[1994] UGSC 23

O Paget Referance of MACHE-a-evidence

APPELLANT

RESPONDENT

IN THE SUPREME COURT OF UGANDA

## AT MENGO

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

CRIMINAL APPEAL NO. 11/93

## BETWEEN

P. C. TITO MUKISA

VS.

**UGANDA**

(Appeal from the decision of the High Court at Tororo (Hon. Mr. Justice Tinyinondi) given on the 13th day of May, 1993, in H. C. CR. Ss. Case No. 57/91).

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## REASONS FOR JUDGMENT:

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The appellant, Police Constable Tito Mukisa, was tried and convicted by the High Court for the murder of one William \$bala, hereinafter referred to as the deceased. He was sentenced to death. He appealed to this Court against the conviction and sentence. After hearing submissions by the State Counsel and Counsel for the appellant we allowed the appeal, « quashed the conviction, set aside the sentence and ordered the immediate release of the appellant from custody for reasons which we reserved. We now give them.

In July, 1988, the appellant was stationed at Lumino Police Post in Tororo District. On 20/7/1988, Constant Bebe (D. W.2) went to the Police Post and accused the deceased who was his younger brother, of having eloped with his wife for 4 years.

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The appellant was instructed by the Senior officer at the Post to go with D. W.2 and arrest **the** deceased- The appellant and D. W.2 walked to Buhenye Village where the deceased lived and arrived there at about 7\*3® p»m. on the same day. The appellant and D. W.2 arrested the deceased and walked with him towards Lumino Police Post. They were accompanied by several persons, including Aburalia Anyango, P. W.3 (the widow of the deceased)and Kennedy Odwori (P. W.4) a son of the deceased.

The deceased died on the way to the Police Post at about 9'00 p.m. ^A Doctor Oundo carried out a post mortem examination on the body of the deceased on 21/7/1988, at Buhenye village and compiled the Post Mortem Report, exhibit P1 which was admitted in evidence under Section 6^ of the Trial on Indictments Decree. According to the report the deceased had sustained a gunshot • wound on the left pelvis. The cause of death was shock due to severe heamorrhage from the gunshot wound.

The prosecution case was that on the way to the Police Post the party met Wilson Obwora (P. W.2) a brother of the deceased, who inquired as to where the deceased was being taken. According to P. W.2 he then heard a gun shot and saw the deceased falling down. The widow of the deceased CP. W.3) stated in her • evidence that as she walked ahead of the appellant, deceased and the rest of the party, she saw the appellant cock his gun and shoot the deceased who them fell to the ground.

The last prosecution eye-witness Kennedy Odwori (P. W.4) stated that he was standing behind the deceased and P. W.3 when the appellant's gun went off, killing the deceased.

The . •.. • /3

*2.*

The appellant's defence was that on his way to the Police Post he was stopped by an unknown man who demanded to know why he had arrested some people without the knowledge of the local Resistance Council officials. At that juncture other people came from behind the appellant and tried to disarm him. They struggled for the gun which was already coked as it was at night and in a disturbed area. During the struggle the gun went off, injuring the deceased. The appellant went and reported the incident at the army detach at Lumino as the O. C. Police at Lumino Police Post was not at the Post that night.

The appellant's unsworn statement was supported by Bebe $(D. W.2)$ . According to this witness the man who attempted to disarm the appellant was clled Sebakaki. He was with one Mangeni.

The trial Judge accepted the evidence of P. W.2 and P. W.3 but rejected that of P. W.4. on the ground that it contained grave discrepancies "which tended to show that he was not present at the scene". He rejected the defence story as untrue. The appeal was founded on two grounds, namely:-

- "1. His Lordship the Judge erred in law and infact to completely reject the evidence of the appellant thereby occasioning a miscarriage of justice. - 2. His Lordship the Judge erred in law and in fact when he held that the appellant had killed the deceased whereas the prosecution had failed to prove an intention to kill ( (malice aforethought) and had not discharged the burden of proof".

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$\overline{3}$

The vital question in this case was whether or not the appellant aimed his gun at the deceased and then shot him. Only P. W.3 testified that he did. P. W.2 merely stated that the gun went off, He seems to have assumed that the appellant must have released the bullet. The incident occurred at night. The trial Judge did not in his judgment deal with the all important point of identification by a single witness, in difficult circumstances. It is cleqr from the evidence of P. W.3 that she was walking infront of the appellant and the deceased. In those circumscrces it ir- doubtful whether she could have witnessed the shooting of the deceased.

There is also the question of motive. It was not shown ^w why the appellant would laant to kill the deceased. Although in this case the motive was not relevant in law, it was relevant as evidence. If the prosecution had proved that the appellant had a motive for killing the deceased, that would have been useful since the existence of motive makes it more likely that an accused in fact did commit the crime.

We thought that the appellant's defence was quite sound. On the evidence as a whole, his claim that he was walking with the deceased peacefully until someone intervened and tried to disarm him whereupon there was a struggle during which the gun went off injuring the deceased was not disproved in our view.

The problem in this case is that the trial Judge could not appreciate the appellant's defence of accident because he considered it after he had accepted as true the case for the

prosecution.......... /5

prosecution, which was improper. We were for these reasons satisfied that the prosecution had not proved the case against the accused beyond reasonable doubt and allowed his appeal..

Dated at Mengo this . ... .... . . day of . .............,1994.

S. T. Manyindo, DEPUTY CHIEF JUSTICE.

H. A. O. ODER, JUSTICE OF THE SUPREME COURT.

## H. G. Platt, JUSTICE OF THE SUPREME COURT.

I certify that this is a true copy of the original.

j. Aurangira, ^Y

for REGISTRAR FOR SUPREME COURT.