[1996] UGHC 23

## The Hon Mr. Justice Egonda-Ntende-

T': REPUBLIC OF UCANDA IN THE HIGH COURT OF UGANDA HOLDEN AS IN FIGURE A OFFICIAL SISSION CAST NO. 3/4/CA

UGANDA...................................

ALLEN KAST Has reserved to the property of the BEFORE: THE HCN. MR. JUSTICE E. S. LUCAYIZI **JUDGMENT:**

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The accused (ALIEN KASINGYE) was on the 19th act of February, 1996, indicted for the offence of munder c/.s 183 and 184 of the Penal Code Act.

The particulars of the said indictment alleged that on or about the 11th day of April, 1993, at Nvakillanga village in Mbarara District, the accused card and one Chris Tumugarurirwe.

The prosecution called four witnesses. (That is to say, Ishe Kyomuhangi (PWI); Dr. William Nyehang are (PW2); Christopher Karakore (PW3); and Det/Corp. Turyatunga (PW4) in a bid to prove its case against the accused.

The accused gave sworn evidence and did not call witnesses.

In brief, the prosecution case as was related by the above witnesses is as follows:

That on 11th April, 1993, after PW1 and her household had a meal in celebration of Easter day at Muriranwa's, they returned home at about 4.00 p.m.

However, shortly after their return home, someone came for them; and as a result of what she told them, PWl proceeded to Muriranwa's home again.

On arrival there, PWl found the deceased (:boy aged about 5 years) dead. The accused had him in her arms. She told PW1 that the deceased was in the compound when a goat

knocked him down.

The deceased was the son of Muriranwa; and the accused was his step-mother.

The deceased's mother had for sometime separated with Muriranwa (who was PWl's brother-in-law) but the deceased had, despite that separation, been returned to his father's home and was, at the time of his death, living with his father (Muriranwa) and his step-mother (the accused).

Soon after the deceased4's deaths and subsequently, many people who included PVJ2, PV0^ PW4 and the late Dr. Matsiko visited Muriranwa.'s home and saw the deceased's body.

The accused was arrested; and according to ard PW4, she told them that she had only slapped the deceased who in turn fainted.

In addition to the above, PVJ3 also told court that the deceased's body had a black mark on the shoulder and no mark on the nock\*

On PW4's part, he also said that the deceased's body had scratches on both sides of the neck; and the neck looked twisted.

^A post-mortem examination of the deceased's body was carried out by the late Dr. Matsiko on 13th April, 1993, who made a report (Exhibit "P1") in respect thereof.

The said report was put in evidence at the hands of PW2 who was the late Dr. Matsiko's superior at work and knew his handwriting and signature well.

According to the said report, the deceased had ''scratch marks on the neck"; and the cause of his death was ''strangulation " •

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However, during the hearing of this case. PvJ2 also revealed that Pr- Matsiko's report (Exh-»"P1") was incomprehensive since he did not appear to have carried out any internal, examination on the deceased's body to ascertain that the effects of strangulation could also be seen or confirmed internally.

PW1 and P70 also told court that the deceased was later buried at his father's home at Nyakihanga and both of them attended the said burial.

The accused's defence, on the other hand, was a denial of the offence in issue. She told court that on the day in issue, as she was taking goats to the bush to feed ⁵ the deceased (her mal-nourished step-son) followed her^o

At this point, one of the goats got stuck in the ate.ma of banana plantations^o And as a result, the accused iju.lled it out by ^a rope which was tied in its neck. The deco sod got tripped by the said rope and fell down face first on the hard ground.

The accused lifted him up, but the deceased clied soon after.

I summed up the case to the assessors and mainly guided them about the burden of proof in a criminal case, and the weight of evidence. I pointed out to them that that the burden of proof lay upon the prosecution and never shifted to the accused and that the weight of evidence required was proof beyond reasonable doubt. (See ^DPP ^v Woolimington (193 5) ACP\*462 and MljLer^jz Minister of Pension (1947) ² All ER 372, Okethi Okala v. Uganda (196JQ E. A.⁵⁵⁵ etc.)•

In order for the prosecution to prove its case against the accused in this case, it had to prove the following

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ingredients of the offence in issue beyond reasument. $c$ cubc

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- (a) that the doceased is dead; - (b) that his death was unlawful; - (c) that whoever caused the deceased's death was actuated by malice aforethought; - (d) that it was the accused who committed that offence.

I will now deal with each of the above ingredients in relation with the evidence on record.

As far as the first ingredient is concerned, the prosecution relied on the evidence of PNL, PWZ, PWB and PW4 who testified that the deceased is dead,

In fact according to the evidence available, EVA, PW3 and PW4 actually saw the deceased's dead body. and PWB also attended the deceased's burial which took place at the deceased's father's home at Nyakihanga.

The above evidence was not contradicted or shaken in any way. I am therefore willing to find that the prosecution proved beyond reasonable doubt that the deceased is dead.

As far as the second ingredient is concerned, the law is that every homicide is presumed to be unlawful unless it is accidental or excusable. (I believe excusable in the sense that it was committed in self-defence or defence of another or defence of property).

(See Rex v Gusambizi Wesonga (1948) 15 E. A. C. A. 65).

In this case, although the available evidence shows on the one hand that the accused told PMI that a goat had knocked the deceased down, yet on the other it reveals that that she (the accused) had told FWB and FW4 that she slapped

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the deceased who fell cown and fainted.

Jain, much as the post-mortem report "x" "I" says that ... the deceased's cause of death was strangulation, PW2 who presented that report in court doubted its reliability since the same was in his view not comprehensive.

With the above kind of evidence, it is quite clear that the prosecution did not present to Court any definite evidence concerning the circumstances under which the deceased died nor the cause of his death.

The above being so, it becomes impossible to say whether the deceased's death was unlawful or other, se.

In the circumstances, it is my view that the prosecution failed to discharge the cnus upon it as far as the second ingredient above is concerned.

Once they fail in one such respect, they have when the failed (See DPP v Woolimington (Supra)). And it becomes a useless exercise for Court to continue analysing the rest of the ingredients above in the light of the evidence on record.

In the circumstances, I have no choice but to. find the accused not guilty of the offence hereinand I hereby acquit him of it forthwith.

I also order her immediate release, unless she is being held on some other lawful charges.

$\mathcal{L}$ E. S. Lugayizi

J U D G E $17/4/96$

## Read: At: 11.01 a.m.

Accused present Mr. Katembeko for the accused Mr. Wagona for the State Mr. Baguma court clerk.