[1996] UGHC 79

#### THE REPUBLIC OF UGANDA

TN HIGH COURT OF THE **UGANDA**

### HOLDEN AT MASAKA

# CRIMINAL SESSION CASE NO. 275 OF 1994

**UGANDA** PRO SECUTOR

### VERSUS

A1. KIZZA BAPTIST $A2. RUKUNDO FRED$ ACCUSED A3. MASAGAZI PAUL

BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA

## J U D G M E N T

The two accused persons Kiiza Baptist and Rukundo Fred hereinafter referred to as Accused No.1(A1) and Accused No.2(A2) respectively stand indicted of murder contrary to section 183 and The particulars being that the two 184 of the Pensl Code Act. accused persons and one Masagazi Paul and others still at large on or about the 27th day of May, 1993 at Kiwumpa-Buyaga village in the Masaka District murdered one Bukyali Francis. The accused pleaded not guilty to the indictment. It was however learnt that one Masagazi Paul who had been jointly indicted together with the two accused persons had died in priosn. I would have expected the prosecution to amend the Indictment under sections 48 and 49 of the TID Decree 26 of 1971. However failure to do so did not in any way prejudice the accused persons in their trial.

Be that as it may when the prosecution closed its case after in. calling its fourth witness/the names of Peter Bakawonga PW4, Mr. Nnyanzi the counsel appearing for the accused persons submitted that the accused persons had no case to answer requiring them to be put on their defence. I over-ruled him and promised to give my reasons in this judgment. I now proceed to give my reasons for so holding.

The principles upon which a submission of no case to answer may be properly made and upheld are well settled and are as follows:

- $(a)$ when the prosecution had not adduced satisfactory evidence to establish one or more ingredients of the alleged offence; - $(b)$ when the prosecution evidence has been so discredited as a result of cross-examination or is manifestly or so unreliable that no reasonable tribunal could safely convict on it. See Rennal. Bhatt 1957 EA p.332. See also Practice Note 1962a AE R by Lord Parker C. J.

It is also trite law that a prima facie case does not mean a case proved beyond reasonable doubt. The court is not required at that stage to decide finally whether the prosecution evidence is worthy of credit or whether if believed is weighty enough to prove the case conclusively. The final decision it has been held time and again in many cases can only be properly made when the case for defence has been made. See HCCS No.99/1990 Uganda vs Eryeza Kasaija unreported by Justice Kikonyogo.

Also in Yosefu Bikubi Cr. App. No.492 of 1964 at p.77 as case III Digest of Uganda Court Cases Vol.2 Cr. Procedure. Sir Udo Odoma quoted with approval in Uganda $\mathbf v$ Constantino Okwekulia Magando H. Cr. Session No.54 of 1990 had this to say:

"The duty of the court was to consider the submissions<br>of no case to answer in geral tenns, raying particular<br>attention to any point of law raised and argued. The<br>court was not expected at that stage to express any<br>eminion opinion or to make any findings on the evidence of the<br>prosecution unless it is intended to uphold the submission. Where it was not intended to hold the<br>submission the usual practice was to express the ruling in general terms or to give reasons for it in the general judgment at the conclusion of the trial."

Other cases looked at See Shabudin Merali and Another Cr. App No.220 of 1963, Uganda vs Augustine Isabirye Cr. App No.70 of 1964, Mirimu v R 1967 EA 542 Kadiru Kyanju and others vs Uganda 1974 HCB 215.

In the instant case and having considered the authorities referred

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to above I was not required at the time the submission of no case to answer was made to finally decide on the matter. Such decision would only be arrived at after hearing the case for the defence.

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Having so found I now proceed to consider the merits and demerits of this case.

In murder charges like in any other"criminal cases as I warned the gentlemen assessors and as I warn myself now the prosecution has the burden to prove the guilt of the accused persons beyond reasonable doubt except in a few exceptions. The instant case not being one of those few exceptions. See Woolmington vs DPP 193? AC page 462, Okaje vs ^H 1965 EA page *555,* Paulo Omala vs Uganda Criminal Appeal . Wo.⁶ of 1977 Rep Vol 1, 1978 Judgment of the Court of Appeal for Uganda MavZJ^ugus^" 1\*9787'"

With that burden of proof in mind the prosecution has to adduce evidence to prove the following ingredients of the offence namely?

- (i) That the deceased is dead; - (ii) That the killing was unlawful; - (iii) The cause of death; - (iv) Whether there was malice aforethought;

(v) And finally that the accused persons were responsible. On the first in:gredient, I am of the view that the evidence over this is overwhelming. There was the admitted evidence of Dr. Kasawa. He examined the body and found that it had multiple cut wounds and the cause of death was bleeding from multiple cut wounds. Similarly there was the admitted evidence of Mrs. Noelin Bukyayi, Her evidence showed that when she came from her hiding place after being attacked she found her husband dead with multiple cut wounds. Also the evidence of the prosecution witnesses was to the effect that the deceased was no longer living. See the testimonies of PW1, PW2, PW3, PW4 and even the testimonies

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of the accused persons is to the effect that the deceased is no longer alive. It has therefore been established that Francis Bukyali is dead.

As to the cause of death, there was the evidence of the Doctor. The post mortem showed that the cause of death was due to bleeding because of multiple cut wounds.

As to whether the killing was unlawful In the case of R vs Busambuzi Wesonga 1948 15 EACA page 65. It was held that homicide unless accidental is always unlawful except when committed in the circumstances making it excusable. Looking at the violent manner in which the deceased met is death it cannot be said that the killing was execusable. It was unlawful and the prosecution has established this ingredient of the offence beyond reasonable doubt.

As to the question of malice aforethought under S 186 of the Penal Code Act Cap 106 malice aforethought shall be deemed to be established by evidence providing either of the following circumstances:

- $(a)$ An intention to cause the death of any person whether such person is the person actually killed or not. - (b) Knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.

According to authorities on this subject malice aforethought can be found in the nature of the weapons used and what part of the body such weapon was used. See Uganda vs Ssebuguzi and others 1988-1990 page 20. There is also further authority to the effect that the nature of injuries inflicted on the victim. The type of weapon and the culnerable part of the body on which it is used gives

rise to an inference of malice aforethought if the weapon used was lethal, the injuries severe, and the part vulnerable Uganda vs Kikomeko 19 HCB page 180. Uganda vs Benard Ntuusi and Nother HCB.... This however is not always conclusive evidence as each case has to $s/o$ be decided on its facts. See also Tubore / Ochan vs Rex 1945 12 EACA page $63.$

In theinstant case according to the prosecution evidence the deceased had multiple cut wounds all over the body. The medical evidence was to the effect that the deceased had deep cut on the right wrist and multiple cut wounds on the scalp. Also the prosecution evidence was to the effect that the body had multiple cut wounds. I am of the view that whoever iflicted those injuries on the deceased had the requisite malice aforethought as stipulated in section 186 of the Penal Code and the case law referred to above.

The last and crucial issue in this case is whether the accused persons were responsible. Whether they were properly identified as the assailants who cut the deceased to pieces in the night in question. PW1 Namatama Rose was the sole identifying witness in this case. She informed this court that her husband was called She knew the two accused persons whom she had known Mpangaryira. for a long time. They stay in the same village. A1 is her neighbour and brother to her husband. She had known Kiiza ever since she was married there. The deceased was her fourth child and that A2 comes from the same village with her. He used to play at their place and had known A2 since his childhood. She testified that on 27th May, 1993 while they were seated in the kitchen with her husband they heard a bang at the door of the main house. She told her husband to switch off the radio casette. The husband complied. They heard a second bang on the kitchen door which door fell inside. Her husband got outside and immediately he did so one of the assailants Sentole cut him on the thigh and right arm. He recognised

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also the assailants as A1, A2 and Mawanda When she saw that her husband had fallen down she ran away and hid herself, from her hiding place she heard a voice calling for Masagazi to hurry up. She hid ¹⁰ metres away from the scene and by then their houses had been set on fire. Through the burning houses she was able to recognise A1, A2 and Mawanda armed with pangas cutting the • deceased. They first removed him from the main house and indiscriminately cut him using their pangas. The deceased made two desparate noises as he was being cut after which he kept quiet. She stayed in her hiding place tillKVambe Difali PW3 and one Dolozayo came to the scene. The deceased was killed around 10.00 p.m. and P'3 came to the scene around 11.00 p.m. She went with those people to the scene. She found her husband who had been cut and the body of the deceased, fhe fire was still burning and three main houses had been burnt down including the kitchen. They went"dud untied the goats. After that she went tack in her hiding place and according to her she even hid herself further.

She went back to the scene on the following morning after she had cited two women there on the following morning. She saw Mawanda who called her to show her to the people what they had done and was threatened that by 2.00 p.m. PW1 would have joined her son. The 0 said Mawanda asked for his panga which had.remained behind. He got the same from the banana leaves and said would be coming back to cut the remaining people. They ran away at around 11.00 a.m. PW1 continu&d that apart from Mawanda, Kiiza A1 also came to the scene and later left. That she had ^a grudge against Kiiza. and Rukundo. She explained about the potato incident where she asked for banana leaves from A1' s wife with a view to go and plant the same in her garden\* A1 did not like'., the idea. 1.1 got annoyed thinking that *PW1* was despising them that they eat and harvest young food. A1 aimed a horn at her in order to cut lier and the matter was reported to the PCs v-'ho found in her favour. The RCs threatened to imprison \*■ • • •

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-6 - A1 but it was because $A + A$ intervention which saved A1. Whereas A2 was rivalling with/deceased over a girl a visitor in the village. In his defence Kiiza as DW1 testified that before his arrest was a fisher man staying in Buyaga, Kiwumpa village. He knew his coaccused person.

On 27th May, 1993 he never cut the accused person $A2$ ; in that night he was at the lake in Lake Victoria. He was fishing with one Mwanje and Sande. He did not know where those 2 men were staying at the time he gave his evidence.

He was arrested by Secretary for Defence RC1 Bakawonga PW4. From the lake he went to his home. He was sick and did not work on that day. On his being arrested he was told was going to make a statment about the death of Bukyayi. He knew the latter as the son of his elder brother. Before his arrest he did not know that Bukyayi had died.

For Rukundo Fredrick as DW2 before his arrest he used to stay at Mpala Kyamukeka Bukoto. He had known A1 and Bukyayi before. $He$ was told by his wife that Bukyayi was dead. He went to the scene and found nobody at the scene. He did not see the dead body.

As stated earlier on FW1 is the sole identifying witness to this incident while therefore a court can base a conviction on the evidence of a single identifying witness it is necessary that it observes certain safeguards. The first is that the evidence of a witness must be tested with great care by examining the circumstances under which it was made and the second is that the judge should warn himself and the assessors of the special need for caution before conviction on the evidence of identificat: n. The court said in Abdalla Din Wendo v R 1953 20EA ACA p 166 that where the case against an accused person depends wholly $o$ substantial y on the correctness of one or more identification of the accused which the defence disputes. The judge should warn himself and the assessors of the special need

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for caution before convicting the accused person in reliance on the correctness of the identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one and that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the <u>familiarity</u> of the witness with the accused person(s). All these factors go to the quality of the identification evidence. If the quality is good the danger of mistaken identity is reduced but the poorer the quality the greater the danger. Other cases looked at are Roria v Republic 1967 EA 583 George William Kalyesibula v Uganda Criminal Appeal No.6 of 1977 Fabiano Olukando vs Uganda Cr. App No. 24 of 1977. I did warm myself and the assossmentho danger of acting on the evidence of a single identifying witness.

In the instant case the accused raised an alibi as a defence to the criminal charge. It is trite law that if an accused person puts forward an alibi as an answer to a criminal charge he does not thereby assume the burden of proving the defence but the burden of proving his guilt remains throughout on the prosecution. Sekitoleko <u>vs Uganda 1967 FA 531.</u> R vs Johnson 1961 3 AER page 969. Has the prosecution adduced evidence to destroy the defence of alibi by the accused persons? In her testimony IW1 testified that in the night in question three of their houses were set in fire and while in her hiding place in the banana and coffee trees she was able to others recognise the accused persons and/out the deceased with pangas and the deceased sustained multiple cut wounds which eventually led to his death. The other fact considered by the court owing to the fact that FW1 was the sole eye witness to the indicant was the familiarity of PW? with the accused persons. She had known both of them before. A1 was a b: ther in law and a neighbour and had known A2 since childhood. It is not known how long the incident lasted but it appears must have been on for sometime. The accused persons took: their time after which ther climbed a certain hill and

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disappeared. PW1 further informed this court that she was hiding about 10 metres away from the scene. I am of the view that a witness in that distance coupled with blazing houses could clearly see what was going on in that distance.

Mr. Nyanzi the learned counsel who adopted his submission of no case to answer submitted that the witness Matama Rose told the court that she was hiding under a coffee plant in a banana plantation at one time she said there were banana trees or coffee trees infront of her and yet she said there were obstacles which could interfere with her vision. She stated further that there was a house between her and the compound where the victim was being hacked to death. That she said if there was a house she could not see what was happening $\rm{He}$ later she changed and said there was no house intervening. concluded that the witness was evasive.

I was opportuned to see the witness testify in court here and I agree with the opinion of gentlemen assessors that she was $\quad \ \ \mathbf{a}$ truthful witness and because of lapse of time she could not recall all the details she was able to see what was going on at the scene. There were indeed favourable condition to correctly identify the accused persons.

Besides the proper identification of the culprits by PW1 the latter never men i med to the authorities in the village that she had recognised the amailants including the accused persons. She said she feared to mention the names of the accused perions on the pretext that they would return and kill her. PW3 who ans vered the alarm found nobody at the scene and infact testified that since PW1 had not recognised the assailants he asked her to go back in the hiding and even hid herself further. The family was never assisted. Even P. W.4 the Chairman RC1 when the husband of PW1 went there for assistance after he had been out with pinner. $PW4$ estified that the said that Mpahanirye wanted to be take: to Hospital but/was impossible. $\mathtt{I}$

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I do however believe FW1 where she testified that she only reported the incident to the police a fact which was corroborated by PW2. The latter informed this court that when he visited the scene the situation was tense. The villagers were hostile to the home of the deceased and had to interview the parents of the deceased separately. He further testified that he could not attempt to make arrests even if the accused were there because of fear to his person. So he ordered the RCs to arrest the suspects and send them to the There was further evidence from this witness police which they did. that even the villagers were reluctant to burry the deceased. They were demanding to eat the goats which survived the fire. $FW2$ pressurised the RCs to see to it that the body of the deceased was burried.

From the testimonies of PW1, PW2 and PW4 it appears PW1 did not the incident because of fear report immediately to the local authorities the accused persons. and not because she never recognised/ I believe both PW1 and PW3 $\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ told this court the truth. In the end I am satisfied that the prosecution evidence has been able to destroy the alibi by the accused persons by placing them at the scene of crime. What the accused told court was nothing but pack of lies.

There were ird:ed inconsistences in the prosecution's case. PW2 the police office: testified that when he visited the scene he was shown/handed the pangas by the father of the deceased which had blood stains and that the same had been recovered from where the The prosecution for reasons best known to itself body was lying, never called M_pa anirwa the father of the deceased as a witness. The same witness testified that the panga which had a broken handle was identified to FW2 as that of Kiiza A; by Namatana PW1. No such ovidence was led irom PW1. Whereas PW4 Chairman RU1 testified that at the scene he saw 2 wooden parts of $\pi$ panga. $\mathbb{T}_{k}$ : law on inconsistence and discrepancies is that only grave inconsistences if not explained satisfactorily will usually result in the evidence

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of the witness being rejected. Minor inconsistences will not usually have that effect unless they point to deliberate untruthfulness. See Leonard Aniseth vs R 1963 EA 206. Tajer SACCA Cr App No. 167 of 1969 Magedn Boona vs Uganda CAU Cr App No. 19 of 1984. Isaya Bikumu vs Uganda SCU Criminal Appeal No. 24 of 1989.

I am of the view that the inconsistences and discrepancies in the prosecution case wherever they occurred were not major but minor ones and as such the prosecution case should not be rejected.

I do further find that there was a common intention as stipulated by section 22 of the Penal Code, when this offence was committed between the accused persons and others not before court. The accused had a common intention to pursue this unlewful act, the cutting of the deceased which developed at the moment th.ey started cutting the deceased with pangas. The accused persons for the sake of emphasis had a common intention with others to kill the deceased. See Dijasi Magayi and Others vs Uganda 1965 EA p 667 at p 670 See also R vs Tabulayenka and others 1943 10 EACA page 51.

There are indeed no defences available to the accused persons. The ${\bf y}$ were not provoked so as to reduce the charge to Manslaughter under section 188 of the Penal Code Act. Nor was the killing accidental or done in selfdefence to entitle the accused person to an acquittal as per sections 17 of the Penal Code nor could it be said that they were intoxicated in that/could/perform a specific intent to kill as provided for under s.13 of the Penal Code. All that the accused informed this court as I stated earlier on wore a pack of lies in order to exonorate themselves from the mess in which they found themselves. They were not truthful witnesses. the

In the end it is the firm view of this court that/prosecution has proved beyond reasonable doubt that the accused persons committed this offence of murder and in complete agreement with

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the unanimous opinion of the gentlemen assessors I find the accused guilty of the offence of Murder contrary to section 183 and 184 of the Penal Code and I convict them accordingly.

> Sgd. I. MUKANZA. JUDGE. $3.1.96.$

$3.1.96:$ Mr. Ogwal for the state.

> Mr. Nyanzi on state brief for accused persons. Ssenyondo court clerk.

Assessors Mr. Ssemazzi and Mr. Naubuga.

Judgment is read in open court and signed. Court:

## Sentence:

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There is only one sentence for a person convicted of this offence. That is the death penalty.

Court: The two accused persons are sentenced to death and shall

> therefore suffer death in the manner authorised by law. See Section $\mathfrak{P}\hspace{-0.15em}\mathfrak{S}$ of the TID. Right of appeal explained.

> > Sgd. I. **MUKANZA** JUDGE. $3.1.96.$