[1996] UGHC 17

THI? REPUBLIC or UGANDA z IN . THE HIGH COURT QF UGANDA HOLDEN AT MASARA CRIMINAL SESSION CASE NQ, ⁴⁴⁵ OF J ⁹⁹⁴

UGANDA ....................................... PROSECUTOR

VERSUS

KIFANUTE HENRY ................................................ ACCUSED

BEFORE: THS HQNQURAB^E-IIR^USTICE-T. KUKANZA

## J UP GM ^E ^N ^T

Kifamute Henry herein referred to as the accused person stand indicted of murder contrary to section 183 and 18'4 of the Penal Code Act and pleaded not guilty. The particulars of the indictaent being that on the 23rd day of October, 1992 at Njaza village in Masaka District the accused murdered one Nkangali Yowana.

The prosecution in an endeavour to establish its case called- in aid the evidence of about 7 witnesses. The accused gave ^a sworn statement at the end of it the case for the defence was closed.

The case for the prosecution was briefly as follows: Tonifasi Bafurukyeri infozmqd the court that she is a widow and her husband used to be called Kangari Joseph(Yozefu) • She knows the accused. The latter calls the deceased his uncle and had Jcnowh him for six years«

In the night of 23rd October, 1992 she was in a bar drinking with her husband. The latter infomed the witness that thoro was ^a plan by the accused to kill him(the deceased). She could not accept that she thought those were village rumours. She however reiterated that during the day .one of the Resistance Council member RC1 called Joseph told the deceased that the accused was coming to kill him. At around 2.00 a.m. in the same night while she was

asleep together with her husband the deceased she saw torch light near their bed room and the door was open. She woke up the deceased who was by then asleep. The deceased threw away the blanket as he was getting up and inquired from her what she wanted. The deceased was near enough and the accused cut him with a pange on the neck. She recognised the accused as he terched her. The accused was holding a torch in his left hand and a panga in his right hand.

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The torch was groon in colour and the accused used to move about with it in the village. On being cut and before he died the deceased said "Kifamute you have killed me but I was born with your father my blood would one day hunt."for you."

The deceased had not yet died. She went with him outside and they together made an alarm. He fell down unconscious but by then the accused had ran away. She did not know where the accused had gone. But the alarm was answered by some relatives of the deceased. One Kato and Joseph brought a bicycle and carried the deceased to Hospital. On the way the deceased said he could not go on any further. He was weak and was brought back home and at around 5.00 a.m. the doceased passed away.

During the incident the deceased struggled with the accused person and the latter abandoned the panga. He saw the panga and when she looked at it in the morning it appeared it had been sharpened with electricity. She did not know the reasons why the accused killed her husband and even the RC1 who had reported to her that the accused had threatened to kill the deceased did not tell her the reasons for the threats. She testified that she saw the accused kill the deceased not because of what the RCs told her. She had seen the accused with the said pangs on about five or six times.

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In cross examination P<71 replied that she Juiew ono Henry Kifamute Ssalongo as the father of the accused person. Ho was once a Gombolola. Chief but was thon dead, When Kifamute died he loft behind ^a kibanja and ^a house. That i the accused v/as arrested at Nabutongwa where he had maternal uncles. In fact after killing the deceased wont and hid at Mabutongwa from July to October, 1992 the accused was a. resident in the village (Njaza). Ko was staying in **his** father's house, Kakoz\* Balinaba had a residence in the ai'ea but had never inherited the properties of the late Kifamute(father of the accused person. The accused used to stay in his father's house and the day prior to the incident the accused was staying in that house and over a wook prior to the incident was staying there. Sho used to see the accused move about with the panga before the incident but it was not all that sharpened as when she saw it on the date of the incident and from his home to the home of the late Kifamute is ^a distance of about ¹³ yards\* They were almost in the same compound. That during the night in question her husband was drank and when ho woke up he threw the blanket on her. That the accused cut the deceased and they struggled and she also assisted but the matter took a. very short time. Sho did not know whether there was ^a conflict in the family. Al\$o sho did not know whether Balinaba. Kakooza took over the property of tho accused's father. Finally she replied \*tfhat Kakooza. occupies the property of tho accused's late father. In re-examination W1 replied that tho deceased was not **very** drank. She gave him supper and tailcod to him and **was** talking normally.

The second witness to testify for the. prosecution was D^udi Mugonyi PV/2. His testiiony was to tho effect that on 15th day of October, ¹⁹⁹² at around 8.00 p.m. the

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accused, went to their home PvZVs home together with his father. The accused then called for a. boy called Kamanya and told him that he (the accused) was going to kill Ngangali (Dkangali)- Muyombi and ono .called. jVfezl BW1 was in. the hod room whereas the accused and Kamanya wore outside. He went and reported the matter to his father Balinabi.

After one wook he heard an alarm from Hlcangali's homo which the witness answored together with other people. They found Hkangali outside his house. Nkangali was in a critical condition. He had ^a wound on the nock, Nkangali told them that nobody had killed him but Kifamutc(the accused). His father Kakooza. and Kato put the deceased on a bicycle and took him to Scmbabulc Dispensary.

In cross-examination P72 replied that somebody would be lying if he said that Kifamute's father was -the brother to his father. The accused was not his cousin brother and his father was not a brother of Nkangali. His father was looking after the property/the house of the accused's father. In re-examination P7/3 testified that he hoard of the accused's voice threaten to kill Nkangali.

The evidence of Richard Kato PW3 was that he had lived at Njaza village since his childhood. The accused person was his brother. They share the same parents and had known him since then.

Before Nkangali died he saw one Joseph Kukasa P.74 with guordos cniabaqjies. PW.4 informed him that the calabashes belong to the accused, person who oaid wanted to fill the game with petrol with ^a view to k£ll/bum to death one fffrangaliv Teruga and Morey,

The matter wac reportod to village members and a meeting of the village members was convened **in** order to discuss the matter. \$he matter was discussed but no

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solution was arrived at because tho members thought the accused was not serious\*

The rest of tho evidence was similar to those of tho previous witnesses in that sometime later they hoard an alam which they answered. They found Nkangali still alive. Nkangali told thorn that it was the accused who had cut him. Later the deceased passed away. The accused could not be seen. They made their statements to the police. Two of them were given instructions to look for tho accused person. He wont to Ssesc but could not find tho accused there. Those who wont to Nabutongwa arrested the accused.

In cross oxaminationPjj^ replied that the ancusnd. used to stay at Nabutongwa and not at Njaza\* . And further replied when the Chairman came with three calabashes and said the accused wanted to use them and, bum people with petrol the witness had not seen the accused in the area *Nj*aza village. That Mugenyi was related to the accused.

Joseph Mukasa PW4 on the other hand ini0oxmod the court that he was the *RC1 of* Njaza village. On 23rd October, 1993 the accused went to his homo with four gourdes/ calabashes and tho accused told him that he same with much sorrow because his aunt palled Tereza and hi/\$ uncle John Nkangali(the deceased) plus the mother of Nkangali were bewitching him and had no freed.om and peace. That ho had consulted witch doctors, the native doctors , (Baganda.) to seo that hp could get peace but that had become impossible and **the**refarc he had to ^jet a pan^a so that he could cut them to death\* The accused further told PV74 that he was going to put petrol 'in guordes and\* bum <thcm but had abandoned the idna because he could kill innocent people in those houses and. that he had decided to use a panga on^y. Tho problr am wss that those people wore bewitching hii% •

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PW4 wanted to make an slam but feared to do so because. villagers would come to answer the alarm and could not find the accused person. The accused had already escaped. The accused appeared doteimined to fulfill his throat although **in the meeting** ^old by tjie villagers the villagers resolved that the accused was merely threatening. Matters vzere reported to the RC2 Chaiman but before then they laid an ambush but they could not get him. The deceased had been cut on the neck.

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In cross examination PW4 replied that he was born on Njaza village and knew the accused very well and through his acquittance never knew that the accused suffered from insanity. He had been an RC1 Chairman for ten years and the accused reported to him as a relative and did not report to him in his (PW4\*s) official capacity. He did not know that the accused Jmew that he was an RC official. And any one .saying that the accused lived at aza .would be tolling lies. The accused used to stay elsewhere. That is where he works and probably made ^a home. Tft^e accused had been away 2 to 3 years. In re-examination BY4' testified that the accused used to stay and used to come back say after ⁶ to ⁸ months and whenever he came he used not to spend the nights there and that from liis .« home to the accused\* s place is ^a distance of abou>t half a mile. **«**

The evidence of Ptf5 Balinaba Kakooza was like \* the previous witness. The accused went to his home and threatened to kill Nkangali and Tereza. These threat s were on 16.10.93 and a week after he heard an alam which h. ° answered. He met the deceased who had a. cut wound. T2 deceased told him that nobody cut him, it was Kifamute his son. PV/.5 and \*P»73 got ^a bicycle and attempted to tak«. &

the deceased for treatment. On the way the deceased felt unwell, requested that he be returned at home and they complied. The deceased later died.

In cross-examination this witness replied that Mugenyi BY² was his son but he is mentally unstable. He has not taken him for treatment. That ho is still looking after the deceased's house (ICifamute\* s) house father of the accused but he doos not livei-^K- *dr*

The sixth witness was Hr. Sokitoleko Jimmy P?/6. He carried out ^a posimortem on the body of Nkangali Yowana of Njaza village. The body was identified to him by a certain Hirji Sewufundo. The deceased had ^a cut wound involving an interior aspect of the neck extending to the spinal canal. The cause of death was the bleeding of major vessels which supply blood to brain were involved. The general observation was that the deceased was brutally killed by ^a very sharp instrument and that could have been a panga.

PW7 was Detective Assistant Inspector of Police Semambo Vicent attached to CID Masaka. He escorted PY/6 to the scene whereby the doctor carried out a. post-mortem of the deceased' body. ^A panga was exhibited at Sembabule Police Post. He requested P7/6 to remove ^a piece of blood from the accused clothes which had blood stains for the purpose of comparison with that of the panga which was exhibited at Sembabule Police Post. He retrieved the panga from Sembabule Police and proceeded to Masaka. He ordered for the recording of statements from the witnesses. The accused was brought from Kaliro Police Post. He was handed over to him and he became the arresting officer. At the time the accused was putting on white trousers. He searched him

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and cl13thng the search he detected blood on "the trousers. He asked the accused how blood came to his clothes but he - could not explain anything to him. He got another trouser from the stores and gave him to put on. The accused had not been beaten.

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Later he escorted the accused to Masaka Hospital in order to got blood sample from the accused and to have him examined on PF 24 which they did not have in stock.

Dr. Sekitoleko got blood from the accused and it was preserved.

On 17th November, 1992 he took the exhibit a panga, a trousers he got from the accused, a piece of cloth from the deceased having blood, stains and the blood of the accused in glass/container which the doctor removed from him and took them to Wandegoya for analysis. The panga was marked as Exhibit P2 and the trousers from the accused Exhibit P3. The result was collected afterwards and there is ^a document to the effect exhibit 4.

In September, 1993 he took PF 24 to Dr. Sekitoleko to fill in. He had already examined the accused person.

When cross-examined PW7 stated that he could not recall who collected the panga from the scene. It was brought in by Balinaba Kakooza according to the exhibit slip. He ferried the panga to the station and it was handed to Robert PC 21J32. That he took trouble to find out how the panga .reached Sembabule Police Post. There could be no possibility of. tampering with the panga according to the way it reached Sembabule. That he never tortured and that was hot how blood came onto his trousers. He did not take finger prints on the panga.

In his' sworn evidence the accused as K/1 testified that sometime he used to work as a bodahoda cyclist and at

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times he could make bricks. His area of operation was at Bugoma in Kalangala and normally resides in the same area. He knows a place called Nabutongwa that is where he grew up and it is found in Masaka District. He also knew a place called Njaza (village). It is found in Mitwaho Sub-County, Sembabule. The distance between Fjaza and Nabutongwa is a distance of 30 miles.

He knew a person called Henry Kifamute. He was a Gombolola Chief of Lwantale. He had a kibanja on Njaza village and had no property at Nabutongwa. The accused used to stay in the home of his grand mother.

Kifamute died in 1990 and Richard Kato was appointed heir. Kato Richard did not take over property but it was Balineri Kakoza who did so.

In October, 1992 it was Kakooza Balinaba who was in physical possession of the properties of Henry Kifamute Ssalongo. He knew Yowana Mkangali the deceased and was his uncle. He was on good terms with him and had never at anytime quarrelled with him. He died in 1992.

On 23rd October, 1992 he used to stay at Nabutongwa village whereas Yowana Mkangali was a resident of Njaza village. He knew that he had died and learnt this from those who went to arrest him. It was his uncle Kakooza (PW5) RCs Chairman and others who went to arrest him. They told him the reasons why they were arresting him because he was being suspected to have killed Nkangali. He told them that he knew nothing about the matter.

In the whole of 1992 Kakooza was in charge of his deceased father's property. He urged Kakooza to take steps to distribute the properties but Kakooza refused and the latter warned him that if he went on pestering

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he would do something wrong to the accused person.

He did not inform Joseph Mukasa that he intended to kill Nkangali, Tereza and one called Mezi. All those who testified in court are relatives and they are opposed to the idea of distributing the properties (of his father Kyamute).

On being arrested he was taken to ICaliro lost and eventually was led to Masaka. At Kaliro police p:ost, he was interrogated and beaten. At Masaka ho was interrogated and denied the offence, ^A statement was recorded from him in luganda and there was an English version to the same which was tendered in evidence as Exh, 12. PW1 told lies when she testified that he used to move about with ^a panga.. He does not live in the house of his father. He knew nothing about the green torch and panga. He conceded he knew the trousers exhibited in court and knew how blood came on to the trousers. He was beaten at kaliro police post and bled much. It is true at one time he wanted to escape from prison but did so because he was suffering and had spent one and ^a half years on remand. He did not escape ¹ m \* because he feared to be tried. Ke is tick and would like to be operated upon. •

So far that is the c«^e for both the prosecution and the defence. In cases of murder the prosecution has to adduce evidence to prove the following ingredients of the offence:

(i) Shat the deceased is dead;

- (ii) The prosecution l<as to prove the cause of his death; - (iii) Whether the killing was lawful; - (iv) The pi'osocution h.as to adduce evidence to depict malice aforethought and finally

(v) Whether the aecusad was responsible. ¹ As I warned the sole gentleman assessor, the prosecution has the burden to prove the guilt of the accused person beyond reasonable doubt. It is the principle that in criminal cases apart from certain limited cases the burden of proof is throughout on the prosecution. And it is also the duty of the trial judge both when he sums up to the assessors and when he gives judgment to look at the evidence as a whole. See Sulaiman Katushabe vs Uganda Criminal Appeal No.7 of 1991. SCU at Mengo. See also Woolmington vs DPP 1935 AC p 462.

With that burden of proof in mind as I warned the sole assessor the prosecution has to adduce evidence to prove all the above ingredients of the offence beyond reasonable doubt.

As far as the first ingredient is concerned whether the deceased is dead, PV1. PV2. PW3. PW4. PW5 and PW6 all testified to the effect that the deceased is no longer alive. This fact was crowned by the evidence of the Doctor PN6 who examined the body and found the cause of his injuries and subsquent death. And even the accused person is agreable to the fact that the deceased is no longer alive and that he never attended his burial. In the circumstances it is safe to conclude that Nkangali is no longer alive and the prosecution has proved this ingredient of the offence beyond reasonable doubt.

As to whether the killing was lawful in the case of R vs. Busambuzi Wesonga 1948 15 RACA p 65 it. was held that homicide unless accidental is always unlewful except when committed in circumstances making it excusable. It could have been lawful if say it was in defence of one's property or selfdefence. $But$ evidence to that effect is lacking. So this second ingredient of the offence has been satisfied that killing of the deceased was unlawful. $...$ /12

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As to the cause of death, there is the evidence of PW1 who testified the deceased died as ^a result of having been cut with ^a panga and that there is also the evidence of Dr. Sekitoleko which was to the effect that q^his general observation was that the deceased was brutally killed by ^a very sharp instrument and that could have boon a panga. In the premises the use of a panga caused the death of the deceased. He was cut cn the neck with ^a panga-. Ibis ingredient has also been proved.'

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As to whether the prosecution has adduced evidence to. prove that there was malice aforethought.

Malice aforethought is defined by section ¹⁸⁶ of the Penal Code Aot as the intention to cause death or knowledge that the act of the accused person will probably cause death. See Scntongo and Sebugwawo. vs Uganda. 1975 HOB page 240.

There is further authority to the effect that malice aforethought flows very easily from the weapon used and the volunerable part of the body injured. See Tubare s/o Ochan J945 12 BACA page 63--.a Digest of Ea^t African Criminal Qase Daw ¹⁸⁹⁷ - ¹⁹⁵¹ page 192.

*In* the instant case the deceased was cut on the neck with ^a panga which is ^a deadly weapon and **or** lethal weapo4 which could cause death. The deceased was cut on the vulnerable paTt of his body the neck. J take judicial note of the fact that in our abattoirs animals for neat like goats oattle and even chickens are slaughtered by cutting their necks. This is sure way of killing them.. I am of the view whoever cut the deceased's nock with a. panga intended to kill him. This ingredient of the offence has therefore been satisfied.

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The last ingredient to consider is whether the accused was responsible for the death of the deceased. B71 testified that by torch light the accused flashed in the night in question was able to recognise the accused person who cut the deceased's neck with a panga. The accused denied being' at the scene and for this matter he was never at Njaza village but was at the material time at Nabutongwa village at his maternal uncles. The accused in fact put up an alibi as ^a defence to this indictment that he was elsewhere at the material time. Tho law is that if an accused person puts'forward an alibi as an answer to a criminal charge, he doos not thereby assume the burden of proving tho defence. The burden of proving his guilt remains throughout on the prosecution. See 10 Halsbury Laws of England 3rd Edition page ⁹⁷⁰ letter ^E and page ⁹⁷¹ letter B. Also see ^R vs Johnson 1963, ³ AER page 969>- As I said earlier on PV71 is the sole eye witness to this incident. She law is that "Although ^a fact can be proved by the testimony of a single witness this does not lessen the need for testing with the greatest care the evidence of such ^a witness respecting identification especially when conditions favouring correct identification, were difficult. In such circumstances what is needed is other evidence pointing to the guilt of the accused person, from which it can be reasonably concluded that the evidence of identification can safely be accepted ae free from possibility of error. 3\*he true test is not whether evidence of such witness is reliable. ^A witness may be truthful and his evidence apparently reliable and yet there is still tho danger of an honest mistake particularly in identification.. ' The true test is whether the evidence can be r ccoptcd as f:roe from

possibility of error, while therefore court can base a conviction on the evidence of a single identifying witness. It is necessary that it observes certain safeguards. JHe first is that the evidence of a. witness must be tested with great care by examining the circumstances under which it was made., The second is that the judge should warn himself and the assessors of the special need for caution before convicting on the evidence of identification?' See Ro ri^a vs Republic. 1967 EA p 583^t Tomasi Omukono and another vs Uganda Criminal^Appeal No, 4 of 1977\* George William. Kayesibula ys Uganda Or. Appeal No. 16 of 1977^&lt; Abdalla Bina Wcnd^o vs R 1953 pa&e , Lloses Xasana vs Uganda Criminal Appeal No. 12 of 1981.

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**In** the instant case I warned myself and the. sole assessor of the special need for caution before convicting on the evidence of P#1. First of all it was night time but she said through the torch light flashed by the accused she identified the accused. I further examined the fact' that the accused was known to the witness FW1 as a family boy. The deceased was his uncle. PW1 and the accused were living in almost the same compound their houses being separated by ^a distance of about metres. PW1 and the deceased made an alam and in fact the villager^ answered to the alarm immediately and the matter was reported to the authorities. EC¹ PV74 almost .immediately. There was no room for fabrication of the matter. Matter was reported immediately to the authorities.

Besides that there was evidence from the following prosecution witnesses, Pw'2, PW4, PW3 that the accused threatened to kill .certain people including the deceased person. PW2 heard Sim threat to kill Nkangali. P<74 saw

the accused with guords the accused said that he wanted to fill them with petrol and then kill the deceased. The accused further made this threat before PW3 RC1 that in fact he had changed his tactics instead of killing/ burning the deceased and others with petrol he was going to use a panga instead. A panga was used in killing the deceased.

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And shortly after those threats the very prosecution witness had to answer an alam whereby the deceased died because of being cut with a panga.

I was not sufficiently addressed by the learned on the issue of prior threats. In the case of Vaibi and another vs Uganda 1968 EA page 228 their Lordships had this to say:

"Evidence of prior threat or of an accused's<br>intention to kill the deceased is always admissible evidence against a parson<br>accused of murder but its propetive value<br>varies greatly and may be very small and<br>even amount to nothing. Reference must be made to the manner in which a threat is uttered, whether it is spoken bittery or impulsively in sudden anger or jokingly and reason for the threat and the killing are also material."

The prosecution witnesses before whom the threats were made thought the accused was not serious. Pii4 however explained that the accused told him that with great sorrow the deceased and others had bewitched him and had no peace and said was to kill the deceased and others by means of a panga. I am of the view those words were spoken or impulsively in sudden angor. The accused gave repsons for the threat that he was being bewitched by the deceased and others. The accused as I said earlier denied these. He testified that all those people who testified against him vere relatives and testified against him because they were interested

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in. the properties left behind by his deceased father Henry Kifamute.

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person. The deceased thereafter shortly passed away. This was Also the¹ there are the further to establish whether, the evidence °ye witness should-bb abepptod .—..endeavour of IW1 a. solM'3§ dying declaration when ho was? in ;fche presence of his wife PW| further dying declarations to /^he (.fpllov/in^-j^fc^^^.an^ PJ5 that"nobody had killod/cut him but it was;: the accused The accused .made a

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1 • There arc host of authorities on dying.-,declarations. It is gncerally speaking very unsafe to pass ^a conviction solely on the. dying declaration of a deceased person not subject to cross-examination unless there is satisfactory corroboration. ^R VS Hu.yovya.bu Msunc ¹ ^3.9 4 PACA .1.^8^nd ^R vs Said s/o Alluma VR ¹⁹⁵⁴ ²¹ EACA ^p ³³¹ it was held tha? it is unsafe to base ^a conviction solely on the ^dyin^g declc^ratioii^^^deceasod person owing to the possibility of mistaks on his'par\$gSsH. the identification of the assailant but other evidence''inWtt«&ng^w circumstantial . .. evidence may go to show that the do^a-SOT^Wl<^8®4L-have been mistaken. For other authorities on dayiiig declaration^'^ see Sorkera. on ■Evidence 12th Edition at p. J6gr^knljsiti. ' ' Sebugwawo. vs . Uganda Or Appeal No. 7/87 . SCT1 quoted with ex\ » • ^M^xTindigwihura vs. Uganda,Cr App No.² of J9§7« '

In the instant case .the testimony of JW1 acted as corroboration of th© dying declaration by the deceased. Besides this the accused escapocL.aft&r the incident as per the testimonies of and- wac looked for but could not be found only to be found in another village Nabutongwa thirty miles away from Njjaza. Running away from the sciene of crime is evidence of guilty

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conscious. ^a

The learned counsel appearing for the defence submitted that the evidence of PW1 must be examined with scrutiny and caution. That PJ1 exaggerated evidence that the accused before the incident was parading around with a panga and a green torch but other witnesses said prior to the incident the accused was not a resident of Njaza village. Other than PW1's evidence being fabricated she did not see how/why other witnesses did not corroborate her evidence. The prosecution witnesses were interested in the property left behind by the accused's father which they have not distributed and Balinaba Kakooza PW5 uses the same. Then the rumour in the village that the accused person will kill the deceased and prosecution witnesses stated if there is any other person who might have killed the deceased they would still think it was the accused who killed the deceased. True there appears to be contradictions and or unexplained episodes in the prosecution case but these were not major contradictions which would lead to the rejection of the prosecution evidence. The contradictions are minor and do not lead to deliberate untruthfulness. See Alfred Tajar Uganda EACA Cr App. No. 167/1968 unreported, Magiddu Bonne vs Uganda CAU Cr App No. 19 of 1984 (unreported).

For instance some presecution witnesses as submitted by the learned counsel appearing for the accused testified that the accused used to stay away from Njaza village but the offence was alleged to The have been committed at night around 2.00 a.m. position is that the accused sneeked through the night and went to cut the deceased and then went away. This is my finding. All the prosecution witnesses who were probably asleep could not: have seen the accused come to Njaza village. $...$ /18

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Although motive is not a requirement in older to prove that the accused committed an offence but in the instant case as evidenced by P\74 "the accused was worried that the deceased and the other two ladies Tereza and Mezi were actually bewitching and he found no peace in his life, I'his could have been the motive for the killing.

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There was also evidence adduced by the prosecution in that blood was taken from the accused person for comparison with blood found on the trousers and the panga but when analysed by the Laboratory Chemists at V/andegeya it was all found to belong to group 0. The accused said was beaten and bled. I was not addressed sufficiently by the learned counsels on this point. My findings however is that it could not be ascertained whether the .blood found on the accused¹ s trousers cane from the deceased. Also the blood on the pangs. exhibited showed group 0. It appears the panga exhibit P1 was tampered with. PV72 collected the panga from Sembabulc Police Post. No evidence was led as to how the exhibit was collected from the scene, then to Kaliro Police Post and finally to. Sembabule Police Post where it was collected by PW7. I am aggroable with the submission of Mr. Kugambe that the chain of evidence on the point was broken. But despite the mishandling of exhibit P2 the panga and Exh. P3 the troUsex\* and the poor results of the Chemists findings ^X am of the firm view that the prosecution evidence put the accused squarely at the scene of crime at t/io material time. The prosecution had beyond jre.asonable doubt proved that the accused par ticipated in the assault of the deceased which eventual! y results ^d in his death. Jlie alibi by the

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accused is false and the same is rejected. And I further reject his defence that as I said earlier that because all prosecution witnesses were related to each other and interested in the distribution of his father's property and that is why they gave evidence against him. Those were lies. There is overwhelming evidence to show that he cut the deceased on the neck with a panga which injury as I said killed the deceased.

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Apparently the accused has got no defence to this charge. He could not plead sulf-defence, accident and provocation which would either entitle him to an acquittal or to have the charge of murder reduced to that of Manslaughter respectively.

Because of what I have been trying to explain above and in agreement with opinion of the sole assessor I find that the prosecution has proved beyond reasonable doubt that the accused committed the offence with which he was indicted. In the premises I find the accused guilty of the offence of Murder contrary to section 183 and 184 of the Penal Code and I convict him accordingly.

> SGD. T. MUKANEA<br>JUDGE. 19.5.96.

SGD. I. MUKANZA

29.5.96: Accused before court.

Mr. Ogwal for the state present. Mr. Mugambe Kiiza for the accused preser:t.

Court:

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Court judgment is read in open court and signed. There is only sentence for an accused con tioted of of this offence. That is the death penalt, y. The accused is sentenced to death and will suffer death in the manner authorised by the law 1.98 of the Trial on Indictment Decree.

Right of appeal explained.