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THE REPUBLIC OF UGANDA
IN THE SUPREME OF UGANDA
AT MENGO
CRIMINAL APPEAL NO. 18 OF 2002
CORAM: ODOKI C.J, ODER, KAROKORA, KANYEIHAMBA, KATO,
JJSC
BYARUHANGA FODORI
APPELLANT.
VERSUS
UGANDA RESPONDENT.
(Appeal from the judgment of the Court of Appeal at Kampala (Kikonyogo
D.C.J, Engwu, Twinomujuni JJ.A.) in Criminal appeal No.24 of 1999 dated
8th. May 2002).
REASONS FOR THE JUDGMENT OF THE COURT
The appellant was indicted before the High Court on two counts of murder
contrary to sections 183 and 184 of the Penal Code Act. He
was convicted and
sentenced to death on both counts. His appeal to the Court of Appeal was
dismissed, hence this appeal. We heard
the appeal on 18/2/2004 and dismissed it
reserving our reasons, which we now give.
The facts of the case as
established before the trial court and accepted by the Court of Appeal are as
follows:
The appellant was married to the first deceased Margaret Nakate with whom he
had a son, the second deceased, Moses Nsimireki. The
appellant had domestic
misunderstandings with his wife which resulted in her going to stay with one of
her brothers, Koronolio Kibira
(PW5). On 9/4/95 a meeting was held to reconcile
the first deceased and the appellant. It was resolved that the first deceased
should
go back to her husband on condition that the husband does not continue
mistreating her. On the afternoon of 13/4/95 at about 3.00
p.m. the deceased and
her son aged 3 years, left the home of Koronolio for the home of the appellant.
She did not reach her intended
destination. On that same night her husband came
to the home of the deceased's mother, Yonia Nalugwa (PW.4) at about 10.00 p.m.
He
was in a confused and panicky state. When he inquired about his wife and was
told that she had left for his home that afternoon,
his reply was: "let me go
since I am the one having the keys. May be mosquitoes have killed her." In the
same night of 13/4/95 at
about 1.00 a.m. the appellant went to the home of his
brother-in-law, Koronolio where he again appeared in a complete state of
confusion
as he could not explain his reason for being there at such an odd
time.
On the following day, the bodies of the deceased and her son
were first seen floating in river Nguse with their clothes in the same
stream
near the bodies. The bodies were at first sighted by one Augustino Byabulera who
informed Henry Kagwa (PW1). Both men went
away to alert the public. When they
returned to the scene with one of the brothers of the deceased, both the bodies
and the clothes
were missing from where they had been seen. A search was
conducted and the two bodies were found in a different part of the stream
with
cut wounds and the clothes were missing. When the appellant was found at his
home one of the brothers of the deceased Serwanga,
asked him if his wife had
arrived. He did not answer the question. Instead he got hold of a panga and said
that it was Yuda and Anderea
who had killed his wife. Eventually the appellant
was arrested and when his house was searched, the clothes with which his wife
had
left her brother's home and which had also been seen where the bodies were
first sighted, were found hidden under the deceased's
bed in a bundle.
At the trial, the appellant denied having killed his son and wife. As for the
presence of deceased's clothes in the house, he explained
that he had collected
them from her on 9/4/95 after they had been reconciled. Both courts below did
not accept the explanation as
being truthful. They believed the prosecution case
on the point. He was convicted and sentenced as indicated above.
The appellant listed two grounds for his appeal, namely.
1. The learned trial Judges of Appeal erred in fact and in law, as did the learned trial Judge when they upheld a conviction on a charge of murder basing on doubtful and insufficient circumstantial evidence (sic).
2. The learned Judges of Appeal erred in law and fact when they failed to evaluate all the evidence and therefore came to a wrong decision.
Mr. Ntuyo Kafuko, who appeared for the appellant, argued the two grounds
together. We shall deal with them in the same manner. The
gist of his
submissions was that the circumstantial evidence upon which the appellant's
conviction was based left a doubt as to what
caused the death of the appellant's
wife and son. In his view, the evidence of Dr. Dongo who examined the bodies and
concluded that
the cause of death was shock due to bleeding from the wounds was
wrong since the bodies had no wounds when they were first sighted.
According to
the learned counsel, the deceased could have drowned or their bodies could have
been thrown into water after death.
He contended that the learned Justices of
Appeal did not make a finding as to what caused the death although they
concluded that
the appellant must have killed his wife and son in view of his
conduct.
Mr. Vincent Okwanga Principal State Attorney, who appeared for
the state, opposed the appeal. He submitted that the Court of Appeal
resolved
the issue of the wounds when it held that it was the appellant who was
responsible for the death of the two deceased irrespective
of how the wounds
were inflicted He, however, conceded that Dr. Dongo might have been wrong when
he stated that the deceased died
of shock following bleeding. In counsel's view
the circumstantial evidence irresistibly shows that it was the appellant who
murdered
both deceased in view of the appellant's strange conduct on the fateful
day.
It is not in dispute that the case against the appellant depended
essentially on circumstantial evidence in that nobody saw the appellant
murdering his wife and son. The Court of Appeal and the trial court were alive
to that fact.
It is trite law that where the prosecution case depends
solely on circumstantial evidence, the court must before deciding upon a
conviction
find that the exculpatory facts are incompatible with the innocence
of the accused and incapable of explanation upon any other reasonable
hypothesis
than that of guilt. The court must be sure that there are no other co-existing
circumstances, which weaken or destroy
the inference of guilt. (See: S.
Musoke V R [1958] EA 715 and Teper V R [1952] AC 480).
In the instant
case, the circumstantial evidence upon which the appellant was convicted is
contained in his conduct before and after
the death of his son and wife. The
first piece of evidence is appellant's violent relationship with his late wife
before her death.
The appellant in his own testimony admitted that he used to
fight with his wife and that is why they had separated. The mother of
the
deceased Yawania Nalugwa (PW4) and the deceased's brother Koronorio Kibira (PW5)
testified that the appellant used to beat his
late wife. Both Yawania and
Koronolio told the court that on a number of occasions the appellant used to
threaten his wife with
death.
Another piece of evidence pointing to the appellant's guilt was his strange
behaviour on the night his wife left her brother's home.
The first deceased left
the home of her brother Koronolio at about 3 p.m., later at about 10 p.m. the
appellant appeared at the home
of his mother-in-law in a confused state and when
he was asked if the wife had arrived he answered that she had not and that if
she
had arrived then she had not entered the house as he had the key to the
house and that mosquitoes might have killed her. At about
1.00 a.m. the
appellant was seen at the home of Koronorio. When Koronolio asked him as to what
was the matter, he kept quiet and
looked confused. No explanation or reason was
given for the two visits at such odd hours of the night or for the strange
behaviour
of the appellant.
The other piece of evidence which was
considered by the courts below as incriminating the appellant is the discovery
of the bundle
of clothes belonging to the two deceased under the bed of his late
wife. The clothes were those the deceased had taken with her when
she left her
brother's home. They were also seen floating near her body and that of the son
by those who first saw the two bodies.
In our view the trial Judge rightly
rejected the appellant's explanation that he had collected those clothes from
deceased's home
when he went there for reconciliation on 9/4/95 in view of the
evidence of Koronolio and the first deceased's mother who saw her
leaving with
those clothes on the afternoon of 13/4/95. One other aspect of appellant's
connection with the death of his wife and
son is to be seen in his rash conduct.
When he was told of the discovery of the bodies he jumped to the conclusion that
it was Yuda
who must have killed his wife and yet the identity of the dead woman
and child had not yet been known at that stage. How did he know
the wife was
dead if he was not involved in her death?
With due respect to learned counsel for the appellant, we do not agree that
the circumstantial evidence left a doubt as to what caused
the death. It is,
however, true that each of the above pieces of evidence considered in isolation
could not lead to the conviction
of the appellant but when considered together
they lead to an irresistible conclusion that it is the appellant and nobody else
who
was responsible for the death of his son and wife on 13/4/95. The Court of
Appeal was justified in its finding that the circumstantial
evidence pointed to
no one else except the appellant as the killer.
The theory put up by Mr. Ntuyo that the two deceased might have drowned or
might have been thrown into the water after they had met
their death at the
hands of some other people different from the appellant, cannot be sustained in
view of what has been outlined
above. With respect, we agree with the decision
of the Court of Appeal that the deceased could not have accidentally drowned in
the
river. We found no merit in the two grounds of appeal.
It was for those reasons that we dismissed the appeal.
Dated at
Mengo 29th this day of July
2004.
B.J. Odoki
Chief Justice
A.H.O. Oder
Justice of the Supreme
Court
A.N. Karokora
Justice of the Supreme
Court
G.W. Kanyeihamba
Justice of the Supreme
Court
C.M. Kato
Justice of the Supreme
Court
8
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