[1990] UGHC 24

v n,

IN Tj^E J.. IGH UCUJT OF UGANDA AT TORT PORTAL\* CRIMINAL LEoblON CA.,E NG. 96 OF 1990

UGANDA I:::::::::::::::::::::::::::::::::::::::::::::;PxROSECUTOR

- VERSUS -

A1 : VTLLIAM BALINDA A2: JOSEPH KISEMBO NO. ¹ ⁰ I:::::::::::::::::::::::::ACCUSED C A3: JOSEPH KISEMBO NO. 2 ⁰

## BEFORE :Ti'E HONOURABLE MR. JUSTICE I. MUKANZA

# JUDGMENT

Joseph kisembo No, ¹ and The three accused persons v.illiam Balinda/Joseph Kisembo No. ² hereinafter referred to as A1, A2 and ^AJ respectively ^tand. indicted of Murder contrary tc section 183 of the \*enal Code. They pleaded not guilty to the Ind ctment.

The particulars of the indictment were that on the 18th day of September 1985 at Isandara Village in Kabarole District the three a-c-cuse . persons murdered one Kisembo s/o Basaliza.

In an endeavour to establish its case the prosecution called the evidence of about four witnesses. On the date of incident P. W.2 was at home alone at around 4.00 p.m, when the three accused perse brought in the dece sed under arrest on the allegation that he was a thief. P.w.2 testified that all the three accused persons were the sons of her husband. The three accused called her their stepmother. A1 and AJ's mothers had left P. W.1 for sometime whereas A2's mother was dead. She continued that when the deceased was brought in had his hands tied and had been brutally assaulted but could talk and his body was swollen. lie talked to the deceased who admitted tc have stolen. During her presence and before P. W.1 returned from where he had gone to visit the three accused beat up the deceased with sticks all over the body indiscriminately.

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F. W.1 returned home between 6.30 and 7.00 p.m. only to find that the the deceased had been tied and appeared to have been assaulted. The deceased coula talk with great difficulties. F. M.1 blamed the $home$ accused persons for having brought the deceased/instead of taking him to Kyenjojo Folice ~tation. He talked to A1 who informed F. V.1 that the deceased was found in the market with his rain coat which had been stolen from A1's home prior to the incident together with oter properties viz a moslem cap and money. F. W.1 untied the deceased and gave him milk and advised A1 to release the decensed and A1 complied. The deceased left and went away. The latter was never assaulted in F. W.1's presence.

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and more than the state of the state of

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F. W.2 on the other hand was positive that when the deceased $h, d$ been untied and given him milk the three accused persons escorted him away to kyenjojo Folice Station. The deceased was never seen alive. Ten days after the incident on $28/6/85$ policemen from kyenjojo Police station, NRA soldiers plus F. W.3 RC III Chairman for Mwenge county came to F. W.1's home. They arrested F. W.1, F. W.2, A2 & A3 and took them to Kyenjojc Folice Station for interrogation. According to F. W.1 and F. W.2 A1 was not arrested on that occassion because his home was 12 miles away from F. W.1's home. Whereas the homes of A2 and A3 were just a few kilometres from P. W.1's home. At the Folice Station A2, A3, F. W.1 and F. W.2 were severely assaulted according to F. W. 1 and F. W.2. As a result of the beatings A2 & A3; confessed that they had killed the deceased and agreed to show I. W.3, the police and soldiers where tyey had buried the body. A2 and A3 were taken away fr m the cells by the police, NRA soldiers and relatives of the decessed. F. W.3 testified that A2 & A3 led them to a spot in the forest about % a mile from the home of P. W. 1 and exhumed the body of Kisembo s/o of Basaliza which was identified by F. W.4 as being the body of his cousin.

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The evidence of F. W.4 was that the deceased and one Mugisha were sent by F. W.4 to go to Ruhura market and purchase for him worth Shs. $53,000/$ = fcr the celebrations of the last funeral meat rites of his father, later received information that the deceased had been arrested; in the market by the sons of I. W.1. The deceased was never seen alive since then and also never received the meat. the F. W.4 reported to F. W.3 and/local authorities and had A2 @ A3 arrested A1 was arrested later on $\cdot$ . A2 and A3 led them to the forest where the said accused exhumed the body.

$\mathbf{v} = \mathbf{v} \qquad \mathbf{w}$

A2 (DW1) who appeared a sick man gave his evidence first. In his unsworn statement told the court that his wife who was $\mathbf{a}$ nubian deserted him and returned to Sudan but left behind two small children to lock after. On 18/6/85 he was at home caring for his two children and never went out at all. He denied assaulting the deceased together with A2 and A3. He continued that F. W.2 had a grudge against him because the former was suspected to have bewitched his mother. Whereas F. W.1 his father hated him (A2) because I. W.1 thought he was going to harm 1. W.2 (the wife of P. W.1).

In his testimony A1 as DW2 informed the ccurt that on the date of the incident it was a market day and had taken his commodities to the market for sale. He explained that prior to the incident he had the following properties stolen from him namely a moslem cap, one long trousers, a rain coat and that all the properties were worth Shillings 10,000/=. While in the market he saw the deceased putting on his rain coat. He had him arrested.

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$\overline{3}$

The $A. C.'s$ and the public in the market started beating him. He did not participate in the assault. A2 and A3 were not in the market on that day. He intended to take the victim to the police station. he did not reach home but since he had **xx** got his rain coat he left the deceased talking to people and he returned home. He was later arrested by soldiers at gun point and taken to Kyenjojo Police Station where he was remanded in the cells. He found $\Delta$ i $\Delta$ there F. W.1, A2 and F. W.2. He was a catechist and / not have a problem with any one.

the company of the property of the property of the property of the property of the property of the property of the property of the property of the property of the property of the property of the property of the property of

A3 as DW3 put uf the defence of an alibi. He had never been to Ruhoko market. F. W.2 and F. W.1 told lies against him. He had never been at F. W.1's house and had never confessed to any one in connection with the death of Kisembc. He testified further that P. W.2 had a grudge against him because F. W.2 caused her mother to be beaten by P. W.1 and his mothers arm was broken and so she left F. W.1. He too retaliated by beating F. W.2 since then his relationship with both P. W.1 and P. W.2 was soar.

Frecisely that was the case for both the prosecution and the defence. As I directed the asessors the prosecution had the burden to adduce evidence to prove beyond reasonable doubt that the three accused persons and nobody else with malice aforethought caused the death of the deceased as stipulated under Section 186 of the Fenal Code. I further directed them that the prosecution had to show that the accused had the intention to kill the deceased or had knowledge that $\overline{c}$ . $\pm 2d$

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$\overline{5}$

According to $\Gamma$ . W.1 and i. W.2 the deceased w s becught to the home of F. W.1 by the thre. accused persons on the allegation that he w a thief. He was arrested in a market place and escorted to F. W.1's home while he had his hands tied. He - was found in possession of a sterain coat belonging to A1.

19. The company of the party of the

In the presence of 1.8.2 the deceased was beaten by the 3 accused persons with sticks over his body indiscriminately. There was evidence from F. W.2 that when the deceased was brought by the accused persons his body was swellen and though he could talk he had been brutally assaulted. Also F. W.1 found the deceased beaten and untied him. A1 in his testimony informed the court that when he arrested the deceased and pronounced that he was a thief the Resistance Council members (RC's) who were in the market plus public storted as aulting the deceased and to save him he escorted him away. I believe A1 over this particular point. I take ' judicial notice of the notorius fact that thief beating in Uganda is carried out by very many people. Once a person is pronounced a thief the latterwould be the subject of attack by the $\frac{1}{2}$ public by what is commonly known as mob justice.

There was then contradictory evidence from F. W.1 and I. W.2 whether the deceased was escerted away by the three accused persons from F. W.1's home. F. W.1 testified that after his interventions he instructed F. W. 1 to let the deceased free and he did so. The deceased left and went away. Whereas F. W.2 testified positively that the 3 accused escorted the deceased away on the pretext that they were taking him to Kyenjojo Folice Station.

$\ldots \ldots \ldots \ldots /6$

Ihvⁿ ten days after A2 and AJ had be&n arrested ano. tortured - t the Police Station Kyenjojo they led the pciicemen F. V. J & to thv\_- spot where the dead body of the deceased v.as exhumed. ¹ am inclined to believe P. W.2 that the three accused persons escc ted the accused away from P. W. I's place and since then he was never seen -»live. However the fact that A2 & AJ confessed at the Police station after being tortured by the soldiers and police as per the testimony of F.h.1 and led to the discovery of the body is admissible under section 29 ^A of the Evidence Amendment Act Decree 25 of 197'1\* Sc the evidence against the accused persons is that they assaulted the- deceased at F. M'^s home after arresting him in the market escorted him to the police which never was and later A2 & AJ led P.ti. J, 1. W.4 \*»to the police to the spot where the body was discovered.

in Uganda vs Mikairi Nyandege Criminal session case ho. 207 of 197^ Heprted 1975 HCB P, 115\* The accused was arrested from his home and taken to Mityana Police Station. On the same day he led a prrty to a place in the bush where the deceased skeleton w-.s found. The skeleton was identified by the accused's father as that of his sen basing his identification on the deceased belt and a pair of trousers found around the skeleton. The doctor who examined the skeleton found that the bones were human beings and that the skull bone were broken and the face shattered. He established the cause of death as assumed bleeding inside the brain due to assault. There the accused denied knowledge of the deceased, the witnesses and the entire allegation against him.

In holdings ⁴ & ⁵ it was held that the fact that the accused led the party to the ^lace where theb body was found did not mean that he killed the deceased. It was a highly incriminating piece of evidence against him. It was further held that the prosecution had succeeded only in buidling a /7

R 6 W

that *an .* ¹ suspicion after an cther against th,<L bud^/H\*^e iQS'Jjj O-^' to found a conviction in a murder case where a high degree of proof was required. in a way

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¹ am of the view that the above authority is/applicable tc the instant case there was no evidence that actually the accused caused the death of the deceased. First and foremost the deceased was beaten at the market place and w^s escorted away from P. W. Vs home by A1, ^m² 8: AJ, £e co net know what happened on the way since the accused was being escorted as a thief. He might have been assaulted by very many people on the way. And to aggravate the matter the cause of death was never established somehow by the prosecution and this/distinguished this case from Mikairi Nyandege's case Supra where there was a postmorten report. There was no explanation given by the prosecution why the body was never examined See Kassim Obura's case over this issue. So the fact that A2 8c AJ led the police & P.k.4 to the fc-rest where A2 & exhumed the body which was identified by F. W.4 as that of Kisembo s/o Basaliza a cousin tc 1. W.4 was not conclusive that t deceased died at the hands of the accused persons in the light of a high degree of proof required in murder charges. All that the prosecution had proved was that the deceased was dead but there was no evidence to show that the ( eath was caused by the three accused persons and with malice aforethought. From what has been explained above there are co-existing circumstances which would weaken or destroy the inference that the deceased died at the hands of the accused persons and the only crime committed by the accused person as ¹ see it from the evidence was that of common assault. Otherwise the prosecution'scase was built on ^x . suspicion that the deceased was killed by the accused persons.

Nonetheless the accused persons raised up an alibi as their defence to the indictment. It is trite law that an accused person who puts

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an alibi to a criminal calarge he does not thereby a sume a burden The burden of proving his guilt<br>of proving his guilt/remains throughout on the prosecution. See R. V Johnson 1961 3 AER F. 969, RV Labbll 1957 AER P. 734. The prosecution failed to adduce evidence to destroy or disprove the aliti because of what $\perp$ have stated above.

$\cdots \cdots \cdots \cdots$

The first gentlemen assessors advised me to convict the accused as indicted. I disagree with him because he did not take into account the fact that the accused was beaten first in the market and also might have been beaten when he was being escorted away and the fact that the cause of death remains unknown. Had he to have addressed himself on those issues he might have come to a different conclusion. I however endorse the opinion of the second assessor that the accused be found not guilty and be acquitted of the charge. I find that the prosecution has failed to prove beyond reasonable doubt that the 3 accused persons murdered the deceased and thereby contravening section 183 of the Fenal Code. I find them not guilty and I acquit them. the offence forthwith. However $\frac{1}{2}$ find the 3 accused guilty of common assault contrary to section 227 of the Fenal Code and I convict them accordingly.

> ( I. MUKANZA ) J U D G E $5/12/90$

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$5/12/90:$

Al and A3 before Court.

A2 Absent (died yesterday in cells).

Mr. Bireije for the State present.

Mr. Kagaba counsel appearing for the accused present.

ASSESSORS: Mr. Manyindo & Mr. Ndcleririre present.

Mr. Bireije: I am reliably informed that Kisembe No. 1 (A2) is dead. He passed away yesterday 4/12/90 and he died/diahorrea. He died in a prison clinic.

Court: Judgment is read and signed in open court.

- Mr. Mugamba: On the best information available my clients are $\mathbb{L}$ $\mathbf{a11}$ first offenders. They are all youngmen. They are both married and they have children. They are serry that the deceased died. They have been on remand for over 5 years. With all offences for person found guilty I ask you to consider the period the 2 accused persons have been on remand and the minor offence of which they have been convicted and found that they have had enough punishment. - Mr. Bireije: This court has convicted the accused person of common Assault. My learned friend referred to this court that the accused persons are married with children. That could not be mitigating fact because the deceased had a family and had a long way to live. This offence of which they have $\overline{f}$ been convicted carries a sentence/Imprisonment of one year. However in passing sentence consider the circumstances of this case. And $\frac{1}{2}$ submit that the deceased according to the evidence on record he was not a thief. was He/merely suspected. He had not been found to be a thief. It is very dangerous to let people beat people because

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they are thieves when there are other avenues to be taken. The accused persons should have taken the suspected thief to the authorities. Isubmit that the accused be given the maximum sentences.

## Reasons for sentences

A1 & A2 are first offenders both have got families to support. They have been on remand for a period of over 5 years but I am completely opposed to this idea of thief beating carried out in this country on mere suspecions. Once arrested the suspected thief should have been Each escarted to the authorities. / accused deserve a priscn sentence.

### Sentence

A1 and A3 are each sentenced to a term of 4 months imprisonment. $R/A$ explained.

(I. MUKANZA/) $J U D G E$ $5/12/90$