about 5 AN4 in the morning and she crawted stowty and nearer white trying to avoid detection and so as to be abte to see what was going on. There was moontight and there were even ftash iights from 20 - their phones. She identified Okurut, Oma[ia, Ongodia and Agwedo Egau the last one was Okelto. Further and on being prompted she stated that she has identified al.l. of the assaiLants incLuding the appettant and 0kurut. 25

The detaited observation of PW2 was that the assaitants were using sticks and some were carrying pangas and the deceased was saying that

- 'you are beating me for nothing but there is nothing" and "they" reptied " keep quiet don't make noise for ul'. This is contrasted with what PWI stated in her testimony that 0kurut said " Richard get ul'. Furthet PWl testified that the deceased said " 2kurut why are you people killing me for nothing? ln her cross examination testimony PWl said: so / hid there 30 - while listening as the accused persons were assdulttng the deceased until one Okurut told the deceased that ?et up and we go" and the deceased replied thal he could not get up. 35

With regard to PW2 there is no reference specificatty to the appettant because the p[uraI reference to the peopte assautting is used. We further

- ⁵ note that PW2 testified that she recognised atL their voices (the seven assailants). This is what she said'. "Yeah, they were takrng confidently, they were many so / was able to ldentlfy all therr voices because they are our neighbours and just within one area so they were like you used to brag but today is your day whether you want lt or not, we are going to kill - you." PWZ further repeated: yeah, / even identifled all of them because / know them very weil.fhe Learned triaLludge did not accept this testimony of identiflcation but onLy accepted that in retation to the appeltant's voice. 10

Further, PW2 testified that after the assaiLants beat the deceased, they were saying he has died, because they were tel.ting him to stand up but he coutdn't and when they tried to make him stand up he would just faLl. down. She then heard OmaLia saying "he has died; this king has died". We note that the plough which was found near where the body of the deceased tay the pl.ough of the mother of Egawu, one of the suspects.

- PWl testif ied that it is after this incident that the assaitants "carried the victim up to the road side and dumped him there, after dumping him, they started pul.ting him". "again after sometime they started again carrying, they carried up to where the ox pLough was. The ox ptough was something Like one kiLometre tike that so they carried him up there and dumped him there" (sic). 20 - This testimony disctoses three possibte scenes of crime. The first assauLt occurred near their home, a second assautt a LittLe further away where they crawled to see and [astty where they carried the body stil.t further away to near the plough. Whether it was a kitometre away or half ^a kilometre away is a minor contradiction. 25 - The assailants then disappeared and thereafter and subsequentty PW1 and PW2 with other people traced where the body was by fol.l.owing drops of btood. The Learned triat judge found this contradictory and discarded the testimony of PW2 on her identification of seven assaiLants whom she mentioned (and identif ied by voice too). This I'eft onty the voice identification of the appel. Lant and other circumstantiaI evidence as corroboration. lt is inter alia on the basis of this that she acquitted Okurut who had been impticated by PWI as the person who talked to the 30 35

deceased. 0kurut was acquitted after further considering his defence of - ⁵ atibi. The reaI issue is whether after this major contradiction, and fal.sehood reLating to whether PWz saw seven assailants, it was safe to rety on her voice identification of the appeltant. Particu(arty in tight of the fact of the learned triaI judge discarding the testimony of PWl. PWl heard 0kurut and in her police statement she did not hear that it was the deceased when she heard screams. lt is PW2 who heard the appettant and the deceased afterwards. PW'l mentioned the deceased [ater in her testimony in court. l'/oreover, she implicates 0kurut rather than 0onyu (the appeltan0. Then the appeltant and 0kurut are mentioned as if they spoke together in un ison. 10 - The issue of the ox plough came up as corroboration and particutar PW2 heard that the appettant had reported the theft to police. The person who gave her (PWz) this information never testified and therefore the testimony is hearsay. PW2 said that she saw an LC1 chairperson in company of the appel.tant when they were walking together but she never 15 - heard what they discussed and she used this as possibte reporting of the theft of an ox ptough. 20

PW2 in her cross examination testimony, she contradicted her mother PWl by stating that her mother tol.d her that it was as if the appetlant was beating his wife and not that it was her dad who was making an alarm.

- She was atso cross examined about her statement to the potice inctusive of the fact that the first statement was different from the second statement in some materiat respects. We have examined these two statements and the foltowing can be extracted from them. ln a statement dated 14rh of Aprit 2012 PW2 informed the potice that on lTth of l','1arch 2012 25 - she went to the trading centre and met a cousin who totd her that he had heard rumours that her father had stoten a ptough from the appetlant. That time her father was drinking some atcohot with one Eboga. That very evening the father did not come back and they went to steep. Deep in the night at around 3 AM (in the morning) her mother woke up tetting her to 30 - come out because there was someone being beaten in the garden. She was hearing the voice of the appettant as if he was beating his wife. She then heard the voice of the appettant when he said "Richard you get up" then she saw four people beating the deceased. She property heard the voice of the appettant when he said that "this man is not yet dead" then 35

⁵ they continued beating and then carried him to a further distance. She recognised the voice of the appetlant because they were ctose neighbours. The assaiLants went and dumped the body roughty 1 km away. The appell.ant was arrested and released and came back and went to church and then tol.d the Christians to pray for him for God's hetp for the bad things he had done and that it was Satan. 10

ln the second statement which was recorded by the pol.ice on the l9th of December 2012 about eight months tater she repeats that she heard voices of people including the one of the appeltant on the fateful morning. She was together with her mum when she moved closer and was abte to

- identify seven people whom she named. The deceased was found near an ox pLough and his bicycl.e in the morning. She Later learned that the appeltant had reported to the police on his own accord. However, the poLice detained him as one of the suspects. When she recorded her first statement to the potice she was not in her fuL[ senses so she coutd not 15 - narrate everything property. She Learned that the ox pLough which was put near the deceased belonged to one Akayo a mother of one Egawu, one of the suspects. Particutarly she stated as foLtows: 20

"therefore this matter was a ptanned move because the deceased atso had ^a tand dispute which was not sotved tiL[ now. lt is the same [and wrangte that caused the death of Okwalinga Justrne the father of Areu Richard in 2003 The assai[ants were not arrested. "

ln short she toLd the potice the motive impLicating the appeLtant was ^a Land dispute ratherthan theft of a pLough. She also stated that she heard that the appeLl.ant had reported to potice afterwards and was detained

there. 30

ln RO. 0875 Pte Wepukhutu Nyuguti v Uganda (Criminat Appeat 2l of 2001) [2002] UGSC 14 (04 March 2002) the Supreme Court of Uganda stated that:

We shatt discuss the issue of inconsistencies first. This same issue was raised before the Court of Appeat which held that the inconsistencies were minor. lt is trite taw that minor incons istencies, unless they point to deIiberate untruthfuLness on the part of prosecution witnesses, shouLd be ignored and that major ones which go to the root of the case, should be resotved in favour

## ⁵ of the accused (See Atfred Tajar -Vs- Uganda Cr. Appeat No. 167 of ¹⁹⁶⁹ EACA) (unreported).

There were inconsistencies retating to the correct identification of the appeU.ant and moreover PWZ was disbe[ieved on her positive identification by voice of seven suspects she named. Further PWl identified the voice of one 0kurut while PW2 identified the voice of appetlant who she noted had a Loud and unmistakabte voice. Why did PWl refer to the voice of 0kurut white she initiatty was not clear about the voice of the appeLl.ant? This inconsistency reLated to identification. Again the Supreme Court in Lt. Mike Ociti Vs Uganda ((Cr. Appeat No.7 0f 1988))

## [990] UGSC 5 (30 Aprit 1990); 15

The consideratrons which we woutd have thought of greater consequence were that this sote witness to the identity of the appettant was not proved to be consistent, nor corroborated, on the issue of identity. however, if a soLe witness to the identify of an accused found to be deliberatety lying on part of the case, great care must be taken in considering whether the fatse part, of the testimony can be excLuded Legitimatety from the rest of his evidence, or whether, it affects his whole evidence. Generatty speaking, where a sote witness as to identify is found to be deliberately tying on an important aspect of his evidence, it is not togicatty possibLe to betieve the witness in part and reject his evidence in part.

ln this appeaI the learned triat judge disbetieved the elaborate testimony of PW2 on how she was able to identify seven assaiLants by voice but betieved her testimony on how she identified the appeLl.ant by voice yet PWl heard the voice of yet another person Okurut and she was also disbelieved. lt was unsafe in the circumstances to accept this testimony and the corroboration of reporting the theft on an ox plough was inadmissibte.

## The issue of alibi of the appetl,ant.

0n the issue of the al.ibi of the appeltant, the Learned triat judge found that in his defence the appettant gave sworn testimony in which he acknowledged that his ox pLough had been stolen and that he made ^a report to the LC chairperson but denied participation in the crime. ln the evaLuatron of his testimony, the appeLl.ant had testified that he woke up between 3 AM to 4 AM and heard an a[arm so he got out of the house to 35

⁵ ascertain what was happening and bumped into peopl.e speaking in low tones. According to the appeLtant, he was detained by two peop[e after which he took off and reported to the poLice station about what he had encountered. He was supported by his wife and the other defence witness namely the LC 1 chairperson and on the issue of reporting his ox

ptough stolen on 17th March 2012.fhe learned triaL ¹⁰ judge hetd as fotlows:

"l find that Al's defence ptaces him away from his home between 3 AM to 5 AM, the time prosecution witnesses heard his voice as he ordered the deceased to keep quiet and as he had been beaten and crying out for heLp.

He was positivety ptaced at the scene of crime by prosecution witnesses and by his own account, ...

> The identification of other suspects by the two witnesses in the night of lSth of March 2012 is aLso suspect because for the two witnesses to hide onty 100 feet away from the scene of murder of a loved one is too ctose for their safety.

- White it is true they crawted towards the scene it was not close enough to identify the assaiLants. lrrdeed, Angida testified that the group spoke as they assaulted the deceased but she couLd only recount that Oonyu A1 said'keep quiet.fhis is the same statement she heard him say when she was initiatty awoken by her mother. 20 - This meant that PW2 heard the appel.l.ant tel.t the deceased "keep quiet" when her mother PWl woke her up and later when she saw the many people assaulting her father when she crawled nearer the place where the assauLt was taking place. Further the learned triaL judge found that, 25

"With respect of malice aforethought, the fact that oonyu admits that he reported his stolen ox ptough to the authorities and during the day, Angida received information that her father the deceased had been suspected of theft of Oonyu's ox ptough are retevant facts. These facts coupLed with the death of the deceased at night at the hands of Al and unidentified others is evidence that A1 intended and had mens rea or intention to kit[ on account of the stoten ox p[ough."

Clearl.y there is a probtem with the conctusion of the learned trial. judge because the issue of the words "keep quiet" attributed to the appel. Lant was atso attributed to 0kurut. Secondly, the mens rea to murder the deceased was not conctusive as the witnesses attributed it not to the steal.ing of the ox pl.ough but rather to the fact that there was a land dispute involving the boundaries between the two famiLies. Further there was another ox pl.ough involved. There was mob justice and even the LCl s chairperson confirmed that thefts were rampant. Specificatty, the appeltant dissociated himsetf from the mob by reporting to po[ice.

We have further considered the timetines relating to the reporting of the appeltant to the potice. The appettant stated that he reported to the potice after he heard a person making an atarm and that person was foltowing 10 a certain road. He went out and in the course of this, he was assautted by two young men and detained. When the young peopte went to join the mob, he got a chance he ran to the pol.ice and reported the incident. He reported that somebody was yetling and that there were many peopte invotved. He stated that he atso went to the police because he had

- 1s reported the Loss of his ptough and these peopte are tatking about the theft of a ptough. He stated that as a teacher, he teaches peopl.e that when something wrong is happening, it is better to report to the potice and that is what he did. ln other words, at the criticat time when the murder happened, the appeltant run to and was at the pol.ice. When he - 20 reported, the LC 1 chairperson was ca[[ed by the potice officer to establish what was happening. Thereafter, the police officer detained him for his own protection. The fottowing day he was picked from the potice cetts between 8:30 AN4 and 9 AN4. When he entered the potice pickup, he rea[ised that there was a ptough in the pickup and he noted that it was 25 not his.

0n the other hand, DWl 0mugetum Richard, the LC'l chairperson testified that on 17 N4arch coming to'18 l',1arch 20'12, the appetLant had reported the theft of his ox ptough and that theft was rampant in the vittage. He al.so reported the matter to the potice as there was rampant theft in the area.

- 30 0n the night of the lTth going to the'l8th, he received a phone calt from Etotun 0C Police post asking him whether he knew what had happened in his viLtage. The cat[ came about 6 AM in the morning. He atso testified that during his tenure as the LC'l chairperson, he never heard about ^a tand wrangl'e between the appettant and the deceased. - :s The issue of what time the appettant reported to the potice was materiaI and the prosecution was required to rebut this evidence. ln any case, the potice records were avaitabte to the prosecution or an attempt shoutd have been made to obtain them if they thought it was a retevant Factor. The onty witnesses who testified were PWl and PW2 on behatf of the

- prosecution. We think that there is doubt about the participation of the appetlant regarding the words used "keep quiet". The positive identification by PW2 of the voice of the appetlant was contradicted by the testimony of PWl. - ln addition, there are severaI other contradictory statements. lt is possibLe that the appeLtant was invotved in some way but not necessariLy with the assauLt. What is striking is that he reported the theft to the potice and atso reported to the potice in the early hours of the morning about an incident in his vitlage. He did not attempt to run away or conceal his participation. Because there was a doubt about his participation in the beating of the deceased, the burden was on the prosecution to rebut the strong al.ibi of the appetlant. The same allegation of participation and statement "keep quiet" was made against 0kurut and his atibi was uphel'd by the tearned trial. judge. This pointed to faLsehood of the prosecution w it ne sses. 10 15 - ln the circumstances we are inctined to give the appeLtant the benefit of doubt as the evidence against him was shaky and fuL[ of contradictions and uncertainty. The fact that he reported the loss of an ox pLough and that an ox ptough was discovered near the deceased is not sufficient to Link him to the assautt. Further, PW2 did not identify the appetlant among 20 - the assail.ants when they were beating the deceased. ln any case, her testimony about the beating and the peopte who were participating in it was discarded. 25

ln the circumstances, there is a reasonable doubt which has been established from the record and the appell.ant is entitted to the benefit of the doubt. He was convicted on the basis of circumstantial evidence whrch was not certain where there were atternative theories as to who

could have participated or who had the motive to murder the deceased.

We quash the conviction of the appel.tant and set aside his sentence. The appeltant shalt be set free unLess hetd on other grounds.

$\#$ Dated at Mbale the $\frac{30}{2}$ day of January 2023


Justice of Appeal

$\infty$

$10$

$\mathsf{S}$

Catherine Bamugemereire

Justice of Appeal

$\mathcal{L}$

Christopher Madrama

Justice of Appeal