roadside and never reported to the Police as he had promised PW7 and PW14.
That the accused who is a Senior Police Officer should not have gone into hiding
if the deceased had shot herself. The Prosecution faulted the accused's defence
that he wanted to sort out the hostilities that would follow the reaction of the
deceased's relatives arguing that he was acting with a guilty mind to anticipate
such trouble.
On the other hand, the defence submitted that the circumstantial evidence was
weak and the Prosecution witnesses were not credible enough to prove the
participation of the accused in the death of his wife.
Mr. Ondimu for the accused argued that there was no serious quarrel to warrant
the shooting of the deceased by the accused. He pointed out the following actions
by the accused as indications of his innocence.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Handing over the pistol to PW5 a Police officer.
Taking the deceased to hospital as a sign that he wanted to save life
rather than take it.
Depositing the body in an open place where it could be picked early.
He kept communicating with police about the incident.
He handed himself out to the police.
It was argued for the accused that if he was guilty, he would have acted to the
contrary.
Further, that the accused's defence that the deceased took the pistol and when the
accused demanded for it, she opened the door and shot herself creates the existence of
other circumstances rendering the Prosecution evidence rather weak.
Finally, the defence attacked the credibility of the Prosecution witnesses and argued that
they should be treated with caution because some of them made two contradictory
statements and were not credible witnesses.
The law on how to treat circumstantial evidence has been re-stated in a number of cases.
The test to be applied was re-stated in the case of Simoni Musoke Versus R. (1958) EA
715 that in a case depending exclusively upon circumstantial evidence, the Court must
find before deciding upon conviction that the inculpatory facts were incompatible with
the innocence of the accused and incapable of explanation upon any other reasonable
hypothesis than that of guilt and also before drawing the inference of guilt the Court
must be sure that there are no co-existing circumstances which would weake n or destroy
the inference of guilt. See also Moses Kalyowa & 3 Ors. Versus Uganda Criminal Appeal
4/1985 (Supreme Court).
On the credibility and inconsistency of witnesses, the Courts have stated in a number of
cases that a witness may be untruthful in certain aspects of his evidence but truthful in
the main substance of his evidence. Further, that a witness who has been untruthful in
some parts and truthful in other parts could be believed in those parts where he has been
truthful. But whereas it is true to say that minor discrepancies might be explained away
by immediate delay before the accused person was brought to trial, grave inconsistencies
unless satisfactorily explained would usually but not necessarily result in the evidence of a
witness being rejected. Uganda Versus Rutaro (1976) HCB 162; Uganda Versus George W.