[2022] UGHCCRD 47

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASINDI CRIMINAL SESSION CASE NO. 0060 OF 2018

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

#### VERSUS

### A1. AKUGUZIBWE SSENKU

# A2. MULINDWA FRANK alias MAZONGOTO ::::::::::::::::::::::::::ACCUSED

# *Before: Hon. Justice Byaruhanga Jesse Rugyema*

# JUDGMENT

- [1] The 2 accused persons; Akuguzibwe Ssenku (A1) and Mulindwa Frank alias Mazongoto (A2) were indicted with the offences of Murder C/ss 188 & 189 PCA in Count 1 and Aggravated Robbery C/ss 285 & 286(1)(b)(2) PCA in Count II. It is alleged that on the 30/4/2017 at Isunga village in the Kagadi District, the 2 accused persons caused the death of Karungi Kasumba and robbed him of his motorcycle and Ugx 20,000,000/=. They both pleaded not guilty to the offences. It is only when the 2 accused persons were put on their defence at the closure of the prosecution case and during his defence, A2 shocked the trial and opted to plead guilty on plea bargain. - [2] The prosecution case is briefly that around 30/4/2017, the deceased Karungi Kasumba got missing. A search for him was mounted by both the locals and police. A1 however, used to have problems/issues with the deceased regarding his pigs which used to destroy the deceased's crops and he was always overheard utter threatening words to the effect that he would kill whoever would ever touch his pigs. On the 24/4/2017, the deceased reported to the area Defence Secretary theft of his maize by A1, A2 and a one Bagambe and that when he tried to pursue them, they threatened him with death. Eventually, the deceased got missing. - [3] Around 3/5/2017, police with the area L. C1 chairperson accessed the shop of the deceased located at Isunga Trading Centre. They found that

it had been broken into. There was a broken table drawer and near the drawer, they recovered a wallet that contained A1's National Identity Card, 2 land agreements bearing A1's name and his NRM membership card. Later on the following day, the deceased's motorcycle Reg. No. UDX 312 R was recovered in an unused pit latrine and later in the afternoon, the body of the deceased was also recovered in a pit latrine serving a one Zainabu's family and or the late Hajji Rajab.

- [4] In the meantime, there was a story to the effect that A1 was found assaulting A2 demanding from him his National ID. This led the locals to suspect that A2 must have had something to do with the missing and the eventual death of the deceased. As a result, both the accused persons were arrested and charged with the instant offences but for A2, to later plead guilty. - [5] It is trite that the burden of proof is upon the prosecution to prove the guilt of the accused person(s) beyond all reasonable doubt. The burden never shifts to the defence except in a few exceptions provided for by the law. The prosecution is enjoined to prove all the ingredients of the various offences to the required standard; Woolmington Vs DPP (1935) AC 562 and Lubega Vs Uganda (1967) EA 440. - [6] For the offence of Murder C/ss 188 & 189 PCA, the following ingredients of the offence must be proved if the prosecution is to secure a conviction: - 1. Death of the person named in the indictment. - 2. That the death was unlawfully caused. - 3. That the death was caused with malice aforethought. - 4. That the accused person(s) participated in or caused the death of the deceased. - [7] In the case of Aggravated Robbery C/ss to 285 & 286 PCA, the prosecution is enjoined to prove the following ingredients of the offence. - 1. That there was theft of property - 2. That there was use of force or violence - 3. Possession of a deadly weapon or threat of use of a deadly weapon or the perpetrators caused grievous harm or death of the victim. - 4. Participation of the accused person (s) in the commission of the offence.

- [8] In this case, the defence did not contest the first 3 ingredients of murder in Count 1 and Aggravated Robbery in Count II. The defence contested only the participation of A1 in the commission of the alleged 2 offences. - [9] Indeed, the prosecution proved the death of the deceased by presentation of the post Mortem Report and Photos of the body of the deceased which were admitted under S.66 TIA and marked P. Exhs.1&3 respectively. The body of the deceased was identified by his son Karungi Asiimwe (PW1) upon its recovery from the pit latrine. As per the Post Mortem Report, the cause of death was established to be extensive torture using blunt weapons and strangulation. - [10] As to whether the death was unlawful, it is trite law that the law presumes every homicide to be unlawful unless it is accidental or excusable or authorized by law. The circumstances that make death excusable include defence of person or property; Gusambizi S/o Wesonga Vs R (1948) EACA 65 and Uganda Vs Okello [1992-1993] HCB 68. In this case, there is nothing to show that the death of the deceased fell into the exceptions above. Death arising out of torture and strangulation is not justified at all. It is unlawful. - [11] As to whether the death was with Malice aforethought, S.191 PCA defines malice aforethought as the *"intentional killing of a human being or knowledge that the act or omission will result into death of a human being",* Mugao & Anor Vs R[1972] 1 EA 543. To determine whether or not the prosecution has proved malice aforethought, court considers the following circumstances; nature and number of injuries inflicted, the part of the body injured(whether vulnerable or not) and the type of weapon used, See R Vs Tubere S/o Ochan (1945) 12 EA 63. - [12] In the instant case, the Post Mortem Report revealed the cause of death to be excessive torture using blunt weapons and neck strangulation with a rope. Definitely whoever tortured the deceased and strangled him using a rope must have intended him to die. The secondary act of throwing the deceased in a pit latrine was the last straw of ensuring that he never lives to see the light again.

- [13] I find all the above ingredients of the offence to have been duly proved beyond reasonable doubt. - [14] As regards Aggravated Robbery, the evidence of Karungi Asiimwe (PW1) is to the effect that upon accessing the deceased's shop in Isunga Trading Centre, they found the table drawer for custody of money broken and the deceased's motorcycle Reg. No. UDX 312 R which had been missing was also recovered from a pit (an unused pit latrine). Then, the victim who had been declared missing, his body was also recovered in a pit latrine. The Post Mortem Report (P. Exh.1) revealed that the deceased was tortured and strangled using a rope to death. - [15] The totality of the above prove the first 3 ingredients of the offence i.e, theft of the victim's properties (motorcycle and money) by use of violence and in the process, death of the deceased occurred. - [16] As to whether it is the accused person (A1) who committed the 2 offences i.e, murder and aggravated robbery, the prosecution relied entirely on circumstantial evidence i.e, the recovery of A1's wallet upon accessing the victim's shop that had been broken into. - [17] The circumstantial evidence relied upon by the prosecution is as follows; wallet contained A1's National Identity Card, his 2 land agreements and his NRM membership card. A1 did not contest the recovery of his wallet in the deceased's shop and photos to that effect were admitted under S.66 TIA as P. Exh. 3. 2ndly, A1's prior threats to kill the deceased who was complaining of A1's pigs straying into his gardens and when the deceased attempted to pursue the accused and others when they stole his maize as revealed by the deceased's wife Karungi Ngabiye (PW2), the deceased's son Karungi Asiimwe (PW1) and the Area Defence Secretary, Mbuga Steven (PW4). Lastly, on the date when the deceased was last seen, A1 was at the deceased's place for registration of a mosquito net where he presented his identity card for eligibility of the mosquito net. - [18] A1 however denied the prosecution claims save the recovery of his wallet which he claimed, he had pledged it as security to the deceased for Ugx 100,000/= borrowed from him.

- [19] In cross examination however, he could not tell and or scampered on the dates when he pledged the wallet and or the 2 land agreements. He however confirmed and admitted that he at one time used the National Identity card to register for mosquito Nets. A1 however failed to explain how it is possible that on the day the deceased got missing he had his National Identity Card which he used to register for mosquito nets and at the same time, having pledged it to the deceased for Ugx 100,000/=. I find that the above rendered A1's defence a mere pack of lies. A1 failed to account for the presence of his personal effects in the shop of the deceased that had been broken into. - [20] As observed by Justice Mubiru in Uganda Vs Ogwal & 2 Ors, H. C. Crim. Case No.217/2919 [2020] UGHC 177,

*"To enable a court to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference that the circumstances would enable the court to draw. An inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of the innocence should not prevent a court from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence."*

- [21] In this case, the defence did not challenge the evidence of the deceased's wife, PW2 regarding the earlier threats by the accused to kill the deceased as a result of his pigs straying into the deceased's gardens and that of the area defence secretary, PW4, as regards death threats by A1 and others against the deceased when he attempted to pursue them for stealing his maize. - [22] A1's personal effects being found in the broken into shop of the deceased prior to his disappearance created a rebuttable presumption to the effect that he was one of those last in touch with the deceased and therefore bear full responsibility for his death unless he accounts for the presence of those personal effects found in the deceased's broken into shop. In the absence of such explanation, a trial court is entitled to and or will be justified in drawing the inference that the accused person killed the deceased person, See the Supreme Court of Nigeria at Abuja in Tajudeen lliyasu Vs The State SC 241/2013 applied in Uganda Vs Nankwanga Fouza & 5 Ors, H. C. Crim. Case No.243/2015 [2019] UGHC 4.

- [23] In this case, with caution, I surely find the available circumstantial evidence i.e, evidence of prior threats knitted together with the recovery of the personal effects of A1 leading to the guilt of the accused person and leave no degree to possibility or chance that other persons who did not include him, could have been responsible for the commission of the offence. - [24] In the premises, in agreement with the Gentleman and Lady assessor, I find that the prosecution has proved its case beyond reasonable doubt that A1 was among those persons still at large that murdered the deceased Karungi Kasumba and robbed him of his, inter alia, motorcycle. I do find A1 guilty of both Count 1 and 2 and do convict him accordingly.

Signed, dated and delivered at Masindi this 19th day of October, 2022.

### Byaruhanga Jesse Rugyema JUDGE.

19/10/22

A1 present Ms. Akankunda and Ms. Twesiime for defence Ms. Akello Florence for State 2 Assessors Mr. Thembo: Clerk

Court: Judgment delivered in open court.

State: The deceased met his death in a ruthless manner. The body had to be dumped in a pit latrine head down. The offences were committed for money gain. Murder is rampant in this area, the dependants of the deceased, his family and the community lost a man who was contributing immensely to all. I pray for a deterrent sentence of 40 years imprisonment.

Ms. Akankunda: The accused is a first offender. He is a young man with a good future, we pray for lenience. He has been on remand for 5 years and 5 months. It is now believed that he has learnt a lesson and shall be a good citizen.

#### SENTENCE

- [1] The accused is a first offender. He is aged 34 years and therefore has room for reform. He has been on remand for 5 years and 5 months. All these shall have to be taken into account. - [2] On the other hand, the accused committed murder which carries a maximum sentence of death, the offence is rampant in the area, the deceased lost his life and his relatives, dependants, family and the community lost their loved one who was contributing much. He had a shop of merchandise. - [3] Though I don't find this case as deserving a death sentence, the accused deserve a deterrent sentence to deter other would be offenders and himself from considering committing murder. In the premises, I do sentence the accused to 35 years and taking into account the 5 years and 5 months the accused has spent on remand, the accused shall serve 29 years and 7 months.

Right of Appeal explained.

Byaruhanga Jesse Rugyema JUDGE.