PROSECUTION vs NDIKUBWIMANA

# PROSECUTION vs NDIKUBWIMANA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-07-10 - Case/document no.: RPA 0202/13/CS - Collection: Supreme Court

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PROSECUTION v. NDUKUBWIMANA [Rwanda SUPREME COURT – RPA 0202/13/CS (Mugenzi, P.J., Gatete and Nyirinkwaya, J.) July 10, 2015] Evidence law – Incriminating evidence – His contradiction and testimonial incriminating evidence is a concurrence of evidence proving with no doubt that that he is guilty of the alleged crime. – Law Nº 15/2004 of 12/06/2004 relating to evidence and its production, article 108. Law governing contract or obligation – Damages – The fact that he lost his child who used to work and earn money and who assisted him implies that he was deprived of some advantages. Facts: The case started in the High Court, Rusizi Chamber. Ndikubwimana Ernest was charged with rape and murder his victim. He was found guilty of that crime and sentenced to life imprisonment and ordered him to pay the damages equivalent to 3.000.000 Frw and advocate fees amounting to 200 000 Frw. In deciding the case, the Court inferred that he could not take that girl at uninhabited area had they agreed on that. The Court further found him guilty of intentional killing of a person grounding on the testimony of the person who saw him lifting the corpse of that girl from inside the car. Ndikubwimana appealed to the Supreme Court contending that the Court only considered incriminating evidence and convict him without taking into account the explanations that he submitted to it. As to the Prosecution, his statements about the manner in which she fell down must not be considered because, had the victim fallen down while getting off, she might have knocked down her forehead. At appeal further, there was filed a cross appeal requesting the increase of the moral damages which had been awarded by the High Court, advocate fees, transport and accommodation fees. Held: The contradiction of Ndikubwimana before the Judicial Police stating that the victim fell down due to her cloth which trapped her and fell down on her back to the road while he states before the appellate court that she had been careless when she failed to assist the person whom he had just had sex with by taking her from inside the vehicle while the witness who saw him attested that she saw him lifting a person from inside the vehicle and when he saw her he tempted even running away, the fact that he declares that there was no sexual act that had occurred while on the other hand he concedes that he had sex with an adult person after the mutual agreement while the medical report revealed that she arrived at the hospital immediately after being raped is the concurrence of evidence proving with no doubt that he is guilty of the alleged crimes. The fact that he lost her child of 20 years who used to earn money and assisted him implies that he was deprived of some advantages based on her monthly salary of 15 000Frw and it is not excessive compared to earnings of the farmer.

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Appeal of the accused has no merit; Cross appeal has merit in part; Orders the accused to pay the civil party; Appeald judgment is changed only with regard to the damages; Court fees to the public fund. Statutes and statutory instruments referred to Law Nº 15/2004 of 12/06/2004 relating to evidence and its production, article 108. No cases referred to Judgment I. BRIEF BACKGROUND OF THE CASE [1] This case started from the High Court, the Chamber of Rusizi. Ndikubwimana Ernest was charged with murdering a girl called Uwamahoro Vestine after raping her. It is allegedly stated that he committed this crime against this girl when the latter came out of the pub of the person called Muhutu, in which she worked, on October 11, 2012 about 9 pm whereby he met the one called Ndikubwimana disposing of a car and Ndikubwimana talked to her that she would take her at home. It is alleged that he drove her and after approximately 10 pm he was seen by AIP Makabuza removing Uwamahoro from the car and she was looking like she had already died. And when she asked him about what had happened, he replied that they were involved in an accisent and he was taking the girl to the hospital. [2] In its ruling of May 31, 2013, that Court found Ndikubwimana guilty and sentenced him to life imprisonment, payment of 3000 000 Frw to Nturanyenabo Fidèle, the civil party, and the advocate fees equivalent to 200 000 Frw. [3] In its decision the Court find that Ndikubwimana is guilty of rape since he might not have taken that girl during the night to unhabited area with the mere agreement of having sex as he advanced it as a defence because had they agreed on that, he would have taken him to his house or in other house. [4] The Court further found him guilty of murder because in her testimony, AIP Makabuza stated that he saw him lifting her from the car, which differs from the statement of Ndikubwimana who states that he wanted to take her to the hospital. [5] Ndikubwimana appealed to the Supreme Court stating that the High Court had not considered his explanations and convict him mere based on the accusations of the Prosecution. [6] The case was tried in an open court on June 1, 2015 Ndikubwimana was assisted by Mukamana Elisabeth, the counsel, the Prosecution re[presented by Niyonkuru Françoise while Nturanyenabo, the civil party, was represented by Hakizimana Esron, the counsel.

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II. ANALYSIS OF LEGAL ISSUES [7] Ndikubwimana pleaded that when he was at Tyazo on October 11, 2012 lying down in the car,he got the telephone call from Vestine to stop for her a moto bike and then they started the conversations in the presence of the moto bike owner. However, they urged the the latter to leave as he was committed to transporting that girl in his car as they have already agreed to have sex. [8] He explained that they went home together and when, after having sex, she get out of the car, she got trapped in her cloth and fell off the car. He added that when he was trying lifting her, AIP Makabuza who testified against him about her death appeared and he told him that he encountered an accident. He regretted that when he took her to the hospital she died immediately after their arrival. [9] He stated that she had not been careful enough when he failed to assist her in getting her partner off the car especially that she was weak, tired and drunkard. [10] His counsel Mukamana adduced that Uwamahoro was over 18, and being used to working in the pub. She stated that in the testimony of Nshimiyimana Xavier who was about tranporting her on the moto bike explained that they wasted his time and when asked what he might have understood them talking bout, he replied that they did not manage to hear anything because they were whispering to each other and, according to him, they were planning to go to have sex especially that Uwamahoro was used to making it. [11] She continued pleading that her client does not deny that he had sex with Uwamahoro but did not rape her. With regard to the issue that he killed her after raping her, she replied that the medical report only demonstrates only that Uwamahoro was 16 weeks pregnant and that she had never strangled but rather she was breeding through the mouth, the nose and from in the back part of the head that she knocked down in the cemented road when coming off the car. [12] With regard to the fact that AIP Makabuza saw Ndikubwimana removing the corpse from in the car to throw it away, to her view, this statement must not be considered as truthful since the investigation that was carried inside the car came up with no evidence it is inside of the car that she was killed. She continued adducing that had he used whatever object from inside the car, it would have been seized. This is the reason why based on the provisions of article 165 of Law Nº 30/2013 of 24/05/2013 Relating to the code, Ndikubwimana must be acquitted based on the nature of the case which reveals the doubt. [13] The Prosecutor disputed that the explanations of Ndikubwimana trying to explain the way she fell must not be considered because, had Uwamahoro been trapped by her clothes while moving out of the vehicle, she might have hit down her forehead. [14] She added that during his interrogation before the Judicial Police Officer,(identification code 9) Ndikubwimana conceded that he went in companion with the deceased conversing as usual and then get off the vehicle and started joking while in the street so that she could be excited and have sex with him. However, this is different from his statements that they had agreed on having sex.

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[15] She notes further that Ndikubwimana personally could not afford to lift the seemingly corpse while she accepted that they were in inhabited area (in Nyenyeri Village) because, had it been the case, he might have have sought assistance from the neighbours and tell them about the accident that he had had. This is the reason why the statement of AIP Makabuza must be considered. [16] Hakizimana, counsel for Ntuyenabo, the civil party indicates that the statments of Ndikubwimana are full of contradiction because, during his interrogation before the Judicial Police, he replied that he had never raped her and it has been the case before the Prosecution, the tricks of denying the crime while then he conded that they had agreed on that. This implies that he raped her and killed her so that she could not report the case. The view of the Court [17] The case file regarding the death of Uwamahoro shows the contradiction in the statments of Ndikubwimana whereby in the course of his interrogation before the Judicial Police (identification code 9-10) explained that the deceased moved backward toward home and she was trapped by her cloth and he fell and hit her back of the head on the cemented road. She added that when he was lifting her, so as to put her in the vevicle and drive her to the hospital, the vehicle which transported AIP Makabuza came across him there. [18] His pleading before this Court, he stated that he was reckless not to asist his mate to get off the high vehicle, FUSO while she was so tired and drunkard. He stated that he had to lift her and remove her safely and this made her fell and nocks her back of the head down. [19] In her testimony, AIP Makabuza (identification code 22 -24) indicates that him and his companion saw him lifting the deceased removing her from inside the vehicle and even Ndikubwimana tempted to run away and they held up his trousers and when they asked him about what had occured, he replied that he fell against the vehicle. [20] Oth contradicting statements made by Ndikubwimana are like those where he states that he hd never had sexual act on one hand while on the other hand he declares that he had sex withadult upon agreement. However, this cannot be taken into account as the medical report reveals that immediately after her arrival to the hospital, she had been just raped. Thus, there is no doubt that the wounds she sustained were occasioned by Ndikubwimana as indicated by his explanations full of contradictions and that he failed to rebut the testimonial evidence obtained from the Police Officer who saw him to the crime scene removing his victim inside the vehicle. [21] Tanks to the aforementioned holdings therefore and based on the provisions of article 108 of Law nº 15/2004 of 12/06/2004 relating to evidence and its production, the Court finds that there is concurrence of evidence which estblishes beyond reasonable doubt that Ndikubwimana is guilty of the alleged crime. b. Regarding cross-appeal [22] Hakizimana, counsel for Ntuyenabo, the civil party, requested that damages that have been awarded at the first instance equivalent to 3 000 000 Frw must be added to 6 000 000

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because it is not excessive compared to the circumstances under which the crime has been committed, to the monthly earning of 15 000 that Uwamahoro regularly gets in addition to the advocate fees equivalent to 1000 000 and 500 000 Frw that Ntuyenabo used for transport and accomodation. [23] Ndikubwimana stated that he cannot manage to get the requested damages because he owns no property, His counsel stated that there is no salary certificate that has been submitted and, according to him, 1000 000 Frw must be granted for damages and 500 000Frw for advocate fees. The view of the Court [24] With regard to damages, it is implidly accepted that Nturanyenabo who lost her child have been deprived of some advantages due to the death of that girl of 20 years old who used to assist him whith an earning. The earning of 15 000 monthly is not excessive compared to the daily earning of the farmer. 15 00000 must be granted for damages. With regard to moral damages 3000 000 that has been awarded by the High Court is upheld. 500 000 Frw must be added for procedural fees on both instances as he got a free advocate at the Supreme Court level. With regard to avocate fees he is awarded 500 000Frw on both instances as he got a free advocate to the Supreme Court. The total is 5 500 000. III. THE DECISION OF THE COURT [25] Decides that appeal of Ndikubwimana Alias Muzehe has no merit; [26] Confirms that cross-appeal filed by Nturanyenabo Fidèle has merit in parts; [27] Orders Ndikubwimana Ernest alias Muzehe to pay Nturanyenabo Fidele 5 500 000Frw’ [28] Decides that the ruling of the appealed judgment RP 0032/12/HC/RSZ is changed only with regard to danages’ [29] Orders the court fees payment to be deducted from the State treasury.