[2018] UGHCCRD 138
The court found that the prosecution failed to adduce sufficient evidence linking the accused to the murder. None of the witnesses saw the accused commit the crime or take the deceased away. The presence of a knife was explained by A2's occupation as a blacksmith. The circumstantial evidence did not irresistibly...
Source-derived case information.
- Citation
- [2018] UGHCCRD 138
- Parties
- Applicant: Uganda; Defendant: Kyomukama Justus; Defendant: Olishaba Simson
- Court
- HC: Criminal Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- HCT-01-CR-SC-0071 OF 2014.
- Procedural Posture
- Criminal Law / Ruling on No Case to Answer
- Outcome
- acquittal
- Judges
- Masalu Musene, J
- Legal Topics
- Murder, No Case to Answer, Circumstantial Evidence, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uganda
Applicant
Kyomukama Justus
Defendant
Olishaba Simson
Defendant
Procedural Posture
Criminal Law / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution has established a prima facie case against the accused persons to require them to make a defence.
- 2 Whether circumstantial evidence adduced is sufficient to link the accused to the murder of Kyomugisha Sitibiya.
Ratio Decidendi
The court found that the prosecution failed to adduce sufficient evidence linking the accused to the murder. None of the witnesses saw the accused commit the crime or take the deceased away. The presence of a knife was explained by A2's occupation as a blacksmith. The circumstantial evidence did not irresistibly point to the guilt of the accused. Therefore, no reasonable tribunal could convict based on suspicion alone. The accused were acquitted under Section 73(1) of the Trial on Indictments Act for no case to answer.
Court Disposition
acquittal
Orders
- Both accused persons are acquitted under Section 73(1) of the Trial on Indictments Act on no case to answer.
- Pleas of not guilty entered for both accused.
Full Case Text
Judgment text and source record
33 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**
**HCT-01-CR-SC-0071 OF 2014.**
**UGANDA............................................................. PROSECUTOR**
**VERSUS**
**A1-KYOMUKAMA JUSTUS**
**A2-OLISHABA SIMSON............................................... ACCUSED**
**RULING.**
**BEFORE: HIS LORDSHIP MR. JUSTICE WILSON MASALU MUSENE.**
The two accused were indicted with the offence of murder C/S 188 and 189 of the Penal Code Act. The particulars were that the two accused on 3/10/2013 at Karubongoya village in Kyenjojo District murdered Kyomugisha Sitibiya. The two accused denied the charges and the prosecution relied on a post mortem report and called two witnesses.
At the end of the prosecution case, Mr. Kateeba Cosma for accused made submissions on no case to answer. He stated that whereas the ingredients of death of the deceased and death being unlawfully caused were established, the rest of the ingredients were not proved. Counsel added that both PW1 and PW2 were not at home but were informed that Kyomugisha was missing. And when a search was conducted, the dead person was recovered. He also added that the two accused were among the search party.
Counsel concluded that there is no evidence of participation of the accused persons in the alleged murder.
In reply, M/S Aihimbisibwe Alice for state submitted that PW1 testified that A2, who is her son had always threatened to kill Kyomugisha Sitibya and had abandoned the child.
She added that A1 had a knife on the fateful day and that the two accused had a common intention of killing the deceased.
I have considered the submissions on both sides. In the case of **[Bhatt V R [1957] EA 332.** It was held that a submission of no case to answer be upheld where a reasonable tribunal properly directing its mind to the evidence and the law would not proceed to convict if accused decided to offer no evidence at the close of the case for the prosecution.
In the present case, none of the two prosecution witnesses saw the accused persons killing or taking away the deceased to be killed. PW2, Twesigomwe Warreni’s testimony was that when he returned from grazing at 2:00 p.m, he found Sitibiya Kyomugisha had disappeared.
PW1 was specific that she did not know who killed the deceased. So where prosecution witnesses are non committal as to whether the two accused participated in the murder or not, then no reasonable tribunal can proceed to convict them on mere suspicion, I agree with counsel for accused that the presence of the knife with A2 was explained by the fact that he was a blacksmith making knives and pangas and was going to the market to sell the same.
The circumstantial evidence on record does not irrestably point to the guilt of the two accused persons. In the premises, I enter pleas of Not guilty and acquit both accused persons U/S 73 (1) of the T. I. A. on no case to answer.
.................................
**Wilson Masalu Musene**
**Judge.**
**31/5/2018**
Two accused present
M/S Alice Aihimbisibwe for State
Mr. Clauda Arinaitwe holding brief for Cosma Kateeba
Assessors present
Ikiriza, court clerk present
**Signed; (Wilson Masalu Musene)**
**Judge.**
**Court:** Ruling read out in open court.
..................................
**Wilson Masalu Musene**
**Judge.**