[2002] UGHC 141

## -I'TIE REPTBLTC OF UGANDA

## I\ I-IIE HIGI{ COTTRl. OF LC,{\DA ,{. I. JINJA

#### CRIIIINAL SESSTON CAStr NO. 59 OF 2OOI

UG.\NDA PROS.

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# NI,\SIKISOSAN&3ORS. ACCUSED BEFORE: THII HONOL R.\BLI ]lR.,lUSTICE YOROK.{VItr BANIW INII

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The accused persons Masiki Sosan, Wagwenda Robert and Nume Charles are indicated for murder contrary to sections 183 and 184 of the Penal Code Act. It is atleged that the three and others still at large in the night ol the 29th day of March, 1999 at Kananage village, Buyimbo zone in Kamuli District murdered one Kasage Vincent. The indictment contained one more accused, Alazewa Charles. I made ^a finding of not guilty in respect of this Alazewa Charles simply because whereas there was some evidence tending to connect others with the offence, there was no evidence, direct or circumstantial, to connect Alazewa with the offence. Since all the prosecution was waiting for was the evidence of the doctor who carried out the post mortem, I was of the view that no other such evidence would come from the doctor to suffrciently or at all connect him with the offence. [t was for that reason that I made a finding ofnot guilty and proceeded to acquit Alazewa Charles of the offence under s. 71 (1) ofthe Trial on Indictments Decree. This judgment is therefore in respect of Al Masiki Sosan, A2 Wagwenda Robert and . A3 Nume Charles. All the three accused persons pleaded not guilty to the indictment.

The case for the prosecution is materially based on the evidence of five witnesses namely, Kolostika Nabaigwa, PWl, D/AIP Osere Shaphan, PW2, Lugudo A1i, PWi, Musere James, PW4 and Dr. Nyolia, PW5. It is the prosecution case that Al Masiki was brother to the deceased and is father to 42 Wagwenda. Following the deaths ol Al's wife and a son in succession, the two, A.1 and ,A2 are said to have enlisted the services olA3 Nume Charles to assist in the elimination olthe deceased,

the reason being deceased's alleged hand in the death of the wife and son of Al Masiki . The three are said to have executed their sinister mission in the night of 291311999. Some days later, . A3 Nume Charles is said to have been arrested redhanded with a blood stained T-shirt which the prosecution alleges was spilled on it during the process of killing the deceased. It is the prosecution case that the blood stains were confirmed by the Government Chemist to be human blood and same group as deceased's. A-3 Nume is said to have confessed to the murder on arrest. The prosecution case, therefore, is that this was a cold blooded premeditated murder by the three accused persons who shared a common intention to kill the deceased. On their part, the accused persons denied participation in the offence.

lt is trite that the prosecution bears the burden of proving the case against the accused person beyond reasonable doubt. It is also trite that an accused should never be convicted ofany criminal offence on account of his defence being weak or on mere suspicion however strong. A conviction must be based on the strength ofthe case as proved by the prosecution See: R V. ISRAILI EPUKU S/O ACHIETU (1934)l EACA 166,

In a case of murder such as this, the prosecution is enjoined to prove beyond reasonable doubt that:

(a) a human being was killed

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- (b) the death was unlawfully caused; - (c) the killing was with malice a forethought. - (d) the accused directly or indirectly participated in that killing.

To prove the first element of this offence, the prosecution relies on the evidence of Kolostika Nabaigwa, PW1, D/AIP Osere Shaphan, PW2, No. 19806 Sgt. Owani William, PW5 and Dr. Nyolia, PW6. All these witnesses testified that a human being was killed in the night of 2913/99 and that they saw the body ofthe deceased. The fact of death is not disputed by the defence. According to Al Masiki and A2 Wagwenda they were picked by police from among the mourners of the slain man. The problem as it turned out was with one name, Kasadha or Kasage. They rhyme. PWI Nabaigwa was sister in law to the deceased. She said his name was Vincent Kasage. PW2 Osere and PW5 Owani investigated the murder. They gave the names

of the deceased as Vincent Kasage. The post mortem examination report on the deceased made by Dr. Nyolia, PW6 shows that the deceased" body was brought to Kamuli Mission Hospital mortuary by D/CPL. Owani and that it was identified by one Kitimbo Kirizostom as that of Vincent Kasadha. Kitimbo did not appear as a witness. Considering the movement of the body from Kananage village as described by PWI Nabaigwa to Kamuli Mission Hospital mortuary, the fact that police Form 48 gave the name as Kasage Vincent and the fact of PW5 Owani's presence during the examinatir:n of the body by PW6 Dr. Nyolia on 3l/3/99, this court has no reason whatsoever to believe that there was swapping of bodies. I accept as truthful the prosecution evidence that a man called Kasage Vincent lived at Kananage village, died under mysterious circumstances in the night of 2913199 md his body was examined by Dr. Nyolia to establish the cause ol death on 3113199. I am satisfied, therefore, that the doctor's reference to the deceased as Kasadha was a mistake. I accordingly find as a lact that a man called Kasage Vincent died in the night of 29/3/99.

The next point to consider is whether or not his death was unlawfu y caused. It is the case lor the prosecution that the death of this human being was unlawfully caused. The defence does not dispute that. In GUSAPIBIZI S/O WESONGA V. R (1948)15 EACA 65 it was held that in all cases of homicide death is presumed to have been unlawfully caused unless there is evidence that it was accidental or authorised by law. The body of Vincent Kasage when examined by the doctor had ² deep cut wounds on the left parieto-temporal region ofthe head it also had bruises on both sides of the neck and back. The doctor was of the view that the cause of death was head injury, probably subdural haemorrhage due to the penetrating wounds on the head and also hypoxia due to strangling as seen from the bruises on the neck and liail neck which indicated lracture of the cirvical spine. To my mind, it is inconceivable that this man whose body was found in such a state could have died otherwise than unlawfully. Learned defence counsel, Mr. Habakurama argued that because the body was not opened, therefbre the cause ofdeath was not conclusively determined. In my view, it is immaterial that the body was never opened. The fact remains that death was unlawfully caused judging by the extent of the external injuries as described by the witnesses and the doctor. I am therefore satisfied that Kasage's death was unlawfully caused.

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This leads me now to the issue of whether the killing of Vincent Kasage was accompanied by malice aforethought. Malice aforethought is defined in section 186 of the Penal Code Act and simply means intentional killing of a human being by another human being or knowledge that one's act or omission will probably result in the death of another human being. In deciding whether malice aforethought has been established, the court takes into account, among others. such factors as the nature ofa weapon used in causing the death, the number ofinjuries inflicted upon the victim, the part of the body where such injury was inflicted and the conduct ol the killer before and after the death: R. V. TUBER-E S/O OCHEN (1945) 12 EACA 63. According to the evidence of Dr. N olia, the cause of death was head injury, probably subdural haemorrhage due to the penetrating wounds on the head. He also auributed it to hypoxia due to strangling as seen from the bruises on the neck and the frail neck which indicated broken cervical spine. After a careful consideration of the circumstances of this case which led to the death of Vincent Kasage, I have come to the conclusion that whoever killed him did so with malice aforethought.

Having found that there was unlawlul killing of a human being in the names of Vincent Kasage with malice aforethought, I find that the prosecution has proved beyond reasonable doubt that murder was committed on or about 29/)/99.

I now turn to the issue of whether or not the accused persons participated in the killing. Tied in with this issue is the question of threat allegedly issued by Al Sosan Masiki, A3 Charles Nume's statement to police and the alibis put lorward by the accused persons.

From the evidence of PWI Kolostika Nabaigwa, the late Kasage was living alone in a house. He was fbund dead on 30/3/1999. Police was alerted and it came to the scene of crime. On seeing the state of the body, police suspected foul play. It is the evidence ofPWl that the police asked the mourners as to what the deceased could have done to anybody in the village to deserve such a brutal attack on him. Al was immediately suspected because of the grudges he had with the deceased. PWI Nabaigwa is sister in law to Al. She lived in the same village with the deceased and A1. 42 Wagwenda Robert is son to A1. The evidence of PWl Nabaigwa which I

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found credible is that there was a grudge between Al and the deceased. It stemmed from the accusation Al labelled against the deceased that the latter (the deceased) had killed Al's son and wife. It is her evidence that whenever Sosan would go for ^a drink, he would be heard saying that he was going to kill Kasage. He uftered those threats in February 1999 and in March 1999, Kasage was killed. This explains Masiki's arrest soon after the deceased's body was discovered in a house.

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I directed the assessors as I direct myselfnow that evidence ofa prior threat or of an announced intention to kill is always admissible evidence against a person accused of murder. Its probative value varies greatly. It may be very small or even amount to nothing. Regard must be had to the manner in which a threat is uttered, whether it is spoken bitterly or impulsively in sudden anger or jokingly, and the reason for the threat, if any is given, and the lengh of time between the threat and the killing. All these are material factors to take into account ANOTHER VS. UGANDA tI968I EA 278. See WAIHI AND

\r I have devoted considerable thought to PWl's evidence and her closeness to have seen no cause at all to disbelieve her evidence. I have therefore come to nclusion that Al made the threats attributed to him. t he co

As regards Nume's alleged confession, it is the duty of the prosecution to prove that the statement made by him is admissible. Whereas there were all indications that PW2 had been called to tender in evidence a confession statement, counsel for the accused made no attempts ai all to test its admissibility. He did so after the whole of it had been read to court. In my view, although there are indications that the ofTicer substantially complied with the law in recording the same, since its admissibility has not been tested in a trial within trial, little wcight musI b^e attached to Exh. Pl. For that matter, I have considered the evidence connecting Nume with the commission of this offence. PW4 Musere James, the LC. I Chairman, received information about Nume's possible participation in the murder of Kasage. Acting on that information, he caused the arrest of Nume. As he was quizzing him, he saw something protruding in accused's trouser pockets. He putled it out and found that it was a T-shirt. It had blood stains. On the way to police, accused escaped. He was arrested later from the bush where he had taken cover PW3 Ali Lugudo tested

the blood on the T-shirt and found that it was human blood and that it was of the same ^I blood group as deceased's. It can clearly be seen that the evidence connecting the ^I accused persons (A3) with the death ol Kasage is mainly circumstantial in the sense that no body testified as having seen him kill the deceased. It is the law that where prosecution case is based on circumstantial evidence, the court will not proceed to convict on such evidence unless the evidence is of such a nature that it points to nothing else but the accused's guilt and that such evidence has not been weakened or destroyed by some other co-existing factors: Simon Musoke vs. R. [1958] EA. 715. In the instant case, the circumstantial evidence relied upon by the prosecution is that of PW2 D/AIP Osere Shaphan who investigated the case and PW4 Musere James who effected the arrest of A3 Nume. PW4 acted on a tip off that . A3 participated in the killing. He tracked him down and indeed found him hiding a blood stained T-shirt in his pocket. The accused offered no explanation to the existence of this blood on his T-shirt. He has since denied even the T-shirt. The blood has been conclusively determined to be same group as deceased's. As he was leading him to police, accused escaped from him. He was arrested after a thorough search for him in the bushes. In my view, all this was not conduct of an innocent man. l!\_trqdeE\_ thq le1ls credence to accused's retracted confession and corroborate\_s\_thqplSsecqg]I evidence \_\_ tnarit is inaeea er na\*\*i. ,n"-urri. u"-..-.\_r,iri;;rr\*;i-u.ur", \*\*-=o o"iil;-r^ Ai to do the killing on his behalf. I am satisfied by the prosecution evidence that Al was part of the plan to kill Kasage and that he shared a common intention with the killers who included 43 Nume. In law, if violence is used to execute a common intention and death results, then all participants are guilty of murder: sections 2l and 22 of the Penal Code Act refers. Although mr:tive is not always sought in murder cases, the prosecution has ably demonstrated that a motive existed in the instant cass. Masiki attributed death of his wife and son to the deceased. This was enough motivation to kill him before Kasage could kill him as well. There cannot be any legal excuse from such a weird act.

There were inconsistencies in the prosecution evidence. For example, the injuries on the deceased's body as described by PWI Nabaigwa differed from what PW6 Dr. Nyolia saw. Another inconsistency was in the evidence of D/AIP Osere and PW4 Musere regarding the movement of the blood stained T-shirt. The law regarding inconsistencies is that grave ones unless satisfactorily explained or reconciled will

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usually but not necessarily result in the evidence of a witness being rejected. Minor inconsistencies can be ignored. In my opinion, the inconsistencies which have been pointed out to court were minor. They did not go to the root ofthe case. As between the evidence of a lay person, PWI and that of an expert, PW6, I would find guidance in the evidence ofthe expert. In any case, it has to be remembered that the witnesses testified after over 2 years following the commission of the oftbnce. In those circumstances, it is normal that a few details of what happened could escape their minds. I therefore accept the prosecution evidence that Al Masiki promised to kill the deceased in February 1999 and that in March 1999 he carried out the promise tkough A3 Nume and others still at large. I also accept the prosecution evidence that tbllowing Kasage's death on or about 3013/1999, A3 was found with a blood stained T-shirt whose group on analysis matched the deceased's. While there is evidence that Al was in Wololo in the night of Kasage's murder, I find as a fact that before leaving lor Wololo Al made elaborate plans lor the killing of Kasage. His defence of atibi is therefore unhelpful to him. I reject it on account of the doctrine of common intention.

I have considered the weight of the prosecution evidence against Wagwenda, A2. The only evidence that tends to connect him with the offence is A3's statement to police made long after A2's arrest. While there is evidence that Masiki was arrested on the basis of tkeats he made before Kasage's death, no evidence has been adduced to explain the basis for Wagwenda's arrest. When the statement of A3 is excluded, I find no other evidence on which a conviction can be based. For this reason, I find him (A2) not guilty and acquit him. He should be discharged from custody unless further incarceration can be justified on other lawful grounds. As regards Al Masiki Sosan and A3 Nume Charles, in full agreement with the unanimous joint opinion of he assessors, I find each one of them guilty of murder contrary to sections 183 and 184 ofthe Penal Code Act and convict them as indicated.

YORO . Ar\{U BAMWINE

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21/2/2002: Accused persons present. Ms. Nayebare for state Mr. Habakurama for accused Both assessors present.

Judgment delivered. Court: YOROKAMU BAMWINE **JUDGE** 21/2/2002

Court:

Sentence:

There is only one sentence provided by law for any person convicted of the offence of murder c/ss 183 and 184 of the Penal Code Act. It is to suffer death. I therefore sentence you A1 Masiki Sosan and A3 Nume Charles to suffer death in the manner authorised by law.

YOROKAMU BAMWINE **JUDGE** 21/2/2002

Court:

Right of appeal explained.

YOROKÁMÙ BAMWINE

**JUDGE** 21/2/2002