No. 7770 P.C. Kikwemba v Uganda (CRIMINAL APPEAL NO. 16 91)

Supreme Court · [1992] UGSC 37 · 1992 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal from High Court conviction for murder and sentence of death

Decision

Appeal against conviction for murder and sentence of death dismissed; conviction and death sentence upheld.

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court dismissed the appeal against conviction for murder. Although the trial judge erred in relying on the appellant's alleged report to a police officer (which was admitted without proof of voluntariness and was arguably an inadmissible confession), there remained sufficient untainted evidence to support the conviction. The positive, unshaken eyewitness evidence of two prosecution witnesses who saw the appellant shoot the prisoner justified the finding that the deceased died from the gunfire, notwithstanding the absence of medical evidence. The criticisms of the judge's treatment of the defence case went to style rather than substance. A properly directed tribunal could have reached the same conclusion, so the conviction stood.

Facts

In October 1984 the appellant, a police constable assigned to investigate cattle thefts around Rweikiniro, Mbarara District, took custody of a prisoner, Dezidel Kasaruhande, suspected of cattle theft. That night the appellant and others escorted the prisoner with cattle towards the sub-county headquarters. After diverting onto a cattle track there was gunfire; the four prosecution eyewitnesses raised an alarm and dispersed. The next morning a dead body, identified as Kasaruhande, was found at the scene bearing gunshot wounds to the chest and back. No medical examination or post-mortem was performed because a doctor was far away and there was no fuel to fetch one. The prosecution case rested on eyewitnesses who said the appellant shot the prisoner, and on a police officer who recorded the wounds and to whom the appellant allegedly reported killing a cattle thief. The defence admitted gunfire but said policemen fired into the air as the prisoner escaped, and claimed he was later seen alive in Rwanda. The appellant was tried for murder, convicted and sentenced to death.

Issues

Whether the prosecution proved the death of the deceased where there was no medical evidence and the defence alleged the prisoner had escaped.
Whether the appellant's alleged report to a police officer that he had shot a cattle thief was admissible as a confession under section 24(1) of the Evidence Act.
Whether the trial judge misdirected himself by ignoring the defence case and believing only the prosecution.
Whether the prosecution proved its case against the appellant beyond reasonable doubt.

Orders

Appeal dismissed.

Key headnotes

Evidence — Confessions — Admissibility of statement to police officer — Evidence Act s.24(1)

A confession made by a person while in the custody of a police officer is not admissible against him unless it is made in the immediate presence of a police officer of or above the rank of sub-inspector, and the prosecution must additionally prove that any admitted statement was made voluntarily.

Criminal Law — Murder — Proof of death — Sufficiency of circumstantial and eyewitness evidence absent medical evidence

The fact of death in a murder case may be proved by reliable eyewitness and circumstantial evidence; the absence of medical or post-mortem evidence is not necessarily fatal where other credible evidence establishes that the deceased was killed.

Evidence — Cross-examination — Effect of failure to challenge a witness on a material matter

Although a party should put to an opponent's witness so much of his own case as concerns that witness, it is not right in every case to accept a witness's testimony merely because it was not challenged in cross-examination; each case must be considered on its merits and the whole of the evidence weighed.

Criminal Procedure — Trial with assessors — Duty to give reasons for departing from opinions — Trial on Indictment Decree s.81(3)

Under section 81(3) of the Trial on Indictment Decree a trial judge is required to state reasons only where his decision differs from the opinion of the majority of the assessors.

Criminal Appeal — Conviction sustained despite trial errors — Sufficiency of remaining evidence

Where a trial judge has wrongly admitted evidence or imperfectly structured his judgment, an appellate court will not interfere with the conviction if, excluding the tainted evidence, the remaining evidence is sufficient to justify the conclusion reached and a reasonable tribunal properly directed would have convicted.

Legislation cited (3)

Penal Code Act s.183
Evidence Act Cap. 43 s.24(1)
Trial on Indictment Decree s.81(3)

Cases cited (2)

James Sawoabiri and Another v Uganda (Criminal Appeal No. 5 of 1990)
Uganda v Cleophas Ntura [1977] HCB 103

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.