[1991] UGHC 44

## REPUBLIC OF UGANDA

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

CRIMINAL SESSIONS CASE NO. 39 OF 1991.

| UGANDA | | <b>*************************************</b> | PROSECUTOR. | | |--------|-----------------|------------------------------------------------|-------------|--| | | | V/s. | | | | | ADAM BARISIGARA | $\verb!zzzdzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz$ | ACCUSED. | |

BEFORE: THE HON. MR. JUSTICE J. W. N. TSEKOOKO:

## RULING:

The accused Adam Barisigara was indicted for murdor contrary to section 183 of the Penal Code Act.

Particulars of offence allege that the accused with others still at large on the 22nd day of August, 1988 at Rushoroza Catholic Mission in Kabale District, Murder/Rev. Sister Monika Bebwa.

It was admitted during preliminary hearing Under Section 64 of the Trial On Indictments Decree, 1971, that the deceased died through shooting with a gun. The key and only witness to testify for the prosecution was Rev. Sister Mary Rose Creegan, She testified that she shared a residence with the deceased but each slept in her separate room. Their rooms were separated by a dinning room and the living room.

She gave detailed and clear testimony about what happened on the fateful night of $22/8/1988$ . The creaking of the gate to their residence caused deceased and her towake up. They saw men outside the house. There was n moonlight outside.

Both her and the deceased eventually moved to the chapel within the same residence. The deceased was leading. The witness was following. There was no light in the house by then. The deceased touched the latch of the chapel window wanting to open it. Suddenly the deceased put up her arms and screamed in agony.

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Apparently she had been shot perhaps at very close range, but the witness did not hear the shooting. She, however, smelt gun powder. She then put her arms around the deceased. She also felt something ''touch" her upper part of her right arm. As it turned out she had also in fact been shot in that sport of the arm. The deceased slumped to the ground. The witness realised herself sitting on a stool. Latter she heard noise in the sitting room; She opened the door of the chapel only to see two people standing in the dinning room. They ordered her to come out and leave the deceased alone. They demanded for -moneys On. tier the two allowed her to light a hurrican lamp.

They again demanded for money. She collected her Wallet from her wardrobe and threw it on the table. At this stage she observed that one of the men had a gun and was dressed in Army Over Coat. The se-candman who. did nobwere military attire and had no beards was armed with a panga. The witness was ordered to return to her bed room and s-it on her bed. The armed man put the barrel of his gun on her throat and ordered her not to move. Then the two men turned onto the table with their backs towards her and carried away property from the table. The armed man then turned to her and ordered her not to move\* The evil men went away with the property.

The witness eventually gathered cour age, returned to the dead body. After confirming death of the deceased and after being certain that there was nobody around, she got out and proceeded to call Rev. Father Polycarp Ahurwendeiro who together with Father Zeno returned to the scene. Many people including nuns and nurses came and treated the body. She was asked if she could recognise the attackers. She couldn't. But she had ''observed" one of them.

Two weeks later she was called at Kabale Police Station where she was unable to identify anybody from among ²⁰ persons. One other person was brought from police cell. She was asked to look very carefully at the man. ''The man matched in height to the young man (who had a panga on the night of 22/8/1988) but I could not say that that was the man"\* I have quoted this sentence and the next one exactly in the words she testified • She stated further that "as the man was dressed differently I could not be sure that that was the man".

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Clearly the accused was not implicated by the evidence of the key and the only eye witness to the murder. Consequently Mr. Kikomeko, the learned Resident State Attorney, offered no farther evidence which in my considered view was the proper and best course open to him.

Mr. Zagyenda, learned counsel for the accused, submitted that there was no case for the accused to answer. In the circumstances of the case the learned State Attorney quite properly acceded to Mr. Zagycnda's submission. I acquitted the accused after that submission on 26/9/199I as I was satisfied that there was no evid&nce tixo-I reserved the matter to give my reasons to day which I now give •

Section ⁷¹ (l) of the Trial On Indvotmentis. DocreeFf1971 When the evidence of the witnesses for the prosecution has been concluded, and the statement or- evidence, if any, of the aocuood before the committing court has been giveoi -in evidence, the court, if it that there is no sufficient evidence that the accused ¹ committed the offence, shall, after hearing the advocates for the prosecution and for the defence,record a finding of not guilty\* " This provision deals with what is popularly called a finding of no case to answer.

There is no evidence showing that the accused made any statement before the committing magistrate. So no such statement was produced and there is none for consideration by this court.

The evidence of the key witness which I have summarised above does not in any manner incriminate the accused at all. In terms of Setion ⁷¹ (l) there was no evidence, leave alone sufficient evidence, that accused committed the offence. I was therefore obliged by the inactment to record a finding of not guilty against the accused and therefore acquit him. That is what I did on 26/9/1991\*

The witness who testified Speaks impeccable English in straight forward manner and I am sure that she used the same languarge when communicating to the police who investigated the case.

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I wonder how in the circumstances of this case the idea that the witness had identified the accused was ever included in the evidence leading to the indictment of the accused. In fact when I asked the Resident State Attorney to check on police file for the usual police forms used when holding identication parades so as to satisfy myself about what the form says, the Resident State Attorney frankly stated there were no such forms on the police file. I should observe that it is incumbent on officers preparing summaries of evidence to indict a suspect only when there is a prima facie case shown by either statements of witnesses or by circumstantial evidence or by both.

J. W. N. Teekooko,<br>J. W. N. Teekooko,<br>Judge,

$30/9/91$ : At 2.30 p.m. Accused absent becaused he was acquilted. Mr. Zagyenda for accused. Kikomeko Resident State Attorney. Muhiigo - Interpreter. Ruling delivered in open court.

J. W. N. Tsekooko,

Judge, $30/9/91.$

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