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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, KAROKORA, MULENGA,
KANYEIHAMBA, KATO J.J.S.C.)
CRIMINAL APPEAL NO.1 OF 2003
BETWEEN
KAZIBWE KASSIM }
::::::::::::::::::::::::::::::::::::::::::::::::::::::::
APPELLANT
VERSUS
UGANDA
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RESPONDENT
(An appeal from the Decision of the Court of Appeal at Kampala by (Okello,
Berko, and Byamugisha J.J.A) dated 18th February, 2003 in "Criminal
Appeal No. 11 of 2001)
JUDGMENT OF THE COURT
This is a second appeal. It is from a judgment of the Court of Appeal dated
18th February 2003 in which the Court of Appeal quashed the
conviction and set a side a death sentence for murder and substituted
a
conviction of manslaughter and a sentence of 10 years imprisonment. The facts
of the case as accepted by the lower courts were
as follows:
Early in the
morning of the 21st February 1999, one Fred Senyange, (PW1) a brother
of the appellant, went to the home where the appellant was cohabiting with the
deceased and picked his axe and panga which he used to keep in the appellants'
home and went to his place of work. Shortly afterwards
the appellant called PW1
and informed him that he (appellant) might be imprisoned because his wife, the
deceased, had drunk poison.
PW1 entered the appellants' house, found the
deceased groaning and breathing heavily. PW1 fetched milk and tried to
administer it
to her, but she could not drink it. Shortly after that, she died.
The matter was reported to LC officials and eventually to police.
The appellant
reported himself to the police and was arrested.
The medical evidence
comprised of a postmortem report made by a doctor who examined the deceased's
body on 23/2/99. It was produced
in evidence by Dr. Okware who knew the hand
writing and signature of the author Dr. Kamoga. According to the report, the
injuries
found on the body were a bruise on the frontal part of the head, a deep
cut wound over left eye lid and cerebral spinal fluid oozing
from nostrils.
There was also a fracture of the left clavicle. Cause of death was described as
head injury. In Dr. Okware's opinion,
the injuries inflicted on the deceased
suggested that a lot of force was used. Cut wounds suggest use of something
sharp. A fall
against a sharp object could also cause some of the injuries found
especially those that made a spinal fluid to come out of the deceased's
nostrils.
In cross examination, Dr. Okware classified a fall into two
categories, namely; "gravity fall" and "accelerated fall". In his opinion
a
gravity fall would not cause the kind of injury found on the head, but an
accelerated fall would. At the trial, the appellant denied
the offence. He
stated that when he was going to his place of work in the evening of the day
before the incident, the deceased told
him that she needed salt. He gave her
money for the salt and went to his place where he was burning charcoal. When he
returned at
night from his place of work, he did not find the deceased at home.
He went to look for her at Kabanda's drinking place and found
her fighting with
her brother, Eriya Serugo (PW4). He took the deceased home but soon afterwards
left for the forest to attend to
his charcoal burning, where he spent the whole
night. He returned the following morning and went straight to bed. Whilst he was
in
bed, PW1 came and picked his axe and panga from the appellant's home where he
(PW1) used to keep them and went away. The appellant
then looked at the deceased
and found that she had vomited. He then found a bottle of poison lying near her.
The appellant stated
that afterwards, PW1 returned to the house and went and
brought milk but the deceased was too weak to drink it. Shortly after, the
deceased died. PW1 was sent to call PW4 and LC officials. Later, police
officials came and took the body away together with the bottle
of
poison. However, the prosecution did not, adduce evidence from the police
concerning the bottle of poison. The learned trial
judge accepted the
prosecution evidence and rejected the appellant's defence. The appellant was
convicted for murder, but the Court
of Appeal allowed his appeal and substituted
that conviction with a conviction for manslaughter as already stated. In
allowing the
appeal, the Justices of Appeal had this to say:
"In the instant case, apart from the lie about suicide by poisoning and the alleged fight between the deceased and PW4, the appellant said nothing about how the deceased died and the part he played. All what we have are injuries. There is no lota of evidence as to how those injuries were inflicted what weapon was used and why the appellant did what he is alleged to have done. Various hypotheses and theories have been put forward. None of which is inclusive. In the result, we have come to the conclusion that it would be unsafe and unsatisfactory to allow the conviction for murder to stand. Consequently the appeal is allowed and conviction for murder is quashed and sentence of death is set aside. We substitute thereof a verdict of manslaughter."
The appellant has appealed to this court
on two grounds. At the hearing of the appeal, ground two was abandoned. Ground
one which
was argued reads as follows:
"The learned Justices of Appeal
erred in law when they convicted the appellant for the offence of
manslaughter in absence
of evidence proving that he was responsible for
the death of the deceased." Mr. Mubiru, counsel for the appellant
submitted that there was insufficient evidence to prove that the appellant was
responsible for
the injuries which caused the death of the deceased. He
contended that the evidence on record connecting the appellant with the
offense
was purely circumstantial and was very weak and submitted that the onus was on
the Court of Appeal to find out if there was
enough circumstantial evidence to
connect the appellant with the death of the deceased. He further submitted
that there was no
concrete evidence that the appellant inflicted those external
injuries which were found on the body of the deceased. He invited
us to
allow the appeal, quash conviction for manslaughter and set aside the
sentence of 10 years imprisonment.
Mr. Tumwesigye, Principal state
Attorney for respondent submitted that the circumstantial evidence was strong
enough to prove that
the appellant was responsible for the injuries which caused
the death of the deceased. He cited pieces of circumstantial evidence
upon which
the trial judge had relied to hold that the appellant had committed the offence.
These included the fact that Senyange,
PW1 had found the appellant and the
deceased together in their home at the material time. Secondly, the fact that at
that point,
the deceased had a wound on her forehead and was on the brink of
death. Thirdly, the fact that the appellant told PW1 a lie that
the deceased had
drunk poison when according to the postmortem report, Exh PI she had not.
Fourthly, Senyange's disclosure of a lie
told by the appellant which was
intended to implicate Serugo (PW4) to the effect that Serugo had fought with the
deceased in the
evening before her death and probably inflicted the fatal
wounds.
We agree with the submission of both counsel that the prosecution case wholly depended on circumstantial evidence. However, we find the conclusion of the Justices of Appeal not wholly correct when they stated that:
"In the instant case, a part from the lie about suicide by poisoning and the alleged fight between the deceased and PW4, the appellant said nothing about how the deceased died and the part he played. All what we have are injuries. There is no iota of evidence as to how those injuries were inflicted, what weapon was used and why the appellant did what he is alleged to have done. Various hypothesis have been put forward none of which is inclusive."
With due respect we think that it was not
incumbent upon the appellant to state how the deceased died and the part he
played when
he had denied having killed the deceased. The onus was on the
prosecution to prove its case against the appellant. If there was no
iota of
evidence as to how those injuries were inflicted and what weapon was used, we
think that it was a misdirection on the part
of the Justices of Appeal to state
"and why the appellant did what he is alleged to have done."
We think
that the Justices of Appeal were in error for coming to the above conclusion,
because the appellant all along denied having
killed the deceased. We think that
failure by prosecution to call police to testify about what they observed at the
scene of crime,
(if anything) indicating whether or not another person could
have come to the scene during the appellant's absence, inflicted fatal
injuries
upon the deceased and left the bottle of poison remained unresolved. In our
view, although the prosecution case wholly depended
on circumstantial evidence,
we think that in order for the Court of Appeal to act on such evidence, the
inculpatory facts against
the appellant must be incompatible with the innocence
of the appellant and incapable of explanation upon any other reasonable
hypothesis
than that of guilt. See Simon Musoke V R (1958) EA 715. In Teper V
R 2 (1952) AC 480 at pages 489 the Privy Council held that:
"It is also necessary before drawing the inference of accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference of guilt."
In the instant case, like the
case of R v Israili - Epuku s/o Achietu (1934) IEACA 166,
we are of the opinion that the evidence did not reach the standard of proof
requisite for cases based entirely on circumstantial
evidence. We are unable to
hold that the evidence contains any facts which, taken alone amount to proof of
guilt. The cumulative
effect of the circumstances said to tell against the
appellant is not such as to satisfy us that he must have been connected with
the
death of the deceased. Although there was suspicion, there was no prosecution
evidence on record from which the Court could draw
an inference that the
appellant caused the death of the deceased to justify the verdict for
manslaughter. We therefore think that
the Court of Appeal was in error to hold
that the appellant was guilty of manslaughter.
In the result we allow
this appeal, quash the verdict of manslaughter and set aside the sentence of 10
years imprisonment. We order
that the appellant be set free from custody
forthwith unless he is detained for any other lawful purpose.
Dated at Mengo this 22nd day of July 2004.
A.H.O. ODER
JUSTICE OF THE SUPREME
COURT
A.N. KAROKORA
JUSTICE OF THE SUPREME
COURT
J.N. MULENGA
JUSTICE OF THE SUPREME
COURT
G. W. KANYEIHAMBA
JUSTICE OF THE SUPREME
COURT
C. M. KATO
JUSTICE OF THE SUPREME COURT
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