[2025] UGHC 324

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT SOROTI CRIMINAL SESSION CASE NO. 0210 OF 2022

UGANDA :::::::::::::::::::::::::::::::::::

## **VERSUS**

ESIEP RICHARD ::::::::::::::::::::::::::::::::::::

# Before: Hon. Justice Boniface Wamala

# **JUDGMENT**

#### **Introduction**

[1] The accused person in this case is indicted of Murder $C/S$ 188 and 189 of the Penal Code Act [now sections 171 & 172 of the Penal Code Act (PCA) Cap 128]. It is alleged that the accused on the 18^th day of July 2021 at Ajikdak "A" Village, Abirabira Parish Aperikira Sub County in Kaberamaido District with malice aforethought unlawfully killed Oluka Ivan. The accused denied the offence and the case proceeded for hearing.

#### **Representation**

[2] At the hearing, the state was represented by **Ms.** Nambozo Irene from the Office of the Director Public Prosecutions (ODPP) while the accused was represented by Mr. Olobo James Felix and Mr. Justine Okwalinga, counsel on state brief. The assessors in this case are **Mr. Erwaku Lawrence** and **Ms. Acheko Proscovia.** Neither the accused, his lawyers nor the state objected to the assessors' appointment.

# The Burden and Standard of Proof

[3] In criminal cases, an accused person is presumed innocent until proven guilty or until he or she pleads guilty; as provided for under Article $28(3)(a)$ of the Constitution of the Republic of Uganda. As such, the burden of proving each and every ingredient of an offence is always on the prosecution and never

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shifts onto the accused. See: *Woolmington v DPP [1935] AC 462*. The accused person is only convicted on the strength of the prosecution case and not because of weaknesses in his defence. See: Ssekitoleko v Uganda (1967) EA 531. Each essential ingredient of the alleged offence must be proved beyond reasonable doubt. However, proof beyond reasonable does not mean proof beyond a shadow of doubt. The standard is satisfied once any evidence suggesting the innocence of the accused person, at its best, only creates a mere fanciful possibility but not any probability that the accused is innocent. See: Miller v Minister for Pensions | 1947] 2 ALLER 372.

# The evidence in this case

#### *Agreed facts*

[4] The state and defence signed a memorandum of agreed matters wherein some facts were agreed upon, namely that;

a) The accused was a biological father to the deceased;

b) On 18/7/2021, the accused left home in the company of the deceased to go

to the lake for fishing and the accused returned home alone; and

c) The deceased was never seen again alive.

[5] The following documents were also agreed upon in the said memorandum, namely;

a) The post mortem report (PF48);

b) The accused's medical examination report (PF24A);

c) The sketch plan of the scene of crime; and

d) A set of 13 photographs.

[6] The memorandum of agreed matters was tendered and admitted in evidence in accordance with section 67 of the TIA. The agreed documents were admitted in evidence and marked as PE1, PE2, PE3, and PE4 (A-M) respectively.

#### The witnesses

[7] The prosecution led evidence of three witnesses. The accused made sworn testimony and called no other witness. PW1 was Oderu Joseph, a resident at Ajikdak A village, Aperikira S/C, Kaberamaido District. He was the LCI Chairperson of Ajikdak "A" village. He stated that he knew the accused as a resident within the same parish. On 19/07/2021, he received information that the accused's son had been swallowed by a crocodile. PW1 immediately rushed to the lake where he found people gathered. They conducted a search on the lake using a boat but did not get anything. The following morning, they went back to the lake and got the body of the deceased with his known clothes on while floating. They did not reach the body at that point and first called the police. The members of the public then turned violent against the accused saying that he had lied to them about the crocodile swallowing his son. They believed that the accused had killed his son. Prior to this incident, the accused had gotten angry with the deceased and had threatened to kill him. Meanwhile the police arrived at the scene at around 11:00am and allowed the residents to pick the body from the waters. When the body was brought out, it had no signs showing that it had been attacked by a crocodile. The body had a torch clasped in one of the hands. PW1 stated that in his experience, when a crocodile attacks someone, it always leaves injuries and cannot leave the body in the water. The crocodile does not eat within water but takes the body on the ground and eats it from there.

[8] PW2 was Eboyi John, a resident of Abwibwira B village, Aperikira Sub County, Kaberamaido District and a crime preventer. He stated that he knows the accused. On the fateful day, he was in Soroti for burial when he received calls from the GISO and O/C Aperikira police post about an incident that had happened in Abirabira parish. When he returned to the village, he was told by members of the public that a crocodile had attacked someone and they had $\overline{3}$

failed to recover the body. The next day, he and other members of the community went back to the lake and as soon as they reached, they saw a body floating. They got a small boat and went on the waters to establish whether it was the body of the deceased; which they confirmed it was. PW2 called the GISO and the O/C police and informed them that they had discovered the body. Members of the community became furious and wanted to beat up the accused since they believed that he had killed his son and lied that he had been swallowed by a crocodile. PW2 told the area LCI Chairperson to go and protect the accused as they waited for police. When the police came, the accused was handed over to them and they led the police to where the body was. The police authorized the people to use a boat and retrieve the body. The body was brought onto the land and it had a torch in one hand. The body was identified as that of the deceased, Oluka Ivan. The body had no sign of any attack by a crocodile as alleged. PW2 stated that he had seen crocodile attacks on three occasions. His experience is that if one is in a boat, it hits the head and then bites the stomach. When a person is walking, the crocodile targets the thigh. When it attacks a person, it does not leave the body in the same place. It was for those reasons that everyone around was convinced that it was not a crocodile that had attacked the deceased. PW2 also stated that before this incident, the deceased had requested him to talk to his father about his step mother mistreating him and denying him food. The accused had also beaten the deceased and threatened to kill him.

[9] PW3 was No. 580101 D/DCPL, Erigu Albert, a police officer attached to Tororo CPS. He was attached to Kaberamaido Police Station in July 2021 as the scenes of crime officer (SOCO). On 20/07/2021, he received information from the DPC to organize and go to visit a scene of crime. He went with a team led by the DPC, with the OC station and a team of investigators from the homicide desk. On arrival at the scene of crime, they found very many people at the scene, which was a landing site. He saw a body floating by the head and

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shoulder. He mobilized a small boat which he boarded with other six persons, went and retrieved the body. The body had a red torch clasped in its left hand and was putting on a red boxer and a black t-shirt which was torn around the neck. Blood was coming from the nose and on checking the neck, it was rotating beyond normal. The body had no external injury. PW3 took photographs of the scene at different stages and also drew a sketch plan. The body was put on the police vehicle together with the accused person who had been locked up in a certain house as the angry people wanted to lynch him, upon a belief that he had killed his own son. The body was taken for post mortem examination which revealed that the deceased had a broken neck joint. PW3 made a crime scene investigation report and from his observation, the allegation of the deceased having been attacked by a crocodile was not true since the body had no external injury on it. The accused was accordingly charged.

[10] In defence, **Esiep Richard**, the accused made a sworn testimony (as DW1) and stated that he was 39 years, resident of Ajikdak village, Abirabira parish, Aperikira sub-county, in Kaberamaido District. The deceased, Oluka Ivan, was his son. He died on 19/07/2021 from the lake at Abirabira landing site. On the fateful day, at around 1:00 am, the accused and the deceased left home and went fishing. The accused remained at the shore and the accused moved into the lake, walking, while casting the net. As the deceased was moving deeper, the accused heard a strange sound and he called the deceased to stop and come back. The deceased ignored him and continued. The deceased disappeared in water all of a sudden. The accused did not know what happened to him. The accused returned home and informed his wife. The following morning, they informed the community of what had happened. The accused denied having told anyone that the accused had been swallowed or attacked by a crocodile. Members of the community went to the lake and tried looking for the body in vain. On the second day, the body was found floating on

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the water. The body was handed over to the police. The accused said he did not do anything to his son and he could not have killed his son. He had no grudge with the deceased and they were on good terms. It is not true that he ever threatened to kill his son.

# **Submissions by Counsel**

[11] Counsel for the prosecution and the defence made and filed written submissions which I have adopted and considered in the determination of the matter before the Court.

# The law and ingredients of the offence

[12] Section 171 of the Penal Code Act Cap 128 provides that; "Any person who with malice aforethought causes the death of another person by an unlawful act or omission commits murder". Under Section 172 of the Act. any person convicted of murder is liable to suffer death.

[13] In the instant case, for the accused to be convicted of Murder, the prosecution must prove each of the following essential ingredients/ elements beyond reasonable doubt:

- a) The death of a human being occurred; - b) The death was caused by some unlawful act; - c) The unlawful act was actuated by malice aforethought; and - d) It was the accused person who caused the death.

# **Resolution by the Court**

# *The death of a human being occurred*

[14] Death may be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased, saw the dead body and attended the burial. See: Kimweri v Republic (1968) EA 42. On the case before me, it was agreed as a fact between the prosecution and the defence that on

$\mathbf{6}$ $18/7/2021$ , the accused left home in the company of the deceased to go to the lake for fishing and the accused returned home alone; and the deceased was never seen again alive. PW1, PW2 and PW3 stated in evidence that they saw the body of the deceased floating on water, they picked it out and put it on the shores. It was properly identified as that of Oluka Ivan, the deceased. The body was taken for post mortem examination and the report revealed that the cause of death was injuries to the spinal cord as a result of abnormal movement of the cervical bone which could have led to shock and eventually heart failure. PW3 also took photographs of the scene at different stages including the appearance of the body which were exhibited in court as PE4 (A-M). The prosecution has therefore proved beyond reasonable doubt that the alleged death occurred.

## The death was caused by some unlawful act

[15] It is the law that any homicide is presumed to have been caused unlawfully unless it was accidental or it was authorized by law. See: $R v$ Gusambuzi s/o Wesonga (1948) 15 EACA 65. In this case, the post mortem examination of the deceased's body revealed that the cause of death was injuries to the spinal cord as a result of abnormal movement of the cervical bone which could have led to shock and eventually heart failure. According to the prosecution evidence of PW1, PW2 and PW3, the accused had claimed that the deceased was attacked by a crocodile. This claim was, however, discounted by the prosecution witnesses and, indeed, denied by the accused in his evidence. There is evidence by the prosecution that positively asserts that nature of injury revealed by the medical examination was not consistent with the death of the deceased being caused by accidental or natural means. It was not consistent with the deceased having succumbed to an attack by a crocodile. In their submissions, defence counsel did not contest the fact that the death of the deceased was caused by an unlawful act. In light of the above,

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the prosecution has proved beyond reasonable doubt that the death of the deceased was due to an unlawful act.

## The unlawful act was actuated by malice aforethought

[16] Malice aforethought is defined by Section 174 of the Penal Code Act Cap 128 as either an intention to cause death of a person or knowledge that the act causing death will probably cause the death of some person. Malice aforethought is the state of mind of the accused person at the time of commission of the offence. In the case of Nanyonjo Harriet & Anor v Uganda Supreme Court Crim. Appeal No. 24 of 2002, the supreme court held that in case of homicide, the intention and or knowledge of the accused person at the time of committing the offence is rarely proved by direct evidence. More often than not, the court finds it necessary to deduce the intention or knowledge from the circumstances surrounding the killing, including the mode of killing; the weapon used – whether lethal or not; the manner in which the weapon was used – whether repeatedly; the part of the body injured – whether vulnerable; and the conduct of the accused before, during and after. The question is whether whoever assaulted the deceased intended to cause death or knew that the manner and degree of assault would probably cause death.

[17] In this case, there was no direct evidence by the prosecution showing the manner in which the killer blow was meted out to the deceased. However, there is circumstantial evidence by PW3 showing that when the body was retrieved from the water and on checking the neck, it was rotating beyond normal. The post mortem report revealed a broken cervical bone and injuries to the spinal cord as a result of abnormal movement of the cervical bone. I am able to draw an inference that such injuries could not be sustained from mere drowning. Prosecution evidence has also ruled out the possibility of a crocodile attack in the prevailing circumstances. It is apparent from the circumstances that lethal force was applied to the deceased before he died. Going by the injury found on

the deceased's body, I am convinced that the nature of the force used points to malice aforethought on the part of the assailant. Prosecution has therefore proved this element of the offence beyond reasonable doubt.

## It was the accused person who caused the death

[18] For the court to convict the accused, there should be credible direct or circumstantial evidence placing the accused at the scene of the crime as an active participant in the commission of the offence. In the instant case, it was an agreed fact between the prosecution and the defence that the accused person left home and went fishing in the company of the deceased and the accused returned home alone and the deceased was never seen again alive. The accused does not deny having been with the deceased before the latter died. The accused was, therefore, the last person that saw the deceased before he died. According to the prosecution evidence of PW1 and PW2, the information given by the accused immediately after the disappearance of the deceased was that the deceased had been swallowed or attacked by a crocodile. This information was discovered through investigation to have been false. The accused in his defence denied having given that information.

[19] Further evidence by the prosecution reveals that it was on basis of the first information given by the accused on the one hand and the appearance of the body when retrieved, on the other hand, that the members of the community became furious and wanted to lynch the accused. Evidence indicates that the appearance of the body ruled out the allegation that the deceased had been attacked by a crocodile. It left one explanation to the effect that the accused had lied about the death of his son and he must have been responsible for his death.

[20] In Busingye Paul & Anor v Uganda, Court of Appeal Crim. Appeal No. 048 of 2019, the Court of Appeal while quoting the Nigerian case of Moses Jua v the

State (2007) LPELR-CA/IL/42/2000, held that even though the onus of proof in criminal cases rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased. In this case, the explanation given by the accused for the disappearance of the deceased has been found to have been a lie. Coupled with the nature of injury found on the deceased's body when it was retrieved from the water, I am in position to draw an inference that the accused is responsible for the death of his son, Oluka Ivan. Prosecution has therefore led ample circumstantial evidence that has sufficiently placed the accused person at the scene of the crime as the perpetrator of the death of the deceased.

[21] The law is that where the prosecution case is based on circumstantial evidence, such evidence ought to be strong and reliable. Circumstantial evidence is evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics. For the court to base on circumstantial evidence to convict an accused person, it must be satisfied that there is no other reasonable hypothesis than that the accused person is guilty of the alleged offence. See: Mulindwa v Uganda (Criminal Appeal No. 95 of 2009) [2014] UGCA 86 (31 October 2014) citing Simon Musoke $v$ R [1958] EA 715 and Tumuhairwe $v$ Uganda [1967] EA 328. The evidence by the prosecution in the present case has attained that threshold and this element has been proved by the prosecution beyond reasonable doubt.

## Decision of the Court

[22] In all, therefore, I am satisfied that the prosecution has proved all the ingredients of the offence of murder against the accused person beyond reasonable doubt. In agreement with the opinion of the lady and gentleman assessors, I find the accused person guilty of the offence as indicted and I convict him accordingly. It is so ordered.

Dated at Soroti this 19^th day of May, 2025.

**Boniface Wamala** JUDGE