THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CORAM: HON. LADY JUSTICE A.E.N. MPAGI-BAHIGEINE, JA
HON. MR. JUSTICE S.G. ENGWAU, JA
HON. LADY JUSTICE C.N.B. KITUMBA, JA
CRIMINAL APPEAL NO.138 OF 1999
CHEMONGES FRED :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELANT
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
[Appeal from a conviction and sentence of the High Court of Uganda held at
Mbale before Mr. Justice A. Kania dated 24th day of November 1999 in Criminal
Session Case No.284 of 1997]
This appeal was against both conviction and sentence. The appellant was indicted on two counts for the offences of murder contrary to Sections 183 and 184 and of attempted murder contrary to Section 197(1) of the Penal Code. He was convicted and sentenced to death on the first count while the sentence on the second count was suspended.
The prosecution case was that on 1.2.96 at Cheminy Market in Kapchorwa District at around 7.00 p.m., the appellant threw a hand grenade into the shop of one Stanley Kuka which fatally injured the deceased, Michael Chemisto and seriously injured one Nelson Bariteka. The appellant was identified at the scene of crime by PW2 and PW5. He was arrested in Jinja where he had run to and indicted accordingly.
At the trial his defence was an alibi that he was in Jinja where he had arrived on 29.1.96 to see his siblings which was rejected by the learned trial judge who convicted him as charged.
The memorandum of appeal comprised three grounds:
(2) That the learned trial judge erred in law and fact in disregarding the inconsistencies in the prosecution case.
(3) That the learned trial judge erred in law and fact when he failed to properly evaluate the evidence adduced at trial hence reached erroneous decisions”
Mr. Vincent Wagona, Senior State Attorney supported both the conviction and sentence. He contended that the identification by PW2 and PW5 relied on by the learned trial judge was free from error. He submitted that though PW2 did not specify the distance between him and the shop, which was the scene of crime, let alone the direction he was facing, the incident according to both witnesses occurred at around 7.00 p.m. before sunset. Both witnesses knew the appellant well before the incident. Mr. Wagona further submitted that the inconsistencies pointed out by Mr. Kunya regarding as to who fired the gun shots were minor as they did not go to the root of the matter. He asserted that the evidence of Pw2 and PW5 ought to be read together.
The learned trial judge after reviewing the evidence said:
From the evidence on record we find that the appellant was known to PW2 as a clansman. They used to exchange visits. Pw2 had seen the appellant thrice during the course of that fateful day, 1.2.96. Most importantly the incident occurred at around 7.00 p.m. when there was still light. When the appellant was fleeing from the scene of crime he came into close proximity of PW5, Sikuku Sadik, who was going in the opposite direction towards the scene to find out what had happened. When PW5 saw him running away from the scene he inquired from him what had happened as indeed he expected him to know what he was escaping from. The appellant kept mum and instead sped off thus arousing the suspicion of PW5, who then raised an alarm and turned to chase him.
Grounds two and three were argued together. Mr. Kunya pointed out that there were inconsistencies between the statement PW2 made to the Police and his evidence in court made on oath two years and eight months later. He argued that PW2 completely disassociated himself from the police statement he had made earlier. He submitted that the entire prosecution case was full of contradictions and inconsistencies which affected its credibility and consequently its weight. He also singled out the incidents of shooting and pointed out that PW2 said it was the appellant who fired the gun shots during the chase whereas PW5 said it was the LDU guards who had fired.
Mr. Wagona submitted that the inconsistencies as pointed out by Mr. Kunya were minor and the learned trial judge was entitled to treat them such. He asserted that PW2 made his statement to the police in Kupsabiny and it was recorded by a police officer Det/C Mbabazi who merely had a working knowledge of Kupsabiny and he misconceived everything he was being told by the witness. Mr. Wagona stated that the statement was never proved against the witness as the officer recording it did not testify. He submitted that the evidence of PW2 and PW5 has to be read together. Regarding the inconsistencies the learned trial judge observed:
I never told the officer that arrived (sic) at the Trading centre at 3.00 p.m. what I said was that I arrived at 9.00 a.m. I did not say while I was there one Chemonges Fred alias Brown asked me for cigarettes. I did not tell the officer that I refused telling him I had no money……The contents of the statements are not mine.”
PW2 denied most of the contents of the statement which was never proved against him.
It was well established that where a police statement is used to impeach the credibility of a witness and such statement is proved to be contradictory to his testimony, the court will always prefer the witness’s evidence which is tested by cross-examination. The learned trial judge was therefore entitled to prefer PW2’s court testimony as against his police statement.
Mr. Kunya also attacked the judge’s reliance on the alleged earlier threats by 10 the appellant to kill Kuka on the ground that Kuka was still following his former wife who was then married to the appellant. Mr. Wagona countered that evidence of a prior threat was relevant. It was made in respect of PW6 who formed the subject of count two of attempted murder. He was the owner of the shop which was the scene of crime. The learned judge after directing himself regarding the law governing a prior threat to commit an offence or to kill ruled:
We agree with the learned judge’s finding. It is trite law that the appellant did not have to prove his alibi, but once the prosecution had succeeded in placing him at the scene of the crime, this entitled the learned judge to reject his alibi see - Siraji Sajjabi vs. Uganda Criminal Appeal No.31/89. In the premises grounds two and three also fail.
The appeal is accordingly dismissed.
Dated this 27th day of February 2001
HON. LADY JUSTICE A.E.N. MPAGI-BAHIGEINE,
JUSTICE OF APPEAL
HON. MR. JUSTICE S.G. ENGWAU,
JUSTICE OF APPEAL
HON. LADY JUSTICE C.N.B. KITUMBA,
JUSTICE OF APPEAL