That the trial Judge therefore made an erroneous finding in his judgment to the effect that the contradictions were not about identification of the appellant, but about the mode of his entry into the house (the scene of crime).
Mr. Dhabangi concluded his submissions on this ground by inviting the Court to evaluate the evidence and to find that the appellant was not properly identified at the scene of the crime.
On the second ground, Mr. Dhabangi submitted that it was clear from the judgment that the learned Judge, having made erroneous findings based on the glaring contradictions, found himself in a dilemma and reduced the standard of proof to that of the balance of probabilities and thereby occasioned a miscarriage of justice. He proceeded to illustrate his point that heavy doubts lingered in the trial Judge’s mind by quoting parts of the judgment where the trial judge used expressions such as
As a Court of Appeal of first instance, we are enjoined by Rule 30 of the Rules of this Court to re-appraise and evaluate all the evidence that was adduced before the trial court and subject it to a fresh scrutiny, make our own findings and draw our own conclusions in order to determine whether the findings of the trial court can be supported.
“probably”, “I have doubts”, “...must have been....”.
He invited this court to evaluate the evidence, restore the standard of proof beyond reasonable doubt, resolve the issue of identification in favour of the appellant, quash the conviction and set aside the sentence.
Mr. Kakooza opposed the appeal and supported the conviction. On the first ground, he agreed that the case was decided on the basis of the testimony of the two identifying witnesses, and referred to the judgment where the trial judge dealt with the question of identification. The learned trial Judge not only stated the law relating to the evidence of identifying witnesses, but also cited the relevant cases before evaluating the evidence of PW1 and PW2 with painstaking care. He contended that though the learned trial Judge noted the contradiction between the testimonies of the two witnesses, he however rightly believed that the contradiction was caused by the lapse of time between the time the offence was committed and when the witness testified in court.
Regarding the second ground, Mr. Kakooza was of the view that the use of the expressions referred to by trial Judge could have been a slip of the pen. Even then, he submitted, the sentences in issue should be read in the context of the whole judgment, not in isolation.
He prayed that the appeal be dismissed and the conviction and sentence be upheld.
In so doing, we should bear in mind the fact that we did not have the opportunity that the trial court had of hearing and seeing the demeanour of the witnesses. See also Selle Vs Associated Motors Boart Company,  E.A 123.
In the instant case, we have anxiously considered all the evidence that was adduced before the trial judge, his judgment as well as the submissions of both learned counsel. We agree with Mr Dhabangi that the record shows that the defence did not contest the first three ingredients of the offence of aggravated robbery, but only contested the participation of the accused. The record also shows that both accused persons raised the defence of alibi. Nevertheless, the trial judge was under a duty and he went ahead to evaluate all the evidence and made a finding on each of the essential ingredients of the offence.
Regarding participation by the accused persons, it is true that the case for the prosecution depended largely on the visual identification of the appellant by the principal witnesses, namely; PW1 and PW2.The record shows that the learned trial judge correctly appreciated that this was a case of identification by recognition and directed himself and the assessors accordingly. As stated by Mr Kakooza, we find that the trial judge evaluated their evidence painstakingly, correctly stated the law on the subject of identification and relied on the relevant cases before coming to the conclusion that the prosecution had proved that the appellant was the attacker who had entered Pw1’s house through the window on the night of the attack.
In his judgment the trial judge applied the guidelines to be considered while dealing with the evidence of identification which were set out by the Supreme Court in the case of Bogere Moses and another Vs Uganda, Criminal Appeal No. 1 of 1997. The Court said:
“This Court has in very many decided cases given guidelines on the approach to be taken in dealing with the evidence of identification of eye witnesses in criminal cases. The starting point
is that a court ought to satisfy itself from the evidence whether the conditions under which identification is claimed to have been made were or were not difficult, and to warn itself of the possibility of mistaken identity. The court should then proceed to evaluate
the evidence cautiously so that it does not convict or uphold a conviction unless it is satisfied that mistaken identity is ruled out. In so doing, the court
must consider the evidence as a whole, namely, the evidence of any factors favouring correct identification together with those rendering it difficult.”
In that case, their Lordships went on to discuss at length, various leading authorities on identification including, Roria vs Republic  E.A 584 and Abdalla Nabulere and another Vs Uganda,  HCB 77 where the following factors to be considered were set down:
Whether there was light.
Whether the witness knew the accused before or he was a complete stranger.
Whether the witness had sufficient time to look at the accused or only had a fleeting glance.
The distance between the witness and the accused at the time of recognition.
Any other distinctive features which might have helped in the recognition of the accused by the witness.
We have also evaluated the evidence in respect of the conditions which were prevailing at the time of the attack using the above guidelines in order to determine whether the two witnesses were able to identify the appellant properly, and we make the following findings and conclusions:
Dated at Mbarara this ...15th ....day of .December...2010
First, both witnesses testified that the attack took place at around 2:00 a.m. at night. That both of them were able to see the attackers by the light from a torch flashed by one of the attackers who had entered through the window. That although they were many, only two of the attackers managed to enter the house. One of them was the appellant.
Secondly, the witnesses were emphatic that they knew the appellant before the attack. He was their village mate and neighbour. He was therefore not a stranger to them.
Thirdly, the evidence of both witnesses shows that the attack on PW1’s house took some time. PW1 testified that the attackers struck at 2:00 a.m. Others started breaking the front door padlock, while the others were banging the backside window. One of them eventually entered through
that window and opened the front door from inside and let in another one whom she recognised as the appellant. After searching for money in vain from the
bedroom, they dragged her to the sitting room and forced her to lie down. They continued to demand for money and pulled the drawer in the shop counter and got some money. PW2 estimated that the attack lasted from 2:00 a.m. to 4:00 a.m. that night. It is thus safe to conclude from this evidence that the witnesses had sufficient time to recognise the attackers.
Fourthly, the two witnesses testified that the attack took place in the house of PW1. She was lying on her bed before the attackers dragged her from bed and executed their mission. PW2 was among the children who were lying on the floor
next to the bed of their mother, PW1. There was no distance between them to make identification difficult. During the attack, the attackers were demanding for money, so
it became quite easy for the victims to recognise them by voice as well for as pointed out above they knew them as village mates.
In the circumstances, we agree with the learned PSA that the learned trial Judge cannot be faulted for finding that the conditions for proper identification were met by the prosecution.
It is also clear from the summing up to the assessors and the judgment that the learned trial Judge was alive to the contradictions in the testimony of PW1 and PW2 regarding the attacker who entered through
the window and the one who entered through the door.
According to PW1, it was Magezi (A2) who entered through the window and eventually opened the door to allow in Aliganyira (A1) the appellant. The testimony of PW2 is the opposite.
Rightly, the learned Judge, after evaluating the evidence in its entirety took into account the above contradiction and came to the conclusion that it was the appellant who had entered through the window. He attributed the confusion to lapse of time.
We agree with the findings by the learned trial Judge and add that in our view, it is immaterial how the appellant entered the house of PW1 that night. What is important is that the appellant was properly identified by both witnesses as one of the attackers who
participated in the attack on the house of PW1 that night. That was done, since the conditions favoured proper identification and the possibility of a mistaken identity was in our view minimum. We therefore find that the trial judge carefully evaluated the evidence and came to the correct conclusion that the appellant was clearly identified at the scene of crime at the time when the crime was committed.
Ground 1 therefore fails for the above given reasons.
Regarding the second ground, we find that counsel for the appellant selected the expressions referred to deliberately in order to fault the learned trial Judge for reducing the standard of proof. With due respect, the criticism is not borne out by the context of the said judgment which must, in our view, be read as a whole, and not in parts. It follows therefore that while we find the use of expressions such as ‘probably’, inappropriate in a criminal matter, we do not agree with counsel for the appellant that the trial Judge lowered the standard of proof as alleged.
This ground also fails for lack of merit.
Lastly, it is the duty of this Court to ensure that the sentence meted to the appellant was appropriate. After carefully scrutinising all the evidence on record and considering the circumstances of this case, we think that the death penalty imposed on the appellant though legal, was harsh. The death sentence is therefore set aside. In its place, we substitute a prison sentence of 15 years from the date he was sentenced. In so doing, we have borne in
mind the period he spent on remand.
HON. JUSTICE A.E.N. MPAGI-BAHIGEINE
JUSTICE OF APPEAL
HON. JUSTICE A. S. NSHIMYE
JUSTICE OF APPEAL
HON. JUSTICE M. S. ARACH AMOKO
JUSTICE OF APPEAL