[2024] UGHC 1231

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE**

**CRIMINAL SESSION NO. 0048 OF 2024 (Arising from Criminal Case Kabale – AA – No. 0057 of 2019) (Arising from Kisoro CRB No. 351 of 2019) UGANDA :**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: **PROSECUTION VERSUS**

**AHEREZA FRANK**:::::::::::::::::::::::::::::::::::;;;;;:::::::::::::::::::::**ACCUSED**

# **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

# **JUDGMENT**

Tweheyo Medard (A1) and Ahereza Frank (A2) were jointly indicted for **Murder** Contrary to **Section 188** and **189** of the **Penal Code Act**. The facts giving rise to the particulars are that Tweheyo Medard and Ahereza Frank on the 16/09/2019 at Bugandaro Cell in Rubanda District with malice aforethought caused the death of Assimwe Kenneth.

Tweheyo Medard (A1) pleaded guilty to the indictment and was sentenced to 23 years imprisonment. Ahereza Frank (A2) pleaded not guilty.

## **Representation**

Ms Najjunju Julie (Senior State Attorney) appeared for the Prosecution while Mr. Kibulirani Nicholas represented the Accused on state brief. The Assessors for this trial were Mr. Livingstone Ndyamutunga and Ms. Christine Kembabazi.

During the preliminary hearing sanctioned under **Section 66** of the **Trial on Indictment Act (TIA)** medical evidence in PF48B and PF24, a sketch plan and photographs were received as uncontested evidence.

PF48B is the post-mortem report in respect of Asiimwe Kenneth dated 16/09/2019 and prepared by the Regional Police Surgeon Dr. Odulusi Daniel and received as Exhibit P1.

PF24 in respect of the medical examination of the Accused Ahereza Frank dated 19/09/2019 and prepared by one Scovia Tumuhaise a psychiatric nursing officer details that A2 has a good mental state and no abnormal behavior was detected. The same was received as Exhibit P2.

The sketch plan drawn by D/CPL Kihembo Paul on the 16/09/2019 was received as Exhibit P3.

While 8 photographs of the body of the Deceased and the scene were received collectively as Exhibit P4.

### **The burden and standard of proof.**

The Accused in pleading not guilty in this criminal trial places the burden of proving the case beyond reasonable doubt upon the Prosecution. This burden does not shift to the Accused person and the Accused can only be convicted on the strength of the Prosecution case and not on the weakness of the defence case.

### **See Ssekitoleko versus Uganda (1961) EA 531.**

### **Ingredients of the offence.**

The Prosecution must prove each of the following essential ingredients beyond reasonable doubt.

- **1) Death of a human being.** - **2) That the death was caused by some unlawful act.** - **3) That the unlawful act was actuated by malice aforethought.** - 4) **That the Accused caused the unlawful act**.

# **a) Death of a human being.**

Death maybe be proved by production of a post mortem report or evidence of a witness who states that they knew the Deceased and attended the burial or saw the dead body.

It is the evidence of Febi Muheirwe (PW1) that Asiimwe Kenneth was her son and that he was struck on the 16/09/2019 on the forehead with a big stick and died. That he was buried at home. Tumwesigye Geoffrey (PW2) and Bakesigaki Benard (PW3) corroborated her evidence that on the 16/09/2019 they viewed the body of Asiimwe Kenneth that was laid on the bed and he was bleeding from the nose and had an injury to the head. Further corroborative evidence is obtained in Exhibit P1 the post mortem report dated 16/09/2019 that indicates that Asiimwe Kenneth died as a result of blunt head trauma.

This Court has viewed the photographs of the Deceased Asiimwe Kenneth in Exhibit P4. The Accused (A2) in his defence acknowledged that his brother Asiimwe Kenneth was indeed dead.

It is therefore my finding that the Prosecution has proved beyond reasonable doubt that Asiimwe Kenneth is dead.

### **b) That the death was caused by some unlawful act.**

The law presumes that any homicide (killing of human being by another) is presumed to have been caused unlawfully unless it was accidental or it was authorized by law.

## **See R V Gusambizi s/o Wesonga (1948) EACA 65.**

It is the evidence of Febi Muheirwe (PW1) that on the 16/09/2019 she and her sons returned from a party and when they reached home the children quarreled specifically A1, A2 and Asiimwe and that Asiimwe Kenneth was inside the house. It is her evidence that she then heard Asiimwe screaming that mummy they have killed me and that when she moved to the sitting room she found that Asiimwe had been beaten with a big stick on the fore head and he died. Tumwesigye Geoffrey (PW2) and Bakesigaki Bernad (PW3) both testified to viewing the body of the Deceased Asiimwe Kenneth bleeding from the nose with a head injury. The post mortem report in Exhibit P2 details that the cause of death was blunt force trauma.

I have also viewed the photographs of the body with a head injury in Exhibit P4. I have no doubts that the death suffered by Asiimwe Kenneth was neither authorized by the law nor accidental.

It is therefore my finding that the Prosecution has proved the 2nd ingredient beyond reasonable doubt,

### **c) That the unlawful act was actuated by malice aforethought.**

**Section 191** of the **Penal Code Act** provides that malice aforethought maybe proved by direct evidence or maybe inferred from the evidence indicating knowledge that the conduct of an Accused would probably cause the death.

Malice aforethought maybe inferred in regard to the following:

- a) The weapon used for example whether it was a lethal weapon or not. - b) The part of the body that was targeted for example whether it is a vulnerable part or not. - c) The manner in which the weapon was used for example whether repeatedly or not or number of injuries inflicted. - d) The conduct of the Accused before, during and after the incident for example whether there was impunity.

### **See R versus Tubere s/o Ochen (1945) 12 EACA 63.**

It is the evidence of Febi Muheirwe (PW1) that on the 16/09/2019 her sons that included A1, A2 and the deceased Asiimwe Kenneth were quarreling when she heard Asiimwe screaming that mummy they have killed me and when she moved from her bedroom she found that he had been struck with a big stick on the fore head and he died. The post mortem report in Exhibit P1 carried out on 16/09/2019 reveals that the body was bleeding from the mouth and nose strings with a depressed skull structure on the right parietal area with underlying intracranial hemorrhage and the brain was congested. The body also had bruises on the back and chest wall with the cause of death being blunt head trauma.

I accept the evidence of PW1, PW2 and PW3 that the body of the Deceased Asiimwe Kenneth was bleeding from the mouth and that he had an injury to the head. The medical evidence corroborates the same.

According to Febi (PW1) there was a big stick next to the body. I believe that this is the stick that was used to cause the injury to the head of the Deceased.

It is trite law that the head is a vulnerable and sensitive part of the body that when targeted with force as in this instant case can only lead to death.

### **See Okello Okidi versus Uganda SCCA No. 0003 of 1995.**

I therefore have no doubt that the assailant in targeting the head of the Deceased Asiimwe Kenneth did so with the intention of killing him.

It is my finding that the Prosecution has proved beyond reasonable doubt that the death of Asiimwe Kenneth was actuated by malice aforethought.

### **d**)**Participation of the Accused.**

It is the evidence of Muheirwe Febi that that the Accused Ahereza Frank (A2) and the Deceased Asiimwe Kenneth are her biological sons. That on the 16/09/2019 they were from the party at around midnight when her 3 sons Tweheyo Medard, Ahereza Frank and Asiimwe Kenneth began to quarrel in the sitting room while she was in the bed room. According to Febi (PW1) she heard Asiimwe Kenneth screaming that mummy they have killed me and that when she moved to the sitting room she found that he had been beaten with a big stick on the fore head. It is the testimony of Febi Muheirwe (PW1) that she does not know who exactly struck Asiimwe Kenneth and that she fell down due to shock on seeing Asiimwe Kenneth's injured head.

The Prosecution presented Geoffrey Tumwesigye (PW2) who testified that he is an Uncle to the Accused Ahereza Frank (A2) and Tweheyo Medard (A1). That in the night of the 16/09/2019 at around 2:00AM Tweheyo Medard(A1) and Ahereza Frank (A2) came to his home and that he woke up together with his wife and that the two (A1 and A2) reported to him that Asiimwe Kenneth had died. According to Tumwesigye Geoffrey (PW2) there was moonlight and he could see that A1 and A2 had folded their trousers and the sleeves of their shirts and he could see that they had been fighting. That when he asked them how Asiimwe Kenneth had met his death A2 Ahereza frank responded that the truth is he has died. Tumwesigye Geoffrey (PW2) states that he moved with A1 and A2 together with his wife at around 2:30Am and when they reached the home of the Accused persons he saw the dead body on the bed bleeding from the nose with an injury to the fore head and that when he inquired from their mother (PW1) how he had died she told him that Asiimwe Kenneth came from the trading centre and said mummy I have died.

Bakesigaki Bernard (PW3) testified that he is the Local Council Chairperson and that A2 is a resident of his village. It is his evidence that sometime in September 2019 the Police called at around 5:00AM with instructions to arrest A1 and A2 because they had murdered their brother.

According to the witness (PW3) he went to their home and indeed confirmed that Asiimwe Kenneth had been killed and when he inquired from his mother (PW1) she told him that when they left the bar they (children) started quarreling and

fought eventually Asiimwe Kenneth was killed. PW3 testifies to arresting A2 at the scene and A1 later because he had fled their home. It is also the evidence of PW3 that when he spoke to Ahereza Frank (A2) he told him that they had fought it is true but he was not the one who had killed Asiimwe Kenneth.

The Accused (A2) in his unsworn defence testified that in the night of the 15/09/2019 he was in his room sleeping when he heard his elder brother quarreling in the sitting room and that he woke up and found his elder brother Asiimwe Kenneth lying down in the sitting room and that this was at around midnight. It is his evidence also that Tweheyo Medard (A1) his other elder brother was outside and that he told him that they should go and call their uncles and that they informed Tugumisirize Gad and Tumwesigye Geoffrey (PW2). That they started the burial arrangements and he was arrested at 8:00am by the Chairperson Local Council one taken to Police and has been in detention since then.

It is trite law that where an Accused person raises the defence of alibi the onus is on the Prosecution to discredit this defence and to place the Accused at the scene of crime.

## **See Kyalimpa Edward versus Uganda SCCA No. 10 of 1995.**

I am not convinced by the defence of A2 that he was in his room sleeping when A1 and the Deceased Asiimwe Kenneth started to quarrel in the sitting room leading to the fight that led to his death. I believe this narrative to be false. According to Febi (PW1) the quarrel and fight in the sitting room involved all the 3 brothers that is Tweheyo Merdard(A1), Ahereza Frank(A2) and the Deceased Asiimwe Kenneth.

Further corroboration of the fight involving the trio was her evidence that the Deceased cried out *"mummy they have killed me"* the expression *"they"* connotes more than one person. The evidence of Tumwesigye Geoffrey (PW2) also that he observed that Tweheyo Merdard (A1) and Ahereza Frank (A2) had folded their trousers and sleeves of their shirts and that it looked to him that they had been involved in a fight further corroborates the evidence of their mother Febi (PW1) that the trio quarreled and fought. The opportunity for A2 to disassociate himself from the quarrel and fight that led to the death of Asimwe Kenneth was when Tumwesigye Geoffrey (PW2) asked him and A1 how the Deceased had met his death but A2 merely responded "the truth is he has died" this failure by A2 to disassociate himself early on in this case with the murder of his brother points irresistibly to his guilt.

The failure of A2 also to challenge the evidence of his mother that all 3 of her sons were involved in the quarrel points to the fact that the defence of alibi that A2 is now raising in his defence is an afterthought and I reject it.

The only minor contradiction in the Prosecution evidence is the testimony of Tumwesigye Geoffrey (PW2) that when he questioned Febi (PW1) as to how the Deceased had met his death she told him that he (Deceased) had returned from the trading centre and said "mummy I have died" This obviously contradicts her narration that very night in issue to Bakesigaki (PW3) that her children had fought leading to the death of Assimwe Kenneth and her evidence before this Court. The contradiction is explainable by the fact that PW1 had lost her son that very night in issue and was therefore not in the frame of mind to think properly. In fact, according to Tumwesigye Geoffrey (PW2) he found her sweeping the house late that very night. These are not the actions of a normal person who has just lost a son

The Court in **Alfred Tafar versus Uganda (1969) EACA** held that minor discrepancies should be ignored if they don't affect the main substance of the Prosecution case. I find sufficient evidence including that given on oath by Febi (PW1) herself to make a finding that her statement to Tumwesigye (PW2) is explainable by her state of mind that night in issue.

It must be noted that there is no direct evidence in terms of an eye witness to the murder of the Deceased Asiimwe Kenneth. The evidence on record is therefore circumstantial.

## The Court in T**eper versus R (1952) AC 480 held that:**

*"It is also necessary before drawing the inference of the Accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference"*

Furthermore, the Court of Appeal in **Mugambe Francis versus Uganda CACA No**. **0060 of 2011** in reference to "*Sarkar on evidence 14th Edition 1993"* in regard to circumstantial evidence concluded that:

*"According to the above definition, the facts must be closely knitted and must carry conviction to the mind of the Judge"*

I have not found co-existing circumstances in this case that would weaken or destroy the inference of the Accused's guilt. The evidence presented by the Prosecution has been cogent and consistent. The evidence led as to what transpired on the night of the 16/09/2019 in the home of Febi (PW1) by her vivid recollection and that of PW2 and PW3 has been tightly knit and leaves no doubt in my mind that A2 was personally involved in the quarrel and fight that included A1 and the Deceased Asiimwe Kenneth.

It is the evidence of Febi (PW1) that Asiimwe Kenneth was struck with a big stick to the fore head but that she did not see who delivered the killer blow. The evidence in the post mortem report contains findings of injuries not only to the head of the Deceased but also to his back and chest wall. Clearly several blows must have been delivered in the fight by both A1 and A2.

## **Section 20 of the Penal Code Act** provides:

*"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the Prosecution of that purpose an offence is committed of such nature that its commission was a probable consequence of that purpose, each of them is deemed to have committed the offence"*

It is therefore irrelevant as to who delivered the killer blow between A1 and A2.

Both of them are equally deemed to have killed Asiimwe Kenneth.

After considering the evidence adduced by the Prosecution and the defence together and in full agreement with the assessors it is my finding that the Prosecution has proved its case beyond reasonable doubt and I accordingly find Ahereza Frank (A2) guilty of the offence of **Murder** contrary to **Section 188** and **189** of the **Penal Code Act** and convict him of the same.

Before me,

……………………….………………

**Samuel Emokor Judge 26/07/2024**