[1991] UGHC 29

## THE REPUBLIC OF UGANDA

1. JUSTICA COUPLER AND

IN THE HIGH COURT OF UGANDA HOLDEN AT FORT PORTAL CRIMINAL SEESION CASE NO. 100 OF 1990

UGANDA::::::::::::::::::::::::::::::::::: $-$ V E R S U S $-$

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FILI YOFESI::::::::::::::::::::::::::::::::::::

BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA

## J U D G M E N T

Fili Yofesi hereinafter referred to as the accused person stands indicted of the following offences:-

On count 1 the accused was charged of Kidnapping with intent to Murder contrary to section 235 (1) (a) of the Penal Code.

Whereas on counts II and III he was charged of Murder contrary to sections $183$ and $184$ of the Fenal Code.

The allegations being that on or about 13th day of December 1985 at Kihoka village, Bwera county in Kasese District the accused together with one Valentino Mutoro seized and forcefully took away one Muhindo Musubaho against his will in order that he may be murdered or may be so disposed of as to be put in danger of being murdered.

The particulars further alleged that during the year 1985 at a place called Kyabahondo village in Rwenzori mountain in the same District of Kasese the accused person murdered one Muhindo Musubaho and one Sunday Kayangwa.

The prosecutions case was that P. W.1, P. W.2 & P. W.3 had known the accused before as a soldier in the Rwenzunuru movement which movement they referred to as used to loot peoples properties and kill them.

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It had its -headquarters in Rwenzori mountain- It was ^a movement which fought the then Toro Government-

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On 13/12/1985 at around 8-30 a.m. P. W.1 went in the morning to see her father in law called Muhindo Musubaho who was sick. The latter was the father ofP-W.2 and a brother to P. W.3\* She did not find him at home. Soon thereafter he saw the accused person and another person a stranger she did not know asking for the whereabouts of Muhindo Musubaho. Those people found her in the court yard. The accused was dressed in the <Rwensurv.ru> army uniform and was armed with a spear whereas the stranger was dressed in civilian clothes. She replied those people that she did not know where Musubaho Muhindo had gone. After ^a while the latter emerged from the garden. The accused ' ^v and the stranger saw him. They rushed at him and arrested him (Musubaho Muhindo) as he was coming from the garden. Muhindo enquired from the accused and the stranger why they were arresting him and the accused replied that they had the powers to arrest him and that they had been sent by the Rwenzururu Government; Muhindo resisted the arrest asserting that he had no fault. Consequently the accused aimed a spear at him and the latter raised up his hands begging for mercy. They then demanded money from Muhindo so that they could release him. He gave them the money but still they did not release him. The accused and the stranger took part of the money and the rest they returned to Muhindo on the pretext that he would use that money to buy some food while on the way to the mountains. According to P. W.1 the assailants further informed Muhindo that they had been sent by one Volontino Mutoro. He was marched away to the mountain.- She tried to follow them but theyru-"i sent her away..

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**th-©** matter immediately to her husband P. W. ² and ralo. Maseruka P. W. J.

P^'<;,2 and P<W.j responded to the report made by P. W.1. They followed the accused to the mountains. They were able to intercept Muhindo Musubaho and his captors. The accused was still dressed in army uniform' and was still armed with ^a spear. They tried to find out why Muhindo had been arrested but they were told to go away and wait for the results•

According to P. W.1 and P. W. J on 25th December, \*>9&5 Muhindo Musubaho accompanied by the accused still armed with ^a spear was escorted back home and was allowed to have his-Xmas feasting -and then- .were- baken. awayt

On 27th December, 1985 P. W.1, P. W.2 and P. V-/.3 receiir-ed irtf**ornation.** that Musubaho had been killed. P. W.2 and P. W. J and very many other people up into th© mountains, in order ba-c-oll-ect th-e- body. They found him. still alive. He had ^a gun shot wound right through the face to the back of his head. He was found lying in the bush surrounded Ly the Rwenzururu soldiers some of whom were armed with guns and others ■with spears. J1e was in a comma. The accused was not there.

Musubaho was taken to the Hospital for treatment and on >4/1/^986 he died. P. W.1, P. W.2 & P. W. J testified positively that there was a land dispute between Musubaho and one Volontino Mutoro who was- a County chief in the Rwenzururu Movement.

was The case for the defence was that the accused/a Rwenz ururu soldier when Erimangoma the rebel leader was in power. He joined the latters forces in February, 1977 and stopped being a soldier in **i9-&2.**

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That was when he came down from the mountains because he had lost energy and had grown old. He knew Volontino Mutoro as an elder and had no relationship with him. He was not a member of the Rwenzururu movement. He knew Muhindo just as he knew Voluntino Mutoro. He knew P. W.1 but had him never known/before P. ^W. 2 and P. ^W. 3

On 13/12/1985 he was at his home busy digging. He .did not go to the home of Muhindo Musubaho and arrest him. What the prosecution witnesses 'told court were ^a pack of lies. During Christmas of ¹⁹⁸⁵ he was at home together with his family. He did not go to the home of Musubaho Muhindo. He conceded however that there was a grudge between Volantino Mutoro and Musubaho Muhindo.

During Erimangomas time (rebel leader) he was given uniform and when he left he returned them. He explained that the purpose of the movement was against Batoro. The latter had refused to get them posts in the administrations, places in secondary schools, Hospitals and many other good things but because of the movement they are now admitted in schools.

Before proceed toevaluate the evidence on record it is pertinent to note that the burden of proof in this case just as it is in other criminal cases rests upon the prosecution to-prove the charges against the accused person beyond reasonable doubt. This burden does not shift except in a few casesthe instant case not being one of> those fewer exceptions. See Uganda v Sebyale & others 1-969-EA 204\ Joseph Mutegasira Kiiza and another vs Uganda 1978 HOB Pi 2-79.- -Woolmington vs fePP 1935 AC ^62.

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The offence of Kidnapping or detaining with intent to murder contrary to section 235 (1) (a) is committed by a person who by $\tau$ force or fraud kidnaps, abducts takes away or detains any person against his will with intent that such a person may be murdered or may be so disposed of as to be put in danger of being murdered. It has to be astablished by the prosecution therefore that there was the forceable seizure and taking away of a person against his will and also the prosecution must prove that at the time of the kidnapping there was a contemporaneous intent that the victim be murdered or put in danger of being murdered. See Geoffrey Tinkamanyire & another Cr. App. No. 5 of 1988 SCU. And the offence is completed when the person is seized & taken away Grace Kimezi vs Uganda Cr. Case No. $3/1979$ CAU.

In the same breath S. $235(2)$ of the same Act permits the trial court to/ presume the necessary intent required by section 235 $(1)$ (a) if the kidnap victim has not been seen for a period of six months or more.

Whereas in murder charges the prosecution has to prove also beyond reasonable doubt that the accused caused the death of the deceased with malice aforethought as stipulated under section 186 of the Fenal Code.

Turning to the first count of Kidnapping P. W.1 testified that while in the court yard of Muhindo Musubaho during morning hours, armed with a spear and together the stranger arrested the accused $\cdot^*$ saying they were looking for him and that he was required by the Rwenzururu Government. Muhindo resisted the arrest saying he had done no fault but the accused aimed a spear at him, Muhindo raised up his hands begging for mercy and then was marched away.

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1his defence the accused denied the offence. He testified he was a member of the Rwenzururu movement from ¹⁹⁷⁷ " 19^2 so that when this incident happened he was no longer a member of the movement. He raised up an alibi that on the material date he was at his home busy digging and that even on Xmas day 1985 he was in his home.

It is trite law that an accused who puts up an alibi as ^a defence to a criminal charge does not thereby assume the burden to prove his alibi but the burden lies on the prosecution, to destroy and or disprove the alibi by placing the accused person at the scene of crimes. See Sekitoleko vs Uganda 19&7 ^B^a 5>1. Uganda vs Katise 1975 HCB T.

P. U.1 testified that the assailants as soon as they saw Muhindo emerge from the garden they rushed.at him and arrested him. Muhindo resisted the arrest. The accused aimed a spear at him (He wanted to spear him); as a result Muhindo raised his hands gave in and was escorted away. Uas this evidence of forcible seizure and taking away Musubaho by force and against his will? P. W.1 did not say that Musuba b/as grabbed or forcefully seized by the accused and the stranger but mere]. said immediately they saw him. They rushed and arrested him\* The deceased resisted the arrest.

The concise Oxford Dictionary defines arrest (Verb tense) as stop growth motion, moving person or thing progress of disease, or decay , stay proceedings after verdict on ground of error, (2) Seize (person or) ship especially by legal authority and extra (whereas the noun of the ear means stop check cardiac heart,seizure, legal apprehension^

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My finding therefore is that although P. U.1 did not say that Muhindo was forcefully seized and taken away and fortified by the cefination of arrest Supra. I am satisfied that the accused and the stranger forcefully seized Muhindo and took him away against his will. He protested when arrested. He was threatened with a spear and raised up his hands in resignation therefore the accused deniels that he did not do that were lies. ^I further find that the accused w.as still ^a member of Rwenzururu movement when he seized and forcefully took away the said Muhindo against his will, ' "A

r.w.1 was the sole eye witness to the kidnapping\* I warned myself and the gentlemen assessors the danger of convicting the accused on the evidence, of a single witness as per the guidelines given m ^Rorias case 19^7 EA ?8j. To ensure that F.fM's identification cf t?-. ■». accused at the time was free from possibility error there were the following factors. The incident book place during broad day light\* It was around 8. JO a.m. The accused was known to the witness and in his evidence the accused as DW1 testified that he had known before. The incident was on for.a long time and it was reported to P. W.2 &P. W. J who corroborated P. W. T's evidence. P-. W.2 & P. W. J responded to the report and followed the accused and the stranger whom they intercepted up in the hills. Musubaho was found with them.

Both the accused and the stranger had a common intention as stipulated under S. ²² of the fenal Code and both are equally liable for the kidnapping of the victim. The motive for this kidnapping was the land dispute between the deceased and one Volontino Mutoro a county chief in the Rwenzururu movement as testified to by E. W.1, F. W.2 and F. W. J. The accused though denied the offence he at one stage in his defence admitted that there was a grudge between Musubaho Muhindo and Volontir.o Mutoro. - " ' *\_ . .../8*

There was evidence from P.fe.1, P. W.2 and P. Vv.3 to the effect tr\*...t cr .. accused told those prosecution witnesses that he was sent by the .tezururu Government and that Mutoro Volontino had sent them. Those orders here to say the least unlawful because the Rwenzururu movement was notorius for killing people looting their properties and fought against the established Government of Toro. It ' was in my opinion an illegal organisation and orders made by it were also illegal.

.hs to whether there was an intent that the kidnap victim be murdered or may be disposed of as to be put in dangef of being murdered, the accused was a member of the kwensururu Movement which was famous for killing people for no good reason. The people kidnapped by the Pwenzururu were either killed or returned alive. Volontino Mutoro county chief in the ¹ movement had a grudge against Musubaho Mutoro. The accused came armed with a spear to ensure that Musubaho did not resist the arrest. This intent was rooted in some factor contemporaneous with the taking away and became more clearly with the events which followed the taking away See Faddy Kalenzi vs Uganda cr. App. Mo. *li/88* S. C. U (Unreported). From ^w^h at \has been been'explained it is the considered opinion of this court that the accused had the requisite intent as stipulated under section 235 (1) (a) of •' •. the Fenal Code Act.

as stated earlier S. ²³⁵ (2) presume the necessary intent ^k if the victim has not been seen for ⁶ months. In the instant case the offence was committed on 13/12/1985\* At that time the Penal Code had been amended by Act 9 of 'ir>QL /-h came into force on 5/10/198^. The court would have therefore presumed intent but on 25/12/1985 almost two weeks after Musubaho had been kidnapped the latter was seen alive by both F. V.'. I and P. W.3 when he was being escorted by the accused. Musubaho was taken home and had his Christmas after which he was taken away.

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*8* Froffi what hsic b-oen explained above I have not been able to presume the said intent as permitted by the Act,

There is hoe-ever one other point which could not escape comment by the court Volontino Lutoro was charged jointly together with the accused on this count of Kidnapping. There was no evidence that he was anywhere near the scene. He was not with the accused on 13/12/1985\* The accused was together with ^a stranger who was not Volantino Hutoro.'The latter was not liable for prosecution under S. ²¹ of the Penal Code as a principal offender. I am of the view that his inclusion in the indictment was superflous. That did not however prejudice the accused in his trial who knew all the time that it was the stranger and not Mutoro Volontino with whom he kidnapped the said Musubaho as per the evidence of the prosecution witnesses.

Having disposed of the first count I now proceed to consider the second count. The prosecution has to prove that Musubaho Muhindo is dead and that it was the accused and him alone who caused his death.- That in so acting the accused had the requisite malice aforethought as stipulated under section 186 of the ^enal Code *See.* also Senton go & Sebugwawo vs, Uganda 1975 HCB 2^0.

The evidence connected with this count is purely circumstantial since there was no eye witness to the incident. It is trite law therefore that in a case depending exclusively upon circumstantial evidence the court must befone deciding upon a conviction find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis that that of guilty; Simon Musokev 19?8 P. 715\*

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The fact that Musubaho Muhindo is dead -is- no longer in dispute P. W.2 and P. W. J received a report on 27/12/1985 "that the deceased had diecLT^hey together with other villagers went up in the mountains. They found him with ^a bullet wound on the head and was still alive\* The deceased Musubaho was taken to a Hospital for treatment and passed away on 11/1/19.86. There was no postmortem examination as to the cause. of deash and no explanation was given why no postmortem examination of the body was given but there is no doubt in my mind that the accused died as a result of violent act. He was found in the bush with a wound on the head. The question however this court has to resolve is who caused his death?

\* »

P. W.1 testified that the accused and ^a stranger arrested the deceased Muhindo and took him away. Accused was armed with a spear and was a member of an organisation reknown for killing and looting people's properties (The Rwenzururu Movement). P. W.1 reported the incident to P. W.2 6c P. VJ. J who intercepted the accused and the stranger taking away the deceased. Fourteen days afterwards P. W.2 & P. W. J on information received went up in the hills whereby they found Musubaho Muhindo with ^a bullet wound on the head. He was surrounded by Rwenzururu soldiers. Some were armed with guns and others with spears. They were in the bus:. The accused was not there. The indictment alleged that the offence was committed in the year 1985 but according to P. W.2 & P. W. J this could have been between 27/12/1985 Sc 11/1/1986.

In his defence the accused testified that he is ^a member of the Rwenzururu Movement during Erimangcma time from 1977 - 1982 so when this incident happened he was nc longer a member of the Rwenzururu Movement and never killed Musubaho. I have already found that the accused

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waft a member of th-e Bwerrzururu Movement when he kidnapped Musubaho.- The accused and the stranger led the deceased away in the mountains on 13/12/1985 as per the testimonies of P. W.1, P'. W.2, & P. W. J. The deceased was not killed immediately. He remained alive from 13/12/1985 to 27/12/1985 when he was seen by P. V.'.2 & P. W.3 with bullet wound and finally passed away on 11/1/1986. Evidence was lacking tc she;; that Musubaho Huhindo had been in the custody of the accused from the time he was kidnapped up to the time he was found with gun shot wounds. Cn two occassions the accused was seen armed with spears. P. W.1 saw- him armed with a spear when he came to arrest the said Musubaho with ihe stranger. Also P. W.2 and P. W.3 who followed the accused Musubaho and the stranger up in the mountains found theaccused armed with a spear and even when the accused escorted thesaid Musubaho back home for Christmas he was still armed with ^a spear. When P. W.2, P. W.3 and others went to collect Musubaho and thus take him for treatment he was feund • with a bullet wound as ppposed to a spear wound and was surrounded by soldiers armed withguns and others were armed with spears. The accused was net there. There is a possibility that Musubaho was shot by one of the soldiers armed with guns. I see no common intention of the soldiers and the accused in murdering Musubaho as stipulated under section 22 of the Penal Code.

The inculpatory facts therefore are compatible with the innocence cf the accused and capable of explanation on any other reasonable hypothesis than that of guilt. The inculpatory facts do not point irresitably to the guilt of the accused person.

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The learned State Attorney referred me to the case of basereka al¹ ^s\_. Kapumpa court Criminal sj:ss.iou. Qase K.p.#. 45/1990. urtegported, decided by this court where the accused a member of the Rwenzururu Movement was ccnvicted of kidnapping and murdering the deceased. The facts in thrt case are somehow distinguishable from the instant case as regarded the murder charge. The victim in that case was seized and taken away by the accused and other members of the Rwenzururu movement. The accused Wc s armed with spears and other members of the gang had ropes and extra. The accused was tied with ropes and taken away up in the mountains during broad day time. After an interval of just two hours after he had been marched away he was found dead with spear wounds. His body was found in the mountains.. The court in that case found that the circumstantial evidences irresistably showed that the deceased died at the hands of the accused and his gang and was convicted of Murder, In the instant case the deceased after being taken away was found with bullet wounds as opposed to spear wounds and that was after an interval of fourteen days from the time the victim was kidnapped. I am afraid the principle as enunciated in Masereka alias Kapumpu'^s case as regarded the murder charge did not apply to the instant case. I find that according to circumstantial evidence the accused never caused the death of the deceased and of course never also had the requisite malice aforethought although this follows more readily where a lethal weapon is used on the vulnerable part of the deceased as was in the instant case Musubaho ' s head See Tubere g s/o Ochan vs Rex 194-5 1g EACA F,. 6?,

This now brings me to consider the third and last count of the indictment. The learned State. Attorney representing the State conceded •;nd rightly to that the- prosecution had failed to adduce evidence to she\* -hat the accused caused the death of Sunday Kayangwa and advised me to acquit him of the charge. There is not the slightest evidence from the prosecution witnesses to connect the accused person with the commission of this offence. The course taken by^the prosecution was therefore in

**\3** in my view the best in the circumstances. There might b-.fefl discrepancies in the prosecutions case. It had been held that only grave inconsistences if not explained satisfactorily will usually result in the evidence of a witness being rejected minor incosistences will not usually have that effect unless they point to deliberate untruth fulness. See Leonar^d Aniseth ^v ^R 1963 at P. 206. Tajir ^v ^R EACA Cr. App. No. 167/169 Uganda vs Dusmani Sabuni HMB Vol. 13 1981 T. 1. I am of the opinion that whereaver these inconsistences/contradictions occurred in the prosecution's case they should be ignored as being minor and they did not amount to deliberate untruthfulness. The evidence for the prosecution witness should not therefore be rejected.

from what has been explained above the prosecution has proved beyond reasonable doubt that the accused committed the offence under the first count kidnapping with intent to murder contrary to section 235 (1) (a) of the Penal Code and I am therefore ageeable with the unanimous opinion of the gentlemen Assessors that the accused be found guilty as charged. The accused is therefore found guilty of the offence of Kidnapping with intent to murder contrary to section 235 (1 ) (.a) of the Penal Code Act and i convict him accordingly.

The prosecution has however failed to prove beyond reasonable doubt that the accused committed the offence of murder in the second count. I do not agree with the unanimous opinion of the gentlemen assessors therefore that the accused be convicted as charged. The gentlemen assessors seem not to have taken into account the law of circumstantial evidence as summed up to them by the court..^I found the accused not guilty of the offence of Murder contrary to section 183 and 184 of the Penal Code and I acquit him of the charge forthwith.

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**x th® accused not guilty of the o-ffenc^ -Of Murder** contrary to section 183 and 18^ of the Venal Code as per the third count and I am agreeable with the unanimous opinion of the gentlemen as. essors that the accused be acquitted of the charge.' I therefore find t.\*.e accused not guilty of the offence of murdering Sunday Kayangwa contrary to section 183 & 184 of the Venal Code and I acquit7- him of the charge forthwith.

**^H** \* ^I C\

In summary: ^he accused was found guilty of the offence of Kidnapping with intent to murder contrary to section 235 (1) (a) of the Venal Cede and is convicted acccrdinly (count 1). The accused is found not guilty on counts II & III of murder contrary to sections183, ¹⁸⁴ of the Penal Code and was acquitted of the charges

29/8/91

29/8/1991» Accused before courtt

Mr. Bireije . Resident Senior State Attorney present appearing for the State.

Mr. Mugamba counsel appearing for the accused present.

Assessors: 1st Assessor Aseni Kiiza Absent.

2nd Assessor Mr. Stevenson Baguma present.

Court: Judgment is read and signed.

Mr. Bireije:

This court has rightly found the accused guilty of the offence of Kidnapping with intent to murder under S, 235 (1) (a) of the Penal Code^t ^A person convicted of this offence is ^a liable to a sentence the

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r 1f) maximum of ^hlch is death\* So aperson s<inxi-cted of this offence couls. be sentenced to death. Although this ccurt has found the accused was not responsible for death of Musubaho Muhindo but this court has found th't Muhindo Musubaho is dead. The result of the death of Musubaho was the action of the accused person in which case I submit that the accused person also deserves a death sentence. The deceased was a \* useful citizen of this country and although he had a land dispute there was proper method of resolving the dispute. The accused person belongs to a notorious movement which even up to now terrorises the public.. We have lost very many good citizens at the hands of the Rwenzururu movement one of whom you have quoted the case. That victim also died innocently at hhe hands of the Rwensururu movement. We have heard so many cases where convicted persons have been sentenced to death on a charge of kidnapping ;viJ-h intent to murder. And the victims belonged to a notorious organisations like NASA and the other case is that of Faddy Kalenzi recently disposed of by the Supreme court, Rwakasisi's a.r . and many others. There is no way this court can protect society from these dangerous elements but rather to punidiseverely those people involved. We did not have previous convictions registered against the accused person. The convicted person appeared in court for¹ the first time in ¹⁹⁸⁶ which makes it five years now. I further submit that this court must take into account that we lost a citizen and I pray that the accused be sentenced to death.

Mr. Mug3mba: I pray this court not t^ att°'>u much . weight to the sentiments expressed by my learned friend concerning terrorist organisation That is not what he was charged with. Also note that even assuming that he killed a single individual what the convicted person did cou}.d not amount to people killed by government.

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.. ourtuna.tely the section refers to the wor-d--liable which is opposite to mandatory. So I pray this court to exercise leniency''when sentencing the acc-sed person. The accused is aged ⁴⁶ years. He is approaching the end of his life. The court has found that he was not responsible for the death of Muhindo Masubaho. He had never before murdered an individual. He" is ^a first offender. The accused has been on remand for over ⁵ years. He has been punished enough. The accused is sorry for what had happehed. He hbandoned the notorious Rwenzururu movement and above all the accused is bread winner for . .. ^m^X his family and his long stay in prison serves to punish his family. I pray that the accused be given a short sentence.

Court: I have looked at the relevant section of the law. It says an accused convicted offender S. 235 (1) (a) shall be liable to suffer death. The death sentence is not therefore mandatory\* I note however that this was serious offence committed by the accused person. He has been on remand for about ⁵ years and is a first offender. Offences of this nature emanating from the Rwenzururu movement are prevalent in that particular location and this calls for deterrent punishment.

Accused is sentenced to ¹⁴ years imprisonment. R/A explained.

J. ' ? ( i. mukanzaA)' ' JU ^D GE 29/8/91

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