[2023] UGHC 482

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT UGANDA AT KABALE CRIMINAL SESSION NO. 0242 OF 2019 Arising from Kis AA – 0012 of 2019 Arising from CRB No. 418 of 2019)** 10 **UGANDA** ================================**PROSECUTION VERSUS A1: HABAMUGISHA GILBERT** 15 **A2: HAKIZIMANA INNOCENT**==================**ACCUSED**

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

## **JUDGMENT**

The two accused persons in this case Habamugisha Gilbert (A1) and Hakizimana 20 Innocent (A2) stand indicted for murder contrary to **Section 188** and **189** of the **Penal Code Act**. The particulars giving rise to the indictment are that Habumugusha Gilbert (A1) and Hakizimana Innocent (A2) on the 10th of June, 2019 at Ruburankoro village Gasiza Parish Nyakabande sub county in Kisoro district with malice afore thought unlawfully killed Halerimana Jackson.

25 Both accused denied the charge.

## **Representation.**

Mr. Ainomugisha Christopher (RSSA) appeared for the prosecution while Mr. Nicholas Kibulirani represented the accused on state brief.

The assessors in this case where Mr. Tumushime Emmanuel and Mr. Rwangeyo 30 Joseph.

5 During the preliminary hearing sanctioned **Under S.66** of the **Trial** on **Indictment Act** Medical evidence in PF48B and PF24 were admitted as uncontested.

PF48B was the post mortem report carried out on the deceased Halerimana Jackson that reveals that he suffered injuries to his skull and the back of the head

10 each measuring (1x5x3) cm with clotted blood. The body also bore injuries with bleeding from the right ear and both nostrils.

The cause of death was listed as Haemorrhagic shock secondary to traumatic head injury and hypothermia. The report was signed by Dr. Bahati Amon dated 10th June, 2019 and received as Exhibit. P1.

15 PF24 was received in respect of A1 and A2 that revealed that they were both found to be adults with a normal mental status. The PF24 for A1 and A2 were received as Exhibit P2 and Exhibit P3 respectively.

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

This being a criminal case in which the accused persons have pleaded not guilty, 20 the prosecution has the burden of proving the case against the accused beyond reasonable doubt. The burden does not shift to the accused persons and the accused persons can only be convicted on the strength of the prosecution case and not on the weakness of the defence case.

## [**See Ssekitoleko Vs Uganda (1961) EA 531]**

25 The accused persons have no obligation to prove their innocence and the onus is on the prosecution to prove each of the ingredients beyond reasonable doubt 5 before it can secure a conviction. Proof beyond reasonable doubt though does not 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 Miller Vs Minister of pensions (1947) 2 ALLER 372.**

#### 10 **Ingredients of the offence.**

The prosecution must prove each of the following ingredients beyond reasonable doubt in the present indictment of murder:

- 1) Death of a human being - 2) The death was caused by some unlawful act - 15 3) The unlawful act was actuated by malice afore thought - 4) That it was the accused persons 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 witnesses who state that they knew the deceased and attended the burial

20 or saw the deceased's body.

In the instant case DC Adil Denis (PW1) D/ASP Mugenyi Robert (PW2), DC Ndamange Alex (PW3) and DC Muhawe Edison (PW4) all testified that on the 10th of June, 2019 at Ruburankoro village they viewed a body that was identified to them by the locals as belonging to one Halerimana Jackson.

25 Habamugisha Gilbert (A1) in his sworn defence testified to the same effect that he was the one who in the morning of the 10th of June, 2019 identified the body of his father Halerimana Jackson at the scene.

5 Further corroborative evidence is found in Exhibit. P1 the post mortem report that details the nature of death suffered by the deceased Halerimana Jackson as being Haemorrhagic shock.

> I therefore find that the prosecution has proved the death of Halerimana Jackson beyond reasonable doubt.

#### 10 **b) That the death was accused 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 authorised by law.

### **See R versus Gusambizi s/o Wesonga (1948) EACA65**.

- 15 It is the evidence of PW1, PW2, PW3 and PW4 that the body of the deceased Halerimana Jackson was lying in a pool of blood with injuries to the head. The post mortem report in Exhibit P1 reveals that the body bore injuries to the skull with the cause of death being Haemorrhagic shock secondary to traumatic head injury. - 20 I am sufficiently satisfied that the death of Halerimana Jackson was neither accidental nor authorized by law.

I find that the prosecution has proved beyond reasonable doubt that the death of Halerimana Jackson was an unlawful act.

**c) That the unlawful act was actuated by malice afore thought.**

25 **Under Section 191** of the **Penal Code Act** malice afore thought may be proved by direct evidence or maybe inferred from the evidence indicating knowledge that the conduct of an accused would probably cause 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 5 (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 Tibere s/o Ochen (1945) EACA63.**

- 10 It's the evidence of PW1, Pw2, PW3 and PW4 that the body of Halerimana Jackson was in a pool of blood with injuries to the head. The body they testified had been moved from what they termed as the primary scene to the secondary scene where they found it. There was also a stone next to the body covered with blood. - 15 The post mortem report in Exhibit P1 reveals that the deceased suffered injuries to his skull and the back of his head each measuring (1x5x3) cm with clotted blood and the body also had injuries with bleeding from the right ear and both nostrils. The cause of death was listed as haemorrhagic shock secondary to traumatic head injury and hypothermia. - 20 The head is a sensitive part of the body and when deliberately targeted as in the instant case there is no doubt that the intention of the assailant was to cause death and this is what was achieved.

I therefore find that the prosecution has proven beyond reasonable doubt that the unlawful act was actuated by malice afore thought.

#### 25 **f) Participation of the accused persons.**

DC Adil Denis (PW1) testified that he is a police officer attached to the canine unit at Kisoro Police Station and has served in the canine unit of the Uganda Police Force for the last 12 years.

5 He holds a certificate in Dog Handling, Care and Management obtained from the Uganda Police Canine Training Unit at Nsambya in 2011 and that since then he has been using sniffer dogs to track offenders.

In this instant case, it is the testimony of DC Adil (PW1) that the sniffer dog that he used is called Ringo. Ringo he states is a 9-year-old male German 10 Shepherd trained in South Africa and specialized in tracking by sniffing. According to DC Adil (PW1) at the commencement of this investigation he had at the time handled Ringo for 2 years and described him as being cooperative, sensitive and one who acts to commands.

It is the evidence of Dc Adil (PW1) that on the 10th of June, 2019, he together 15 with a team of other detectives were instructed by the OCCID Kisoro Police station to visit a crime scene located in Ruburankoro village Gasiza parish with instructions to track the killers and that he moved with his sniffer dog Ringo. At the scene they found two scenes. The primary scene where the murder occurred was at the roadside where there was a big stone covered 20 in a pool of blood and the secondary scene where the body had been transported about 19 metres away from the primary scene.

According to DC Adil, the primary scene had not been well preserved because the community had already gathered there but that the secondary scene was properly preserved by the police from Mutolere Police Post who 25 had cordoned off the area and that he observed that there were foot marks in the neighbouring vegetation suspected to be that of the killers.

> DC Adil (PW1) testifies that he introduced the sniffer dog Ringo to the scene and it picked up the scent of the suspected killers and began to track this scent for a distance of about 300 metres to the gate of a residence but that

- 5 the gate was locked. DC Adil (PW1) further testifies that Ringo continued for a further 250 metres and led him together with his team directly into the house and bedroom of Hakizimana Innocent (A2) having passed by A2's wife who they found in the compound on their way in. That they found Hakizimana (A2) sleeping on his bed wearing only an under wear and when 10 he was asked to put on his clothes he removed them from under his bed and that they were blood stained. According to DC Adil (PW1), when they questioned A2 about how the blood got on to his clothes, he failed to answer. This was about 10:00 am. - DC Adil, (PW1) testified that they moved back to the gated premises where 15 they were told that Gilbert (A1) was a guard and that he had already been arrested by the police from Mutolere police post. That a request was made for A1 to be brought to them and when A1 was brought they gained access to the house, a search was conducted of the premises led by D/AIP Mugenyi Robert (PW2) in the presence of DC Adil (PW1) and a motorcycle Reg no. 20 UEC 739 X Bajaj red in colour was found with blood stains on the left side of the mirror and the clutch. A black trouser with blood stains was also recovered in the house in the room in which Gilbert (A1) sleeps. That A1 informed them that the motorcycle was for A2 and admitted that the trouser was his but could not explain the blood stains. - 25 It is the testimony of DC Adil (PW1) regarding Ringo that he has been used in other cases including that of house breaking at Kisoro View Hotel where Ringo tracked the suspects and exhibits were recovered and also another at St. John's Lodge and bar where Ringo tracked the suspects and exhibits were recovered.

- 5 In this particular case, DC Adil (PW1) testified that Ringo at the secondary scene picked a combined scent from where the vegetation was stepped on that is why it led them to the gated premises where Gilbert (A1) was a guard and to the home of Hakizimana (A2). - The strength of the prosecution case before this Court hinges on the 10 evidence presented by DC Adil (PW1) on how Ringo was able to sniff and track the scent of the suspected killers of Halerimana Jackson leading to the arrests of A1 and A2.

The Courts have over the years been guided to be cautious when evaluating evidence that involves sniffer dogs and I will cite two such decisions here.

15 The Court in **Omondi & Another Versus R (1976) EA 802** observed as follows;

*"But we think it's proper to sound a note of warning about what, without undue levity we may call the evidence of dogs. It is evidence which we think should be admitted with caution and if admitted should be treated with* 20 *great care. Before the evidence is admitted the Court, should we think ask for evidence as to how the dog has been trained and for evidence as to the dogs reliability. To say that a dog has a thousand arrests to its credit is clearly by itself quite unconvincing. Clear evidence that the dog had repeatedly and faultlessly followed a scent over difficult country would be* 25 *required, to render this kind of evidence admissible. But having received the evidence that the dog was, if we might so describe it, a reasonably reliable tracking machine, the Court must never forget that even a pack of hounds can change foxes and that this kind of evidence is quite obviously fallible."*

- 5 The Court of Appeal in **Kyakurugaha** Versus **Uganda Criminal Appeal No. 51/2014** upheld 6 principles laid down by Justice Gaswaga in **Uganda Versus Muheirwe & Another HCT-05-CR-CN- 0011 of 2012** regarding sniffer dog evidence that are as follows; - *1. The evidence must be treated with utmost care (caution) by Court and* 10 *given the fullest sort of explanation by the prosecution.* - *2. There must be material before the Court establishing the experience and qualifications of the dog handler.* - *3. The reputation, skill and training of the tracker dog is required to be proved before the Court (of course by the handler/ trainer who is familiar* 15 *with the characteristics of the dog)* - *4. The circumstances relating to the actual training must be demonstrated, preservation of the scene is crucial, and the trail must not have become stale.* - *5. The human handler must not try to explore the inner workings of the* 20 *animal's mind in relation to the conduct of the training. This reservation apart, he is free to describe the behaviour of the dog and give an expert opinion as to the inferences which might properly be drawn from a particular action by the dog* - *6. The Court should direct its attention to the conclusion which it is minded* 25 *to reach on the basis of the tracker evidence and the perils in too quickly coming to that conclusion from material not subject to the truth eliciting process of cross examination.* - *7. It should be borne in the mind of the trial Judge that according to the circumstances otherwise deposed to in evidence, the canine evidence* 5 *might be at the fore front of the prosecution or a lesser link in the chain of evidence*

DC Adil (PW1), the dog handler in this case has been working with the canine unit of the Police Force for the last 12 years dealing specifically with sniffer dogs used to track offenders.

10 PW1 also holds a Certificate in Dog Handling, Care and Management obtained from the Uganda Police Canine training unit in Nsambya in 2011.

The sniffer dog used in this case called Ringo is a German shepherd, South African trained sniffer dog specialised in tracking by sniffing. It is 9 years old and at the commencement of this trial, had been with PW1 for 2 years.

15 Ringo had also been used in other cases that included house breaking at Kisoro View Hotel where it tracked suspects and exhibits were recovered. Also another case at St. John's Lodge and bar where it tracked suspects and exhibits were recovered.

DC Adil (PW1) described Ringo as being cooperative, sensitive and acts to 20 commands and he details how Ringo picked the scent from the secondary scene at the point where the vegetation had been stepped on to the gated premise that was said to be guarded by A1 up to A2's bed a distance of 300 meters to A2. It is his evidence that the secondary scene had been well preserved.

I am sufficiently satisfied that the prosecution evidence has answered the 25 considerations in principles 2, 3 and 4 in the affirmative.

I will return to the 1st , 5 th, 6th and 7th principles later in my Judgement.

5 Corroborative evidence is found in the testimony of D/ASP Mugenyi Robert (PW2) who testified that he was called from the secondary scene and informed that the sniffer dog had led his team to a gated premise and that when he got to the scene, he was informed that A1 was the guard at this premise and that he sent for him to be brought from Mutolere Police station and that when A1 was brought, he 10 produced a key to the padlock and opened the gate for them and that this was at around 11:00 am. PW2 states that a search was conducted at the premises led by him and they recovered a motorcycle red in colour Bajjaj that appeared to have blood stains on the mirrors and on the front part with Reg. no. UEC 739 X. That they also recovered a blue jean trouser hanged inside the house that was 15 suspected to be blood stained. According to PW2, he prepared a search certificate that was signed by A1, himself, the LCIII Chairperson and other Police officers who were present. The search certificate was received as Exhibit. P4.

Further corroborative evidence was given by DC Ndamange Alex (PW3) who testified to being a part of the investigation team that moved with DC Adil (pw1) 20 and the sniffer dog that led them to the home of A2 where he was arrested and the recovery of a black trouser with dots of blood stains and that the sniffer dog also led them to a gated premise where A1 was a guard and that A1 was brought and he opened the premises for them and under the leadership of D/AIP Mugenyi (PW2) they recovered a motorcycle red in colour, Bajjaj Boxer Reg No. UEC 739 25 X that had blood stains on the left side mirror and clutch. A blue jean trouser with blood stains was also recovered. According to PW3, he exhibited the items and

they were tendered to Court with the motorcycle being received s Exhibit P7, the

5 blue jean Exhibit. P8, black trouser Exhibit. P9 and the stone recovered at the scene of murder received as Exhibit. P10.

The SOCO in this case DC Muhawe Edison (PW4) testified that he was part of the team that followed DC Adil (pw1) and the sniffer dog from the murder scene to the gated premises where A1 was said to be a guard and to the residence of A2

10 where he was arrested. PW4 testified that he was present at the search of the premises guarded by A1 and drew a sketch plan that he tendered to Court and the same was received as Exhibit P11.

Habumugisha Gilbert (A1) in his sworn defence denied the charge of murder stating that he was arrested on the 10th of June, 2019 from the scene of the murder

15 after he had identified the body of his father. A1 denied having had any grudge with his father, that he has never been a guard at anyone's premises and still stays a home with his parents.

A1 also denied seeing any sniffer dogs or caretaking anyone's premises.

A1 refutes the fact that he has knowledge about the motorcycle tendered to Court 20 arguing that no witnesses appeared to testify against him save for police officers and that in the night of the 9th of June, 2019, he was at home.

Hakizimana Innocent (A2) in his unsworn defence denied the charge of murder stating that on the 10th of June, 2019, he was at home in the morning when he was arrested in the presence of his wife and taken to Mutolere police station.

25 According to A2, he explained to the police that he knew nothing about the death of Halerimana Jackson but that he was instead tortured by the police. It is also his defence that only police officers testified against him.

- 5 The two accused persons in this case that is; A1 and A2 have in their respective defences put emphasis on the fact that only police officers who were involved in their arrest testified against them and that the prosecution did not present any other witnesses. This Court is aware of the challenges that the prosecution faced in presenting its principal witness in this case and the same is on Court record. I - 10 need not delve into the same.

The above fact notwithstanding the evidence presented by the prosecution cannot be watered down by the fact that Section 117 of the Evidence Act is to the effect that all persons shall be competent to testify. The police officers presented by the prosecution were therefore competent witnesses. Furthermore, under **Section**

15 **133** of the **Evidence Act** no particular number of witnesses are required for proof any fact.

I will therefore dismiss the assertions of the accused persons in regard to the nature of the witnesses presented against them.

I will now return to the 7th consideration in **Uganda Versus Muheirwe** and

20 **Another [Supra]**

*"7. It should be borne in the mind of the trial Judge that according to the circumstances otherwise deposed to in evidence, the canine evidence might be at the forefront of the prosecution case or a lesser link in the chain of evidence."*

In the instant case, the canine evidence presented by DC Adil (PW1) as a result of 25 the workings of Ringo is indeed at the forefront of the prosecution case. It is indeed safe for one to say without Ringo the prosecution might have had absolutely no case.

- 5 This Court is enjoined under the first consideration to treat with utmost care (caution) the evidence presented as a result of an involvement of a sniffer dog and under the 5th consideration the handler is free to describe the behaviour of the dog and give an expert opinion as to the inferences which might properly be drawn from a particular action by the dog. - 10 PW1 explained to this Court that Ringo picked a combined scent from the secondary scene where the vegetation was disturbed leading to the gated premises where A1 was said to be a guard and then to the residence of A2 direct to his bedroom. PW3 and PW4 testified to having been a part of the team that started off the tracking with Pw1 and Ringo, they corroborated the evidence laid 15 down by PW1.

The scene of crime this Court has already found was properly preserved and the trail was not stale. I am persuaded by the prosecution evidence that Ringo first stopped at the gated premises then moved on to the residence of A2 direct to his bedroom where they found him lying on the bed and that Ringo ignored his wife 20 who was in the compound when they arrived. A2 in his unsworn defence admits that he was arrested from his home in the presence of his wife. This admission corroborates the prosecution evidence that they were led by Ringo from the crime scene to the home of A2. PW1, PW2 and Pw3 all testified to the fact that when the jean trouser in Exhibit. P8 was recovered from the house of A2, it was blood 25 stained. PW1, Pw2, PW3 and PW4 all consistently testified that the local community informed them that the gated residence in which Ringo first stopped was being guarded by A1. A1 has denied being a guard stating that he is a peasant who sells his Irish potatoes to gain income. I am not entirely convinced by this

5 story given by A1 about his life. While it is true that the locals did not testify in this matter, the facts of this case being that A1 is the son of the deceased Halerimana Jackson coupled by the fact that Ringo followed a trail from the scene where the body had been dragged up to a gated premise that the prosecution witnesses were told by the locals was guarded by A1 seems to be far too much of 10 a coincidence.

The prosecution witnesses in PW1, PW2, PW3, and Pw4 all testified to the fact that when A1 was produced from Mutolere Police station where he was being detained, he was the one who opened the lock at the gate for them to gain entry. A1 also signed the search certificate in Exhibit. P4.

15 I do not believe the defence of alibi put up by A1 to be true at all.

I am persuaded by the evidence of the Police prosecution witnesses that Ringo led them to the gated premises that the locals told them was being guarded by A1 and that when A1 was produced, he opened the gate to allow them access.

PW1, PW2, PW3 and PW4 all testified that a black trouser was recovered from the 20 house guarded by A1 together with a motorcycle and that they both bore blood stains.

The prosecution did not provide affirmative scientific proof that the suspected blood stains in Exhibit P7 the motorcycle, Exhibit P8 the jean trouser and Exhibit. P9 the black trouser were indeed human blood stains and to whom they belonged 25 to.

Furthermore, given the time span of over 4 years the blood was no longer visible to the naked eye save for now darkened spots on the clothes.

5 This fact not withstanding I am prepared to accept the evidence of the prosecution witnesses that the justifiable reason leading to the arrest of A1 and A2 was the outcome of the tracking by Ringo and the suspicious/ suspected blood stains on the jean trouser and black trouser together with those found on the motorcycle.

I do not accept the defence of alibi put up by A2 that he knows nothing about the 10 death of Halerimana Jackson and that the police arrested him at his home in the presence of his wife over a crime that he knew nothing about.

I am fortified in my belief that A2 is being untruthful because Ringo passed by his wife following his trail right up to A2's bed. It is quite clear that Ringo was not distracted by the presence of another human being and remained on course until

15 it got to A2. The recovery of a black trouser with suspected blood stains I find further corroborates the prosecution evidence.

The prosecution witnesses in PW1, Pw3 and Pw4 all testified that when they recovered the motorcycle with blood stains in Exhibit P7 at the gated premises guarded by A1 they were told by A1 that the motorcycle belonged to A2. The 20 prosecution however did not adduce proof of ownership of this motorcycle linking it to A2.

I am nonetheless persuaded by the evidence on record that includes the trail followed by Ringo the sniffer dog, the blood stained trousers and the statements made by A1 to the prosecution witnesses regarding the motorcycle in EXh. P7 that 25 A2 is intrinsically linked to the murder of Halerimana Jackson.

The evidence presented by the prosecution against A1 and A2 is essentially circumstantial evidence. The Supreme Court in **Mabira Siragi & Another Versus**

5 **Uganda SCCR. App. No.** of **2004** citing the decision in **Simon Musoke Versus R [1958] EA 715** that held that;

*"…… In a case depending exclusively on circumstantial evidence the Judge must find before deciding upon a conviction that the exculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other*

10 *reasonable hypothesis than the guilt."*

The Court of Appeal also in **Mugambe Francis** Versus **Uganda CACA No. 60/2011** in reference to **Sarkar on evidence 14th edition 1993 page 53** in regard to circumstantial evidence concluded that:

*"According to the above definition the facts must be closely knitted and must carry* 15 *conviction to the mind of the Judge."*

The facts in this case, the shortcomings of the investigations notwithstanding commencing right from the discovery of the body from the primary scene to the secondary scene and the introduction of Ringo the sniffer dog to the secondary scene that had its vegetation disturbed leading to the arrest of A1 the son of the

20 deceased and A2 together with all the exhibits recovered point irresistibly to the guilt of the accused persons.

There appears to be no other explanation as to how the scent of A1 and A2 got to the scene and led to their respective places of abode other than the fact that the two participated in the murder of Halerimana Jackson.

25 I have treated with utmost care the evidence presented by the prosecution largely arising from the tracking of Ringo the sniffer dog and I have also cautioned myself of the dangers in doing so.

- 5 After considering the evidence adduced by the prosecution and the defence together and full agreement with the gentlemen assessors. It is my finding that the prosecution has successfully proved its case beyond reasonable doubt and I accordingly find the accused A1 and A2 guilty of the offence of murder contrary to **Section 188** and **189** of the **Penal Code Act** and convict them of the same. - 10 Before me.

………………………….. **Samuel Emokor Judge 08/08/2023**