[2024] UGHC 1155

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CRIMINAL APPEAL NO. 005 OF 2023

(Arising from Criminal Case No.087 of 2022)

# TUHAISE ABDUL KARIM ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### **EXAMPLE 21 EXPONDENT** UGANDA :::::::::::::::::::::::::::::::::::

[Appeal from the conviction and sentence of H/W Mfitundinda George, Ag. Chief Magistrate, Hoima Chief Magistrate's Court in Criminal Case No.05 of 2023 dated $12^{th}/9/2023$ ]

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

#### **JUDGMENT**

### **Background**

- The Appellant was charged in the lower court with the offence of **Attempted** $[1]$ Murder C/s 204(a) PCA. It was alleged that on the $22/01/2022$ at Kiryatete East Cell in Hoima City, the Appellant/accused attempted to cause the death of **Fred Balinda**. The Appellant pleaded not guilty to the offence. - [2 $\rightarrow$ It was the prosecution case that the Appellant hired the complainant/victim, Balinda Fred to operate his motor cycle Reg. No. UER 572 H, Bajaji Boxer for Ugx 60,000 per week. That however due the hike in process of fuel, the complainant failed to remit the Ugx 60,000/= per week and on $22/1/2022$ , he took to the Appellant Ugx 30,000/=. The complainant's failure to pay the required Ugx $60,000/$ = irked the Appellant who picked a spanner and hit the complainant on the head and chest breaking one of the complainant's bones unconscious. he fell down That the $of$ the chest whereupon complainant/victim regained his consciousness while at Hoima referral hospital where he had been admitted.

- The prosecution contended that the complainant/victim was assaulted in the $[3]$ presence of a one Tuhaise Wilson and a one Simon, who was one of the complainant's fellow boda boda operators. It is the Appellant who reported himself to police that he had assaulted a person who later, was reported to be the complainant/victim. As a result, the Appellant was arrested, detained and later charged with the instant offence. - The Appellant in his sworn statement in court denied the prosecution $[4]$ allegations and stated that on the early morning of the fateful day at around 6:00am, he was informed on phone by a one Sekate that his boda boda operator, the complainant/victim, had got an accident at Kigakula stream. That he rushed to the scene where he was told that the victim had been taken to Kibati trading centre. That he followed the victim to Kibati where he found the victim bleeding in the nose and ear and later became unconscious. That with the help of other people, the victim was taken to police where to his surprise, he was arrested on allegations of assaulting the victim. - The trial Magistrate on his part, relying on the authority of Uganda Vs $[5]$ Muwanga & Anor, HCCrim. Session Case No.456 of 2018 which outlined the ingredients of the offence of Attempted Murder, found that considering the body part targeted i.e, the head and chest breaking one of the bones and the object used, i.e, spanner, the Appellant who was properly identified by the victim and Tuhaise Wilson (PW4) assaulted the victim with the unlawful intention to cause death and found him guilty of the offence as charged. He sentenced the Appellant to 3 years imprisonment and payment to the complainant Ugx 2,000,000/= as compensation as a deterrent sentence. - [6 The Appellant was aggrieved and dissatisfied with the conviction and sentence of the trial Magistrate and lodged the present appeal on the following grounds; - 1. The learned trial Magistrate erred in law and fact when he failed to properly evaluate the entire evidence of the prosecution on record which was full of serious/grave inconsistencies and convicted the Appellant thereby occasioning miscarriage of justice. - 2. The learned trial Magistrate erred in law and fact when he relied on hearsay evidence to convict the Appellant thereby occasionina miscarriage of justice to the Appellant. - 3. The learned trial Magistrate erred in law and fact when he passed a sentence of 3 years in prison and a fine of $2,000,000/$ = against the

appellant which occasioned a miscarriage of justice.

- The Appellant was represented by Mr. Hatega Robert of M/s Baryabanza & $[7]$ Co Advocates, Hoima while the Respondent was represented by Ms. Seera Becky of the Office of the Public Prosecutions, Hoima. Both counsel filed their respective submissions for consideration in the determination of this appeal. - This court as a first appellate court is duty bound to rehear the case on appeal $[8]$ by reconsidering all the material evidence which were before the trial court and make up its own mind; Kifamunte Henry Vs Uganda, S. C. Crim. Appeal No.10 of 1997. This court is therefore required to re-evaluate all the evidence that was available before the trial court and make its own inferences on all issues of law and fact.

## **Consideration of the Appeal**

- Ground 1: The learned trial Magistrate erred in law and fact when he failed to properly evaluate the entire evidence of the prosecution on record which was full of serious/grave inconsistencies and convicted the Appellant thereby occasioning miscarriage of justice. - As regards the alleged inconsistencies in the prosecution case, counsel for the $[9]$ Appellant submitted that the medical doctor, Sebyara Geoffrey (PW6) who examined the victim testified that on examination, he found the victim bleeding from the nose and ears with abrasions on left fingers and a shuttered $\bigcirc$ right big toe. Counsel however, stated further that there is no explanation as to how the left fingers got the abrasions and how the toe got shuttered because the victim did not mention them as areas he got injuries. - [10] Counsel for the Respondent on the other hand submitted on this aspect that the complainant/victim (PW1) testified that he was hit with spanner on the head and chest and one of his bones of the chest was broken upon which he fell down unconscious. That therefore, in this unconscious state, the complainant/victim would not in any way know how he sustained abrasions on the left finger and the shattered toe. That since Tuhaise Wilson (PW4) found the Appellant pulling the victim on the ground, this explains how the

victim sustained the abrasions on the left finger and the injury on the toe.

[11] I agree with the Respondent's version of the incident. Tuhaise Wilson (PW4) who was an eye witness testified as follows:

"On 22/1/2022 I was at my work place. My sister Namwanje Grace called in the morning and told me to go to garage near depot of the Nile breweries and rescue Fred [victim] because his boss was beating him. I went there and found Fred lying down and was bleeding. The accused was pulling him. When the accused saw me, he just walked away. Fred was not talking."

Dr. Sebyara (PW6) who examined the victim stated that:

"I went on to examine him (victim). On examination, he was bleeding from ears and nose. He had abrasions on left fingers, he had a shuttered right big toe, he was unable to move his left hand. I ordered for some investigations which included chest x-ray. It revealed fracture of the color bone (sic). I classified the injuries as dangerous harm because he had injury with suspected skull base fracture."

See also the police medical examination report (P. Exh.1). The mother of the victim, Namwanje (PW2) found her son unconscious, bleeding from the nose. The toe and the chest bone were broken.

- [12] Clearly, there are neither contradictions nor inconsistencies in the evidence of PW1, PW2, PW4 and PW6. The victim must have sustained the abrasions on the left finger as a result of being pulled on the ground and the toe could have also been shuttered by use of the same spanner PW1 stated to had been used by the assailant during that time span he was unconscious. I find that the - evidence of PW1, PW2, PW4 and PW6 corroborated each other. - [13] Counsel for the Appellant submitted that the spanner that was alleged to have been used was never exhibited in court by the prosecution. I find that the failure by the investigating officer, PW1 to recover the spanner that was allegedly to assault the victim was not fatal to the prosecution case. According to the investigating officer D/Cpl Mwijuka Denis (PW5), the Appellant reported himself at police that he had assaulted a person to unconsciousness. Tuhaise Wilson (PW4) who found the Appellant assaulting the victim stated that when the Appellant saw him, he just walked away. The Appellant must

have walked away with the exhibit i.e, the spanner. Therefore, even if the investigating officer had visited the scene, he would not have found the spanner there at the scene and recover it.

- [14] As regards the alleged contradictions and inconsistencies regarding persons who were present to witness the assault, the number of days the victim spent in the hospital and whether **Tuhaise Wilson** (PW4) witnessed the incident, I find neither contradiction no inconsistency in the evidence of the **victim** $(PW1)$ and Tuhaise Wilson (PW4). - [15] The victim, as conceded by the defence, having been taken to the hospital while unconscious, cannot be the right person to reveal to court how long he was admitted in the hospital. The right witness to be believed regarding how long the victim was hospitalized was his caretaker, Namwanje (PW2) his mother. In any case, the period the victim was admitted in the hospital is not material evidence to the case for it does not constitute the ingredient of the offence the Appellant was charged with. The Appellant himself admitted that the victim while in an unconscious state was taken to hospital thus how long the victim stayed in the hospital is immaterial and therefore cannot render the evidence of PW1, PW2 and PW4 fatal or affect their credibility. - [15] As regards the eye witnesses to the assault, the victim recalled a one **Simon** and another and then **Tuhaise Wilson** (PW4) who came and found him being "pulled" on the ground which act was part of the series of the assault. There is therefore no contradictions in the evidence of the **victim** (PW1) and **Tuhaise Wilson** (PW4) who in my view also witnessed the assault. - [16] In conclusion, I find that the trial Magistrate properly evaluated the evidence of the prosecution on record. There are no serious/grave inconsistencies which were ignored to occasion a miscarriage of justice to the Appellant. **Ground 1** is therefore found devoid of any merit and it accordingly fails. - Ground 2: The learned trial Magistrate erred in law and fact when he relied on hearsay evidences to convict the Appellant thereby occasioning a miscarriage of justice to the Appellant. - [17] Counsel for the Appellant submitted that according to the **victim** (PW1), it was Simon and another who witnessed the incident. That since Simon and this

other person were not called as prosecution witnesses, the trial Magistrate should not have relied on the evidence of Tuhaise Wilson (PW4) whose evidences is hearsay.

- [18] In his judgment, the trial Magistrate relied heavily on the evidence of PW4 as having placed the Appellant at the scene of crime though the Appellant in his defence, claim that PW4 was not at the scene. - [19] It is the law that once an accused pleads alibi as the Appellant did in this case, he does not assume the burden of proving alibi. The duty lies on the prosecution to disprove a defence of alibi and place the accused at the scene of crime as the perpetrator of the offence, Festo Androa & Anor Vs Uganda, SCCrim. Appeal No.1 of 1998. - [20] In the instant case, the prosecution adduced evidence of Tuhaise Wilson (PW4) who found the Appellant pulling the victim on the ground i.e, in the process of assaulting the victim, to corroborate that of the victim (PW1) who stated that it is the Appellant who assaulted him. PW1 & PW4s' evidence is therefore not hearsay. Hearsay evidence is testimony that is given by a witness who relates not what he or she knows personally, but what others have said, therefore dependent on the credibility of someone other than the witness, Blacks Law Dictionary, 4^th Edn. Such hearsay evidence is inadmissible and court is under duty to exclude it from the evidence, Uganda Vs Bogere Banuli, H. C. Crim. Session Case No.437 of 2010. - [21] As I have already observed, PW4's evidence is not hearsay. He found the Appellant in the act of further assaulting the victim, pulling him on the ground. According to the investigating officer (PW5), the Appellant went to police and reported himself how he had assaulted a person whom he left unconscious PW5's evidence on this aspect was not challenged at all during cross examination. In Sande Martin Vs Uganda, Crim. Appeal No.278/2003 (CA) it was held that the law is now settled that though the accused has no duty to prove his innocence he/she must by cross examination challenge the evidence of the prosecution that implicates him/her;

"Failure to cross examine leads to the inference that the evidence is accepted as being true."

In this case, the Appellant did not contest this piece of evidence that he took himself to police and reported that he had assaulted a person whom he left

unconscious and indeed, later people came at police and reported that the victim had been assaulted and left unconscious.

- [22] In the premises, I find that the trial Magistrate found correctly that the prosecution evidence placed the Appellant at the scene of the crime and I have no reasons to fault him. The $2^{nd}$ ground of appeal therefore also accordingly fails. - Ground 3: The learned trial Magistrate erred in law and fact when he passed a sentence of 3 years' imprisonment and fine of 2,000,000/= against the Appellant which occasioned a miscarriage of justice. - [23] In the memorandum of Appeal, the Appellant and his counsel in submissions referred to the Shs.2,000,000/= as a fine. This is not correct. The trial Magistrate in addition to the sentence of 3 years imprisonment, ordered for payment of compensation to the victim a sum of $2,000,000/=$ as empowered by S.197 MCA which he deemed fair and reasonable in the circumstances of the case. - Counsel for the Appellant submitted that the basis and purpose of the $[24]$ compensation was that the victim suffered personal injuries and that the sum was to cater for his medical expenses. That however, whereas the victim (PW1) claimed to had spent Shs. 2,800,000/= of his treatment, his mother (PW2) claimed to had spent Shs.1,500,000/= for her son's medication. That this was therefore a contradiction entitling court to reject the evidence. - [25] I do not agree that the evidence of $PW2$ contradicted that of $PW1$ . It should be recalled that **PW1** was working and therefore, in addition to what his mother (PW2) paid for his medication, the victim was also under duty to cater for his hospitalization/treatment and as a result, both of them spent money for his medication and treatment. - [26] As regards the sentence, since the offence of Attempted murder carries a maximum sentence of imprisonment for life (S.204 PCA), I find that the sentence of 3 years imprisonment was within the range prescribed by the law. However, considering the fact that the commission of the offence was prompted by the victim's failure to report to the Appellant the weekly fee of Shs. $60,000/$ = for the victim's use of the Appellant's motorcycle, by virtue of

- that relationship between the Appellant and the victim, I find that though the sentence of 3 years imprisonment meted on the Appellant was lawful, it was excessive in the circumstances. There was an unusual mitigating factor which did not justify a custodial sentence. The Appellant had offered the victim a job. The Appellant acted emotionally when he picked a spanner and hit the victim as a result of being irked by the victim's failure to remit the weekly Shs. $60.000/$ = fees for using the Appellant's motor cycle and presented a lame excuse that fuel prices had hiked. The victim had never reported to the Appellant the hike in fuel prices and even if that was the case, the victim would have been expected to adjust passenger prices to enable him meet the weekly target of Shs. $60,000/$ = or hand over the motor cycle in case of such challenges. This was a mitigating factor in favour of the Appellant. A fine instead of a custodial sentence would have been appropriate in the circumstances. The Appellant must have been sorry after the offence as explained by his act of reporting himself to police. - [27] In the premises, I set aside the term of imprisonment and substitute it with a fine of $Ugx$ 500,000/= in addition to the compensation payable to the victim amounting to Ugx 2,000,000/ $=$ - [28] In conclusion, the appeal partially succeeds on the sentence. The conviction and payment of compensation are accordingly upheld. The Appellant to be released on payment of the fine and thereafter pay the compensation.

Dated this 18^th day of October, 2024.

**Byaruhanga Jesse Rugyema** JUDGE