[2022] UGHCCRD 79

# The Republic of Uganda

### In The High Court of Uganda Holden at Soroti

# High Court Criminal Session Case No. 0022 of 2018

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Uganda :::::::::::::::::::::::::::::::::::

#### Versus

| 1. Ewaku Noah | | |------------------|---------| | 2. Ewaku William | | | 3. Enyeu Simon | <b></b> | | 4. Otwal Justine | | | 5. Enveu Joseph | |

Before Hon. Justice Dr. Henry Peter Adonyo

#### Judgment

The accused are charged with the offence of Murder contrary to sections 188 and 189 of the Penal Code Act Cap 120.

The indictment indicates that the accused on the $29^th$ day of May 2017 at Aboket village, Asuret Sub County in Soroti District with malice aforethought caused the death of Ewou Samuel.

The summary of the prosecution's case is that the accused suspected the deceased to be a witch and on 29/02/2017 between 2pm and 3pm while the deceased was at home in Aboket Village, Ocokan Parish, Asuret Sub County with his family members, one of his neighbours ran to them and warned them to run for their lives as the accused were heading to their

home with deadly weapons. The deceased locked himself in the house but the accused broke down the door, dragged the deceased out while assaulting him with pangas, hoes and sticks while demanding that he reveals that charms he used to bewitch A6's wife. The deceased was later taken to the home of a one Olupot where he was lynched to death. The deceased was taken to Soroti Regional Hospital and the post mortem examination indicated the cause of death as sever bleeding and cardio respiratory failure. The accused were arrested but they denied the allegations, however, during an identification parade they were all identified by a witness.

This court on 17.12.2020, ruled that the prosecution had established a prima facie case against all the accused persons and they had a case to answer. A1 and A2 elected to give unsworn evidence while A3, A4 and A5 elected to give sworn testimony.

In criminal cases, the prosecution has the burden and duty to prove the charges against the accused. The accused does not have to prove his innocence and can only be convicted on the strength of the prosecution case and not because of any weaknesses in his defence. (Section 101, 102 of the Evidence Act, Cap 6 and Woolmington Vs DPP [1935] A-C 462, Ssekitoleko v. Uganda [1967] EA 531)

The standard of proof required is beyond reasonable doubt. This standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused is innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).

In a case of murder, the following ingredients must be proved by the prosecution.

- a. That there was death. - b. The death was unlawfully caused. - c. The death was caused with malice aforethought. - d. The death was caused by the accused.

In the instant case, the post-mortem report proves the first two ingredients i.e. there was a death and it was unlawful. The cause of death is indicated as excessive blood loss and cardiorespiratory failure. The nature of injuries on the body to wit a cut throat, abrasions on the chin and forehead and bruises all over the back indicate that the murder was unlawful. Furthermore, it is trite that the law presumes every homicide to be unlawful unless it is accidental or excusable or authorised by the law. The circumstances that make death excusable include defence of person or properties. (Gusambizi Wesonga Vs R (1948) 15 EACA and *Uganda Vs Okello [1992-1993] HCB 68)*

Malice aforethought can be inferred from: -

- a. The nature of the injuries sustained. - b. The body parts targeted by the killer. - c. The nature of weapon/implement used on the victim.

In the instant case the post mortem report indicates that deceased had a cut throat almost transecting the neck, abrasions over the chin and forehead and bruises over the back. There was a green string around the deceased's neck. The evidence of PW1 also indicates that the deceased's teeth were shattered, he also recovered a blood stained stick from the crime scene.

Participation of the accused is done by adducing direct or circumstantial evidence placing the accused at the scene of the crime as perpetrators of the offence.

Direct evidence refers to evidence that stands alone to prove an assertion, it provides direct proof of a fact and doesn't require any type of inference. This is most commonly the evidence of an eye witness.

The Evidence Act under **section** 58 provides that all facts, except the contents of documents, may be proved by oral evidence. **Section 59 (a)** $\&$ **(b)** further provides that oral evidence must, in all cases whatever, be direct; that is to say—

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he or she saw it;

(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he or she heard it;

Circumstantial evidence, on the other hand, is evidence of surrounding circumstances which, through intense examination, is capable of proving a preposition.

The evidence relied on by the prosecution.

- i. Post-mortem report - ii. PF $24A$ in respect of the accused persons. - PF 69, Identification Parade Report. iii. - iv. Five prosecution witnesses.

PW1, D/AIP Otim Simon Peter testified that on 29/05/2017 he visited the scene of the crime and the body of the deceased was found lying on the back with severe injuries; the throat was cut, the teeth were shattered and there were other injuries all over the body. There was gauze wire on the

neck. He recovered a blood stained stick which could have been used for beating the deceased. The deceased's home was destroyed with the main door broken and bricks removed to access the inside, there were blood stains in the house and many household items were broken. On 30/06/2017 the five accused were arrested and brought to Soroti CPS and since there was need for identification he contacted police officers to assist in the parade and all five accused were duly identified by Ikoyo who was with the deceased in the house. It took long to arrest the accused persons because they were on the run. During cross-examination he stated that the blood stains were in the deceased's sitting room.

**PW2, D/AIP Otuko Silver** testified that on 02/07/2017 while on duty he was approached by PW1 who requested he carry out an identification parade. PW1 led him to A1 and after seeing his age, height and appearance and he looked for volunteers with similar features. Ikoyo Angela, a witness moved around slowly and touched A1 and she said A1 participated in beating the deceased to death. During cross-examination he stated that the identification parade was conducted in respect of A₁.

PW3, Ikoyo Angela Mirabu, the daughter of the deceased testified that she knows the accused persons, A₁ by name A₂-A₅ by appearance. On $29/05/2017$ she was at home and on that day A1 and Enyeu Joseph and informed her father that her mother had been hit with a panga. Her mother informed them that it was Ewaku Noah who slapped her with a panga and the matter was reported to Lcs. Later as they were eating lunch, her brother Adong Faustino came running and told us to ran away as Kumams were coming with pangas which led her to enter the house with her father. The accused beat her father in the sitting room, A1 beat him till he became weak. They destroyed all the properties in the house and she ran out leaving her father bleeding. Ewaku suggested that they kill her as

well but the others said she should be left alone because she was innocent. The deceased was kicked all over his body and cut on the face, he was then taken to Olupot's home but she could not reach there. She then ran to Ochen's home while raising an alarm and many people responded but since the accused were violent people feared. The accused were holding big sticks and Ewaku, A4 as well as Ewobu were holding pangas they cut the deceased all over the body. She only knew A1 and was able to identify one of the six people at police. During cross-examination she stated that the accused were brought out on one day and others differently. She further stated that she was together with her father in the sitting room for one hour and she ran out as he was being beaten. That the accused were once jubilating. During re-examination she stated that she only knew two accused by names and the rest by appearance and she identified six people at police.

PW4, Akwenyo Richard, testified that he is a neighbour of the late Ewou Samuel and on the 29/05/2017 he was at home which is 1/2 Km away from the deceased's home. At 2:00pm -3:00pm people gathered that the kumams had come to kill Ewou Samuel. He went to Olupot's home and found the deceased's seated and had been cut on the neck and he was weak. There were six people and the five accused in court were part of them and they were holding pangas and they killed Ewou when he was seeing. They then put gauze on his neck and pulled him to the swamp. He saw A1 cutting Ewou on the chest, A2 cut the deceased on the neck and he could not rescue the deceased because he had no panga to fight them. The deceased died and was dragged to the swamp by A2 and another person who is not there. During cross-examination he stated that there were 10 people at Olupot's place but six were armed and he only knew two names. He did not see the accused in police custody before he made his statement. PW5, Aliu Simon, the Lc1 Aboket Village, Asuret Sub-County testified that he knew the deceased and the 5 accused. On 29.05.2017 at 1:00 pm he was at home and the deceased's wife came and reported A₂ for beating her and he told her to report to Asuret Police. When he came back at 2:00pm she told him that the accused had returned from Lale and he went to the accused home of Ewou found the door and window broken with no one at home. He returned to Aboket at 4:00pm, police of Asuret arrived and asked him to show them the destroyed home. The mayor then told him that those people had already killed Ewou and dragged the body to the swamp.

DW1 (A1), denied killing the deceased. That he sleeps in Kamuda yet the death happened in Asuret and he doesn't know how the death happened.

DW2 (A2), denied killing the deceased and stated that he did not know about the death of the deceased because he was not there and was at his home in Obar village Lale Parish with his children.

DW3 (A3), testified that he knew all the co-accused, A1 is his father, A2, his brother, A4 his paternal uncle and A5 a son to his brother and A6 a son to his auntie. He denied knowing anything about the death of Ewou Samuel and that PW3 and PW4 lied to court about what they stated in court. That he heard PW4 stating he and the other accused cut the deceased but they were not allowed to speak. During re-examination he stated that he heard PW4 state that they killed the deceased but he was not allowed to state the truth which is that he did not participate in killing the late Ewou.

DW4 (A4), testified that he was at his home in Obar on the date of the murder and he did not even know the deceased and heard of his death over the radio. That he heard and saw PW3 and PW4 for the first time in

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court and what they together with all the prosecution witnesses stated in court were lies. A4 and A3 never saw him at the scene of the crime.

DW5 (A5), stated that he did not know anything about the charges against him and PW3 and PW4 told court lies. Court noted that he took long to think and answer. He claimed to be at home and does not know why the police arrested him.

DW6(A6), stated that he knew the deceased and a fight over his daughter Alyeto between him and the deceased caused his death. That on a Saturday in May 2017 he was going to the centre to meet Alyeto and they met at the borehole where he told her to go to his house but she instead told him to go to her home. While seated at her home her father called her and she did not reply but he convinced her to listen to her father who wanted to know what she referred to A6 as and she said he was her husband. This resulted in her father hitting her with a stick which was outside the door and she fell down unconscious. The deceased then came towards him with the stick intending to hit him which he did and they started fighting, during the fight he picked up the stick of about 2 or 3 inches in diameter and about 2¹/₂ feet and hit the deceased on the head and he started bleeding, he then picked a nylon stick (gauze wire) which was in front of the door and slung it around his neck and pulled him over 200 meters to the swamp and he stopped breathing 70 meters. That the deceased struggled but he was unconscious. He was alone with deceased and the girl and he did not see PW3 and PW4 around the area until when he was arrested. That after he left the deceased near the swamp he ran to Amuria district where he stayed for seventy months where he was later arrested. During cross-examination he stated that when he was arrested he did not tell the police anything and at that time he did not know that A1 to A5 were in court. That he hit the deceased only once with a stick and the bruises

on the back as well as the cut on the neck could have come as a result of him pulling the deceased. He denied knowing Ikoyo Angela (PW3) or PW4 and what they stated in court are lies except the fact of the body being pulled with gauze wire. That A1 to A5 were never present and did not have pangas, he also couldn't tell the distance from A1's home to where the deceased died because they are divided by a swamp. He continued to state that he stays with all the accused persons in the same compound. He claimed he could not immediately tell the police that he killed Ewou because they were very rough and he insisted that he committed the offence alone.

A2, A4 and A5 all raise the defence of alibi, that they were at their various homes on the day of the murder.

These accused persons are raising the defence of alibi which basically a defence that he was elsewhere during the commission of the crime.

The burden of proof as general rule never shifts whether or not the defence of alibi is raised to a criminal charge. (Sekitoleko V Uganda [1967] 1 $EA$ 531) The burden therefore lies on the prosecution to place the accused at the crime scene.

The sixth witness a convict who entered a plea bargain claims he murdered the deceased on his own.

The assessors overwhelmingly invited this Hon. Court to convict the accused persons on the basis that the prosecution had proved its case against them given the testimony of PW3 who told court that he knew well the accused persons who attacked them at their home while she was with her father with the accused following her father inside the house and by breaking windows and doors and eventually gaining access to the house from which the assaulted her father and eventually pulled the deceased

body to the swamp with the events taking place during day time and taking a whole one hour from start to end. The assessors informed court that this testimony was corroborated by PW4 who informed court of the positive identification of the accused persons as assailants.

Furthermore, the assessors told court that from the evidence of PW1, PW3 and PW4, the alibi raised by the accused persons that they were never there as supported by DW6 was destroyed by these witnesses' testimonies and the post mortem report.

For the accused were not only properly identified but were placed at the scene of crime as the real perpetrators of the offence.

Upon assessment of the evidence on record, I do agree with the opinion of the assessors that the accused persons were properly identified as the perpetrators of the heinous offence since the offence was committed during day time with the accused persons well known to PW1 and PW3 and especially PW3 whose testimony was considered by this court to be truthful and who had the opportunity to see all the accused persons given that she told court that the whole dastardly event took a whole hour. Her testimony was also steady and believable and was not destroyed during cross examination.

Further, I do not believe the testimony of DW6, a convict, who testified on behalf of the rest of the accused persons when he purportedly told court that he committed the offence alone and that none of the accused persons other than himself did so on the basis that PW3 was his girl friend and he attacked the deceased because of her and hit him and eventualy single handed dragged the deceasede body using strnds of gauze wire to the swamp.


This last part is completely unbelievable given the post mortem report as any pulling of a person with strands of nylon wires would have caused the head to snap off from the body yet only minor marks were seen on the neck of the deceased making me to rule out DW6's allegation that he used the gauze wire to single-handily pull the deceased to the swamp.

The alibi of the accused persons cannot be sustained as it is clear from me that PW3 properly identified the accused persons and squarely placed them at the scene of the crime given the fact that the accused persons were known to her before and the crime took place during day time.

From the positive identification of each of the accused persons, I am left with no other conclusion but to find that each of the accused persons, in concert, participated in the murder of the late Ewou Samuel and so given the direct evidence adduced, I would find that the prosecution has ably connected each of the accused persons with the offence.

Each of the accused is thus convicted accordingly with the offence of murder $c/s$ 188 and 189 of the Penal Code Act.

Hon. Justice Dr Henry Peter Adonyo

Judge

19^th October 2022