PROSECUTION v. NIYIGENA

# PROSECUTION v. NIYIGENA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2013-04-05 - Case/document no.: RPA 0120/11/CS - Collection: Supreme Court

## Text

## Page 1

PROSECUTION v. NIYIGENA [Rwanda SUPREME COURT – RPA 0120/11/CS (Nyirinkwaya, P.J., Havugiyaremye na Mukamulisa, J.) April 5, 2013] Criminal law – Attempted murder – The fact that the used tool was capable of causing death which was used to wound the party of the body near the deadly part, indicated that, there was no any other intention apart from killing– Decree law no 21/77 of 18/08/1977 instituting the penal code, articles 22 and 311. Criminal law – Provocation – It is qualified as provocation in case the acts committed against the provoked prejudices him and the one of the latter coms as instantaneous response without any preparation due to the fact that the provoked was beaten or subjected to serious violence – Decree law no 21/77 of 18/08/1977 instituting the penal code, articles 22 and 311. Facts: The Prosecution indicted Niyigena Issa accusing him of having wounded Nsekanabo in the shoulders with intention of killing him because Nsekanabo requested him to pay back the money he owed him and then it caused him to be angry since, according to Niyigena, he had robbed money from him. It led him to go back home and come back with a knife and promptly met him home taking a shower, then took off the knife from the pocked tempting to slash him on the neck, and when Niyigena was tempting to slash him on the neck, people rushed for the save and they dispossessed him of it prior to execution of plan. The accused pleaded that his intent was to intimidate him so that he could give back his mobile phone he had seized. The High Court, Rwamagana Chamber found him guilty of attempted murder and sentenced him to twenty years of imprisonment since he was the first offender. He appealed to the Supreme Court disputing that the High Court found him guilty of the crime he had never committed. Rather, he stated that he accepts to have committed assault and battery because he had been provoked by Nsekanabo who had dispossessed him of his mobile phone. The Prosecutor contended that evidence that the accused intended to murder is that he left home having a knife and having wounded Nsekanabo in the shoulders toward the deadly part of the body and the fact that there are witnesses not under oath cannot invalidate their testimonies because they are relevant to the fact. Held: 1.The fact that the used material was an instrument capable of causing and that it was used in wounding in the shoulders near the neck, in the deadly part of the body, infers that the intent was to kill which was interrupted by the fact that the targeted person combated him and saved. Therefore, he is guilty of attempted murder instead of assault and battery. 2. It is not provocation which occurred since he was not assaulted or subjected to serious violence because to be dispossessed of his mobile phone, even when it would have happened, cannot be considered as serious violence especially that he took time to go back home to take with him a knife and then went back at Nsekanabo’s to slash him. It indicates that he premeditated on that. Rather, provocation occurs when the provoked is subjected to the acts which prejudice him while his comes promptly as a response without premeditation.

## Page 2

Appeal lacks merit Appealed judgment is upheld Court fees to public fund Statutes and statutory instruments referred to: Decree law no 21/77 of 18/08/1977 instituting the penal code, articles 22, 79 and 311. Cases referred to Prosecution v Kabango Habimana Saïd, RPA 0246/08/CS, Rendered by the Supreme Court, on September 11, 2009. Prosecution v Pte Senzira Jean Claude, RPA 0150/08/CS, Rendered by the Supreme Court on April 30, 2010. Judgment I. BRIEF BACKGROUND OF THE CASE [1] The prosecution contends that Niyigenga wounded his neighbor in the shoulder, Nsekanabo following the latter request of paying him back the money he owed him, 135,000,00Frw, and it hurt him since he stated that he has also robbed him money. After that, Niyigena went back to his house and came back with a knife, headed to Nsekanabo’s and promptly come closer to him, took off the knife from the pocket with intention of slashing him. They battled for the knife while Niyigensa was tempting to sklash him on the neck but people rushed to save Nsekanabo and immeditely dispossessed Niyigena Issa of it prior to the consummation of his plan. As to Niyigena Issa, his intent was to intimidate Nsekanabo so that he could give him back his mobile phone that he had seized. He articulated that instead of being afraid he defended him and untentionally wounded him. [2] In its ruling of May13, 2010, the High Court, Rwamagana Chamber found Niyigena Issa guilty of attempted murder. The Court sentenced him to 20 years of imprisonment after the reduction of the penalty given he was a first offender. [3] Niyigena Issa appealed to the Supreme Court disputing that the court found him guilty of the crime he had never committed. He admitted rather that he committed assaulty and bettery because Nsekanabo had provoked him by dispossessing him of his mobile phone. Th ecase was heard in open session on Mach 4, 2013. Niyigena was assisted by Nkubayingoga while the Prisecution Ntawangundi Béatrice, a National Prosecutor. III. ANALYSISOF LEGAL ISSUE a. Whether Niyigena Issa was convicted of attempted murder while he committed assault and battery. [4] Niyigena Issa pleads that he wounded Nsekanabo since they battled for a knife whihc was supposed to help him in intimidating him to give him back his mobile phone. He added that the High Court found him guilty of attempted murder based on the the tstimony given by Rugumire, Gatare and Kayitare which demonstrate that they had only saw persons.

## Page 3

[5] He added that the testimony given by Rugumire and Gatare could not have been facually considered since they were employees of Nsekanabo. Further, it was not lawful since it was not done under oath as provided for by that law. [6] The Representative of the Prosecution contnds that the intent to murder is demonstrated by the fact Niyigena left his his house having a knife and the fact that he wounded Nsekanabo in the shoulders towards te neck, the deadly part of the body. [7] Article 22 of Decree Law no 21/77 of 18/08/1977 instituting the panl code provides that which was into effects when attempt is punishablble even when the intended crime was not consommated due to circumstances that the offender could not identfy while article 311 of the same law states that intentional killing is murder punished by life imprisonment. [8] Whether Niyigena is not guilty of attempted murder as he alleges, the court finds that the mere fact that the used instrument was a knife capable inflicting death, the infliction of wound in the shoulders near the neck, the part of the body that is considered factually deadly infer that the intention was killing the wounded and the offender was bared by the fact that Nsekanabo defended him and the rush of people to save. [9] Pursuant on those holdings, the court finds Niyigena Issa guilty of attempted murder instead of assault and battery. b. Whether Niyigena Issa can benefit the reduction of the penalty pursuant to provocation. [10] Niyigena is pleads provocation since, according to him, Nsekanabo had dispossessed him of his mobile phone. He requests the consideration of such a provocation based on the law. [11] The Prosecutor contends that the period of time that Niyigena had taken to go to take the knife and aback to use it in slashing Nsekanabo indicates that there was no provocation. [12] Article 79 of the decree law no 21/77 of 18/08/1977 instituting the penal code as referred to above provides that the gravity of felonies and misdemeanours are mitigated by the provocation of their authors by battery of serious violence. [13] The Court finds that the defence of Niyigena that he was provoked prior to the commission of the crime cannot be considered since he does not prove that he sustained an battery of a serious violence; the dispossession of his mobile phone cannot constitute, even when it maight have happened as he allges, cannot be considered as provocation. [14] The court notes that as it held in other decided cases, provocation is confirmed when the alleged acts of provocation was prejudicial to him and the acts of the provoked in response comes spontaniously without the any preparation. This is therefore the case for for Niyigena because, even though he was not beatten or subjected serious violence, he took a period of time to go back home to take an knife and then went atNsekanabo’s to slash him. It demontrates his premeditation. [15] Based on the bove holdings, the court notes no ground of chnging the appealed judgment.

## Page 4

III. DECISION OF THE COURT [16] Dismiss appeal filed by Niyigena Issa. [17] Decides that the judgment RP 0072/08/HC/RWG rendered by the High Court is not changed. [18] Oders the court fees to be charged to the public treasury.