THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CORAM: HON. LADY JUSTICE L.E.M. MUKASA-KIKONYOGO, DCJ.
HON. LADY JUSTICE C.N.B. KITUMBA. JA.
HON. LADY JUSTICE C. K. BYAMUGISHA, JA.
CRIMINAL APPEAL NO. 166 OF 2001
1. NABULO MICHAEL
2. MALUNDA DAN ;;;;;;;;;::::::::::::::::::::::: APPELLANTS
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
[Appeal from the conviction and sentence of the High
Court of Uganda holden at Jinja (F. Mwonda, J.)
Dated 17/12/2001 in Criminal Session Case
No. 20 of 1999
JUDGMENT OF THE COURT
Nabulo Michael and Malunda Dan, in this judgment referred to as the first appellant and the second appellant respectively were indicted for aggravated robbery contrary to sections 285 and 286 (2) of the Penal Code but were convicted of simple robbery contrary to sections 285 and 286 (1) (b) of the Penal Act.. Each one was sentenced to 6 years imprisonment. They were ordered to compensate the complainant in the sum of shs.420,000/= equally.
The prosecution case as accepted by the learned trial judge is that on the night of 29th November 1990 at Nakukiri village, Mbale District, both appellants together with others attacked Wangtusi Robert, PW1. They forced the door of his house open and went into his bedroom. The first appellant grabbed PW1 and demanded for money. Before the witness could answer the second appellant stabbed him with the muzzle of a gun. PW1 made an alarm. The second appellant removed the mattress, the weighing scale, shs.320,000/=, metal cups and plates from the bedroom and passed them on to his colleagues who were outside. The first appellant was all the time holding the witness and pressing him down. When the first appellant freed PW1, the witness picked up his panga and started chasing the assailants. John Masette, PW2 and Masette William, PW3, who had answered the alarm, followed him in the chase. They chased for about 5 minutes and arrested the first appellant. The chase continued and the second appellant was arrested at around 4.00 p.m. from his house. He had entered the house when he was being pursued.
Both appellants admitted having participated in the offence. PW3 who was also the Local Council Chairman directed that their admissions be received in writing. The two statements were admitted in evidence, at the trial as exhibit P2.
In their defences the appellants made unsworn statements in which they totally denied the offence. They stated that they were walking back home at around 7.30 p.m. on the material day. They were ambushed by PW1 and others on the allegation that they were in the village for the purpose of stealing. The first appellant also raised the issue of a grudge between him and PW1. He stated that PW1 had befriended his wife and taken her away.
The learned trial judge believed the prosecution case, rejected the appellants’ defences and convicted them as already stated .
The appellants have appealed to this Court on three grounds namely:
“1. The learned trial judge erred in law and fact when she
held that the prosecution had proved its case beyond
The learned trial judge erred in law when she admitted
in evidence and relied on the extra judicial statements.
The learned trial judge erred in law and fact when she
failed to judiciously evaluate the evidence of both
prosecution and defence.”
Mr. Nelson Nerima, learned counsel for the appellant, submitted on the three grounds consecutively. We shall deal with them in the same order.
On the first ground counsel’s complaint is that the learned trial judge was wrong to find that the appellants had been properly identified. He criticised the learned trial judge for having looked only at the favourable conditions for correct identification. In counsel’s view, there were conditions that cast doubt on the correctness of identification of the appellants. As the conditions were difficult for identification the judge should have looked for corroboration. Counsel relied on Moses Bogere and others v Uganda S.C. Criminal Appeal No.1 of 1997 (unreported).
In reply, Mr. Simon Byabakama-Mugenyi, learned Deputy Director of Public Prosecutions, disagreed. He supported the learned trial judge’s finding that PW1 and PW2 had properly identified the appellants. He submitted that the appellants had torches which they were flashing inside the house where they stayed for twenty minutes assaulting the witness. Besides, when the prosecution witnesses were chasing the appellants there was moonlight, which enabled them to see and recognise the appellants. The witnesses did not loose sight of the appellants throughout the chase. According to him the prosecution witnesses, therefore, arrested the people who had committed the offence.
It is our duty as a first appellate court to consider and re-evaluate the evidence as a whole and come to our own conclusion bearing in mind that we have neither seen nor heard the witnesses. See Moses Bogere and another vs Uganda Supreme Court Criminal Appeal No.1 of 1997 (unreported) and rule 29 of The Court of Appeal Rules Directions, 1996.
The evidence regarding visual identification of the appellant is from the testimonies of PW1 and PW2. PW1 testified that he did not know the appellant before the incident. On the material day at around 2.00 a.m. he was sleeping in his house when he heard someone banging the door. Before he could do anything he was grabbed by the first appellant while demanding for money. The second appellant stabbed him with a muzzle of the gun. He felt pain and began raising an alarm. The first appellant kept on pressing him down. Inspite of that he was able to see the second appellant getting the mattress and other properties from the room and passing them on to his colleagues who were outside. He was able to see what was happening because the assailants had torches which they were flashing in the room. When the first appellant got off him he picked up his panga and started chasing the attackers. He threw the panga which caught the first appellant’s leg. The witness together with others who had answered the alarm, that is: Anthony Makosa, PW2, and PW3 chased the assailants. The appellants run following a road but later branched into coffee plantations. He testified that he was able to recognise the assailants because there was bright moonlight. Both appellants were arrested in Butoto sub-county. The first appellant was arrested first and the second appellant was arrested from his house.
In cross-examination he testified that he was lying sideways facing the bed as the first appellant was sitting on him. However, he had already recognised the appellants before they put him down.
In his evidence PW1 claims to have recognised the appellants as soon as they entered the house. It is important to note that he does not describe their appearances or the clothes they were wearing. We are doubtful that PW1 properly saw and recognised the appellants whom he did not know before in the very short time they entered his room and put him down. He was lying sideways and facing the bed. We also do not believe that the witness recognised the appellants as he was chasing them. The appellants were not facing him and he was only seeing their backs. The evidence does not indicate the distance between the appellants who were running away and PW1 who was chasing them. Besides, he (PW1) testified that the appellants run from the straight road into the coffee plantations. We are doubtful that PW1 was able to see and recognise the appellants.
The testimony of PW2 is to the effect that he heard an alarm coming from PW2’s home. He went to PW1’s home but did not find him present because he was chasing the assailants. He followed and joined the chase. There was bright moonlight and it was possible to see the people who were being chased. They continued chasing until he caught up with the first appellant and he arrested him. He pleaded with them not to kill him and that there were other people who were running away who included the second appellant. He testified that the first appellant was arrested at 1.00 a.m.They continued with the chase and arrested the second appellant at about 4.00 p.m. The second appellant told them that they were arresting a wrong person.
We are not convinced that PW2 saw and recognised the appellants as the people who had attacked and robbed PW1. First of all, PW2 never saw the appellants in PW1’s house. He joined the chase sometime after it had started. PW2 testified that the appellants were running down hill and they did not loose sight of them. It is important to note that at the time the first appellant was arrested, the other people who were chasing the assailants hit PW2 on the head thinking that he was a thief. We wondered why this was so when the visibility was good. However, it is not imaginable that the witness who arrested the first appellant did not loose sight of the second appellant who was continuing to run away. We note that the second appellant was not arrested until about 4.00 a.m.
We think that the first appellant’s identification of himself to those who arrested him does not in any way implicate him. Identifying oneself would be the natural thing to do for anyone who is innocent. In the case of the second appellant he denied participation in the offence at the time of his arrest. We are, therefore, inclined to hold that PW1 and PW2 did not identify both appellants.
The complaint in ground 2 relates to the appellants’ statements Exhibit P2 which were admitted in evidence under section 156 of the Evidence Act. Mr. Nerima submitted that the appellants’ statements were involuntarily made. The appellants were beaten and were threatened with death if they did not sign their statements.
Mr. Byabakama-Mugenyi submitted that the statements were voluntary.PW2 had them recorded because he feared that the appellants might later change their statements. We have perused exhibit P2 and find that these appellants’ statements were in law confessions. In their statements both appellants admitted participation in the robbery. Section 24 of the Evidence Act provides:-
“A confession made by an accused person is irrelevant if the making of the confession appears to the court, having regard to the state of mind of the accused person and to all the circumstances,, to have been caused by any violence, force, threat, inducement or promise calculated in the opinion of the court to cause an untrue confession to be made.”
According to the evidence from prosecution witnesses the appellants were beaten at the time of their arrest. PW1 and PW2 testified that when the appellants were arrested they were beaten, PW3 denied that the appellants were beaten. However in cross-examination he said that they looked weak may be because of pushing and forcing them to walk. He said that he stopped the people who wanted to beat them.
In the circumstances we are inclined to believe that the appellants were tortured or beaten at the time of their arrest and their confessions were not voluntary. Besides, the Secretary for Defence who recorded those statements was not a witness at the trial. With due respect, the learned trial judge was wrong to admit in evidence the confession obtained by beating/torture. Ground 2 also succeeds.
We turn to ground 3 which is a complaint by counsel on the valuation of evidence. Counsel submitted that the learned trial judge did not properly evaluate and wrongly convicted the appellants. Counsel’s complaint has merit and has been dealt with in grounds 1 and 2.
In the result the appeal is allowed.
The convictions are quashed and the sentences are set aside. The appellants are to be set free forthwith unless they are otherwise lawfully held.
Dated at Kampala this 25th day of May 2004.
DEPUTY CHIEF JUSTICE
JUSTICE OF APPEAL
C. K. Byamugisha
JUSTICE OF APPEAL