All the foregoing were lies. He was given the Incidence Book exhibit P31. It was the book he had in use on 16/12/2000. the report
that he allegedly received from PW8 was not there. He did not have any record that PW8 told him to inform patrol and others that
the motor vehicle UAB 787 T be intercepted. He was so rattled by his deception being perforated that he now changed and pointed out
the information he had received from A1 about shot out as coming from PW8. “This is the message Tanui gave me and I wrote it
at 7.58 “ he said. He had forgotten that he had told court Tanui communicated to him between 6.00 – 7.00p.m. And this
message from the patrol vehicle is the one he now said he had passed over to the patrol motor vehicle.
Another is that A1, A2 and A3 all received communication at around 4.30p.m.
According to DW4 by 4.30 p.m. he had not received that information. DW4 told court that he received the information from PW8 at 6.30p.m.
or 7.00p.m. DW4 was very sure he received this information at that time because he specifically said “I knew it was between
6.00 – 7.00p.m. because I checked the clock”. A1, A2 and A3 said they received the message when they were at Mutai at
4.30p.m. That on receiving the information A1 told the Control Office they were too far to act on it and they continued with their
patrol work at Mutai some six miles from the town.
This conflict in time is major because the time DW4 gives enters into the time the motor vehicle UAB 787 T was being chased that
is 7.00p.m. and yet the accused persons said at the time they received the information, there were at Mutai and even continued with
their duty that way.
The fact that PW25 who was at the Lugalamba robbery scene did not see the motor vehicle UAB 787 T at the scene, nor make any report
to included the said motor vehicle, the fact that PW6 in Kampala did not receive any report on motor vehicle UAB 787 T nor pass on
such information to Jinja Central Police Station, the fact that none of the exhibits namely the Incidents Book, the Station Diary
and Anti Robbery General Report Book do no have any record of motor vehicle UAB 787T being involved in the robbery yet as made very
clear by PW19 that information was key and by DW4 that such important information could never be left unrecorded, the fact that DW4
told blatant lies that he had recorded the message in respect of motor vehicle UAB 787 T being involved in the robbery at Lugalambo
and passed it over whereas not, and lastly the fact that A1 Okello could not have received a message at 4.30p.m. from DW4, DW4 having
stated that he received it at 6.30p.m or 7.00p.m., does not only render the message suspect, but makes the un resistible inference
that the message was only made up after the shot out absolute.
In my considered opinion there was no such message involving motor vehicle UAB 787 T at the robbery of 15/12/2000 at Lugalambo. All
this was a creation of the accused and PW8 Tanui, who on investigation was found, as PW23 D/IP Kauma said to have been communicating
on phone with the deceased John Walube before his death.
That for the message, I now turn to the scene of crime.
The prosecution witness said the police patrol motor vehicle chased and overtook the deceased motor vehicle, intercepted it and ordered
the people out and told them to lie down.
The accused in great detail told court the scene as it was. A1 like A2 and A3 said they chased the motor vehicle UAB 787 T and since
it swerved to the right, they overtook if from the left. That as they were overtaking it, the occupants, of the wanted motor vehicle
shot at them using a pistol.
A1 Okello in particular said he was alone with the driver in front. The rest were on the back. According to him, when the person
in the wanted vehicle shot, the rest of the crew jumped off and he and driver continued ahead and intercepted the wanted vehicle.
He said he jumped out with a big gun begun to sound. He said on getting out he could readily see all his me. He said PC Aryenyo
was nearer to Mark II . Aryenyo was 4 metres away but in front of him. PC Mujuni was 5 metres behind him, Eropai was behind him about
7 to 8 metres. Now this in my opinion could not have been the scenario. A1 said he remained in the Police Pick-up and it went ahead
while the other had jumped off the pick-up when the first shot came out of the wanted motor vehicle, so while Aryenyo A1 could be
near the Mark II, there is no way Mujuni A2 could have been five metres behind A1, or Eropai being behind him far and Orech 7 to
8 metres behind him. To say so would mean, that on jumping off the motor vehicle, they raced, passed it and went ahead. Since A1
was not facing Jinja side how did A2, Eropai and Orech be behind him?
A2 Mujuni in his evidence said he ran to the church side 15 metres in grass which was 18 inches high. If Mujuni ran towards the church,
he could not be said to be behind A1 who had bypassed the church and was now facing it.
A1 told court that as he got out of the cabin of his patrol pick-up he could easily and readily see his colleagues. He said he saw
them well because the place was clear. He proceeded to tell court where each of them lay. “My colleagues were taking cover
on the slashed pavement. They were exposed. There was nothing covering them.”
The above has unwitingly been disputed by the other two accused. A2 said he lay and took cover in eighteen-inch grass while A3 said
he was in grass that was one yard tall. Surprisingly A3 said he could still be seen in the one-yard tall grass. What is clear here
is that the evidence of three people talking of the same spot, does not have any resemblance.
Again at the scene of crime, the three accused persons all said someone shot at them as they overtook the wanted motor vehicle. This
evidence however is very contradictory in many particulars.
To begin with A1 said he heard a pistol shot and the second shot was that of the big gun. But A2 said two shots were fired. A3 also
said two shots were fired. They disagreed with A1 Okello yet they were all at the scene at the same time and A1 told court of their
expertise in distinguishing pistols from SMG guns. The evidence on the pistol goes to the root of the matter because it would be
one of the reasons why the accused person would defend themselves. That a pistol was found with the deceased is not in doubt. This
pistol was exhibited together with the certificates that legitimatised its being possessed by Walube the deceased.
That it was also fired on the 16th day of December 2000 at the scene of crime is also not in doubt. Evidence is abundant that a bullet cartridge from the pistol was
found at the scene of crime.
Where the pistol was found and who fired it was the big question. In their evidence A1 said Aryenyo found the pistol on the pavement.
A2 said he heard A3 shout that he had recovered a pistol on the pavement near one of the bodies. The foregoing however contradicts
the contents of the charge and caution statement exhibit P28. Exhibit P28 was made by A1 and on oath in court, he said the contents
of the statement were a correct version.
In the statement A1 stated that after the shoot out, “we checked the vehicle and found three people dead and recovered one
pistol from among the bodies lying by a magazine of SMG with 30 rounds”.
This means that they are the ones who “recovered” the magazine but I shall come to that later.
The first accused made this statement just after the incident, the impression it gives is that the deceased were shot and killed
in the car which in my opinion in not true concluding from the sketch plan exhibit P34.
To come back to the pistol the accused in their defence also contradict each other against exhibit P28 as to where the pistol was
found.
On who fired the pistol, after going through the evidence, I can only conclude that this pistol was not fired by the occupants of
the Mark II there is a lot of evidence to that effect. The first one is piece of evidence that I have given above namely that the
accused do not agree in how many time it was fired. The second one is that their evidence as to when it was fired differs from what
they stated in their caution statements and even amongst themselves in defence.
In court A1 said their motor vehicle was just overtaking the Mark II when someone shot at them. In his charge and caution statement
he said its when they had overtaken and stopped the Mark II that the occupants shot at them.
In court A2 said as they overtook the Mark II, they opened fire. In his caution statement exhibit P26 and which he said was correct,
he stated that they first stopped the deceased and then they shot at them.
As for A3, in court he said they had passed the Mark II by one metre, when the deceased shot at them.
In his charge and caution statement he said “when we overtook the Motor vehicle we managed to block it from in front where
by before I could jump off our vehicle we heard bullet coming from the occupants”.
This disparity in statements made at police and made in court on a grave thing like the pistol cannot be referred to as minor. It
puts the whole issue of a pistol being fired from the wanted car in question. The last nail in this pistol saga however is that if
the bullets had emanated from the wanted car, the cartridge would have fallen either in that Mark II or just outside it. The cartridge
from that pistol was however found where the police patrol vehicle UP0041 had parked. This was evidenced to by PW23 Kauma. In his
evidence, he told court how he found a pistol cartridge. He described the position on exhibit P36. it was the same position as “A”
on exhibit P34 which indicated the position of the patrol pick-up. his evidence was not challenged. This lack of cross-examination
means that it was accepted.
The cartridges position showed that the pistol was fired by someone else not the deceased, since the deceased, neither by the evidence
of the prosecution nor that of the defence even went to where the patrol motor vehicle was parked.
The only conclusion is that the pistol was fired after recovering it from the deceased persons.
A1 said one of the bodies was near the right front of the Mark II. So did A2. This again was not true because PW21 I/P Koire who
went to the scene first, found the deceased all lying on the left hand side of the Mark II. He even drew a sketch plan exhibit P34
with “C” to indicate the three bodies. They were all near each other. It is even surprising that A1 who stated in his
caution statement that the bodies were in the motor vehicle could now say they were lying outside.
There are other things like A1 saying there was no other motor vehicle on the road as they gave chase and then forgetting and saying
there was a minibus but it made a U-turn and went back. How it made the U-turn is not known because the only turn was in front of
the Mark II yet the accused persons, said there was a volley of bullets flying by. In any case the path was littered with bodies
since they fell on the left had side of the Mark II onto the road.
I turn to the magazine.
In their defence A1, A2 and A3 have all said a magazine was found in the motor vehicle of the deceased.
According to A1 the magazine was found by Joshua who came with the reinforcement. He handed it to him and A1 then handed it to PW21
Koire. The presence of the magazine would strengthen the accretion that the deceased had an SMG with them. In other words the defence
of self-defence would be given evidence.
I have considered the magazine issue is detail.
There is no doubt that the second and third accused went with extra magazines. A1 in his police statement admitted that they had
done so.
A2 and A3 said they handed the extra magazines to CW1 AIP Kauta at the time of their arrest. Kauta however denied receiving any magazines.
This denial was left unbroken by cross-examination. It’s even believable because of the conduct of the accused persons in respect
of the magazine right from the time of recovery. First of all the three accused persons said the magazine was recovered by Joshua
when the reinforcement came. But PW21’s evidence was that on arrival at the scene and this was much before the arrival of Joshua,
A1 Okello handed to him a pistol and a magazine. The other thing was A1’s denial that A2 and A3 had left the station with extra
magazines. He denied this in court when he knew very well that they had carried them. The denial confirms that the 2nd and 3rd accused never handed magazines to PW21.
There would have been no reason to deny that. Its because A2 and A3 testified after A1 had been broken down over the extra magazines,
that they brought in the story of having handed the magazines to Kauta.
A1’s denial actually corroborates CW1’s evidence on the magazines. If they did not hand in the magazine to Kauta, where
did they go?
This magazine which was allegedly recovered from the car was handed to Koire before the arrival of Joshua. Joshua’s name was
brought in to cover themselves upon the source of the magazine. This is clearly seen with the case of the pistol. When they recovered
the pistol, they came outright and declared they had recovered it.
Attempt by A2 and A3 to make a place for the magazines, shows that one of the magazines that the accused persons had left the station
with, was the magazine that the accused claimed had been found in the suspect Mark II.
A1’s denial of A2 and A3 carrying second magazines, also leads to nothing but the same conclusions. This one is even stronger
because A1 wondered how the magazine would be explained if he admitted that they had gone with extra magazines and not returned them.
Its my considered opinion and I do find that there was no magazine in suspect motor vehicle UAB 787 T. That the evidence of finding
the magazine in the Mark II was made up by the accused persons.
Lastly I turn to the man with the gun. A1, A2 and A3 all said that there was a man in the suspect motor vehicle with an SMG.
A1 told court that as soon as his motor vehicle stopped, a man fired a big gun. He took cover and answered back, he said the man
who was shooting had a black jacket. He kept on firing and changing position. He said the exchange took 5-7 minutes. The man with
SMG ran towards the railway.
What is interesting is that when the accused made his charge and caution statement he did not mention this gunman. Neither was this
mentioned by A2. while they do not have to prove the innocence, they were duty bound on a balance of probability to show that they
were acting in self-defence.
A1 said the man with the big gun begun shooting when he was just near the motor vehicle. He said the deceased persons were not firing.
The danger therefore was from the gunman. The deceased according to him simply rolled on the ground. A2 saw the gunman shot when
he was on the road to town which in this case was on the other side of the island. He said he did not see the victim because his
head was down. He then in complete about turn said he did not see the man with gun. “I only saw CPL Okello leading away the
woman.” If he could see Okello leading away the woman and there is evidence on record that there were streetlights what would
have stopped him from seeing the man with the gun. The man who proved a danger to him. Is it not because the man was non-existent.
He earlier said he opened fire on the man retreating towards the railway station.
As for A3 he said he could not tell where the SMG man fired from. Yet under cross-examination, he said the man fired from near the
car. A2 clearly said the man begun firing after he had left the car and was on the road to town. It means he had gone beyond this
island and was on the road to town.
These different positions attributed to the alleged gunman, the admission by A2 that he did not see him, yet there were street lights,
and also taking into account the planted magazine to reinforce the gunman’s existence, clearly,
Indicates that no gunman existed at all. The only way the extra shells and extensive shooting can be explained and irresistibly too
is the missing magazine that A2 and A3 had failed to produce at the time of their arrest and attempted to run away from it by falsity
telling court that they had handed them to IP Kauta.
The other reason I can say there was no crossfire is because PW3, PW4 and PW11 were never even cross-examined on the issue of cross
fire. In their evidence they told court that there was no crossfire. The three prosecution witnesses clearly told court how the accused
overtook, stopped the Mark II ordered the occupants to lie down and opened fire upon them. The accused namely A2 and A3 told court
that the deceased were running away towards the church direction. The accused told court they were in that direction too.
If that was the case the bullets would have entered the deceased from the front of their bodies. Here however the post mortem reports
showed that the bullets entered their bodies from the back. A2 and A3 said they shot at the gunman as well in the direction of the
town and at the deceased who were running away in the direction of the church. If that was also the position, the deceased would
have been running at right angle to the road. It meant that their right sides of the body were facing the accused. The bullets would
therefore have entered them through the right side of the body and exit on the left side. In no way would the bullets have entered
the deceased through the back and emerged from in front. The only reason why the bullets went through the back was because the backs
were exposed to the accused. PW3 said the men were told to lie down and they were shot through the back. PW4 who was in a minibus
from a few paces away and which as I saw had no way of U-turn also testified to court that by the lights of their taxi, she said
the men ordered out of their car and told to lie on the ground and shot in cold blood. This evidence received support from that of
PW11 who said the same. PW11 had nothing to gain by telling lies. He had no reason to tell lies.
That the deceased were shot while lying on the ground was further shown and proved by evidence of IP Kauma PW23 who found bullet
marks on the road. Exhibit P36 shows the marks on the road as index 6. the bullet marks could only have been made by a gun pointed
down. They were in the spot where the bodies were found as exhibit P34 indicates. They were from marksmen standing and hovering over
the victims on the ground. The accused had the deceased at their mercy.
At that time there was no danger pertaining to avail self-defence.
Even if the deceased had fired a pistol, even if a gunman had been there, which did not exist in this case, the moment the deceased
were subjugated and the gunman disappeared, the danger was past. In the case of R Vs Cliff [1975] 1 All ER 334, where a soldier on patrol observed a car coming for him at speed and he found three shots but the car passed and the fourth shot
after it passed injured and killed a passenger, their Lordships found him guilty because the danger had passed when he fired the
fourth and fatal shot.
In the instant case however, the evidence of the accused persons was too contradictory, with inconsistency and discrepancies as within
each of them and amongst all of them that it was rendered unreliable. It went to very grave matters and the root of the whole charge
on things like the pistol fire the magazine and the gunman that it could not be said to be minor.
Furthermore some of it like the presence or non presence of extra magazines were blatant and deliberate lies that this was evidence
as would fall in Tajar Vs Uganda EACA 167/67 for rejection.
There were of course contradictions in the testimony of PW3 and PW4. while PW3 said she was pulled out of the motor vehicle after
the deceased had been shot, PW4 said she was pulled out before they were shot. This discrepancy did not go to the root of the matter.
It was minor. It was given by two women who were horrified at what they saw and were bound to have a dialers of events here and there.
On the whole the rest of their testimony tallied and fell on all forms with that of PW11 and I believe their testimony as the truth
of the matter.
The manner in which the deceased were killed was not accidental or sanctioned by law. It was unlawful. The intentional killing was
full of malice aforethought.
Both the lady and gentleman assessors have advised me to find the accused guilty of manslaughter. However for the reasons I have
given above, with respect I do not agree.
The prosecution having disproved self-defence, I find the accused persons each and every one of their guilty of murder on all three
counts as charged and accordingly convict them.
D.K. WANGUTUSI
JUDGE
2/9/2003.
2/9/2003:-
Accused all three present.
Mr Iyamulemye for accused.
Ms Alice Nayebare for state.
Ms Muyama Court Clerk.
Assessors:-
1.
Mr Maganda
2.
Ms Katawera
Court:-
Judgment delivered in open court and therein signed and dated.
Sentence:
There is only one penalty on conviction of murder and that is death. Accused are sentenced to suffer death on each of the three counts.
The death sentences are however suspended on count two and three. Leaving the sentence on count one in place for each of the three
accused.
D.K. WANGUTUSI
JUDGE
2/9/2003.
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