[2023] UGHC 485

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE HCT-11-CRIMINAL CASE -00180 OF 2019 (Arising from Kisoro No. AA-0032 OF 2018) (Arising from Kisoro CRB No. 1092 OF 2018) UGANDA** ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: **PROSECUTION** VERSUS **BASEMA IBRAHIM** ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: **ACCUSED**

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

## **JUDGMENT**

The Accused Basema Ibrahim stands indicted for murder contrary to **Section 188** and **189 of the Penal Code Act**.

It is alleged that Basema Ibrahim on the 07 /12/2018 at Natete trading center in Kanyogo village, Chihe Parish, Nyakinama Sub County within Kisoro District with malice afore thought unlawfully caused the death of Barugahare Cosmas. The Accused pleaded not guilty

# **Representation.**

Mr. Ainomugisha Christopher (Resident State Attorney) appeared for the Prosecution while Mr. Kibulirani Nicholas represented the Accused on state brief. The Assessors were Mr. Rwangeyo Joseph and Ms. Zeridah Sendegeya During the preliminary hearing sanctioned under **Section 66** of the **Trial on Indictment Act**, medical evidence in PF48A, PF48C and PF24A is the request for the post-mortem examination of a one Barugahare Cosma by D/ASP Innocent Mubawabi addressed to the medical officer Kisoro Hospital dated 11/12/2018 and received as Exhibit P.1.

PF48C is the post mortem report in respect of Barugahare Cosma conducted in a house where the body was wrapped in linen and identified by one Ndabahariye James to the examining medical officer Sengoma Benjamin on the 11/12/2018 and the report details that the superficial appearance of the body was that it was stitched with extensive multiple cut wounds involving the scalp and the cause of death was excessive hemorrhage due to the injuries to the scalp and the weapon likely to have been used to cause the said injuries was a sharp object.

The general observation was that the deceased had been hospitalized in different health facilities more so in Mbarara University teaching Hospital. The report was received as Exhibit P2.

The PF24 was in relation to the medical examination of the Accused conducted on 12/12/2018 and his mental status was found to be normal. The report was received as Exhibit P3.

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

The Accused pleaded not guilty and this being a criminal case the Prosecution has the burden of proving the case against the Accused beyond reasonable doubt. The 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.

The Accused doesn't have any obligation to prove his innocence and the onus is on the Prosecution to prove each of the ingredients beyond reasonable doubt before it can secure a conviction proof beyond reasonable doubt though doesn't mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the Accused at best creates a mere fanciful possibility but not any probability that the Accused is innocent.

#### **See Sekitoleko versus Uganda (196) EA 531**

## **Miller versus Minister of pensions (1947) 2 ALLER 372**.

#### **Ingredients**

The prosecution must prove each of the following ingredients beyond reasonable doubt for the Accused to be convicted of murder.

- **1. Death of a human being** - **2. That the death was caused by some unlawful act** - **3. The unlawful act was actuated by malice afore thought and lastly** - 4. **That it was the accused who caused the unlawful death**.

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

Death may 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 Deceased's body.

In the instant case PW1 Antony Kwarituha-PW2 Habyarimana Ernest and PW4 Ndabahariye James the father of the Deceased Barugahare Ernest all testified that the Deceased died on the 10/12/2018 at Mbarara Hospital and that they attended his burial. Their evidence is well corroborated by the post mortem report in Exhibit P2.

Indeed the accused in his defence did not dispute the fact that Barugahare Cosma is dead.

I therefore find that the Prosecution has proved the death of Barugahare Cosma beyond reasonable doubt.

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

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

#### **See R versus Gusambizi S/o Wesonga (1948) EACA 65.**

It is the evidence of PW1 and PW2 that on the night of the 07/12/2018 they found the Deceased Barugahare Cosma lying on the ground bleeding from the head just above the ear and that he could not talk. It is their evidence that he was admitted in hospital and later died. The post mortem report in Exhibit P2 indicates his cause of death as being excessive hemorrhage due to injuries on his scalp.

I am sufficiently satisfied that the death of Barugahare Cosma was neither accidental nor authorized by law.

I find that the prosecution has proved beyond reasonable doubt that the death of the deceased was caused by some unlawful act.

I will deal with the 3rd and 4th ingredients

# **c) That the unlawful act was actuated by malice aforethought and the Accused is responsible.**

Under **Section 191** of the **Penal Code Act** malice afore thought may be proved by direct evidence indicating knowledge that the conduct of an Accused would probably cause the death.

Malice afore thought in murder trials can be ascertained from the weapon used (whether it is a lethal weapon or not) the manner in which it is used (whether it is used repeatedly or the number of injuries inflicted).

The part of the body that is targeted or injured (whether or not it is a vulnerable part) and the conduct of the accused before, during and after the incident (whether there was impunity).

#### **See R versus Tubere (1945) 12 EACA 63.**

It is the evidence of Antony Kwarituha (PW1) that on the 07/12/2018 he was in Kanyogo village operating his bar at around 11:00pm and that some of his customers included the Accused Habyarimana Ernest and the Deceased Barugahare Cosma.

According to PW1 the Accused bought 2 mandazi's for a girl and sat down with her but that the Deceased demanded to know what the girls were doing in the bar saying that they cause evil and ended up chasing the 3 girls who were in the bar including the one who was in the company of the Accused. It is the evidence of PW1 that the Accused then punched the Deceased but he did not see where the punch landed and that the Deceased chased the Accused and the two disappeared from his sight.

The narrative of PW1 appears to be contradicted by that of Ernest.

Habyarimana (PW2) a cousin brother to the Accused who testified that on the 07/12/2018 at 11:00pm he was drinking Mukomboti in Antony's bar in the presence of Antony and the Deceased Cosma when they were joined by the Accused who had been drinking elsewhere when they were joined by two girls who had been drinking elsewhere and two girls who had been from fellowship came into the bar to buy mandazi.

According to PW2 the Accused then moved out and was followed by the Deceased Cosma and that an alarm was raised by one of them but that PW2 was not sure who actually raised the alarm but that the two of them started to fight.

PW2 states that he moved out with Antony and that they separated the two and he told the Accused to go back to the bar where he had been drinking as the Deceased Cosma remained with them and that the Accused then went back to the bar and sat and he went back to Antony's bar with the Deceased Cosma. That Cosma then decided that he was going home and left him with Antony inside the bar.

The contradiction between the evidence of PW1 and PW2 is majorly on how the Accused and the Deceased exited Antony's bar on the night in issue.

According to PW1 it was by the Accused and Deceased engaging in a fight followed by the Accused chasing the Deceased into the night while according to PW2 the Accused and Deceased were separated during the fight and left at different intervals.

I will resolve this contradiction in the 2nd part of my analysis of the evidence of PW1 and PW2.

According to PW1 it was almost mid night and he was asked to keep the Deceased's motorcycle when he heard someone groaning and that he was with Habyarimana (PW2) and so they went closer and found that it was Cosma.

He was lying down with a small torch on the road leading to Kihe with a wound to his head just above the upper ear and that he was unable to speak but could node his head up when asked questions and that when they asked him if it was

the Accused Ibrahim who had beaten him he nodded his head up and down indicating yes and that they arranged for him to be taken to hospital but he died a few days later without being able to communicate further.

PW2's evidence is similar to that of PW1'S he testified to leaving Antony's bar at around 11:30pm and on his way around the junction to Chihe he saw a light given by a torch and decided to call Anthony (PW1) and that they moved together and found that it was Cosma lying down and injured above the ear from which he was bleeding and could not speak.

According to PW2 he asked Cosma who had injured him and that he moved his head and arms showing that they had been fighting.

PW2 states that they then organized for him to be taken to Hospital where he later died.

The Accused in his sworn defence testified that on the night of the 07/12/2018 at 8:00pm he went to Antony's bar where he was with Habyarimana (PW2) the late Cosma and some girls who were not known to him. According to the Accused after sometime Habyarimana moved out with the girls and was followed by the Deceased Cosma and that he heard noise of people fighting and decided to move out where he found Cosma beating one of the girls and that Habyarimana (PW2) was pleading with him to stop.

According to the Accused he also tried and separated them and the girls ran away. The Accused further states that after this the Accused Cosma and Habyarimana went back to the bar while he went back home to sleep. According to the Accused he left the bar at 9:30pm and arrived home at 10:00pm. The Prosecution witnesses he states told lies against him.

The Prosecution and the defence witnesses all testify to a fight breaking out in Antony's bar on the night in issue of the 07/12/2018

I do not believe the version put toward by the accused that it was the Deceased Cosma beating one of the girls that required him and the others to separate them. PW1 and PW2 were both emphatic that the fight was between the Accused and the Deceased Cosma.

I am prepared to accept the testimony of Antony that the fight broke out when the Deceased Cosma chased the girls from the bar including the one that the Accused had purchased Mandazi's for and was holding a conversation with. I am persuaded that it is this disruption that caused the Accused to attack them by throwing a punch at him and chasing him into the night.

I reject the version of PW2 a cousin brother to the Accused that the Accused and Cosma were separated after the fight with Cosma returning to their bar and the Accused going to their bar and Accused going into another bar and that the Deceased Cosma later left for home on his own. I find this version to be false on the premise that the late Cosma a boda boda rider left his motorcycle behind and according to PW1 it was almost midnight and he had decided to keep it in his bar. The Accused's Counsel tried to cast doubt on the truthfulness of this statement submitting that PW2 did not make reference to the motorcycle being left behind. I do not find this omission to be fatal. PW1 was the owner of the bar and in closing noticed that the motorcycle of the Deceased was still at his bar. I accept his evidence to be true. The only logical explanation given these set of facts is that Cosma left the bar leaving his motorcycle behind and this is because he was being chased by the Accused and the two of them disappeared into the night.

The Prosecution has not presented eye witnesses as to who caused the injuries suffered by the Deceased Cosma on the night of the 07/12/2018

According to both PW1 and PW2 the Deceased could not talk when they found him later that night.

PW1 testified that when he asked him, if it was the Accused Ibrahim who had injured him, he nodded his head up and down indicating yes while according to PW2 when he asked the Deceased Cosma who had injured him he moved his head and arms showing that they had been fighting.

Counsel for the Accused submitted fervently that neither PW1 nor PW2 had any qualifications in sign language and as such were incapable of properly interpreting the signs given to them by the deceased Cosma.

Counsel rightly submits that the two witnesses had no qualifications in sign language and they admitted as much when he cross-examined them.

The issue here is whether having no qualifications in sign language in any way incapacitated PW1 and PW2 in properly interpreting the signs of the Deceased Cosma in the night in issue.

According to Habyarimana PW2 under cross-examination he knows the signs for yes and no.

Antony (PW1) states that when he asked him if it was Ibrahim the Accused who had assaulted him he nodded his head up and down indicating yes. I find these to be simple, common and natural communication gestures that are used in day to day conversations that do not require any training for one to be able to interpret. It would appear that the Deceased used more than one mode of communication because when PW2 asked him who had injured him he moved his head and arms which to PW2 was an illustration that he had been involved in a fight. The only fight that was witnessed that night was the punch thrown by the Accused to the Deceased as testified to by PW1 before they run into the night.

The Picture of what really transpired after this appears to only be clear between the Accused and the Deceased Cosma.

The evidence on record is therefore largely circumstantial.

The supreme Court in **Mabira Siragi & Anor vs Uganda SCCA No.87 of 2004** held that "*In a case depending exclusively on circumstantial evidence the Judge must find before deciding upon a conviction that the exculpatory facts where incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than the guilt"*

While the Court of **Appeal in Mugambe Francis versus Uganda CACA No.60 of 2011** in regard to circumstantial evidence held that the facts must be closely knitted and must carry conviction to the mind of the Judge.

According to the PW1 the time difference between when the Accused punched the Deceased and the two run into the night and when they found the Deceased injured was roughly one hour. I find this time frame short enough to link the accused and the Deceased.

I do not accept the defence of the Accused that he made his way home from the bar at 9:30pm and arrived at 10:00pm. The evidence on record that I find to be true is that as late as 11:00pm the Accused was still in Antony's bar. The conduct of the Accused in disappearing after the Deceased was assaulted and later barricading himself in his house where he was arrested from points irresistibly at his guilt.

The Court **in Teper 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 c0-existing circumstances which would weaken or destroy the inference"*

I have not found co-existing circumstances which would either weaken or destroy the inference of the accused's guilt.

The Prosecution has been able to discredit the defence of alibi put up by the Accused and placed him at the scene of crime committing the crime.

The central issue now is Whether the actions of the Accused were actuated by malice aforethought.

The assessors in their opinion to this Court found that the Prosecution had not proved that the Accused intended to cause the death of the Deceased although they held him responsible for the death.

As already indicated above malice afore thought can be ascertained from the weapon used, the number of injuries inflicted and the part of the body that is targeted or injured.

## **See R versus s Tubere [Supra]**

According to the post mortem report in Exhibit P2 the Deceased Cosma suffered extensive cut wounds involving the scalp and they were likely to have been caused by a sharp object.

The head is a sensitive part of the body and targeting this part goes to show that the Accused was seeking to impact greatly on his victim.

However according to PW1 even if he saw the Accused punch the Deceased Cosma he did not see actually where that blow landed.

Both PW1 and PW2 also testified that they did not see the Accused holding a sharp object as he fought with and chased the Deceased.

It is also imperative to note that the evidence on record shows that both the Accused and Deceased had been drinking in Antony's bar and had done so for some time before their physical engagement. While intoxication was not raised by the Accused as a defence and rightly so because there is no evidence that the Accused and Deceased had taken enough alcohol to impair their sense of Judgment, will none the less consider the circumstances of this case as a whole.

After considering the evidence adduced by the Prosecution and defence together it is my finding that the Prosecution has not successfully proved the offence of Murder Contrary to **Section 188** and **189** of the **Penal Code** Act against the Accused and I acquit him of the same.

The Prosecution however in agreement with the assessors has successfully proved beyond reasonable doubt the offence of Manslaughter Contrary to **Section 187 and 189 Penal Code Act** and I accordingly find and convict the Accused of the same.

Before me,

…………………………………. **Samuel Emokor Judge 21/6/2023**