PROSECUTION v. MUSABENDE

# PROSECUTION v. MUSABENDE

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-03-21 - Case/document no.: RPA 0582/13/HC/KIG - Collection: High Court

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PROSECUTION v. MUSABENDE [Rwanda HIGH COURT – RPA 0582/13/HC/KIG (Uwamariya, P.J.) March 21, 2014] Evidence law – Dying hit – Internal bleeding justifies the hitting – Law no 15/2004 of 12/6/2004 relating to evidence and its production, article 3. Evidence law – The presence of inculpating witness, and the medical report testifies that he died of hitting in addition to the fact that she fled just after the scandal, justifies that it is her who beat him –. Law no 15/2004 of 12/6/2004 relating to evidence and its production, 65. Facts: In Intermediate Court of Nyarugenge found Musabende Claudine guilty of assault and battery which resulted into her husband death. She was sentenced to 10 years in prison. He appealed to the High Court disclaiming the decision of the first instance Court. She based the argument on the lack of medical report indicating that she killed her husband and that no imaging was performed to demonstrating the wounds. She added that she knew that her husband died of HIV/AIDS because even her tested HIV positive. The Prosecution opposed that the medical report that the accused invoked contains in the case file and it confirms that the victim died of hitting. The Prosecution added that the wounds she invoked are not the conclusive evidence and regarding the statement that he died of HIV/ AIDS, cannot be considered since, even her is still tests positive and she is still alive.

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Held: Each party has the burden of proving the facts it alleges. Stating that there is no evidence proving that her husband died hit and that there is no medical report which demonstrates the wounds are baseless because, as indicated by the medical report, the deceased suffered internal bleeding and this would not have occurred without being hit. The fact that the medical report indicates that the deceased died hit in addition to the witnesses who testifies that she hit her husband until his clothes were torn and that the administrative authority of the village report that the husband was rescued by outsiders in addition to the fact that there is a witness who was called for a help by their child and attests that after being hit, the wife fled and returned in the morning while the husband was in agony, it is undoubtedly indicated that it is Musabende Claudine who hit her husband and resulted in his death. Appeal has no merit. Appealed judgment is upheld. Court fees charged to public fund. Statutes and statutory instruments referred to: Law no 15/2004 of 12/6/ 2004 relating to evidence and its production, articles 3 and 65. The judgment

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BRIEF BACKGROUND OF THE CASE [1] In the case RP 0233/13/TGI/NYGE decided by Intermediate Court of Nyarugenge on July 19, 2013, Claudine Musabende was found guilty of assault and battery resulting to death. She was sentenced to 10 years in prison in consequence. [2] Not satisfied with the decision of the court, Musabende appealed to the High Court stating that she was dissatsfied by the penalty inflicted on her because there was not medical report putting in evidence his culpability regarding the death of her husband. He articulated that no imaging was performed to indicate the wounds. She adds that she is aware that her husband died of HIV/ AIDS because during her remand, she tested HIV/ AIDS postive. She requested justice to be made and got to her orphans that the deceasedleft since they are HIV positive as well. [3] In its defence the Prosecution contended that the medical report Musabende reffer to contains in the case file and it indicates that her husband died of a hit. Regarding the imaging of the wound he states, it is not a conclusive evidence which is to prove that a person had not been hit. Regarding the statement made by Musabende that she tested HIV/AIDS positive, it is not a reliable evidence since, even though she tests positive she is still alive and hence her appeal lacks merit, added the Prosecutor. The issue of the case is to know whether

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Furere Isaïe died of a hit and whether it is not Musabende who hit him. II. LEGAL ISSUES AND ANALYSIS. To know whether Furere Isaïe died of hit [4] Musabende states that she was dissatisfied of the penalties she was sentenced to since there is no evidence indicating that it is her who murdered his husband. She adds that there is no medical report indicating that he died of hit because there was no imaging of the wounds. She articulated that it is not her who would kill her husband since she was not the indivivual to enjoy being a widow. Rather, she knew that his husband died of HIV/ AIDS since at her arrival in the prison she had a check and tested positive. She added that even arphans left by the deceased are infected. [5] In its defence, the Prosecution states that the medical certificate that Musabende invokes is not on the hand with the Prosecution. The latter adds that the report is included in the case file and that the court, in deciding the case, reled on it. It added that it is the Court which decides whether evidence pertains the truth. Furthermore, the imaging of the wounds she invoks are not a conclusive evidence to indicates that a the decease had not been hit. Regarding her statement that she had a check and tested positive, it is not a reliable evidence because she who is infecte dis still alive.

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[6] Article 3 of the law no 15/2004 of 12/6/2004 relating to evidence and its production stipulates that a peach partymust prove the case it alleges. The statements made by Musabe that there is no evidence proving that her husband died hit and that there is no medical report or the medical imaging performed to indicate the wounds cannot be considered because, as the judge at Itermediate Court held, there is not doubt that Furere Isaïe died of hit since tyhe medical report proves. In the report, the physician describes that ‘’La mort est de cause violente : la cause de la mort est vraisemblablement une contusion des poumoms, l’origine traumatique est plus plausible1’’. Furthermore, as the same report describes, the deceased underwent an internal bleeding ( in the chest) and that would not happen if hewas not hit.  Whether it is not Musabende who hit Furere Isaïe [7] Musabende turned down that his husband was beaten. She adds that the inculpating witnesses are plotters against her because of family relationship between them and him and since they are his siblings. In addition, she added, they planned her emprisonment and her children inculpate her because of indoctrinations they hammered into them [8] In its defence, the Prosecution conted that the statements of Musabende are vendications as long as there inculpating witnesses proving that it is Musabende 1 hoc traumatique: perturbation du bon fonctionnement de l'organisme suite à un traumatisme, Traumatisme : qui concerne les plais, les blessures., http://dictionnaire.reverso.net/francais- definition/traumatique, consuté le 21/3/2014

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who hit her husband. In addition to this, the prosecution added, a report elaborated by administrative authoritie states as well that it is Musabende who beat him. Therefore, in connection with the medical report which indicates that the deceased died of hit, it is found with no slightest doubt that it is her who killed him. [9] Article 65 of the law no 15/2004 of 12/6/2004 relating to evidence and its production provides that only the court can assesses the relevance, pertinence and admissibility or rejection of testimonial evidence. It shall not be influenced by the number of witnesses. It shall mainly consider their knowledge of facts and the objectivity and sincerity of their testimonies. Basing on the provisions of this article, the Court finds that the statements made by Muabende thatt she was plotted in inculpating her of the killing against her husband should not be cnsidered because, the fact that the phyiscian confirmed that the deceased died of hit which was imphasized by the fact that witnesses who attest that Musabende hit her husband till his clothes were torn and ( it was sufficiently explained in paragraph 7 of the appealed judgment whereby the judge highlights testimonial evidence including that outsiders came to the help when she was beating herhusband, the report elaborated by administrative authorities of the village and Nsabimana Fracois Xavier who was called for a help by their child called Liliane Uwimana) and after hitting him he directly fled and returned in the night and never pass the night in aboard the house in which she returned in the morning after her husband was in agony which followed his death short time. Therefore, the court, with

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no doubt finds that it is her who hit her husband which resulted into his death as proved by the physician in his report. [10] Basing on those factors, the Court finds that appeal filed by Claudine Musabende has no merit and the ruling of the appealed judgement is upheld. III. THE DECEISION OF THE COURT. [11] Appeal of Claudine has no merit. [12] Decides to uphold the appealed judgment RP 0233/13/TGI/NYGE. [13] Orders the court fees to be charged to the public fund as Claudine is in prison.