THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORUM : ODOKI, CJ, ODER, TSEKOOKO, KAROKORA AND

KANYEIHAMBA, JJSC.)

CRIMINAL APPEAL NO. 44 OF 2000

BETWEEN

1. KOOKY SHARMA) ::::::::::::::::::::::::::::::::::::: APPELLANT

2. PALINDER KUMAR )

VERSUS

UGANDA ::::::::::::::::::::::::::::::::::::: RESPONDENT

[APPEAL from the decision of the Court of Appeal, at Kampala (MANYINDO

DCJ, MPAGI-BAHIGEINE AND BERKO, JJA.) dated 19th SEPTEMBER 2000
in COURT OF APPEAL CRIMINAL APPEAL NO. 7 of 2000]

JUDGMENT OP THE COURT: This is an appeal against the decision of the

Court of Appeal which confirmed the conviction by the High Court of the
appellants for the murder of Renu Joshi, the wife of the first appellant.

The first appellant, Kooky Shamar (A1), is the elder brother of the second
appellant, Davinder Kumar (A2). The deceased, Renu Joshi, was the wife of the.
first appellant with whom he had two children. The first appellant lived with his
deceased wife and the two children in a rented house, at Plot 43/45 Martin Road,
Old Kampala. In the same house lived their cook called Raju and a lame relative of
the first appellant called Bitu Kumar. The first appellant owned a shop across the
same road at Plot 40A Martin Road. The second appellant assisted the first
appellant in running that shop.

Kooky's residence was part of a two family building. The other part was occupied
by the family of Mr. Rurebwa Deo Twine (PW2) who lived with his wife Margaret
Twine (PW14) and his children including his daughter Busingye Lilian Twine
(PWl). The residences of the two families were separated by an inner common
partition wall.

On 23/12/1997, the two appellants had a busy day at their shop selling
commodities. The first appellant left home at 9.00 a.m. and did not return home for
lunch till 2.30 p.m. At home he found his deceased wife and his cook Raju. The
first appellant was served lunch by Raju. At about 3.00 p.m., he returned to the
shop and continued selling shop goods as well as supervising construction of flats
on the top of the shop building.

It was the case for the prosecution that the two appellants returned to the residence
in the course of the night after closing the shop probably soon after midnight.
According to Lilian Busingye (PWl) at night she heard two male voices and cries
of a female from Kooky's residence. She also heard from the same house at the
same time banging or beating. The crying of the female voice went on for a long
time and when the cries decreased, Lilian resumed her sleep.

During the same night, Mr. Rurebwa Twine heard quarrels and a female crying and
so he woke up his wife, Margaret Twine (PW14) saying "your friend is being
beaten". Margaret Twine woke up and also heard the deceased crying saying
"mummy" "mummy". At the same time Margaret Twine heard and recognized the
voices of the two appellants from the same house. She also heard from the same
house bangs followed by cries of the deceased. She went back to sleep after these
noises stopped. Next morning on 24/12/1997 she saw a mattress put up in the
corridor of the residence of Kooky leaning against and covering a window. This
was her first time to see a mattress covering a window in this manner. She also saw
a mechanic in the compound where there were two vehicles. That morning,
Margaret went to attend to her drug shop business but returned home after learning
of the murder of the deceased.

Later the same morning of 24/12/1997, Abdi Jamal (PW3), an LC1 Chairman of
the area learnt of the death of the deceased. He went to Kooky's house where he
found Kooky, who was planning to have the body of the deceased cremated.
Kooky claimed that the deceased had died of malaria. Jamal looked at the
deceased's body which was dressed up to the writs and ankles except for the face.
2
Kooky wanted to take the body of the deceased for cremation. As Jamal was not
satisfied with the cause of the death of the deceased, Jamal prevented Kooky from
taking the body for quick and hurried cremation. Jamal got some information as a
result of which he called the police from the nearby Old Kampala police station.
Police officers examined the body and upon noticing bruises on the body, treated
the case as murder. This was about 11.00 a.m. The policemen and Jamal made a
quick search of Kooky's residence. Raju, the cook, was found lying in bed,
unconscious, with broken limbs and a swollen mouth. Police took him to Nsambya
Hospital where he was admitted. When the police returned to Nsambya Hospital
two days latter they could not trace Raju there. Raju has never been seen or heard
of again ever since.

On the 24/12/1997, at 1.00 p.m., at the request of the police, Dr. Martin
Kalyemenya (PW10), a pathologist at Mulago Hospital, carried out an autopsy on
the body of the deceased. Externally, he observed multiple bruises which he
described as burns caused by electric action or acid. When he opened up the body,
he noticed that the liver and the spleen were coloured slightly differently from
what they should normally be. So he removed a piece of liver, the spleen, a kidney
and a piece of brain and sent them to a Government Chemist, Mr. Emmanuel
Nsubuga, (PW13) for chemical analysis. This doctor formed the opinion that the
cause of death was:

"shock due to electrical burns with blunt injury. Poison

could not be ruled out".

Mr. Emmanuel Nsubuga (PW13) the Senior Government Chemist, carried out
toxicological analysis on the parts of the body which were sent to him by Dr.
Kalyemenya. He found some amounts of acaricide poison in all those organs.

It appears there was general dissatisfaction in respect of the opinion of Dr.

Kalyemenya about the cause of the death of the deceased. Consequently, on
29/12/1997, another autopsy was carried out by Dr. Wabinga H. R, who was the
Head of the Pathology Department of the Medical School at Mulago. He also saw
the multiple bruises and the electric burns seen earlier by Dr. Kalyemenya. Dr.
Wabinga's opinion was that the cause of death was shock due to the punched out
abrasions which, like Dr. Kalyemenya, he observed on the lateral areas of both
upper and lower limbs accompanied by multipde ecchymosis.

It was the case for the prosecution that the two appellants murdered the deceased
by means of electric shocks.

In their defence during the trial, the appellants made lengthy unsworn statements
during which they were fully examined by their respective counsel which is
contrary to normal practice. We will revert to this at the end of this judgment. Be
that as it may, according to each appellant, on 23/12/1997 from the morning, the
two sold goods in their shop. The first appellant (Kooky) also supervised
construction of flats on top of the shop. He returned home at 2.30 p.m. where Raju,
the cook, served lunch to him. The deceased wife was present and apparently there
was nothing unusual in the home. After lunch the first appellant returned to the
shop and resumed supervision in the shop. He was assisted by the 2 nd Appellant
together with Babu and Kumar Palinder (DW1). This went on up to about 9.30
p.m. when the second appellant, Kumar Palinder (DW1), Babu and Bitu, the lame
man, went home (Al's residence) to have their supper before returning to the shop
at about 10.00 p.m. At that time Raju the cook took food to the first appellant who
ate it from the shop. Up to this point there is no evidence about any thing being
wrong with the deceased or with Raju.

According to their statements, appellants and their assistants continued with the
sales till after midnight when the first appellant went home to sleep. The 2 nd
appellant together with Palinder Kumar and Babu retired in their room at the rear
of the shop. That night there was no UEB electricity along the whole of Martin
Road area including the shop and the residence. The first appellant claimed that
when he reached home, he found Bitu and the children sleeping in their own
bedroom. The first appellant entered his bedroom where he found the deceased
seated on the bed with hands folded and held on the stomach. She said she had
pain in the stomach. She refused A1's suggestion that she should visit a doctor.
According to A1 the deceased went to the toilet twice but still she did not want to
visit a doctor. This went on for twenty minutes. Nothing suggests that the first
appellant called for a doctor. Because he was tired, the first appellant chose to
enter his bed to sleep only to be awakened at 4.00 a.m. by the cries of the

4
deceased. She was sweating. The first appellant then called Raju the cook four
times but Raju could not respond. So A1 phoned A2 whom he sent to fetch a
doctor. A2 fetched Dr. Prakash Patel (PW5). Meantime A1 also phoned Doctor
Shah. Dr. Patel arrived at the scene first at about 5.00 a.m., and examined the
deceased and pronounced her dead. According to A1, he and the two doctors (Patel
and Shah) saw a packet of metecalfine tablets. A1 claimed that he asked A2 to
inform the police and the LC1 Chairman, among others, about the death of the
deceased. He also phoned Raju Taylor (PW4), the Chairman of the Indian
Community in Uganda. Taylor came to the scene and made arrangements to get a
priest so as to prepare to cremate the body at 11.00 a.m. At that time, as the body
was due to be taken for cremation, police arrived at the scene and eventually took
A1 and A2 to Old Kampla Police Station. As they were going with police, people
who had gathered in A1's home shouted:-
"Kooky had killed his wife".

A1 denied killing the deceased.

In his defence, A2 denied killing the deceased and also repeated much of what was
said by A1 about the business in the shop during the day and on the evening of
23.12.97 both before and after lunch. A2 stated that between 9.30 p.m. and 10.00
p.m., he (A2), Kumar Palinder, Bitu and Babu had supper at the residence of A1.
They returned to the shop and carried on business till after midnight when they
retired in their bedroom and slept. A1 went to sleep at his home after midnight. At
4.00 a.m. A1 phoned and asked A2 to fetch a doctor. A2, collected Dr. Patel and
took him to attend to the deceased at A1's home, where they arrived at about 5.00
a.m. Dr. Patel, who was later joined by Dr. Shah, pronounced Renu Joshi dead
after examining her. A2 denied participation in killing the deceased. Both
appellants claimed, in their statements in court that the Twine family testified
against them because Twine wanted to purchase the whole of plot 43/45 where
each family lived.

In the trial Court and in the Court of Appeal, defence counsel in their addresses
dwelt much on two issues. The first issue was that Mrs. Twine's identification of
the appellants by voice was inadequate and unreliable. The second issue was that
the cause of death connecting the appellants to the killing of the deceased was not
proven. Counsel contended that medical evidence as to the cause of death was
inconclusive because firstly that since there was no evidence of electricity in A1's
residence on 23/24 Dec, 1997, the opinions of Dr. Kalyemenya and Wabinga that
the deceased died of electric shock was inconclusive. Secondly that the evidence
of Dr. Kalyemenya and that of the Government chemist, Mr. Emmanuel Nsubuga,
(PW13) shows that the deceased could have died of poisoning by ingestion of
acaricide which Nsubuga found in the parts of the body which were sent to him by
Dr. Kalyemenya for examination. According to defence counsel, the presence of
acaricide supports the theory that the deceased committed suicide.

At the conclusion of hearing the case in the trial Court, the male assessor whose
opinion was a little confused, advised acquittal. The female assessor believed the
medical evidence that death was due to electric shock and that that was the cause
of death. She also believed Mrs. Twine's evidence about the identification of the
appellants by voice. She advised conviction.

The learned trial judge ruled out death due to malaria and poisoning. He relied on
the evidence of Dr. Wabinga as to the cause of death and on the evidence of Mrs.
Twine as to the identification of the appellants by voices. He found that although
there was no electricity in Martin Road area on the material night, the appellants
caused the death of the deceased by use of electric shocks. The learned Judge
found that although acaricide poison was traced in the body of the deceased, death
was in fact due to electric shock and that it is the two appellants who must have
administered the electric shocks. The learned Judge convicted the two appellants
of the murder of the deceased and sentenced each of them to death. On appeal to
the Court below, the appellants' arguments centred, as we have observed already,
on the same two issues, namely that of identification and of the cause of death. The
Court of Appeal upheld the findings of the trial judge and therefore dismissed the
appeal. The appellants have now come to this Court. Each of the appellants filed a
separate memorandum of appeal.

The first appellant was represented by Mr. P. S. Ayigihugu and Mr. Mubiru-
Nsubuga.. His memorandum of appeal contained four grounds but his Counsel,
Mr. Ayigihugu, abandoned ground 4. The second appellant was represented by Mr.
Akampurira who presented a memorandum containing three grounds of appeal.
During submissions, he abandoned the third ground.
6
We will first consider the grounds of the first appellant. The first complaint in his
memorandum of appeal is that in view of conflicting medical evidence, the Court
of Appeal erred in law by failing to subject medical evidence to fresh scrutiny and
merely confirmed the trial judge's holding that the death of the deceased was
caused by electric burns. In other words the complaint as we understand it, is:-

(a) The Court of Appeal did not re-evaluate medical evidence but merely
confirmed the trial judge's finding that death was due to electric burns;
(b) Medical evidence on the cause of death is conflicting and insufficient.

When arguing this ground, Mr. Mubiru-Nsubuga referred us to the evidence of the
three prosecution expert witnesses, namely Dr. Kalyemenya (PW10), Dr. Wabinga
(PW12) and the Senior Government Chemist, Mr. Emmanuel Nsubuga (PW13).
Learned counsel pointed out that Dr. Kalyemenya was the first pathologist to carry
out the autopsy on 24/12/97 at 1.00 p.m., 7 hours after death and when the body
was still warm. Counsel pointed out that although this doctor saw multiple electric
burns, he found no internal injuries and as he was not sure of the cause of death,
and after noticing that the liver and the spleen had changed colour, he removed
pieces of the brain, the liver and kidney and sent them to the Government Chemist
for toxicological analysis. The doctor did not rule out death by poisoning. Learned
counsel urged us to rely on Dr. Kalyemenya's evidence in preference to that of Dr.
Wabinga because the former doctor was supported by the finding of toxicological
analysis of Mr. Emmanuel Nsubuga, the senior Government Chemist whose
evidence shows that the quantity of the acaricide found in the parts sent to him was
high and could cause death. Learned counsel criticised the two Courts below for
relying on the evidence of Dr.Wabinga who gave a firm opinion that the multiple
electric burns found on the body of the deceased could cause death and also held
the firm view that there was no need to rely on the findings of the Government
chemist. Counsel urged us to hold that the deceased must have committed suicide.
Counsel cited Waihi & Another vs. Uganda (1968) EA 278 and Criminal
Evidence by Richard May (1986) Ed; pages 139/140 in support of his
contentions.
Mr. Byabakama-Mugenyi, Senior Principal State Attorney, appearing for the
Respondent, supported the decisions of the two Courts below. He contended that
there was no discrepancy between the evidence of Dr. Kalyemenya and that of Dr.
Wabinga as to the cause of death. According to the learned Senior Principal State
Attorney, Dr. Kalyemenya indicated throughout his evidence that electric burning
could cause death even though he was not sure of the cause of death. On the other
hand, Mr. Byabakama-Mugenyi submitted that Dr. Wabinga who found on the
body of the deceased the same injuries as did Dr. Kalyemenya, was of the view
that the multiple electric burns were the cause of death. Learned SPSA contended
that Dr. Kalyemenya found no specific signs or features such as traces of poison in
the mouth of the deceased or any vomit which are features of poisoning causing
death. Counsel submitted that the claim by A1 in his unsworn statement in Court
that before she died the deceased vomited, sweated and lost breath was an
afterthought which he gave after listening to medical evidence given by
Kalyemenya and Nsubuga in Court about the symptoms of a person dying from
poisoning by acaricide and that this afterthought statement should be ignored. Mr.
Byabakama- Mugenyi contended that though poison was found in the body of the
deceased, it was not poison which was the probable cause of death.

It is clear that the conviction of the appellants was based solely on circumstantial
evidence. Moreover, this is a case in which the two Courts below have made
concurring findings of fact based on expert opinions that the cause of death was
due to electric burns and not poisoning. Furthermore, one of the assessors was of
the same view. In these circumstances we would, as a second appellate Court,
ordinarily be bound by those concurrent findings. However, this is a peculiar case.
Two doctors, and a chemist, have proffered scientific opinions which to some
extent conflict as to the cause of death. It is upon these opinions that the
convictions of the appellants were based. In as much as the expert opinions were
not demeanours of the experts which influenced the courts below, we can review
the evidence of the experts as well as the approach adopted by the two Courts. We
do this because it does not appear to us that in forming his conclusion, the learned
trial judge was influenced by the demeanour of any of the expert witnesses.
Conclusions of a trial judge which are based on demeanour of a witness or
witnesses seen by him at the trial should not normally be reviewed unless such
conclusions are clearly erroneous in law or do not reflect the correct position of all

8
the evidence available on the record: See Patrick May on Criminal
Evidence_(supra) and (Phipson on Evidence 14th Ed., page 831/832.

We will now examine the relevant evidence including that of the appellants. First
we have the evidence of the first appellant himself. On 23/12/1997 he left his
deceased wife at home at 9.00 a.m. There is no suggestion that she was sick. It is
only Kumar Palinder (DW1) who claimed she had been sickish 2 days before. The
claim that she was receiving treatment at Dr. Ahmad's clinic a few days before her
death was destroyed by the evidence of Dr. Nuwagira (PW8) and this is reflected
in Exh. P8, which shows that she received treatment for mild malaria on 1/12/1997
which was three weeks before her death. Further, on the morning of 23/12/1997,
Mrs. Twine (PW14) saw the deceased well and alive hanging her clothes on a line
in the yard. They greeted each other. The deceased must have been fit enough to
wash clothes in the early morning and hang them outside. It appears she was
friendly to Mrs. Twine and in all probability she would have said she was sick if
indeed she was. At 2.30 p.m. the first appellant went back home and ate his lunch
after A2, Palinder Kumar (DW1) and Babu had had their lunch. The deceased was
present. There is nothing to suggest that she was sick. Between 9.30 p.m. and
10.00 p.m. on the same day, again A2, Babu and Palinder ate food in the same
home. There does not seem to have been any problem with either the deceased or
Raju, the cook. Indeed, the latter took food to A1 in the shop after 10.00 p.m.
which food A1 ate. We hear nothing wrong about either the deceased or Raju.
According to the two appellants, A1 left the shop soon after midnight. According
to his own statement, A1 arrived home soon after midnight. His two children and
Bitu, the lame man, were asleep in their own bedroom. Also Raju the cook was
asleep in his own separate bedroom. It was only the deceased who was sitting on
her bed with folded hands touching her abdomen, or the chest, because of pain in
the stomach. A1 stayed up for a while persuading her to visit a doctor. She refused.
Curiously, instead of calling a doctor, A1 chose to enter his bed to sleep only to be
awakened at 4.00 a.m. by the cries of the deceased who was holding her abdomen.
He then called A2 and instructed him to fetch a doctor.

We note that in his charge and caution statement recorded by the police on
24/12/1997, A1 stated, in so far as it is relevant, that:
 "On 24,12/97 the deceased woke me up and informed me that she
was feeling pain from her heart. This was about 4.00 a.m. I called
my brother KUMAR from where he puts (sic) and I sent him to
call a doctor to come and attend to the deceased".

Clearly, this statement which A1 made immediately after the death of the deceased
gives a very different picture from what A1 stated in Court. It suggests that until
the deceased woke A1 up at 4.00 a.m., he had not observed anything wrong with
the deceased. Indeed, it suggests that when he returned home after midnight, the
deceased showed no sign of sickness. Dr. Patel (PW5) and a Dr. Shah appeared on
the scene probably soon after the death of the deceased but the remarkable thing is
that Dr. Patel who examined the deceased did not see any naked part of the body
save for the face. Instead of saying what the deceased suffered from, A1 told Dr.
Patel that the deceased died of malaria. How did he know this so quickly? There is
of course evidence that before Dr. Patel was called, Lilian Twine (PWl) had heard
cries of a female voice and noises of voices of two males. She also heard beating
and banging at the same time. So did Mr Twine (PW2) and Mrs Margaret Twine
(PW14). The latter was definite that the cry was that of the deceased and the male
voices were those of A1 and A2. However injuries consistent with beating were
not found on the body of the deceased. This may mean that some other person was
the one who was beaten.

In the morning as Mrs Margaret Twine was going to work, she saw two Benz cars
in A1's yard and a mechanic who used to repair vehicles there. There is no
explanation about the presence of this mechanic that morning. Later at 1.00 p.m.
Dr. Kalyemenya carried out an autopsy. The results appear on Exh. P4 signed by
him and read as follows: "External injuries:
"Multiple ecchymotic bruises on both upper and lower limbs surrounding multiple
Black Deep Burns Cause of death and reason for same:
Shock Due to Electrical burns with blunt injury. Poisoning could not be
Ruled out. The brain liver and kidney, have (sic) taken for Toxicology
Studies".

This appears to mean that Dr. Kalyemenya was not certain that shock due to
electric burns was the cause of death. On the other hand. Dr. Wabinga (PW12) who

10
carried out a second post-mortem on the same body five days later, on 29/12/1997,
recorded his findings on Exh. P.5 as follows:-

"External injuries:
Punched out abrasions 1 cm- Diameter involving the lateral areas of both
upper and lower limbs accompanied by ecchymoses (multiple). Cause of
Death and Reason for same.
"Suspected shock due to above injuries (specimen taken off for
Toxicological Analysis)"

Mr. Emmanuel Nsubuga, (PW13), Senior Government Analyst recorded his own
toxicological analysis and findings in his report, exh.P.6, dated 22 nd January 1998
as follows: -
"Phosphine test for organophosphorus poison - positive.

By Gas Chromatography and Thin Layer Chromatography Analysis,

Chlorfenvinphos was detected in the exhibits, (brain, liver, kidney and
stomach and its contents).

N.B. Chlorfenvinphos is the active ingredient for Acaricides like Supona

Extra, Superdip and Steladone. It kills if ingested".

We note that the information provided in each of Exh. P4, P5 and P.6 is brief. The
trial Court record shows that each of the three witnesses gave more detailed
information. In particular Mr. Emmanuel Nsubuga asserted when he testified
nearly 1 year and 3 months after his report was made that:-
"I did not quantify (poison) but it was in macro amount. That substance is
very toxic. When it is ingested, it can cause death".

The police sent organs of the deceased person to Mr. Nsubuga for analysis. It is
most likely he was aware that the police wanted to know if there was poison in the
organs which could have caused death. We would have expected Mr. Nsubuga to
indicate in his report the ratio in percentage terms of poison found in the organs
and whether that amount must have caused death. We think that without use of
notes made by him when analysing the organs on which he could have made notes
as to the quantity of the poison found in the organs upon which he carried out
toxicological analysis, his opinions to court about the quantity of poison found in
the organs is of least weight.

Because of the controversy in regard to medical evidence we will quote medical

evidence in some detail.

In his examination in-chief in so far as relevant, Dr. Kalyemenya stated that -

"I examined the body and found the following external injuries. Multiple
ecchymotic bruises on both upper and lower limbs there were surrounding
multiple black deep burns going into the dermis but not extending to the
subcutaneous tissues. These injuries could not tell me what actually caused
death—

I found on arm (sic) multiple bruises with the burns then on the forearm.
There were similar injuries on both hands. The same was seen on both lower
limbs.------------------------------------------------------

The burns involved the epidermis and the dermis but did not extend to the
subcutaneous tissue. The burns were skin deep.
Burns were injuries caused by either fire or chemicals.------------------
-------I saw small almost pin head burns spot burns. They were not
extensive burns. What I could think about is may be ELECTRODE being
inserted into the skin. In electricity we have two points, the positive and
negative points. The two could have been put on skin for an electric shock; if
power is high you get burns. If it is 240 volts you get the shock as well as the
burns at the sites of insertion of the positive and negative electrodes. The
power in ordinary electric bulbs could cause
the burns.------------------ By looking at the external injuries I could not
conclude the cause of death I went ahead and opened the body. I looked at
all the organs - the brain, the lungs, the heart, the liver, the kidneys.
There were no injuries on all these organs. Each organ looked normal
except the liver which was a bit grey but of the normal size. These organs
ordinarily should be reddish-pink in colour. I suspected they could be

12
 poisoning. . . . I took the brain the liver and kidney (for toxicological
analysis)".

Later on still during examination- in-chief the doctor testified that:

"In this case disregarding the organs which I sent to the Government
chemist the probable cause of death was shock due to electric burns and
blunt injuries the
ecchymotic bruises. The injuries the ecchymotic could cause death. With
the electrical burns, the electricity itself causes
cardiac arrest or ceasing of the functioning of the heart.-----------It is
neurones which carry the message of pain. A lot of pain inflicted on human
being can actually cause irreversible shock which means death. It does not
matter on which part of the body pain is inflicted."

During cross examination by three counsel (Kasule, Kabega and Mubiru-

Nsubuga) for the appellants, the doctor referred to poisoning, but he largely
repeated the opinions he expressed in examination- in- chief. Thus in cross
examination by Mr. Kasule, the doctor stated:-

"I am not certain about the cause of death.---------------------

What makes me say that the injuries were a result of electric power was
because of the spot burns which appeared in two sides. I said I saw two
burnt areas which appeared as though someone had placed two electrodes
at each o f those points. I f there were no two burnt areas I would have no
means o f telling that electricity was used. The two burnt areas were about
one centimetre apart. At the time I made this report I did not know the
other possible cause o f death. I f it transpires that the cause of death was
something else then my conclusion in the post-mortem report would not be
correct."

When cross-examined by Mr. Kabega, this is what the doctor answered:- "The
bruises which I found on the body were superficial----------------------

They could have been a result of electric shock. I equated power to that of
electric bulbs. I do not agree that if the voltage was 240 the burns would
 have been deeper. The eccyymotic bruises were a result of the burns What I
said on the post-mortem report was PROBABLE CAUSE OF DEATH. I
said so. I added that poison could not be ruled out. This made shock only a
probable cause o f death "

Following questioning by the Court, Dr. Kalyemenya was further cross- examined
by Mr. Kabega, defence counsel and revealed that there was a mortuary book in
which he wrote some information about the post- mortem he did on the body of the
deceased. There were two entries relating to the cause of death. One entry was in
black ink entered on 24/ 12/97 which stated that:-

"No anatomical cause of death: Shock?

The Doctor explained that by this he meant to say that.-

"All internal organs of the body looked normal. I could not find the cause
of death as far as those organs were concerned. There was a question
mark. I mean that shock was a possibility. I had seen external injuries."

On 25/12/97 members of the Indian Community criticised the doctor at his clinic
and demanded to know why the doctor did not, after viewing 'he body, note in the
mortuary book bruises he had seen on the body. After that confrontation the doctor
then wrote in blue ink the passage which reads:-
"Has multiple bruising over upper and lower limbs"

He also wrote the word "MURDER" to satisfy the anger of the

Members of the Indian Community. Clearly this means that Dr. Kalyemenya
was not confident in his opinions. It must be in this context that the learned trial
judge observed that this doctor was over-cautious. He does not appear to be
confident in his opinions. That is why he yielded to public demand. The evidence
of the doctor himself shows that immediately after his report, there was
dissatisfaction about his findings. The first dissatisfaction was from the Indian
Community which took trouble to bring in another pathologist from Kisumu,
Kenya. There were also complaints by the Director of CID, and from the Director
of Mulago Hospital, Dr. Kaggwa, who eventually asked Dr. Henry Wabinga
(PWl2), the Head of Pathology Department, where Dr. Kalyemenya was a
member, to carry out a fresh autopsy. Dr. Wabinga did this, apparently, in the
14
presence of Dr. Kalyemenya, himself and many other doctors. We note in passing
that Dr. Kalyemenya qualified as a pathologist in 1996, just one year before he
carried out the postmortem in this case.
We will now refer to the evidence of Dr. Wabinga. He had qualified as a doctor in
1979 and as a pathologist in 1987 so that by the time he carried out the autopsy on
29/12/1997, he had been a pathologist for 11 years.

We have already reproduced relevant contents of the post-mortem report by Dr. H.

Wabinga. He said this in his evidence:-

"I examined the body and found external injuries. These were punched out
(round like) abrasions of about 1 centimetre in diameter, they were involving
the lateral areas of both upper and lower limbs, accompanied with
ecchymosis, ecchymosis means large collection of blood under the skin An
abrasion is an injury to the skin which is superficial. Ecchymosis was
around the punched out abrasions with (sic) ecchymosis are caused by
electrical burns-------------------------------

I did not find any injuries on the internal organs which were there-like the
intestines, the lungs the brain.-----------------------------------------

I concluded that this lady died of shock due to the injuries I mentioned
above - the punched out abrasions with accompanying ecchymossis. In this
particular case the punched out abrasion with accompanying ecchymossis
are due to electrical bums. These burns cause a cardiogenic shock. This is
shock due to fast beating of the heart. A heart beats by electrical impulses.
When you introduce an electric current it interferes with your electrical
impulse causing the heart fast (sic) this leads to shock. Shock is lack of
perfusion of blood in the body tissues. Cardiogenic shock means that the
heart is not pumping blood to the body tissues. The other organs of the body
fail to function. Death occurs. Cardiagenic shock does not cause any tell
tale signs on other organs of the body. Such death does not depend on the
state of the person. We are talking about an electric current entering the
body. Even '0' Ne electric burn can cause the results. I observed multiple
punched out electrical burns. The injuries caused sudden death As a
pathologist when I am reading my findings I do not have to take into
 account the results of the toxicological analysis. My conclusion does not
depend on the findings o f a Government Chemist. Whatever the findings
o f the Government analyst I would maintain my conclusion. I request for
toxicological analysis where I suspect poison. I would like to find out the
type o f poison."

On poison the witness stated:-

"---------Before a pathologist forms an opinion that there could have been
poisoning on the body, it depends on the poison. There is no general
feature for poisoning. These features are specific and depend on the
poison; a type of poison leaves a specific feature. When you see that
feature you take a specimen for analysis. I would take a specimen when I
suspect poisoning after seeing a feature of poisoning. That is what I expect
a competent pathologist to do. I did not suspect any poisoning in the case
of Reno Joshi. The duration after death does not affect my observation of
features of poisoning and my suspicion that there was poisoning".

During cross-examination by Mr. Kasule, the doctor was shown the report made
by Dr Kalyemenya, where upon he stated that the latter's findings were similar to
his. He maintained his earlier opinion that the cause of death was shock due to the
injuries he had described. He ruled out any other probable cause of death. In his
view if the electric voltage was very high the burning would have been extensive
and would cover the whole body. That a voltage of 240 or 110 would cause the
injuries he saw. Dr. Wabinga was emphatic that it was most unlikely that burns
could have been caused by anything else other than electricity. He saw electrodes
punched out bruises with encchymosis. Again he emphasised that the
injuries which were all over the lateral aspects of the body could not have been
caused by anything else and that the burns could not be self inflicted because of
the nature and site of the injuries. Apparently, the "beating" did not cause injury to
the deceased.

Now it is clear that the evidence of the two doctors agree on the nature and site of
the injuries. The doctors also agree that the injuries were caused by the application
of electricity to the body. Whereas doctor Kalyemenya at some point said that

16
these burns caused death, he later doubted this. He eventually stated that he was
doubtful as to the cause of death. On the other hand, Dr. Wabinga was firmly of the
view that it is the electric burns which killed the deceased. He ruled out poisoning
and gave reasons why. He was apparently not asked to say what specific features
of poisoning by acricide would be.

The two Courts below did not consider or take into account the experience of each
of the two doctors. We note that Dr. Kalyemenya qualified as a doctor in 1984 and
as a pathologist in 1996. It is clear that Dr. Wabinga has 11 years experience as a
qualified pathologist whereas Dr. Kalyemenya had only one year as a qualified
pathologist. In these circumstances we appreciate the equivocation in Dr.
Kalyemenya's opinion and with respect this must be due to less experience. We
accordingly think that the learned trial judge and the Court of Appeal acted
properly in relying on the opinion of Dr. Wabinga. The blame on the learned trial
judge is that he dwelt too much on the medical evidence by reverting to the same
finding over and over. He accepted Dr. Wabinga's opinion after evaluating the
evidence of both doctors over and over and that of the Government chemist to
whose evidence we shall turn shortly.

In his unsworn statement in his defence, A1 was guided and led by his counsel.
The first appellant attempted to give terminal symptoms of his deceased wife to
match with the evidence given by both Dr. Kalyemenya and the Government
chemist. Yet on 24/12/97, in his charge and caution statement to the police, the first
appellant never mentioned such symptoms but only claimed that his deceased wife
woke him up and complained that she was suffering from the heart. On this aspect
of the defence of A1, we agree with the Learned Senior Principal State Attorney
that the story given by the first appellant in court about the symptoms allegedly
exhibited by the deceased, were an afterthought designed to support the
explanations of Dr. Kalyemenya and Mr. Nsubuga.

Earlier in this judgment we set out the relevant contents of Mr. Nsubuga's report.
In Court after he had recited those contents he expounded on his report this way:-

"An acaricide is a chemical used to kill ticks. Chlorfenvinphos is in that

group of organophosphorus. I did not quantify hut it was in macro amount
in each organ.
 It was in substantial amount. That substance is very toxic. When it is
ingested it can cause death. I don't know i f it is the one which caused death
Once acaricide is ingested inside the stomach the first signs will appear
between 2 to 8 hours some of the symptoms may include nausea, sweating,
dizziness, somebody feels drunk. Later after 8 hours other symptoms appear
which include diarrhoea, respiratory failure and eventually death occurs. I
dont not know how long after taking poison death would occur.

I could not tell for how long the substance had stayed in these organs. I
could not tell i f the substance had caused the death o f the person from
whom these organs were removed."

Yet towards the end of cross-examination, he stated:-

"From my analysis of the four organs the amount of poison found in

them could have caused death. It is possible."

Surprisingly after expressing that doubt, the witness further testified that as little as
1000 milligrams can cause death and that the amount he found in the organs were
more than that. This piece of evidence is a little puzzling because if the request for
analysis indicated suspicion that the person had been poisoned we would expect
Mr. Nsubuga as Senior Government Chemist to have put in his report the quantity
in ratio or figures found in the organs and the consequences of those quantities. It
is difficult to believe this opinion which was expressed more than one year after
the analysis was made particularly since the witness was only saying these things
from his memory.

We have already said that the trial judge evaluated all medical evidence repeatedly
before he ruled out malaria as a possible cause of death. Like the Court of Appeal
we think that the Judge was justified on the medical evidence in holding that
malaria did not kill the deceased.
On poison as a probable cause of death, apart from considering medical evidence,
the learned judge considered the conduct of the first appellant during the critical
period after he arrived home from the shop which A1 said was soon after midnight
on 23rd - 24th December, 1997. The judge concluded that the evidence of the
18
appellant was lies and unreliable. Under our criminal system of justice, an accused
can only be convicted on the basis of evidence adduced by the prosecution but not
of lies in his evidence. However on the facts of this case we think that on the
evidence before him the learned Judge was entitled to make that conclusion. The
Judge then considered the evidence of Dr. Kalyemenya and that of Mr. E. Nsubuga
about how acaricide could cause death. He concluded that :-

"Nsubuga Emmanuel (PWl3 ) confessed during his testimony that he did

not know if it was the acaricide which caused the death of the person from
whom the organs were removed."

Earlier in this judgment, we produced the relevant evidence of Mr. Nsubuga. The
judge opined that on the basis of the evidence of Nsubuga and Dr. Kalyemenya, it
was possible to detect poison in the internal organs when in actual fact the poison
did not cause the death of the deceased. He therefore concluded that though
acaricide was in the deceased's internal organs it had not reached the level of
causing death. Therefore poison was not the operating and immediate cause of the
death of the deceased. The learned Justices of the Court of Appeal evaluated the
expert evidence which we have alluded to before they concurred with the
conclusions of the trial judge.

As we have pointed out, both Dr. Kalyemenya and Mr. Nsubuga were ambivalent
and not firm in their different opinions about acaricide as having been the effective
cause of death. On the evidence as a whole we cannot say that either the trial Judge
erred in his findings or that the Court of Appeal acted wrongly in concurring with
the findings of the trial Judge that acaricide was not the effective cause of the
death of the deceased.

With regard to electric burns as the cause of the death of the deceased, we have
noted from the court record that the learned trial judge considered the views of
counsel for both sides as canvassed before him. He considered the apparent
anomalies such as the possibility that Dr. Wabinga's report of autopsy which is said
to have been done in the presence of other doctors was apparently not submitted to
the trial Court. We note that the judge considered the very crucial factor that by the
time when injuries were inflicted on the deceased, there was no "UEB" electricity
in the area including the residence of the first appellant where the injuries were
inflicted on the deceased.

The trial judge reviewed the evidence of Dr. Kalyemenya relating to the electric
burns, their causes and effect and how those burns can result in gradual death. The
judge also reviewed the evidence of Dr. Wabinga who opined that the electric
injuries he saw could cause death. The judge then held that the two doctors were in
agreement on the following:-
(i) What they saw as external injuries on the body of Renu Joshi;

(ii) The parts of the body which were affected by the injuries;
(iii) The fact that the injuries were located in the lateral areas of the body;
(iv) The classification of the injuries as electrical burns;

(v) The cause of the injuries as electricity, and the use of electrodes;
(vi) The cause of death and reason for the same expressed to be shock due to
electrical burns and the injuries.

The judge again opined that on the basis of the evidence of the two doctors, the
external injuries found on the deceased were inflicted by another person or other
persons and not the deceased herself. He also correctly concluded that the area of
disagreement between the evidence of the two doctors concerned the question
whether or not it was necessary to send some internal organs of the deceased for
toxicological analysis. He evaluated the views of the two doctors about
circumstances that would lead a pathologist to send body organs for toxicological
analysis and concluded, again correctly in our judgment, that none of the
pathologists saw any specific feature of poisoning when they opened up the body
of the deceased. We have said that the judge carefully considered the statements, in
court and at the police, of the first appellant concerning the cause of the death of
the deceased and found the version given by the first appellant to be unreliable and
so he rejected that version.

In the appeal to the Court below, grounds one and two were complaints about
conflicting medical evidence and the finding by the trial judge that death was due
to electric burns whereas there was no electricity in the house where the deceased
died. In this respect, ground one which has been argued before us in this appeal is
in reality a combination of those two grounds. Those two grounds were argued in
20
the court below by Mr. Nsubuga-Mubiru who has argued ground one before us.
His arguments in the court below revolved around the evidence of the same three
witnesses whose evidence we have earlier reproduced - namely that of Dr.
Kalyemenya Martin (PW10) Dr. H. Wabinga (PW12) and Mr. E. Nsubuga. The
Court of Appeal set out the essentials of the evidence of these three witnesses and
that of Dr. P. Patel and Dr. Muwagira (PW8). After evaluating all that evidence, the
Court of Appeal, like the trial judge, ruled out death due to malaria or other natural
causes. With regard to acaridide, the Court of Appeal also concluded that::
"In our view the learned judge was therefore right in finding that though
acaricide was found in the deceased's internal organs it had not reached
the level of causing death and therefore the poison was not the operating
and immediate cause of death."

The Court accepted the submission of Mr. Ngolobe, Senior Principal State
Attorney, who opposed the appeal in that court, and the finding of the trial judge
that suicide by the deceased was untenable. The court also held that if the deceased
wanted to commit suicide by poisoning herself, there would have been no need for
anybody to inflict the kind of injuries found on her body. The Court of Appeal
agreed with the trial judge that the deceased was tortured and also poisoned to
cover up the cause of death.

In our view the evidence of Mr. E. Nsubuga (PW13) which was accepted by the
trial judge and the Court of Appeal that acaricide found in the body of the deceased
was in substantial quantities is inexplicable. We have already referred to Mr.
Nsubuga's evidence where it is clear that he neither noted anywhere, the amount of
acaricide poison found in the deceased's body nor the details of his chemical
analysis when he made the analysis in Dec, 1997 and wrote his report on
22/1/1998. Therefore to come up as late as 1999 when he testified in the court and
assert from memory that the amount was substantial certainly creates doubt about
his conclusions. Indeed in our view of his ambivalent evidence, we are supported
by his own statement that he was not sure that the acaricide caused the death. In
our opinion Mr. Nsubuga's opinion was more of speculation than scientific and the
opinion was unhelpful on the cause of death.

We think that the evidence on shock due to electrical burns as having been the
cause of death is overwhelming. Dr. Wabinga's evidence was very clear about this.
Indeed, in spite of his ambivalence in his own opinion about the cause of death,
Dr. Kalyemenya essentially supported Dr. Wabinga when he stated in his autopsy
report that the cause of death was:- " shock due to electrical burns with blunt
injury".

There was a suggestion that in view of the evidence that there was no electricity in
Kooky's residence where the deceased died, the prosecution failed to prove that the
cause of death was due to electricity. In that regard we refer to the reasoning of the
East African Court of Appeal in S. Mungai Vs. Republic (1965) EA 782 at
page 787 to the effect that there was no burden on the prosecution to prove the
nature of the weapon used in inflicting the harm which caused death nor was there
an obligation to prove how the instrument was obtained or applied in inflicting the
harm.

Mr. Mubiru-Nsubuga relied on the case of Waihi vs. Uganda (Supra). It is clear
that in that case medical evidence was unsatisfactory about the cause of death. But
the confessions of the appellants and the other evidence pointed irresistibly to an
unlawful killing. The conviction for murder was up held by the Court of Appeal
for E. Africa.

Upon a review of all the relevant evidence, we have no doubt in our minds that
medical evidence established that the deceased died from shock caused by
electrical burns and the burning by electricity was deliberate. Therefore Ground
one of the appeal before us must fail. The discussions of ground one would really
dispose of the appeal by the first appellant. But we will now consider submissions
by Mr. Ayigihugu who argued together grounds two and three of the memoranda of
appeal of the first appellant.

The complaint in ground two is that the Court of Appeal erred in law in failing to
evaluate the evidence of Dr. Kalyemenya (PW10) and of Mr. E. Nsubuga (PW13)
and confirmed the trial judges holding that death of the deceased could have not
been caused by poison.

In the third ground, the complaint is that the Court of Appeal erred in law in failing
to resolve the conflicting evidence in favour of the appellants. These two
complaints are in reality different aspects of the complaints raised by ground one
22
in this appeal of the first appellant; only that they are worded slightly differently.
From the submissions of Mr. Ayigihugu, it is clear that these complaints are about
the cause of death.

Mr. Ayigihugu first adopted the submissions made by Mr. Mubiru- Nsubuga in
relation to the first ground which we have just disposed of. Arguing ground 2 and
3, Mr Ayigihugu contended that the learned trial judge was biased and also
prejudiced towards the evidence of Dr. Kalyemenya. Learned counsel contended
further that the trial judge did not rely on Dr. Kalyemenya's evidence of poisoning,
because he believed that Dr. Kalyemenya fabricated that evidence of poisoning and
therefore the judge considered it reluctantly. According to learned counsel, because
of the judge's prejudice, he could not find that the death of the deceased was
caused by nothing other than electric shock. Counsel also contended that the Court
of Appeal erred when it confirmed the conclusions of the trial Judge. Counsel
submitted that Dr. Kalyemenya had reason for removing the brain, liver and a
kidney and that the doctor's action was confirmed by E. Nsubuga (PW 13) who
found poison in the three organs of the deceased. The role of the chemist, argued
Mr. Ayigihugu, was to analyse the substance as to its contents and possible effect.
Counsel criticised the trial Judge and the Court of Appeal for their view that
poisoning had not reached the terminal stage. Counsel referred to the charge and
caution statement and in his unsworn statement in court, where the first appellant
claimed that the deceased was sweating and went to the toilet twice. Counsel
submitted that the trial Judge did not give serious thought to this evidence and that
the Judge shifted the burden of proof to the first appellant when he held that poison
had not reached terminal stage.

Again learned counsel argued that the two courts below misunderstood the
evidence of the chemist when those courts held first that the chemist did not tell
how long the poison had been in the body and secondly its cause. Yet the role of
the chemist was to analyse the substance as to its contents and its possible effect.
Counsel argued that poison was a factor that could cause death and that the
prosecution did not disprove this. Mr Ayigihugu submitted that had the two courts
below fairly evaluated the evidence on poisoning, they would have found that
death was due to poison.
As noted already in this judgmenet, Mr. Byabakama-Mugenyi submitted, that
symptoms of poisoning were not seen on the body of the deceased and that it was
the first appellant who gave symptoms in his unsworn statement as an after-
thought after he had earlier heard the evidence of Dr. Kalyemenya and Mr.
Nsubuga in court. Counsel submitted that A1 informed Dr. Patel (PW5), the first
doctor to see the dead body, that the deceased had been suffering from malaria for
which she received treatment from a clinic run by Dr. Nuwagaba and Dr. Ahmad.
Yet in his charge and caution statement, A1 did not refer to these symptoms but
only claimed that the deceased was "feeling pain from her heart".

The learned Senior Principal State Attorney contended that death was not due to
poisoning. He further argued that the absence of electricity on Martin Road area at
the residence of the first appellant where the deceased was killed does not rule out
death by electrical shock. He contended that belated police arrival at the scene
gave opportunity for the removal from the scene of weapons used in the murder.
He also submitted that by discouraging the cleaning of the body which had been
dressed up to the ankles and wrist, A1's conduct in that respect supports the view
that injuries were caused by electric shock. Counsel pointed out Dr. Kalyemenya's
evidence which confirmed that these injuries existed at the time of death. Counsel
urged us to find that the Court of Appeal acted properly in upholding the finding of
the trial judge on the cause of death.

We were referred by Mr. Ayigihugu to a passage in the judgment of the trial judge
in support of counsel's contentions that the judge was biased and also prejudiced in
regard to the evidence of Dr. Kalyemenya. The passage reads :-

"In my view Dr. Kalyemenya (PWE10) was just overcautious and he had to
find some reasons for his action of removing some internal organs and
sending them for toxicological analysis. As a pathologist Dr. Kalymenya
(PW10) did not say that poisoning had manifested itself in any way on the
body or in the organs of Renu Joshi. This goes to strengthen my finding that
though acaricide was in the deceased's internal organs it had not reached
the level of causing death. None of the pathologists saw any specific feature
of poisoning when they opened up the body of Renu Joshi".

24
We think that the view of the learned judge expressed in the first sentence of the
above passage is, with respect, a misdirection on the evidence. The doctor
removed the organs because of the colour of the liver and the spleen. Subject to
this observation, and with respect to learned counsel, we are unable to read into
this or any other passage in the judgment any bias or prejudice by the trial judge
regarding the evidence of Dr. Kalyemenya. In our view, the above passage
contains summarised conclusions reached by the judge after evaluating the
evidence of Dr. Wabinga and that of Dr. Kalyemenya in relation to the alleged
disagreement between the two doctors on the question of whether or not it was
necessary to send some internal organs for toxicological analysis. Indeed it was
during the submissions of defence counsel at the trial when defence counsel
contended that the evidence of Dr. Kalyemenya was at variance with that of Dr.
Wabinga. Therefore, the judge appears to have found it necessary to express an
opinion on that question. That is why the learned trial judge raised for his
consideration what in his view was the point of disagreement, having earlier listed
six points where the evidence of the two doctors was in agreement. We have
already listed the six points of agreement. The judge then set out the opinions of
the two doctors relating to what pathologists would do in case poisoning is
suspected and what the opinion of each of the two doctors was in respect of their
individual findings about whether or not the cause of the death of the deceased was
poison. It was at that stage that the learned trial judge made the conclusions set out
in the passage quoted above and which, in Mr. Ayiguhugu's submission,
constituted bias or prejudice on the part of the trial judge. We think that this
criticism has no foundation nor do we agree that the passage manifests suspicion
by the judge that Dr. Kalyemenya had fabricated the evidence of poisoning.

Nor do we see justification for the criticism by the learned counsel that the judge
was reluctant in his evaluation of the evidence relating to poisoning. We think that
the trial judge was very much alive to the issue of poisoning and that he properly
evaluated all the relevant evidence on poisoning and collated it with other evidence
before he ruled out poisoning as the immediate cause of death. The judge
summarised the contentions of both the defence counsel and the prosecuting State
Attorney. The judge was concerned with and gave careful consideration to the
issue of poisoning because, for example, he stated at some stage that -
 "I find it necessary to scrutinize carefully the prosecution
evidence on this matter".

Thereafter the judge evaluated at length the evidence of Nsubuga Emmanuel and
that of Dr. Kalyemenya in relation to the poison and the effects of poisoning. The
judge related that expert evidence to that of the lay witnesses who visited the scene
and or saw the body of the deceased and the scene in the house where the deceased
died. These other lay witnesses whose evidence the judge considered are D/ACP
Edward Ocom (PW15), D/Sgt. Mujuni (PW9), D/ASP Emukule (Pwl8). These
non-expert witnesses found no vomit or evidence of diarrhoea which would
manifest signs that the acaricide poison had reached the terminal or critical stage in
the body of the deceased and was probably the cause of death. We do not agree
that in making that conclusion the trial judge shifted the burden of proof to the
appellant.

We have already reproduced a portion of the judgment of the trial judge where he
ruled out poisoning as the cause of death. For the sake of clarity we reproduce the
relevant part :

"According to the evidence of the said doctor (Kalyemenya) and

Nsubuga Emmanuel (PW13) death would occur after another six
or more hours. In such an event it would be possible, in my view,
to detect poison in the internal organs when in actual fact it did
not cause the death of the deceased.

I find that the prosecution evidence does not point to the existence
of any terminal symptoms of poisoning in the case of Renu Joshi.
If the symptoms preceding death as narrated by Dr. Kalyemenya
(PW10) and Nsubuga Emmanuel (PWl3) did not appear then, I
find that though acaricide was in the deceased's internal organs it
had not reached the level of causing death. I find that the poison
was not the operating and immediate cause of the death of Renu
Joshi".

The evaluation of the prosecution and defence evidence as we have pointed out
and the findings embodied in the foregoing passage show that the learned trial

26
judge fully considered the issue of poisoning before he ruled out poisoning as the
operating cause of the death of the deceased. We have observed already that Dr.
Kalyemenya ended his evidence by saying that he was not certain of the cause of
death.

We think that on the available evidence, the prosecution had discharged the burden
of proof which satisfied the judge to reach the conclusions which he made. Further
we are satisfied that the Court of Appeal did re- evaluate the evidence of Dr.
Kalyemenya, Dr. Wabinga and Nsubuga before it concluded that the:

"Learned judge was right in finding that though acaricide was found in the
deceased's internal organs it had not reached the level of causing death and
therefore the poison was not the operating and immediate cause of death."

We do not, with respect, agree with the contention of Mr. Ayigihugu that the courts
below did not give serious thought to the effect of poison nor that the conclusions
of the two courts below are contrary to medical evidence.

Mr. Ayigihugu finally contended that the trial judge and the Court of Appeal
misdirected themselves on the evidence when they held that death was due to
electric burns. Learned counsel conceded that a judge is entitled to accept the
evidence of one witness in preference to that of another witness but Counsel
criticised the two courts below for relying on the evidence of Dr. Wabinga as to the
cause of death in preference to that of Dr. Kalyemenya and that of Nsubuga.
Counsel referred us to Phipson on Evidence, (supra), Crim. Evidence by
Richard. May, (supra), and vs. Matheson (1958) 2W.L.R.475. Mr. Byabakama
Mugenyi for the respondent made submissions to the contrary and supported the
decisions of the two Courts below. These arguments have been considered under
ground one.

The passage from Phipson on Evidence (supra) reads as follows:-

"In general, the Court of Appeal (in England) will be unwilling to
interfere with a finding by a trial Judge whereby he preferred the evidence
of one expert to another, notwithstanding that the demeanour of the
expert witness is not so important for the purpose of assessing his
 credibility as it is in the case of a witness of fact. Nonetheless the court
will be prepared to intervene if the Judge has clearly erred,

It is thought that the assessment of the cogency of evidence given by

experts who offer competing hypotheses is assisted by a consideration
whether the conflict lies in the scientific or hypothetical sphere of the
evidence. Where such a conflict occurs in a criminal case on an issue on
which the prosecution bears the burden of proof, it is not enough for the
Jury to be directed to choose which experts evidence it prefers; it must be
informed that it must be satisfied beyond reasonable doubt that the
prosecution's expert evidence is correct" (underlining added).

This passage is principally concerned with the discretion of a first Court of Appeal
in England to intervene in a criminal case in a decision made by jury following a
direction by a trial judge. In our context we can say that the passage is concerned
with the discretion of the Court of Appeal, or indeed this Court, to intervene in a
decision of the trial judge whose decision is made on the basis of evidence of one
of the two competing experts. It is clear from the passage quoted above that in
order for a first appellate court to uphold the decision of a trial judge who relies on
the evidence of an expert, in a criminal trial, the appellate court must itself be
certain that the trial judge was satisfied that the expert evidence relied upon by that
trial judge was the correct evidence.

In the case before us, the learned trial judge considered the expert evidence of Dr.
Kalyemenya, of Dr. Wabinga and of Mr. Nsubuga and preferred the evidence of
Dr. Wabinga as the correct expert evidence proving the cause of the death of the
deceased. In the passage we have quoted from his judgment the judge was
satisfied, after considering evidence on three possible causes of death, that electric
burns and shock were the cause of death. The judge was fully satisfied with the
expert evidence of Dr. Wabinga which the judge preferred to that of Dr.
Kalyemenya. It must be pointed out again that the evidence of Nsubuga was
inconclusive as to the cause of death and that of Dr. Kalyemenya was equally
unsatisfactory on the matter of cause of death whereas the evidence of Dr.
Wabinga was clearly and firmly in support of the prosecution case that the
deceased died from shock due to electric burns. We have not found any other
relevant unchallenged medical evidence on the record firmly supporting the
28
contention by the appellants' counsel that the deceased died of anything other than
shock due to electric burns. Nor are we persuaded that either the trial judge or the
Court of Appeal misdirected themselves on medical evidence or on the evidence of
Mr. Nsubuga as to the cause of death. We think that Dr. Wabinga's medical opinion
established the cause of death.

Mr. Ayigihugu alluded to the prosecution evidence to the effect that there was
beating in the house when the deceased was crying. We note that in her evidence,
Mrs Twine talked of bangs. It was Ms. Lilian Busingye Twine (PWl) who referred
to beating. There is evidence that in the morning, Raju, the cook, was found in the
same house lying unconscious in bed with broken limbs. On the facts available, it
is not unreasonable to infer that it was that man, Raju, who was beaten that night.
This is because as stated earlier, the man (Raju) had been well at least by 10.00
p.m. that night when he served supper to the appellants.

The other authority cited by Mr. Ayigihugu is Criminal Evidence by R. May

(1986) Ed. Pg. 129. The passage referred to relates to the function and the weight
of expert evidence which is admissible as opinion evidence. We know that
opinions of experts are received as an exception to the general rule that evidence of
opinion is not admissible. The function of expert evidence is to assist the court by
providing information which is outside the experience and knowledge of a judge.
It is for the judge to attach what weight he/she can to the expert evidence. It is the
practice that if there is nothing to contradict the expert's evidence, the judge should
accept it. At page 140 of the book by R. May (supra), the author repeats the view
expressed by Phipson (supra) that where two or more expert witnesses give
evidence for opposing sides, the judge should convict if he/she is satisfied beyond
reasonable doubt that he/she should accept the expert evidence adduced by the
prosecution and reject that evidence adduced by the accused if the latter opinion
evidence is not correct. We have looked at the English decision in R. v.
Matheson (supra) and think that that case is distinguishable from the case before
us. Medical evidence which was given on behalf of the accused in Matheson case
that the accused suffered from diminished responsibility was patently
unchallenged by any prosecution evidence. That is not the position in the case
before us. In the present case, all the expert witnesses were produced by the
prosecution. Moreover, the trial judge was satisfied that Dr. Wabinga's evidence
was conclusive and on that basis convicted the appellants. The Court of Appeal
upheld the decision. We have not found any fault in the conclusions of the two
courts and their final decisions.

For the foregoing reasons we think that grounds 2 and 3 have no merit and they
both must fail.

Because of the evidence of the first appellant himself the question of his
identification did not arise for consideration.

Ground 4 of the Memorandum of Appeal was abandoned. As a consequence of the

conclusions reached on all the grounds of the appeal of the first appellant, we find
no merit in his appeal which is accordingly dismissed.

We now turn to the appeal of the second appellant which was argued on his behalf
by Mr. Akampurira. There were three grounds in the memorandum of appeal but
the third ground was abandoned. Mr. Akampurira argued the remaining two
grounds separately though they are related.

In the first ground the complaint is that the learned Appellate Justices erred in law
to hold that the evidence of identification with regard to the 2 nd Appellant was not
free from the possibility of error. Mr. Akampurira submitted that both the trial
judge and the Court of Appeal correctly set out the tests which were emphasised
by the Uganda Court of Appeal in the case of Nabulele and Others vs Uganda
(1979) HCB76 as relevant considerations in cases where identification of an
accused person is in issue. Learned counsel submitted that the two courts failed to
apply those tests to the facts of this case. He referred to the evidence of Mrs.
Margaret Twine (PWl4) who testified that she identified the voices of the two
appellants and Counsel contended that the witness was not familiar with the voice
of A2. Counsel wondered how Mrs Twine could hear only the voices of the two
appellants and yet there were two other persons who were in the same house. He
submitted that identification by voice was not possible because, first the talking in
the appellant's house was at a distance, and secondly, she was separated by a wall
and thirdly because though the residence of Twine had no covered up ceiling, that
of A1 had a ceiling. He argued that had the Court of Appeal re-evaluated the
evidence properly, that court would have arrived at different conclusions. Counsel
relied on the case of Nyanzi vs. Uganda, Sup. Court Criminal Appeal No. 16 of
30
1998 (unreported) in support of his arguments. On the other hand, Mr. Byabakama
Mugenyi supported the decisions of the two courts arguing that Mrs. Twine was
familiar with the voices of A1 and A2 and that she was supported by her daughter
Busingye Twine (PWl) to the extent that she heard two male voices from the
residence of A1 on the night of23rd - 24th December, 1997.

The question of whether A2 did or did not participate in the murder of the
deceased depends partly on whether he was or was not correctly identified by Mrs.
Twine and to some extent it depends on A2's conduct after 4.00 a.m. on the night
of 23rd - 24th Dec, 1997 when he fetched Dr. P. Patel (PW.5) from the latter's
residence. The prosecution evidence against the 2 nd Appellant is circumstantial and
is primarily that of Mrs. Twine and A2's subsequent conduct. According to PW14,
she was woken up from sleep in the dead of night by her husband, Mr. Rurebwa
Twine, (PW2), who informed her that her friend, the deceased, was being beaten.
Mrs Twine got out of bed and heard the deceased cry out "mummy", "mummy,"
"mummy". Mrs. Twine then heard voices which she believed were of the two
appellants talking in hindi language which she could not understand.

The evidence for A2 is that throughout the day of 23rd December 1997, he together
with A1 worked in their shop which is on the opposite side of the same Martin
Road. That between 9.30 and 10.00 p.m. he, Bitu, Babu and Palinder Kumar
(DW1) were in the residence of the deceased eating supper. After supper, he
returned to the shop to help A1 in the shop which closed slightly after midnight.
A1 went to his residence while A2, Babu and Palinder went to sleep in his (A2's)
bedroom which is behind the shop. On the morning of 24/12/97, at 4.00 a.m., A1
phoned A2 and asked the latter to fetch a doctor to attend to the deceased who was
sick. Eventually A2 collected Dr. Prakash Patel (PW5) and drove him to A1's
residence where Dr. Patel examined the deceased and pronounced her dead. In
other words the appellant set up an alibi which can be condensed into the
statement that he was away and does not know how the deceased met her death.
He is supported in this by Palinder Kumar (DW1). We shall revert to the question
of alibi later. We are now concerned with A2's identification in relation to the
killing of the deceased.

We would like to state what this Court and other courts have said about conviction
of an accused person on the basis of circumstantial evidence. In a case depending
exclusively upon circumstantial evidence, a court must, before deciding on a
conviction, find that the inculpatory facts are incompatible with the innocence of
the accused, and incapable of explanation upon any other hypothesis than that of
guilt: See Simoni Musoke Vs. R (1958) EA. 715. In other words the guilt of
the accused must be proved beyond reasonable doubt.

In his unsworn evidence, A2 denied ever talking to Mrs. Twine face to face. In
other words he claimed that Mrs. Twine has never heard him talking. Further, A2
alleged that Mrs. Twine implicated him in the murder because the Twine family
and the two appellants were competing for the purchase of the building where A1
and the Twines live. This last point cannot be the motive why Mrs. Twine gave
evidence against the two appellants. In our view the serious point at this stage is
the claim that Mrs. Twine could not recognize his (A2's) voice because she had not
been meeting him or talking to him.

It can be said that in modern living in urban centres, life is full of bustle and hustle
and that generally neighbours who are not of the same race or culture may not
regularly talk to each other. This is possible even where they have residences under
the same building separated by a common wall as is the case of A1 and the Twines
and to some extent the evidence of Mrs. Twine supports this.

During cross-examination by Mr. Mubiru-Nsubuga, Mrs. Twine stated -

"I do not know where Kumar used to sleep.-------------------

I knew Raju and Bitu were staying in Kuki's house. The people whom I did
not know where they were staying were Kumar, Babu and Palinda. I did not
know if those people use to eat food at Kuki's house. I do not know where
they had their super on 2 3 / 1 2 / 9 7 -
When Mr. Twine touched me I woke up I did not know the time.
-----------------------------------------------------------I heard distant
voices. For the six years I have stayed with them I could tell it was Kuki
and Kumar talking. The cry of "mummy, "mummy", was not loud. They
were very brief cries."

32
Here, Mrs. Twine shows that she did not know all details about Kooky's
household, but she knew the voices of the appellants and the people who lived in
Kooky's house. She certainly suggests that A2 lived elsewhere. So could he (A2)
be assumed to have been in Kooky's house after mid-night on the fateful night?

Again during cross-examination by Mr. Kasule, Mrs. Twine's answers in

part are as follows:-

"Me I am telling you the truth. I have never held any long conversation with
either Kuki or Kumar. I confirm that there were many people in Kuki's
house. I have had opportunity to know the voices o f KUKI and KUMAR
when they are in the house I hear them talking. We share the hind yard.
When the sewerage is blocked they come to unblock it and I hear them
talking. I do not talk to them but I hear them talking".

Here Mrs. Twine did not clearly disprove the claim by the second appellant that
she has never had face to face discussion with him. This appears to raise the
possibility of mistaken identity by voice in so far as A2 is concerned. Moreover,
Mrs Twine stated that the appellants spoke a language she could not understand
and that she did not understand what the appellants were saying. In our view,
although it is not necessary for a witness to understand or be literate in a language
being spoken in order to identify the speaker with whose voice she is already
familiar, identification becomes a crucial issue if the identifying witness is unable
to physically see the speaker whose voice she claims to identify. This is the
problem we see in this appeal; for unlike A1 who admitted being at the scene at the
material time, A2 denied being present. Therefore it was necessary for the trial
court to consider the identification of A2 by Mrs. Twine with greatest care and
caution.

We note that the version of Dr. Patel (PW5) of what transpired at his home when
A2 called on him differs from the version given by A2 himself. There is evidence
that when A2 went to Dr. P. Patel's (PW5's) home, he was unsteady, panicky and
frightened. He did not tell the doctor what had happened to the deceased. Mr.
Byabakama-Mugenyi urged us to infer that A2 told lies to Dr. Patel and that
because of those lies and his unsteady conduct, A2 was not innocent.
We would point out that different people behave differently in moments of crisis.
Whilst the panicky behaviour of A2 may suggest that he knew what had happened
to the deceased, there is no evidence on the record to support a firm conclusion
that his conduct was incapable of innocent explanation. So whilst there is strong
suspicion that A2 might have known more about what happened to the deceased,
suspicion alone is not enough in a criminal trial to conclude that the second
appellant was properly identified as having participated in the murder of the
deceased. Ground one must therefore succeed. This conclusion would dispose of
the appeal of the second appellant. We would however briefly consider ground
two.

The complaint in ground 2 of appeal, by the second appellant, is that the learned
Justices of Appeal erred in law in rejecting the defence of alibi without proper
evaluation of evidence in support of it. Mr. Akampurira relied on the statements in
court of the two appellants and their charge and caution statements as well as on
the evidence of P. Kumar (DW1) and Dr. Patel. The totality of that evidence is to
the effect that soon after midnight, A2, Kumar Palinder and Babu retired into their
bedroom which is at the back of the shop. That A2 did not go to the scene of crime
till about 5.00 a.m. when he and Dr. Patel drove there and upon examination of the
deceased Dr. Patel pronounced her dead. The evidence implicating A2 is that of
Mrs. Twine on identification and which we have considered.

Mr. Akampurira submitted that both the trial judge and Court of Appeal did not
take into account the evidence of the eye witness Palinder Kumar (DW1) on the
alibi. He criticised the Court of Appeal for its failure to re-evaluate the evidence on
alibi. Counsel referred to this Court's decision in Nyanzi case (supra) in support.
He contended that had the two courts considered the evidence of Palinder Kumar,
those courts would have concluded that the prosecution did not prove the case
against the second appellant beyond reasonable doubt. For the Respondent, Mr.
Byabakama-Mugenyi submitted that Mrs. Twine's evidence placed the second
appellant at the scene of crime. That she was familiar with the voice of the second
appellant. Counsel further argued that the conduct of A2 when he went to call, and
when he talked to, Dr. P. Patel (PW5) was not consistent with his innocence in as
much as he did not give a true account that the deceased was dead. Counsel
contended that by the time A2 went to Dr. P. Patel residence, A2 must have known
that the deceased had been killed and should have said so to the doctor.
34
We have already discussed submissions on the conduct of A2 when he reached the
home of Dr. Patel (PW5) .

The charge and caution statement of A2 says in effect that A2 did not know the
cause of the death of the deceased and that during the material time he was
sleeping in the shop until 4.00 a.m. when A1 called him. Palinder Kumar (DW1)
supported A2.

In his judgement, the trial judge referred to the evidence of alibi and to the cases of
R vs Eria Sebwato (1960) EA 174, Nabulele & Another vs
Uganda (supra) and other cases before he ruled out any possibility of mistake in
the identification of A2 by Mrs Twine and therefore rejected the alibi.

The judge referred to A2's defence of alibi and the relevant law in these words:

"Davinder Kumar (A2) set up a defence of alibi. The law is that there is no
burden of proof on an accused person who puts forward an alibi as his defence.
He merely has to raise it. The burden of proof lies on the prosecution to adduce
evidence to destroy the alibi by placing the accused person at the scene of the
crime. The court has to weigh the defence of alibi with the rest of the evidence on
the record. If the prosecution adduces evidence which puts an accused person at
the scene of crime at the material time then his alibi must be false and must be
rejected: See Woolmington Vs. DPP (1935) AC462; Seketoleko Vs Uganda
(1967) EA 531, and Kyadondo Vs. Uganda Court of Appeal of Uganda, Crim.
Appeal No. 18/96 (unreported). The alibi raised by Davinder Kumar (A2) has not
created any doubts in my mind. Nor did it create any doubts in the mind of lady
assessor Mrs. Ronah Kakaire. I believe the prosecution witness (sic) and I find
their evidence consistent and credible. The prosecution evidence placed both
Sharma Kooky (A1) and Davinder Kumar (A2) at the scene of crime, namely in the
house of Kooky Sharma (A1) at plot 43 Martin Road in the night of the 23 rd/24th
December, 1997. So I do not believe the alibi of Davinder Kumar (A2) and I reject
it".

In our view this passage shows that the trial Judge correctly appreciated the law on
the burden of proof in regard to alibi. But we think that the learned Judge did not
adequately evaluate the evidence of the defence of alibi. The judge misdirected
himself when he stated that "the alibi raised by A2 has not created any doubt in my
mind. Nor did it create any doubt in the mind of the lady assessor

It was the duty of the prosecution to disprove the alibi. In the passage quoted
above, the judge appears to suggest that the second appellant should have proved
the alibi so as to raise a doubt in his mind. Further more we have studied the
record and noted that P. Kumar (DW1) in his evidence supported the story of the
second appellant up to the time A2 went to fetch Dr. Patel. The learned judge did
not, in our view, and with due respect, evaluate Kumar's evidence adequately.

The Court of Appeal alluded to the law relating to a single identifying witness and
to the law on the burden of proof in respect of a defence of alibi. The court referred
to the defence of alibi as follows:-

"The evidence of the second appellant is corroborated by DW1, but he also

did not indicate when he returned to the shop after dinner.

The second appellant by his charge and caution statement and his evidence
in court has placed himself in the house of the first appellant. This is
supported by the evidence of DW1. The evidence of PWl4 had placed him at
the scene when the deceased was heard crying. Therefore his claim that he
was not in the house of the first appellant at the time the deceased was heard
crying cannot be true. The learned trial Judge was therefore right to reject
his alibi".

We have had occasion to state that where an accused denies a charge and puts up
the defence of an libi and calls evidence to support that alibi both the trial judge
and the Court of Appeal, as a first appellate court, should adequately evaluate the
evidence of alibi along side the rest of the evidence in the case before rejecting the
alibi: See Bogere Moses vs. Uganda (sup.ct. Cr.Appeal, of 1997) and
Kagunda F. vs. Uganda Sup. Ct. Cr. Appeal 14 of 1998 (unreported). We are
not satisfied, and we say this with respect, that both the learned trial judge and the
Court of Appeal sufficiently evaluated the evidence of P. Kumar which supported
the alibi of the second appellant.

36
It is incorrect to say that A2's charge and caution statement placed A2 in A1's
house. The fact that A2 had meals in A1's house is indisputable. What the
prosecution had to prove was the presence of A2 in the house at the time the
injuries found on the body of the deceased and caused her death were inflicted. In
our view the prosecution evidence did not establish this. On the other hand the
evidence of Palinder Kumar (DW2) tends to corroborate the story of A2 that from
10.00 p.m. up to 4.00 a.m., A2 was not at the scene of crime. Palinder Kumar does
not seem to have been shaken in his evidence. He might have been mistaken about
time but there is nothing to suggest that what he stated about A2's whereabouts is
false. In a criminal a trial, it is the duty of the prosecution to prove the guilt of the
accused beyond reasonable doubt. We are not satisfied that in this case the guilt of
A2 has been so proved.

In view of the evidence of A2 in that regard, we think that the prosecution failed to
discharge the burden of disproving the alibi. So ground two must succeed.

This means that the appeal of the second appellant must succeed.
Before leaving this case, there are two matters on which we wish to comment. The
two matters relate to procedure. First, for the avoidance of doubt, we would like to
endorse the view expressed by the Court of Appeal that since the appellants had
chosen not to give sworn evidence it was absolutely wrong for the trial judge to
allow the appellants to be led by their counsel throughout the making of their
unsworn statements.

All the three counsel who defended the appellants were senior advocates and,
therefore, we are rather perturbed that they went to great lengths to mislead the
trial judge by insisting on leading each accused in his unsworn statement. Counsel
on both sides are under a duty to ensure that proper procedure in conducting a
criminal trial is followed in adducing evidence by both sides so that not only
justice is done but is seen to be done.

Secondly we noted too many objections were raised during the trial. In the process,
the trial judge was bogged down by adjourning the hearing in order to write
rulings. The objections and adjournments contributed greatly to the delay in
concluding the trial of this case. Such practice must be discouraged by trial judges.
We conclude. The appeal of the first appellant is dismissed. The appeal of the
second appellant succeeds. His conviction is quashed and the sentence of death is
set aside. Unless he is held on some other lawful charge, A2 must be set free
forthwith.

Delivered at Mengo this 15th day of April 2002.

B. J. ODOKI.
CHIEF JUSTICE.

A. H. O. ODER.
JUSTICE OF THE SUPREME COURT.

J. W. N. TSEKOOKO.
JUSTICE OF THE SUPREME COURT.

A. N. KAROKORA.
JUSTICE OF THE SUPREME COURT.

G. W. KANYEIHAMBA
JUSTICE OF THE SUPREME COURT.

38