Kisanga, JA, delivered the considered judgment of the Court:
When this appeal came up for hearing we heard counsel for both sides after which we allowed it, quashing the conviction for murder and setting aside the sentence with an order for the appellant's I
A immediate release. We reserved our reasons for judgment, which we now proceed to give.
The appellant is the husband of one Elizabeth Lukago (PW1). For quite some time the two lived happily as husband and wife, and they had six children between them. However, close to the happening of these events they fell into family misunderstandings which caused PW1 to develop the relationship of boyfriend B with the deceased. At the material time PW1 and the appellant, although husband and wife, were living separately.
In the morning of the material day the appellant had gone to the house where PW1 C lived and found PW1 and the deceased, her boyfriend there. He went away after some time but made no comment about his finding the deceased there. After some time PW1 and the deceased went out together. The deceased had asked PW1 to escort him to visit the family of one Mwakibete, and from there they visited D Tabora Boys' and Girls' Secondary Schools. After leaving the schools at about 3.00 pm, and as they were walking along, a motor vehicle came from the opposite direction and on reaching them the occupants thereof offered them a lift.
Thereafter the evidence is so unsatisfactory that Mr Nasimire, learned advocate E for the appellant, submitted in effect that no court properly directing itself could have grounded the appellant's conviction on it. Mr Kaduri, learned Senior State Attorney appearing for the respondent Republic, concurred and did not wish to support the conviction.
F The rest of the prosecution case depended entirely on the evidence of PW1. She stated that upon the occupants of the motor vehicle offering them a lift, the deceased accepted provided that the motor vehicle went in their direction. Whereupon the driver reversed and headed in their direction. One of the G passengers of the motor vehicle was the appellant and another one was Mrs Mwakibete to whose house PW1 and the deceased had been that morning only to find her out at work. PW1 did not know Mrs Mwakibete before, but she was identified to her by Mrs Mwakibete's son (PW2) who had joined PW1 and the H deceased as they were walking along, and the three were together when they met the motor vehicle. PW1 and the deceased got into the motor vehicle leaving Mwakibete's son on the ground. Then as the motor vehicle drove off fast, PW1 and the deceased were blindfolded by some of the passengers in the motor vehicle, using cloth material for the purpose. At some point further on the motor vehicle stopped. PW1 and the deceased were forced out of the motor vehicle after which they I
were attacked in the most brutal manner. PW1 lost consciousness for over two A months as a result of the severe attacks. The dead body of the deceased was found lying on the ground under a tree. It had marks of violence on the head, and in the doctor's opinion death was due to head injury and intracranial haemorrhage. In his defence, the appellant flatly denied the charge of murder. B
The prosecution evidence was unsatisfactory in a number of ways. First, it involved serious contradictions. PW1 is contradicted when she said that Mrs Mwakibete was in the motor vehicle which kidnapped her and the deceased, and that it is Mrs Mwakibete's son who identified his mother to her (PW1). For, C Mwakibete's son (PW2) denied being in the company of PW1 and the deceased at the time of meeting the alleged motor vehicle. Mrs Mwakibete who gave evidence for the defence (DW2) equally denied being a passenger in the said motor vehicle or otherwise being at the scene as claimed by PW1. The trial judge in convicting the appellant, relied heavily on the evidence of PW1 whom he found to be a truthful witness. However he did not attempt to resolve these contradictions in the D evidence. He did not say why Mrs Mwakibete and her son should deliberately testify unfavourably against the deceased who was shown to have had some friendly connections with the Mwakibete family, as against the appellant who was a total stranger to that family. E
Secondly, PW1 admitted making two statements to the police about the incident. She further admitted that those statements might be different because of the brain injury that she sustained which, as already noted, rendered her unconscious for over two months. Now, a number of questions arise from this. First, which of the F two statements was the basis of her evidence in court, or was that evidence based on both statements? The learned judge never addressed himself to that question and on the evidence we can find no clue as to what the answer is. In those circumstances it becomes impossible to assess her credibility, that is, to G determine the extent to which her evidence was or was not affected by the severe brain injuries which she sustained.
And lastly, in convicting the appellant the court also relied on the evidence that H some time during the investigation of the case an axe was recovered from the appellant's house which had marks of human blood on its blade and the wooden handle. While such evidence served to augment suspicion on the appellant, it did not advance the prosecution case any much further. For, it was not shown whose blood it was. It could be that of the person or persons who occupied the house and who used the axe. I
A In our view, all these points taken together raise a grave doubt as to the appellant's guilt, and had the learned trial judge addressed his mind to them he would not have convicted the appellant. It is for these reasons that we allowed the appeal, quashed the conviction and set aside the sentence and ordered the appellant's immediate release from prison unless he was otherwise lawfully held. B